Johnston v. Davis Security, Inc.,

• Decision Date: 09 September 2002
• Docket Number: No. 2:01CV825K.,2:01CV825K.
• Citation: 217 F.Supp.2d 1224
• Parties: Wanda JOHNSTON, Plaintiff, v. DAVIS SECURITY, INC., et al., Defendants.
• Court: U.S. District Court — District of Utah

217 F.Supp.2d 1224

Wanda JOHNSTON, Plaintiff, v. DAVIS SECURITY, INC., et al., Defendants.

No. 2:01CV825K.

United States District Court, D. Utah, Central Division.

September 9, 2002.

Joann Shields, Packard, Packard & Johnson, Salt Lake City, UT, for plaintiff.

W. Mark Gavre, Parsons, Behle & Latimer, Salt Lake City, UT, Mary Anne Q. Wood, Larry S. Jenkins, Wood, Crapo, LLC, Salt Lake City, UT, for defendants.

MEMORANDUM DECISION AND ORDER

KIMBALL, District Judge.

This matter is before the court on Defendants Davis Security, Inc., John Davis, and Michael Pitts's Motion for Partial Summary Judgment or to Dismiss Counts III Through XIII and XVI. The court held a hearing on this motion on August 20, 2002. At the hearing, Plaintiff was represented by JoAnn Shields, and Defendants were represented by Mary Anne Q. Wood. Having fully considered the motions, memoranda, affidavits, and exhibits submitted by the parties and the facts and law relevant to this motion, the court enters the following Order.

BACKGROUND

For purposes of this motion, Defendants have admitted that the allegations in Plaintiff's Complaint are true.

Plaintiff Wanda Johnston worked for Davis Security from March 2000 through February 2001, as a security guard at the Foothill Village shopping center. Johnston was hired to work for $8.00 per hour and her overtime and holiday pay was calculated at one and one-half times her regular rate. In September 2000, Plaintiff's regular rate of pay was increased to $8.50 per hour. However, at this time, Davis Security began to alter Plaintiff's regular rate depending on the number of hours she worked overtime so that her total compensation equaled $8.50 per hour. Plaintiff spoke to Defendants several times about the change in her method of pay and Defendants always assured her that it was correct.

When Davis Security lost its contract to provide security at Foothill Village, Plaintiff gave her two-week notice that she was quitting and going to work for IPC, the new security company contracting with Foothill Village. Johnston claims that Davis Security retaliated against her by calling and telling her new employer that she was suing Davis Security, that she was suing her new employer, that she was improperly collecting workers compensation benefits, and that Davis security was going to call the corporate headquarters and property manager of her new employer to tell them that she was suing Davis Security for back wages.

Plaintiff claims that Davis Security's call to IPC negatively affected her new employer's view of her and her continued employment, her new supervisor did not appear to believe her side of the story, and she has not worked in the security industry for several months. Plaintiff also claims that Defendants' actions caused her to experience so much anxiety that she could not sleep, had trouble eating, started experiencing panic attacks, suffered depression, and required her to take tranquilizers to help her cope with her trauma.

Plaintiff has brought claims against Defendants under the Fair Labor Standards Act ("FLSA") for unpaid wages and overtime, plus liquidated damages, attorney fees and costs and for retaliation. Based on the same facts, Plaintiff has also brought ten additional state common law claims for civil conspiracy, conversion, unjust enrichment, fraud by material omission, fraud by affirmative misrepresentation, negligent misrepresentation, gross negligence, breach of contract, breach of implied covenant of good faith and fair dealing, breach of fiduciary duty, and intentional infliction of emotional distress.

DISCUSSION

Defendants' Motion for Partial Summary Judgment or to Dismiss

Defendants have filed a motion for partial summary judgment or to dismiss claiming that Plaintiff's state common law claims are preempted by the FLSA because they are based on the same set of facts as her FLSA claims. Defendants also claim that Plaintiff has failed to state a claim for retaliation under the FLSA because she has not alleged any adverse action or damages as a result of the alleged retaliatory conduct. In addition, Defendants seek dismissal of Plaintiff's request for punitive damages as a result of the alleged retaliatory conduct. Furthermore, Defendants seek to have Plaintiff's intentional infliction of emotional distress claim dismissed on the grounds that the conduct alleged is not sufficiently outrageous to meet the standards necessary to make such a claim under Utah law.

A. Preemption of State Common Law Claims

Defendants argue that because Plaintiff's Counts III through XII and part of Count XVI are based on the same facts and seek damages for the same overtime violations she alleges under her FLSA claims, the state law claims are preempted. Defendants contend that Plaintiff has asserted these state common law claims to get additional types of damages not provided as remedies under the FLSA, such as consequential and punitive damages.

As an initial matter, Plaintiff argues that Defendants waived any preemption affirmative defense by not raising it in their Answer. However, the Tenth Circuit has recognized that an affirmative defense can be raised by a motion for summary judgment. Smith v. Spain, 1998 WL 4358, *1 (10th Cir. Jan.8, 1998) (affirmative defense of qualified immunity may be raised by a motion for summary judgment). In this case, there is no prejudice to Plaintiff in allowing the defense to be raised by motion. The initial pretrial conference was held in June and the case is in the early stages of discovery. Plaintiff was also given adequate time to respond to this motion.

As to the merits of the preemption issue, Plaintiff argues that the Defendants actively made misrepresentations that fraudulently induced Plaintiff not to vindicate her FLSA rights to overtime. Therefore, she contends that her state common law claims are not stating the same claims as her FLSA overtime claim.

The FLSA creates statutory rights for employees to earn a minimum pay for their work in excess of a forty-hour work week and sets forth remedies for violations. 29 U.S.C. §§ 206, 207, 216(b). In Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1399 (10th Cir.1997), the Tenth Circuit dismissed a retaliatory discharge claim brought under Kansas common law because the plaintiff was also asserting a retaliatory claim under the FLSA. The court stated that "plaintiffs seeking to assert a common law cause of action for retaliation when they have a federal statutory right" are precluded from bringing the common law claim because of the "alternative statutory remedy available under the FLSA." See id.

Plaintiff relies on cases holding that state overtime wage law is not preempted by the FLSA because the FLSA's savings clause "allows states and municipalities to enact stricter wage and hour laws." Williamson v. General Dynamics Corp., 208 F.3d 1144, 1148 (9th Cir.2000). In Williamson, the court allowed a common law fraud claim to proceed that was based on an employer's representations that the employees had career jobs. Id. at 1152. Based upon the employer's representations that they had career jobs, the plaintiffs did not participate in a class action FLSA case. The court found that there was no preemption because the plaintiff's were never subject to the FLSA's anti-retaliation provision and their claims did not "merely duplicate possible federal retaliation claims." Id. The plaintiffs in Williamson did not pursue their appeal of wage fraud claims that asserted the employer pledged to be honest and law abiding with regard to paying overtime but stopped paying overtime. Id. at 1148.

In this case, Plaintiff's common law claims are based on the same facts and circumstances as her FLSA claims. Plaintiffs claims are almost identical to the wage fraud claims in Williamson that the plaintiffs chose not to pursue on appeal. Plaintiff's allegation that Defendants claimed to be calculating overtime properly, when in fact they were not, is the basis for the FLSA claims. Plaintiff has not made any allegations that there was intentional fraud on the part of Defendants only that they claimed to be following the law. The factual circumstances present in this case do not give rise to actions separate from Plaintiff's FLSA claims.

The court concludes that, even based on the reasoning of Williamson, Plaintiff's common law claims would be barred as merely duplicative of her FLSA claims. Defendant has not brought any state statutory claims, only common law claims. The cases cited by Plaintiff where the plaintiffs were allowed to pursue state law claims in tandem with FLSA claims involved state wage law claims rather than common law claims and are, therefore, inapplicable to the present case. Similarly, cases relied on by Plaintiff that involve plaintiffs who were not covered by FLSA's overtime protection are inapplicable. Accordingly, Defendants' motion to dismiss Plaintiff's state common law claims is granted.

B. Retaliation Claim

Defendants argue that Plaintiff has failed to allege a prima facie case of retaliation under the FLSA because she has not alleged that as a result of Davis Security's alleged actions she suffered an adverse employment impact or any resulting damages. Therefore, they assert that even assuming all of Plaintiff's allegations regarding Defendants' telephone call to her new employer are true, Plaintiff's retaliation claim should be dismissed as a matter of law.

1. Prima Facie Case

To establish a prima facie case of retaliation under the FLSA, Plaintiff must show that

(1) he or she engaged in activity protected by the FLSA; (2) he or she suffered adverse action by the employer subsequent to or contemporaneous with such employee activity; and (3) a causal connection existed between the employee's activity and the employer's adverse action.

Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.1997). In the context of posttermination retaliation against a former employer, the...