Scalia v. F.W. Webb Co.
| Decision Date | 21 April 2021 |
| Docket Number | Civil Action No. 20-cv-11450-ADB |
| Parties | EUGENE SCALIA, Secretary of Labor, United States Department of Labor, Plaintiff, v. F.W. WEBB COMPANY, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
BURROUGHS, D.J.
Plaintiff Eugene Scalia, Secretary of Labor, United States Department of Labor ("Plaintiff"), brings this action against Defendant F.W. Webb Company ("Webb"), seeking to enjoin Webb from withholding overtime wages and from violating the Fair Labor Standards Act of 1938 (the "FLSA"), and to recover punitive damages for Webb's alleged unlawful retaliation against its employees. [ECF No. 1 ¶¶ 1-2 ("Compl.")]. Currently before the Court is Webb's motion to dismiss Count III of the complaint, a claim for unlawful retaliation against employees. [ECF No. 9]. For the reasons set forth below, Webb's motion is DENIED.
For purposes of this Order, facts are drawn from the complaint, [Compl.], and interpreted in the light most favorable to Plaintiff. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2011). As it must, the Court "accept[s] the truth of all well-pleaded facts and draw[s] all reasonable inferences therefrom." Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012).
Plaintiff is the Secretary of Labor, United States Department of Labor ("DOL"), and is vested with authority to restrain violations of the FLSA. [Compl. ¶ 6]. Webb is a corporation, with its main office in Bedford, Massachusetts, that sells "plumbing, heating, cooling, PVF (pipes, valves, and fittings), industrial products, and other related fixtures and equipment" from more than ninety locations in multiple states. [Id. ¶¶ 9-11]. The DOL's Wage and Hour Unit launched an investigation into allegations of FLSA violations by Webb between April 9, 2017 and April 6, 2019 (the "Relevant Period"). [Id. ¶ 7]. During the Relevant Period, Webb employed more than 500 salespersons. [Id. ¶¶ 12-18]. Plaintiff filed this suit following the conclusion of its investigation.
Plaintiff alleges in its complaint that during the Relevant Period, Webb: (1) failed to pay inside salespersons overtime wages as required by the FLSA; (2) retaliated against employees engaged in protected activity; and (3) failed to keep true and accurate records of the hours that non-exempt employees worked, in violation of the FLSA. [Compl. ¶¶ 62, 65, 67].
Among other tasks, salespersons employed by Webb sold products to customers, received and handled sales inquiries, attempted to purchase and procure products for customers if those products were out of stock, quoted prices to customers and handled bids, and scheduled and managed customer deliveries. [Compl. ¶ 32]. Webb determined the prices for stock items, with deviations requiring supervisor approval and allowed only along clear formulaic lines. [Id. ¶¶ 33-34]. Plaintiff maintains that the primary duty of salespersons employed inside Webb'slocations was not managerial, directly related to general business operations, or focused on building Webb's business in general. [Id. ¶¶ 36-41]. The complaint alleges that during the Relevant Period, salespersons worked forty-five hours or more per week, on average, and were not paid overtimes rates. [Id. ¶¶ 43-45]. Plaintiff also claims that Webb did not make, keep, and preserve adequate and accurate records (as required by the FLSA) of the hours worked by these salespersons. [Id. ¶¶ 47-48].
Additionally, and relevant to the instant motion, Plaintiff claims that Webb sent three emails to its salespersons that "deterred and chilled employees from speaking freely to [Plaintiff]'s representatives and participating in the U.S. DOL Investigation." [Compl. ¶ 50]. The three emails, which were sent to employees who Webb knew or had reason to believe had been contacted or would likely be contacted by the DOL or who had spoken or were about to speak to DOL representatives in the investigation, [id. ¶¶ 54-55], included: (1) a January 18, 2018 email sent to approximately fifty sales employees; (2) a February 28, 2018 email sent to a listserv for sales employees; and (3) a March 12, 2019 email sent to listservs for both sales employees and non-sales employees. [Id. ¶¶ 51-53].
All three emails asked employees to notify Webb representatives if the DOL contacted them, saying this was meant to help "track who has been contacted." [Compl. ¶ 57]. Plaintiff alleges that these three emails dissuaded employees from speaking freely to DOL investigators and that salespersons and other employees "could have and/or did reasonably believe," based on these emails, that they could suffer negative consequences if they participated in the DOL investigation. [Id. ¶¶ 58, 59].
Plaintiff filed the complaint on July 31, 2020, bringing FSLA claims for failure to pay overtime (Count I), failure to make and keep adequate records (Count II), and unlawful retaliation (Count III). [Compl. ¶¶ 61-67]. On October 26, 2020, Webb moved to dismiss Count III of the complaint. [ECF No. 9]. Plaintiff filed his opposition on November 9, 2020, [ECF No. 11], and, on November 23, 2020, Webb filed its reply, [ECF No. 14].
In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d 74, 76, 80 (1st Cir. 2019). "[D]etailed factual allegations" are not required, but the complaint must set forth "more than labels and conclusions." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The alleged facts must be sufficient to "state a claim to relief that is plausible on its face." Id. at 570.
"To cross the plausibility threshold a claim does not need to be probable, but it must give rise to more than a mere possibility of liability." Grajales, 682 F.3d at 44-45 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A determination of plausibility is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. at 44 (quoting Iqbal, 556 U.S. at 679). "[T]he complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible." Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting Ocasio-Hernández, 640 F.3d at 14). "The plausibility standard invites a two-step pavane." A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (citing Grajales, 682 F.3d at 45). First, the Court "must separate thecomplaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited)." Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Second, the Court "must determine whether the remaining factual content allows a 'reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Morales-Cruz, 676 F.3d at 224).
Notably, a complaint need not "establish a prima facie case at the pleadings stage." Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013). Even where a defendant raises plausible innocent explanations for alleged discriminatory or retaliatory misconduct, the First Circuit has held that a plaintiff may proceed to discovery when they have "alleged sufficient facts to make the non-innocent explanation of these facts plausible." Rodriguez-Vives v. P.R. Firefighters Corps of P.R., 743 F.3d 278, 286 (1st Cir. 2014).
The FLSA makes it "unlawful . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in any such proceeding." 29 U.S.C. § 215(a)(3). This provision, also referred to as the FLSA's antiretaliation provision, lays out the three elements of a retaliation claim: "(1) the plaintiff engaged in statutorily protected activity, and (2) his employer thereafter subjected him to an adverse employment action (3) as a reprisal for having engaged in the protected activity." Blackie v. Maine, 75 F.3d 716, 722 (1st Cir. 1996).
Webb argues that Count III of the complaint must be dismissed for three independent reasons. First, because it fails to identify a statutorily protected activity. [ECF No. 10 at 6-9]. Second, because it fails to allege that Webb took legally cognizable adverse action against itsemployees. [Id. at 9-16]. Third, because it fails to allege a causal connection between a protected activity and an adverse action. [Id. at 16-19]. Plaintiff disputes all three assertions, claiming that employees who had either "testified or were about to testify" are protected from retaliation, [ECF No. 11 at 7-9], that Webb's actions "well might dissuade a reasonable worker from making or supporting a charge of an FLSA violation," [id. at 9], and that Webb's actions were taken in response to employees' actions, [id. at 13-14].
For the reasons detailed below, the Court finds that Plaintiff's allegations state an FLSA retaliation claim that is "plausible on its face," Twombly, 550 U.S. at 570, and Webb's motion to dismiss, [ECF No. 9], must therefore be DENIED.
As a threshold matter, the Court agrees with Plaintiff that he has plausibly alleged that at least some of the employees who received Webb's emails engaged in protected activity under the FLSA. [ECF No. 11 at 7-8]. The FLSA protects any employee who "has filed any complaint" or "has testified or is about to testify" in a proceeding related to violations of the FLSA. 29 U.S.C. § 215(a)(3). Courts generally interpret both "file any complaint" and "testify" broadly. Kasten v. Saint-Gobain...
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