Rose v. Kanawha Cnty. Bd. of Educ., CIVIL ACTION NO. 2:15-cv-02473

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Docket NumberCIVIL ACTION NO. 2:15-cv-02473
Decision Date28 March 2016

DEBORA ROSE, Plaintiff,

CIVIL ACTION NO. 2:15-cv-02473


March 28, 2016


Pending before the Court is Defendant's Amended Motion to Dismiss ("Defendant's Motion").1 (ECF No. 13.) For the reasons provided herein, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion.

I. Background

This case relates to an employment dispute between Plaintiff (the employee) and Defendant (the employer). Defendant is "organized . . . under West Virginia law." (ECF No. 1 ¶ 2.) "Plaintiff

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is a resident of Kanawha County, West Virginia, and at all times relevant to the allegations of [the] Complaint, has been an employee of Defendant." (Id. ¶ 3.)

The Complaint alleges that Plaintiff "is not subject to any of the exemptions from the minimum wage and maximum hour provisions of the" Fair Labor Standards Act (the "FLSA"). (Id.) The Complaint also alleges that Plaintiff "previously received overtime compensation on some occasions in an amount representing one and one-half times her regular rate of pay for all hours over forty worked in any one workweek." (Id.)

The Complaint avers that "[r]ecords of employee working time at Defendant's Elkview Bus Garage are created by the FLSA non-exempt employees 'swiping' a personally-identifying card through an electronic time clock that then records the time of each such swipe." (Id. ¶ 4.) The Complaint also alleges that, "[f]or a period of time prior to the institution of this action, Plaintiff kept and maintained her own, hand-written yet accurate records of the times at which she would swipe her personally-identifying card through the electronic time clock." (Id. ¶ 6.) The Complaint avers that Plaintiff began "making her own independent records of swipes upon a suspicion that she was not being paid for all of the hours she was actually . . . work[ing] . . . ." (Id.)

The Complaint alleges that "the current supervisor of" the "Elkview Bus Garage" is "Peggy Whitaker." (Id. ¶ 4.) The Complaint avers that, "[p]ursuant § 83.04 of Defendant's Time and Attendance Policy, the appropriate supervisor is to review and to approve each employee's time records . . . following the end of the payroll period." (Id. ¶ 8.) Plaintiff further avers—"[u]pon information and belief"—that "the electronic process for the review and approval of employee time records permits the supervisor to alter the records created by the electronic time clock." (Id.)

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The Complaint alleges that, "[o]n or about October 22, 2014, Plaintiff requested from Whitaker a print-out of" Plaintiff's "[t]imesheet generated by her own time clock swipes with her supervisor's edits and approvals of the time recorded." (Id. ¶ 10.) The Complaint also avers that, "[w]hen asked by Whitaker why [Plaintiff] wanted the records, Plaintiff answered that she was seeking the print-out for purposes of testing whether Plaintiff's actual working time was being . . . reduced without her knowledge or consent." (Id.) The Complaint alleges that "Whitaker . . . provided the requested records for the time period from August 10, 2014-October 22, 2014, but did so with her own hand-written notes on it challenging some of Plaintiff's time entries that had already been approved by Whitaker." (Id.) The Complaint avers that Plaintiff then compared this time sheet with her "hand-written notes" and found "no fewer than 28 instances over the course of . . . 55 working days on which Plaintiff's time clock swipes were reduced or eliminated." (Id. ¶ 11.)

The Complaint next alleges that "[a]lmost immediately upon [Plaintiff's] October 22 request to Whitaker for a print-out of her . . . [t]imesheet, Whitaker pursued a pattern of conduct . . . in retaliation for Plaintiff's notification to Whitaker of [Plaintiff's] belief that Defendant was not paying [Plaintiff] in accordance with" the requirements of the FLSA. (Id. ¶ 12.) In particular, the Complaint avers that "Plaintiff requested from Whitaker permission to take off three consecutive days of work using [Plaintiff's] accrued personal leave" and Whitaker responded by "approving a single day of the requested leave but denying the others." (Id.) The Complaint further alleges that "Whitaker then posted a notice to all employees that there would be no leave approved on the particular days sought by Plaintiff," but nevertheless "allowed another employee to take off work during those days using personal leave." (Id. ¶ 13.) The Complaint alleges that, "upon

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information and belief," Whitaker engaged in "a pattern of harassment and retaliation for Plaintiff's complaint voiced . . . two weeks earlier that Whitaker was altering [Plaintiff's] time records" by (1) "den[ying] . . . Plaintiff's request for personal leave;" (2) relying "on specious reasoning for denying [Plaintiff's] leave request;" and (3) "false[ly] claim[ing] that she was denying all leave during the particular days sought by Plaintiff." (Id. ¶ 15.)

The Complaint alleges that, despite the denial of her request, "Plaintiff . . . did not work" and "took sick leave" on "the days for which her request for personal leave had been denied." (Id. ¶ 14.) The Complaint then avers that, "[c]iting an alleged violation of Defendant's Employee Attendance Policy in her request for sick leave, Defendant suspended Plaintiff from her employment with pay effective November 14, 2014." (Id. ¶ 15.) The Complaint alleges that this "paid suspension . . . was converted to a two-day, unpaid disciplinary suspension," which Plaintiff "served . . . on January 6 and 7, 2015." (Id. ¶ 16.) Finally, the Complaint avers that "Defendant failed and refused to pay Plaintiff wages she was owed and had not previously been paid on her next regular payday." (Id.)

Plaintiff filed the Complaint in this Court on March 4, 2015. (ECF No. 1.) The Complaint asserts that Defendant's alleged conduct violated numerous sections of the FLSA, including provisions under 29 U.S.C. §§ 207, 211, 215, and 217, (see id. ¶¶ 17, 19-22; see also id. ¶ 17 (asserting that Defendant's alleged conduct "may also violate" 29 U.S.C. § 206)), as well as Defendant's obligations under the West Virginia Wage Payment and Collection Act (the "WPCA"), (see id. ¶ 24). The Complaint includes the following prayers for relief: (1) "[a]n order entered pursuant to 29 U.S.C. § 217 of the [FLSA] permanently enjoining and restraining Defendant . . . from violating 29 U.S.C. §§ 206, 207, 211(c), 215(a)(2), (3) and (5) of the [FLSA];"

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(2) "[a]n order entered pursuant to 29 U.S.C. § 216(b) finding Defendant liable to Plaintiff for all damages she has suffered as the result of the alteration of her time records and any resulting denial of wages she should have received . . . as a result of Defendant's violations of 29 U.S.C. § 215(a)(3);" (3) "damages incurred over a period of three years predating the filing of [the] Complaint under 29 U.S.C. § 255 for" Defendant's alleged "willful violations of the [FLSA];" (4) "[a]n order entered pursuant to West Virginia Code § 21-5-4 finding Defendant liable for all damages Plaintiff has suffered as the result of the denial of pay she was owed as of the next regular payday following her unpaid suspension;" and (5) "liquidated damages in an amount equal to [Plaintiff's] actual damages and her attorney fees and costs associated with the pursuit of this action," as well as treble damages for Defendant's alleged violations of the WPCA. (Id. at 10-11.)

On May 11, 2015, Defendant filed its initial Motion to Dismiss. (ECF No. 5.) On June 22, 2015, Defendant filed a Motion to Enter Judgment on Defendant's Motion to Dismiss (the "Motion to Enter Judgment"). (ECF No. 9.) The next day, Plaintiff untimely filed her opposition to Defendant's initial Motion to Dismiss. (ECF No. 11.) Defendant then filed Defendant's Motion on August 3, 2015. (ECF No. 13.) To date, Plaintiff has not filed a responsive briefing to Defendant's Motion. As such, Defendant's Motion is ready for disposition.

II. Subject Matter Jurisdiction

Defendant first challenges this Court's subject matter jurisdiction over Plaintiff's FLSA claims pursuant to Federal Rule of Civil Procedure 12(b)(1).2 (See ECF No. 14 at 4-7.) In

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particular, Defendant argues that the Court lacks subject matter jurisdiction to address the merits of Plaintiff's claims under both of the specific statutory provisions that Plaintiff cites in the Complaint for the purpose of invoking this Court's jurisdiction—29 U.S.C. §§ 216(c) and 217.3 (See id. See generally ECF No. 1 ¶ 1 (providing Plaintiff's assertion in the Complaint that "[j]urisdiction over this action is conferred on this [C]ourt by Sections 16(c) and 17 of the [FLSA], 29 U.S.C. §§ 216(c) and 217").)

For the reasons provided below, the Court agrees with Defendant's arguments that Plaintiff lacks standing to raise claims under either Sections 216(c) or 217 of the FLSA. Nonetheless, the Court finds that it has federal question jurisdiction over Plaintiff's remaining Section 216(b) claims.

A. Standard for Rule 12(b)(1) Motions

"Under Rule 12(b)(1), a federal court must dismiss a claim if the court lacks [subject matter] jurisdiction over the claim." Zimmeck v. Marshall Univ. Bd. of Governors, Civil Action

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No. 3:13-14743, 2013 WL 5700591, at *2 (S.D. W. Va. Oct. 18, 2013). See generally Newman v. Gen. Servs. Corp., Civil Action No. 3:11cv783, 2012 WL 1882903, at *1 (E.D. Va. May 22, 2012) (noting that "[a] Rule 12(b)(1) motion most typically is employed when the movant believes that the claim asserted by the plaintiff does not involve a federal question, and there is no diversity of citizenship between the parties" (citation omitted)). "A motion to dismiss pursuant to Rule 12(b)(1) raises the fundamental question of whether a court is competent to hear and adjudicate the claims brought before it." Adkins v. United States, 923 F. Supp....

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