MacIntyre v. Moore

267 F.Supp.3d 480

Stephen R. MACINTYRE, and Scott E. Sullivan, Plaintiffs,

v.Jack W. MOORE, Supervisor, Town of Henrietta, Defendant.

6:15–CV–06660 EAW

United States District Court, W.D. New York.

Signed July 28, 2017

Stephen R. MacIntyre, Henrietta, NY, pro se, Scott E. Sullivan, Canandaigua, NY, pro se.

Michael P. McClaren, Ryan G. Smith, Webster Szanyi, LLP, Buffalo, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

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"). (Dkt. 1). The complaint names only one Defendant: Jack W. Moore ("Moore" or "Defendant"), the Town Supervisor of the Town of Henrietta, New York. (Id. at 1).

Presently before the Court is Defendant's motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), (Dkt. 4), and Plaintiffs' cross-motion for leave to file an amended complaint. (Dkt. 8). As discussed below, Plaintiffs have failed to plausibly allege a claim under either the FLSA or ERISA. However, because Plaintiffs may be able to plausibly allege a claim under the FLSA, they are granted leave to do so within thirty days of the date of this Decision and Order.

FACTUAL BACKGROUND ¹

Plaintiffs, former Engineering Inspectors for the Town of Henrietta, New York, were terminated from their employment by Moore on January 23, 2015. (Dkt. 1 at 3). Plaintiffs claim that they were misclassified as independent contractors, rather than town employees. (Id. at 3). Plaintiffs assert that Defendant terminated them to avoid paying Plaintiffs "a standard civil service wage and benefit entitlement and denied [Plaintiffs] the opportunity to participate in the NYS State [sic] Retirement Program." (Id. at 4). Plaintiffs claim that they are owed lost wages, overtime compensation, and unpaid benefits. (Id. ).

DISCUSSION

I. Defendant's Motion to Dismiss

In considering a motion to dismiss, a court generally may only consider "facts stated in the complaint or documents attached to the complaint as exhibits or incorporated by reference." Nechis v. Oxford Health Plans, Inc. , 421 F.3d 96, 100 (2d Cir. 2005). A court should consider the motion "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) (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) ); see also Nielsen v. Rabin , 746 F.3d 58, 62 (2d Cir. 2014) ("The plausibility standard is not akin to a probability requirement. A well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and that a recovery is very remote and unlikely." (citations and internal quotation marks 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 (alteration 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.’ " Goldstein v. Pataki , 516 F.3d 50, 56 (2d Cir. 2008) (alteration and citations omitted).

In addition, "[i]t is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read to raise the strongest arguments that they suggest." Green v. United States , 260 F.3d 78, 83 (2d Cir. 2001) (internal quotation marks omitted).

A. Plaintiffs' FLSA Claim Must Be Dismissed

1. The Court Need Not Determine at this Time Whether a Public Official Can Be Held Personally Liable Under the FLSA

Defendant first argues that he, as a public official, cannot be held personally liable under the FLSA. (Dkt. 4–1 at 3–4).

The FLSA provides for a minimum hourly wage, 29 U.S.C. § 206(a), and requires employers to pay overtime if an employee works more than 40 hours in a workweek. 29 U.S.C. § 207(a).

[T]he statute "defines the verb ‘employ’ expansively to mean ‘suffer or permit to work." ’ Unfortunately, however, the statute's definition of "employer" relies on the very word it seeks to define: " ‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). The statute nowhere defines "employer" in the first instance.

Irizarry v. Catsimatidis , 722 F.3d 99, 103 (2d Cir. 2013) (internal citation omitted).

Although the Second Circuit has repeatedly endorsed the notion that individuals may be liable as employers under the FLSA, see id. at 117 (finding the chairman, president, and chief executive officer of a private corporation individually liable as an employer); Velez v. Sanchez , 693 F.3d 308, 331 (2d Cir. 2012) (finding an individual who engaged a domestic servant in her household could be an employer under the FLSA); Herman v. RSR Sec. Servs. Ltd. , 172 F.3d 132, 141 (2d Cir. 1999) (finding the chairman of the board of directors of a company personally liable as an employer under the FLSA), no Second Circuit case has determined whether a public sector official can be held individually liable as an employer under the FLSA.² However, other Circuits are split on the issue. Compare Mitchell v. Chapman , 343 F.3d 811, 832 (6th Cir. 2003) (noting that the Sixth Circuit has "never extended individual liability to public employees under the FLSA"), and Wascura v. Carver , 169 F.3d 683, 686 (11th Cir. 1999) ("[T]he law of this circuit [is] that a public official sued in his individual capacity is not an ‘employer’ subject to individual liability under the FLSA.") with Haybarger v. Lawrence Cty. Adult Prob. & Parole , 667 F.3d 408, 417 (3d Cir. 2012) ("[T]he FLSA explicitly provides that an employer includes ‘any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency. ...’ " (citation omitted) (emphasis original)); and Lee v. Coahoma Cty., Miss. , 937 F.2d 220, 226 (5th Cir. 1991) (finding a public official individually liable under the FLSA).

Resolution of this legal issue is unnecessary in this case, because, as described below, even if Moore could be held personally liable under the FLSA, the complaint lacks sufficient factual allegations from which the Court could find that Moore was an employer.

2. The Complaint is Wholly Lacking in Factual Allegations as to Moore's Status as an Employer

Courts apply an "economic reality" test to determine whether workers are employees, and "whether managers or owners are employers." Irizarry , 722 F.3d at 104. The test's four factors are "whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." Carter v. Dutchess Cmty. Coll. , 735 F.2d 8, 12 (2d Cir. 1984). The Second Circuit requires a case-by-case analysis, reviewing the facts in the totality of the circumstances. Irizarry , 722 F.3d at 104.

Here, the complaint fails to plausibly allege sufficient factual allegations that Moore was an employer under the FLSA. Plaintiffs' only allegations as to Moore are that he is the Town Supervisor of Henrietta, and that he terminated their employment. (See Dkt. 1 at 1, 3). There are no allegations that Moore supervised or controlled their work schedules or conditions of employment, determined their pay, or maintained any employment records.³ (See Dkt. 1). Plaintiffs' bare-bones allegations are patently insufficient to state a claim for relief.⁴ See Twombly , 550 U.S. at 570, 127 S.Ct. 1955. As such, Plaintiffs have failed to state a claim for relief. See, e.g., Tracy v. NVR, Inc. , 667 F.Supp.2d 244, 247 (W.D.N.Y. 2009) (finding that "mere boilerplate allegations that an individual meets the various prongs of the economic reality test stated solely upon information and belief and without any supporting details—essentially ‘a formulaic recitation of the elements of a cause of action’—are insufficient to raise [the] plaintiffs' right to relief ‘above a speculative level’ with respect to that individual's liability as an employer under the FLSA" (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 )). Therefore, Plaintiffs' FLSA claim against Moore must be dismissed.

However, because a pro se complaint must be read broadly, "the court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank , 171 F.3d 794, 796 (2d Cir. 1999). An amendment is afforded "unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim." Id. ; see, e.g. , Akande v. U.S. Marshals Serv. , 659 Fed.Appx. 681, 685 (2d Cir. 2016) ("We therefore cannot conclude with confidence that [the plaintiff] cannot plausibly allege a...