Acosta Colon v. Wyeth Pharmaceuticals Co.

• Decision Date: 23 March 2005
• Docket Number: CIVIL No. 03-2327 (DRD).
• Parties: Lilliam ACOSTA COLON, et al., Plaintiffs, v. WYETH PHARMACEUTICALS COMPANY, Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 24

363 F.Supp.2d 24

Lilliam ACOSTA COLON, et al., Plaintiffs, v. WYETH PHARMACEUTICALS COMPANY, Defendants.

CIVIL No. 03-2327 (DRD).

United States District Court, D. Puerto Rico.

March 23, 2005.

Maria J. Marchand-Sanchez, Ferraiuoli-Torres & Marchand, San Juan, PR, for Plaintiffs.

Maggie Correa-Aviles, McConnell Valdes, San Juan, PR, for Defendant.

OPINION AND ORDER

DOMINGUEZ, District Judge.

Pending before the Court is defendant, Wyeth Pharmaceuticals Company's ("defendant") Motion to Dismiss. (Docket No. 10). For the reasons stated below, defendant's request to dismiss is DENIED.

I. PROCEDURAL BACKGROUND

On December 10, 2003, plaintiffs presented a claim for unpaid wages under the Fair Labor Standard Act ("FLSA"), as amended, 29 U.S.C.A § 201. (Docket No. 1). Plaintiffs, a group of employees and ex-employees of Whyeth Pharmaceuticals Company Inc., allege that, pursuant to Section 16(b) of the FLSA, 29 U.S.C. § 216(b), defendant owed them unpaid wages for time spent dressing "pre shift" and undressing "post shift" into and out off their working uniforms when remaining within the production area. The clothing included hair covers, beard covers, dust masks, long sleeved uniforms, slacks, long lab coats, pant suits, gloves, safety shoes, eye protection equipment, and coveralls, among others.

On March 4, 2004, Wyeth Pharmaceutical Company, Inc. filed a motion to dismiss alleging this Court's lack of jurisdiction over a group of 14 plaintiffs. Defendant avers that these 14 plaintiffs filed the complaint more than two years after they were separated from employment. Thus, the claims brought forth by this group of plaintiffs are time barred. They further argue that, under that provided by 29 U.S.C.A. § 255, any type of action for unpaid minimum wages, unpaid overtime, or liquidated damages under FLSA may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless it is commenced within two years after the cause of action accrued.¹ The only exception to the two year statute of limitations the FLSA makes is if the cause of action arose out of a willful violation. If that were the case, then, the action may be commenced within three years after the cause of action accrued. Defendant contends that plaintiffs did not present any specific fact or allegation in the complaint in order to prove or establish their alleged willful violation of the FLSA. Consequently, the two year statute of limitations is the only one applicable to the facts alleged in the complaint, and the instant claims against it brought forth by the aforementioned group of plaintiffs must be dismissed given that they are time barred.

On March 30, 2004, plaintiffs filed their opposition to the motion to dismiss arguing, first and foremost, that their general allegation as to willfulness suffices the general rules of pleadings as established by Fed.R.Civ.P. 8. Moreover, they propose that the issue of whether an employer willfully violated the FLSA requires a factual determination that must be made by the trier of facts. Hence, it is the jury who must determine whether defendant willfully violated the FLSA and, subsequently whether the two or three year statute of limitation is applicable as to each plaintiff. (Docket No. 14). On April 28 2004, defendant replied to plaintiffs' opposition alleging that, among others, the lack of uniform and clear reported decisions as to the compensability of gowning and/or donning and doffing of working clothes demonstrates that Wyeth did not have knowledge and could not have knowledge as to if its actions violated the FLSA.² Also, defendant argues the issue of willfulness need not be tried by the jury given that both this District Court and the First Circuit Court of Appeals have summarily disposed of the willfulness issue before being presented to the jury. (Docket No. 21). On October 4, 2004, plaintiffs filed a sur-reply to defendant's reply to the opposition wherein plaintiffs adopted the arguments it had already raised in their opposition. (Docket No. 40).

II. MOTION TO DISMISS STANDARD

"[I]t is well established that affirmative defenses [such as time prescription] may be raised in a motion to dismiss in an action for failure to state a claim". Blackstone Realty LLC v. FDIC, 244 F.3d 193, 197 (1st Cir.2001); LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir.1998)("In the case of the affirmative defense of statute of limitations, dismissal is entirely appropriate when the pleader's allegations leave no doubt that an asserted claim is time barred".); Aldahonda-Rivera v. Parke Davis and Company, 882 F.2d 590, 592 (1st Cir.1989)("When a defendant raises an affirmative defense that is obvious on the face of plaintiff's pleadings, and the court makes the ruling based only on those pleadings, the motion is treated as a Rule 12(b)(6) motion to dismiss"). In cases in which the affirmative defense is based on the statute of limitations, the Court may grant a motion to dismiss if the pleader's allegations leave no doubt that the asserted claim is time-barred. See, Street v. Vose, 936 F.2d 38, 39 (1st Cir.1991); Kali Seafood Inc. v. Howe Corp., 887 F.2d 7, 9 (1st Cir.1989). See also Estate of Alicano-Ayala v. Philip Morris, Inc., 263 F.Supp.2d 311, 315 (D.Puerto Rico 2003).

III. APPLICABLE LAW

Under the FLSA, all employers are required to pay time and a half for each hour in excess of forty hours that an employee works. 29 U.S.C. § 207. Accordingly, Section 16(b) of the FLSA allows any employee to, in order to vindicate his or her rights, bring an action on behalf of him or herself and other similarly situated employees. 29 U.S.C. § 216(b). Section 16(b) is itself modified by the Portal-to-Portal Act of 1947, 29 U.S.C. § 251-62. Section 6 of the Portal-to-Portal Act, in turn, provides that any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages under the FLSA "may be commenced within two years after the cause of the action accrued, except that a cause of action arising out of the willful violation may be commenced within three years after the cause accrued." 29 U.S.C. § 255.³

As the Supreme Court of the United States has said before, "[t]he fact that Congress did not simply extend the limitations period to three years, but instead adopted a two-tiered statute of limitations, makes it obvious that Congress intended to draw a significant distinction between ordinary violations and willful violations." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 132, 108 S.Ct. 1677, 1681, 100 L.Ed.2d 115 (1988). Consequently, even though for many years, the prevailing test for "willfulness" under the FLSA was whether the employer knew or had reason to know that the FLSA was applicable to its employment practices,⁴ the Supreme Court opted to reject this so-called Jiffy June standard⁵ on grounds that it was excessively broad and blurred any distinction between willful and non-willful violations. See Richland Shoe Co., 486 U.S. at 131, 108 S.Ct. 1677, supra; Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985); Maldonado v. Administracion de Correccion (Div. Instituciones Penales), No. 90-2186(JP), 1993 WL 269654, *2-3, 1993 U.S. Dist. LEXIS 9577, at *6-7 (D.P.R. Feb. 5, 1993). Recent jurisprudence has rejected the application of the Jiffy June standard to considerations of the appropriate statute of limitations for willful violations of the FLSA adopting the Thurston standard which concludes that an employers'"violation of the Act [is] `willful' if `the employer ... knew or showed reckless⁶ disregard for the matter of whether its conduct was prohibited by the [statute]'" — if his actions were voluntary, deliberate, and/or intentional.⁷ Thurston, 469 U.S. at 128, 105 S.Ct. 613. See also Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668, 679 (1st Cir.1998) (holding that "[a]n employer acts willfully for the purpose of the FLSA's statute of limitations if it knew or showed reckless disregard for the matter of whether its conduct was prohibited by the FLSA."). Moreover, this same standard has been adopted and proliferated by First Circuit and member Districts' case law. See Tum v. Barber Foods, Inc., No. 00-371-P-C, 2002 WL 89399, 2002 U.S. Dist. LEXIS 1064 (D.Me. Jan. 23, 2002) aff'd, 331 F.3d 1 (1st Cir.2003); Baystate Alternative Staffing, Inc., 163 F.3d at 679, supra.

Finally, applying the Thurston standard as the Supreme Court directs in Richland Shoe Co., that a violation of the FLSA is willful where there is evidence establishing that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited. Furthermore, the issue of whether the employer willfully violated the FLSA requires a factual determination that must be made by the trier of fact. That is, the inquiry is necessarily fact-driven and context specific. See Luckacinsky v. Panasonic Serv. Co., No. 03-40141-FDS, 2004 U.S. Dist. LEXIS25846 (D.Mass. Nov. 29, 2004); Maldonado, 1993 WL 269654, at *4, 1993 U.S. Dist. LEXIS 9577, at *11; Lott v. Rigby, 746 F.Supp. 1084, 1089-90 n. 7 (N.D.Ga.1990). Furthermore, in order to establish whether the employer's acts were willful, the fact finder will weigh the following:

[i]f an employer acts reasonably in determining its legal obligation, its action cannot be deemed willful [] under [the Thurston] standard we set forth. If an employer acts unreasonably, but not recklessly, in determining its legal obligation, then, although its actions would be considered willful under petitioner's test [a mid-point between the Jiffy June standard and the Thurston standard], it should not be construed so under Thurston or the identical standard we approve today.

McLaughlin, 486 U.S. at 135 n. 13, 108 S.Ct. at 1682 n. 13. See also, Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 33 (1st Cir.2003).

The First Circuit recently...