Wiley v. Asplundh Tree Expert Co.

• Decision Date: 17 March 2014
• Docket Number: Civil Action No. 2:13–cv–02952.
• Citation: 4 F.Supp.3d 840
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Curtis WILEY, Plaintiff, v. ASPLUNDH TREE EXPERT CO., Defendant.

4 F.Supp.3d 840

Curtis WILEY, Plaintiff,

v.ASPLUNDH TREE EXPERT CO., Defendant.

Civil Action No. 2:13–cv–02952.

United States District Court, S.D. West Virginia.

Signed March 17, 2014.

Anthony David Nichols, Jason J. Stemple, L. David Duffield, Duffield Lovejoy & Stemple, Huntington, WV, Vincent Trivelli, Law Office of Vincent Trivelli, Morgantown, WV, for Plaintiff.

Joseph U. Leonoro, Steptoe & Johnson, Charleston, WV, Nora Clevenger Price, Steptoe & Johnson, Huntington, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS E. JOHNSTON, District Judge.

Pending is Defendant Asplundh Tree Expert Co.'s motion for dismissal of Count Four of Plaintiffs' First Amended Complaint [ECF 15]. For the reasons set forth below, the Court GRANTS the motion.

I. BACKGROUND

This putative collective action centers on allegations that Defendant Asplundh Tree Expert Co. (“Asplundh”) failed to pay overtime to its employees for pre-shift and post-shift work in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and the West Virginia Wage Payment Collection Act (“WPCA”), West Virginia Code, Section 21–5–3. Plaintiffs also claim that Defendant retaliated against them by wrongfully firing them after they filed their lawsuit.

Plaintiffs' original complaint was filed in the circuit court of Lincoln County, West Virginia. (ECF 2–1.) That pleading alleged two counts, each premised on Asplundh's failure to pay overtime. The first count is premised on the FLSA; the second on the WPCA. Asplundh later removed the case to federal court invoking this Court's federal question and diversity jurisdiction under 28 U.S.C. §§ 1331 and 1332(a). (ECF 2 at 4, 6.) Thereafter, Plaintiffs filed their First Amended Complaint (“the amended Complaint”). (ECF 12.) To date, about 46 plaintiffs have joined the suit.

The following allegations of fact are set forth in Plaintiffs' amended Complaint.

Curtis Wiley and allegedly similarly situated Plaintiffs are former employees of Asplundh. ( Complaint, ECF 12 at 1–2.) The Plaintiffs worked four and six days a week. ( Id. at 2.) Before heading off to remote worksites, Asplundh required Plaintiffs to arrive at a location known as “The Lot” one to two hours before the beginning of their 7:00 a.m. shifts. Similarly, Asplundh required Plaintiffs to report back to The Lot after their shifts ended at 5:30 p.m. ( Id.) Asplundh directed and controlled Plaintiffs' activities during these pre-shift and post-shift hours and were tasked with, among other things, cleaning out Asplundh's work trucks, conducting maintenance and a variety of mechanical inspections of the trucks, fueling the trucks, and obtaining and loading equipment on to the trucks during the off-shift hours. ( Id. at 3, 4.) Asplundh, however, paid Plaintiffs wages only for the time worked during the shift, that is, from 7:30 a.m. to 5:30 p.m., and not for the pre-shift and post-shift time. ( Id. at 2–3.) Asplundh would discipline or terminate Plaintiffs if they did not arrive at The Lot at the designated pre-shift time. ( Id. at 4.) At the end of their shifts, Asplundh required Plaintiffs to return Asplundh's trucks and equipment to the Lot after the shift ended. ( Id. at 5.) Their post-shift activities lasted one to two hours per day. ( Id.) Plaintiffs assert that these pre- and post-shift activities were “integral and indispensable” to Asplundh's principal business activities. ( Id. at 5, 6.) Asplundh occasionally withheld an hour of pay from an entire work crew if any one Plaintiff arrived at the remote work sites one minute past 7:30 a.m. ( Id. at 5.) Similarly, Asplundh occasionally docked Plaintiffs' wages one full hour if Plaintiffs left their remote worksites one minute or more before 5:00 p.m. ( Id. at 6.)

Plaintiffs allege that “[i]n many weeks, Plaintiffs worked over forty (40) hours”, but were directed by Asplundh to report only forty hours on their time sheets “in contravention of Federal and State law.” ( Id. at 3.) Plaintiffs' Complaint cites generally the FLSA and the WPCA for the proposition that these statutes mandate that Asplundh pay wages for all hours worked, both regular and overtime pay. ( Id.) They allege that Asplundh's docking of wages for failure to arrive at a remote worksite by 7:30 a.m. and for leaving a remote worksite before 5:00 p.m. constitutes “a wrongful withholding and wrongful assignment of the Plaintiffs' wages.” ( Id. at 7.) In so doing, Asplundh failed to follow West Virginia law prohibiting unlawful assignment of wages. ( Id.) Also, Asplundh is alleged to have failed to pay Plaintiffs' wages every two weeks as required by state law. ( Id.)

Plaintiffs further allege that after they filed their lawsuit Asplundh retaliated against Plaintiffs in several respects, including changing the location where Plaintiffs returned their work trucks at the end of the work day, refusing to compensate Plaintiffs for the increased costs incurred by having to travel greater distances in their personal vehicles to arrive at the new and more distant location, failing to provide necessary equipment to Plaintiffs, thus depriving Plaintiffs the ability to work their full shifts, among other things. ( Id. at 8.)

The amended Complaint alleges four counts. In Count 1, the amended Complaint re-asserts the overtime compensation claim under the FLSA. Count 2 states a violation of the WPCA, but unlike the original complaint, the factual predicate for this count is no longer overtime pay, but rather allegations that Asplundh engaged in unlawful assignment of wages when it docked employees' wages. Counts 3 and 4 each allege, respectively, wrongful discharge claims under the FLSA and under Harless v. First Nat'l Bank, 162 W.Va. 116, 246 S.E.2d 270, 271 (1978).

II. LEGAL STANDARDS

A motion to dismiss for failure to state a claim upon which relief can be granted tests the legal sufficiency of a civil complaint. Fed.R.Civ.P. 12(b)(6). “[I]t does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “To survive a Rule 12(b)(6) motion to dismiss, the facts alleged must be enough to raise a right to relief above the speculative level and must provide enough facts to state a claim to relief that is plausible on its face.” Robinson v. Am. Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir.2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (internal quotations omitted). “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 ‘entitlement 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 citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 664, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (stating that “the Rule does call for sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”).

A complaint fails to state a viable claim when, viewing the well-pleaded factual allegations as true and in the light most favorable to the plaintiff, the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Iqbal, 556 U.S. at 662, 129 S.Ct. 1937 (“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”). “Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

III. DISCUSSION

A. Defendant's Motion to Dismiss

Defendant Asplundh raises three contentions in support of its motion to dismiss Count Four of Plaintiffs' Complaint: (1) Plaintiffs have failed to identify in their Complaint the “substantial public policy” element of the Harless claim and, thus, have failed meet federal pleading standards;(2) a Harless claim cannot be predicated on the WPCA; and (3) a Harless claim is preempted by FLSA. (ECF 16.)

In response, Plaintiffs argue that they have “boldly asserted their rights and substantial public policy concerns by accessing the Courts of West Virginia (a right guaranteed by the Constitution of the State of West Virginia (Art. 3 § 17)).” (ECF 18 at 3.) They argue that Asplundh has failed to cite “any West Virginia case law that holds that a company is free to commit retaliatory discharge, with impunity, when employees are fired for insisting that Defendant comply with wage laws.” ( Id.) They cite Page v. Columbia Natural Res., Inc., 198 W.Va. 378, 480 S.E.2d 817 (1996) and McClung v. Marion Cnty. Comm'n, 178 W.Va. 444, 360 S.E.2d 221 (1987) in support of their position that West Virginia recognizes as a substantial public policy the constitutional right to petition for redress of grievances in the context of wage claims. They argue that the WPCA is a proper predicate for their Harless claim and that the claim is not preempted by the FLSA.

In its Reply, Asplundh reiterates that the Complaint does not contain any reference to a specific source of legal authority for the substantial public policy element of their Harless claim and, thus, the Complaint fails...