Macintyre v. Moore

Citation335 F.Supp.3d 402
Decision Date28 September 2018
Docket Number6:15-CV-06660 EAW
Parties Stephen R. MACINTYRE, and Scott E. Sullivan, Plaintiffs, v. Jack W. MOORE, in his official capacity as supervisor, Town of Henrietta, and Town of Henrietta (Public Agency), Defendants.
CourtU.S. District Court — Western District of New York

Stephen R. MacIntyre, Henrietta, NY, pro se.

Scott E. Sullivan, Canandaigua, NY, pro se.

Heather Dechert, Webster Szanyi, LLP, Buffalo, NY, for Defendants.


ELIZABETH A. WOLFORD, United States District Judge


Pro se Plaintiffs Stephen R. MacIntyre ("MacIntyre") and Scott E. Sullivan ("Sullivan") (collectively, "Plaintiffs") commenced this action on October 30, 2015, alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), and the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. ("ERISA"), against defendant Jack W. Moore ("Moore"). (Dkt. 1). Following this Court's July 28, 2017, Decision and Order, dismissing the complaint and granting Plaintiffs leave to file an amended complaint (Dkt. 15), on September 15, 2017, Plaintiffs filed an amended complaint, alleging FLSA violations against Moore and defendant Town of Henrietta ("the Town") (collectively, "Defendants") (Dkt. 18). In addition, Plaintiffs added a new cause of action for unjust enrichment against Defendants. (Id. at 12-14).

Presently before the Court is Defendants' motion to dismiss, which seeks to dismiss both claims as asserted against Moore and to dismiss the unjust enrichment claim as asserted against the Town. (Dkt. 20). For the following reasons, Defendants' motion is granted insofar as it seeks to dismiss Plaintiffs' unjust enrichment cause of action against both Defendants, but it is otherwise denied.


Plaintiffs were employed by the Town as Engineering Inspectors until their employment was terminated on January 23, 2015. (Dkt. 18 at 3). Plaintiffs were responsible for inspecting construction project sites to ensure that private developers adhered to the Town's standards. (See id. at 4-5). The Town classified Plaintiffs as independent contractors. (Id. at 3).

Plaintiffs were paid an hourly wage, but they received no employment benefits. (Id. at 4). Wage increases did not occur regularly, and "in one case, Plaintiffs waited several years for a wage increase." (Id. ). The Town Engineer directed Plaintiffs' workload and priorities, and, as the years passed, Plaintiffs were required to take on additional office duties. (Id. at 5). Plaintiffs "would sometimes" work more than 40 hours a week, but as of 2012, Plaintiffs were not paid an overtime rate for those work hours exceeding the standard 40 hours per week. (See id. at 5-6). Plaintiffs were informed that the Town Board had decided to stop paying an overtime rate for qualifying work hours. (Id. at 5).

In 2013, the New York State Comptroller (the "Comptroller") completed an audit of the Town, entitled "Financial Management and Purchasing," which concluded that three individuals who performed construction site inspections, and one individual who provided advice to the Town Supervisor "did not meet the majority of the 20 common law criteria for classification as independent contractors, and should likely have been treated as employees." (Dkt. 18-1 at 21 (the Comptroller's report); see Dkt. 18 at 7).2 Plaintiffs hoped that they would eventually be reclassified as "Town Employees." (See Dkt. 18 at 7-8).

Subsequently, in January of 2014, Moore assumed the position of Town Supervisor. (Id. at 7). Beginning in October of 2014, Plaintiffs were asked to provide "a concept plan of what [they] would charge for inspection services if they began their own business." (Id. at 8). In December of 2014, Plaintiffs learned that the Town Engineer had been asked to compare the costs submitted by Plaintiffs with the costs of inspections performed by three engineering firms. (Id. ). Plaintiffs also alleged that Moore had told an unidentified individual that he did not want to hire Plaintiffs as full-time employees because, " ‘I don't want to pay the benefits.’ " (Id. ). In January of 2015, Plaintiffs were notified that they would no longer be employed as Engineering Inspectors for the Town, and that the engineering firms would be utilized to satisfy the Town's needs. (Id. ).

In April of 2015, MacIntyre filed an unemployment claim with the New York State Department of Labor ("NYSDOL"). (Id. at 9). Although MacIntyre's claim was initially denied, he was given a form to complete on his administrative appeal that "addressed the terms and conditions" of his employment. (Id. ). The NYSDOL subsequently approved MacIntyre's unemployment claim. (Id. ).

Plaintiffs claim that they were misclassified as independent contractors because: (1) Plaintiffs' "services were crucial to the Town to ensure that the Town's construction standards were met"; (2) Plaintiffs "had no opportunity for profit or loss" in their positions as Engineering Inspectors; (3) "the tools required to perform the Town's inspection services were provided by the Town"; (4) Plaintiffs' positions as Engineering Inspectors "were fairly basic" and did not require "any specialized skills, licenses or certification"; (5) Plaintiffs held "continuous employment with the Town that lasted several years"; and (6) "Plaintiffs were expected to follow the same work schedule as regular town employees," and their work priorities and tasks were managed by the Town Engineer. (Id. at 9-11). Plaintiffs also claim that Moore and the Town each meet the definition of an "employer" under the FLSA. (Id. at 11-12).

Plaintiffs further allege that Defendants were unjustly enriched by Plaintiffs' performance of their job requirements. (Id. at 12). Plaintiffs argue that, by misclassifying them as independent contractors rather than employees, Defendants were able to save over $100,000 per year on salary payments and employment benefits. (Id. at 12-13). Plaintiffs allege that their relationship with Defendants was "wholly one-sided and existed without a mutually agreed, enforceable contract" (id. at 12), and that by failing to take action after the Comptroller concluded that Plaintiffs were misclassified as independent contractors, Defendants did not act in good faith (id. at 13).


Plaintiffs filed a complaint on October 30, 2015, alleging that Moore had violated the FLSA and ERISA. (Dkt. 1). On September 19, 2016, Moore filed a motion to dismiss for failure to state a claim. (Dkt. 4). On October 13, 2016, Plaintiffs filed a motion to amend/correct their initial complaint. (Dkt. 8). On July 28, 2017, the Court issued a Decision and Order granting Moore's motion to dismiss, but also granting Plaintiffs' motion for leave to file an amended complaint. (Dkt. 15).3

In dismissing Plaintiffs' original complaint, the Court noted that "Plaintiffs seek leave to add the Town of Henrietta as a defendant in this action." (Id. at 10). In their motion for leave to file an amended complaint, Plaintiffs indicated that the "[a]mended complaint needs to list Town of Henrietta' as a separate Defendant and not collectively as was shown on [the] original complaint. This change resolves an ‘employer’ issue crucial to the case." (Dkt. 8 at ¶ 6). The Court concluded that "[b]ecause Plaintiffs may be able to assert a plausible FLSA claim against the Town of Henrietta and/or Moore, they are granted leave to do so." (Dkt. 15 at 11). Plaintiffs were granted thirty days to amend their complaint "consistent with [the] Decision and Order." (Id. at 12).

On September 15, 2017, Plaintiffs filed their amended complaint, asserting claims for the recovery of unpaid overtime under the FLSA as well as damages under a common law theory of unjust enrichment against Moore, in his official capacity as Town Supervisor, and the Town. (Dkt. 18). On October 25, 2017, Defendants filed a motion to dismiss, seeking the dismissal of the unjust enrichment claim as asserted against both Defendants, and the dismissal of the FLSA claim as asserted against Moore. (Dkt. 20). Plaintiffs have opposed Defendants' motion. (Dkt. 22).

I. Legal Standard

"In considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Newman & Schwartz v. Asplundh Tree Expert Co. , 102 F.3d 660, 662 (2d Cir. 1996) (quoting Kramer v. Time Warner, Inc. , 937 F.2d 767, 773 (2d Cir. 1991) ). A court should consider the motion by "accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor." Ruotolo v. City of N.Y. , 514 F.3d 184, 188 (2d Cir. 2008) (internal quotations and citation omitted). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Turkmen v. Ashcroft , 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). Thus, "at a bare minimum, the operative standard requires the plaintiff [to] provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level."...

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