United States District Court, W.D. Virginia, Roanoke Division
KEITH HARDY, individually and on behalf of all other employees and former employees of Lewis Gale Medical Center, LLC similarly situated, et al., Plaintiffs,
LEWIS GALE MEDICAL CENTER, LLC, Defendant.
AMENDED  MEMORANDUM OPINION
Elizabeth K. Dillon United States District Judge.
civil rights action, Plaintiffs bring suit individually and
on behalf of all similarly situated current and former
employees of Lewis Gale Medical Center, LLC
(“LGMC”), for racial discrimination and
retaliation under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §2000e et
seq.; for racial discrimination and retaliation under 42
U.S.C. §1981; for violation of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. §§201, et
seq., and for attorney's fees and costs pursuant to
42 U.S.C. § 1988. This matter is presently before the
court on Defendant's Motion for Judgment on the Pleadings
and Motion to Strike Certain Portions of the Amended
Complaint (Dkt. No. 23), and Motion to Dismiss for Failure to
State a Claim and Lack of Subject Matter Jurisdiction (Dkt.
No. 27). Plaintiffs oppose LGMC's motions and request
leave of court to file Second and Third Amended Complaints.
The court will grant in part, deny in part, and find moot in
part LGMC's motion to dismiss, deny in part and grant in
part LGMC's motion for judgment on the pleadings and/or
motion to strike, and grant Plaintiffs' motion for leave
to file second and third amended complaints.
Title VII Claims
are African-American and Latino/Hispanic male employees of
the LGMC Security Department. Am. Compl. ¶¶ 5-10;
Dkt. No. 2. Plaintiffs Hardy and Hendricks are security
supervisors, and Bethel, Contreras, Finks, and Sanders are
armed security officers. Id. ¶ 12. In December
2016, LGMC hired Barry Booth as Plaintiffs' supervisor,
despite knowledge that Booth was placed on administrative
leave from the Roanoke City Police Department in May 2015 for
racially-charged remarks made on a social media post.
Id. ¶ 14.
allege that Booth treated them differently from white
employees, including actions such as denying Plaintiffs
opportunities for advancement, singling out Plaintiffs for
unfair treatment, disciplining Plaintiffs more harshly than
white employees, denying Plaintiffs the opportunity to become
Special Conservators of the Peace (“SCOP”),
falsely accusing Plaintiffs of misconduct, denying
Plaintiffs' requests for Paid Time Off
(“PTO”), giving white employees preferential
treatment in scheduling, and failing to discipline white
employees for refusing to wear their required uniforms.
Id. ¶ 15. Plaintiffs allege that LGMC
management was aware of Booth's discriminatory actions
towards Plaintiffs; indeed, Plaintiffs complained to
LGMC's management for months regarding Booth's
February 5, 2018, Plaintiffs Hardy, Hendricks, Contreras,
Finks, and Sanders filed charges of racial and national
origin discrimination with the EEOC related to their
complaints about Booth and LGMC. Id. ¶ 92. LGMC
permitted Booth to resign on February 9, 2018. Id.
¶ 26. Shortly thereafter, LGMC announced that the
Security Department would be outsourced in May 2018 to a
company named G4S and that Plaintiffs' jobs were not
guaranteed with G4S. Id. ¶ 95. However, LGMC
promised that it would guarantee Plaintiffs' current pay
for those hired by G4S. Id. Plaintiffs assert that
LGMC management communicated false and negative information
to G4S regarding employees Hardy, Hendricks, and Contreras,
to prevent them from being hired as supervisors for G4S.
Id. ¶ 101. Plaintiffs were hired as security
officers with G4S on May 20, 2018, with significantly lower
salaries than they received at LGMC. Id. ¶ 100.
were hourly, non-exempt employees of the LGMC Security
Department. Am. Compl. ¶¶ 12, 107, Dkt. No. 2.
Plaintiffs assert that LGMC either required or strongly
encouraged Plaintiffs to clock in seven minutes prior to the
start of their shift but prohibited them from clocking in
more than seven minutes before their shift. Id.
¶ 108. Plaintiffs were permitted to clock out within the
seven minute period prior to the end of their shift if their
replacement had already reported for duty. Id.¶
LGMC Attendance and Tardiness policy permits a seven-minute
grace period to clock in after the start of a shift without
disciplinary action; however, LGMC prohibited this practice
and disciplined Security Department employees for clocking in
after the start of their shift, including within a seven
minute period. Id. ¶ 109.
Barry Booth instructed Plaintiff Hendricks to give a verbal
warning and then write up any employee who clocked in within
the seven minute grace period after the start of his or her
shift. Id. LGMC management endorsed this procedure
by approving the disciplinary reports for Security Department
employees who clocked in during the seven-minute grace period
after their shift began. Id.
time keeping system recorded the exact times all employees
clocked in and out for each shift every day. Id.
¶ 111. However, LGMC rounded Plaintiffs' work hours
to the nearest quarter hour of time for purposes of
compensation. Id. ¶¶ 110, 112. Due to
rounding, Plaintiffs were not compensated for the seven
minutes prior to their shift each day that they were required
to work. Id. ¶ 113.
allege that LGMC's policy of requiring them to clock in
seven minutes prior to the start of their shifts-but not
earlier than seven minutes-and disciplining them for clocking
in after the start of their shifts, coupled with LGMC's
policy of rounding Plaintiff's work time down to the
nearest quarter hour, resulted in Plaintiffs not being
compensated for work performed prior to their shift start
time. Id. ¶¶ 166, 167. Plaintiffs allege
that LGMC willfully and illegally rounded employees' work
time down to the nearest quarter of an hour, resulting in
Plaintiffs being denied wages, including overtime premiums.
Id. ¶¶ 170, 171.
Failure to Compensate
March 15, 2018, LGMC announced that the Security Department
was being outsourced to G4S, effective May 20, 2017.
Id. ¶ 95. Plaintiffs were told that their jobs
were not guaranteed with G4S, and they would have to reapply
with G4S to continue their employment. Id.
Plaintiffs were required to attend five days of interviews,
training and orientation with G4S to continue their
employment as armed security officers in the Security
Department at LGMC. Id. ¶¶ 97, 115, 117.
LGMC scheduled the training and orientation sessions, either
alone or in conjunction with G4S, and directed the Plaintiffs
to attend the training/orientation sessions on certain dates.
Id. ¶ 116. The training sessions were scheduled
during Plaintiffs' LGMC work schedules and were directly
related to Plaintiffs' jobs in the security department at
LGMC. Id. ¶¶ 98, 119. Plaintiffs received
minimum wage pay from G4S, a lower rate than their usual rate
of pay, for four days of training. Id. ¶ 120.
Plaintiffs did not receive any compensation for one day of
orientation with G4S. Id. Plaintiffs were not paid
by LGMC for the training or orientation. Id. Several
Plaintiffs were required to work double shifts and/or use PTO
to attend the training and orientation sessions. Id.
G4S hired Plaintiffs as security officers beginning May 20,
2018, with different pay and benefit structures from LGMC.
Id. ¶ 100.
allege that their attendance at the training and orientation
sessions is considered employment by LGMC under FLSA and that
LGMC did not fully compensate Plaintiffs for attendance at
those sessions. Id. ¶¶ 178, 180.
Plaintiffs ask the court to award judgment for actual and
compensatory damages in the amount due for unpaid minimum
wages and overtime compensation with interest; liquidated
damages for willful violations of the act; and attorney's
fees and costs of suit. Id. Prayer for Relief ¶
STANDARD OF REVIEW
Motion to Dismiss - Fed.R.Civ.P. 12(b)(1)
matter jurisdiction is a threshold issue. Without a proper
basis for subject matter jurisdiction, a case must be
dismissed. See Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 96 (1998); Haley v. Va.
Dep't of Health, No. 4:12-CV-00016, 2012 WL 5494306,
at *2 (W.D. Va. Nov. 13, 2012) (“Federal district
courts are courts of limited jurisdiction.”). The
plaintiff, who asserts jurisdiction, bears the burden of
proving subject matter jurisdiction in response to a Rule
12(b)(1) motion. See Williams v. United States, 50
F.3d 299, 304 (4th Cir. 1995). In deciding whether
jurisdiction exists the court may “consider evidence
outside the pleadings without converting the proceeding to
one for summary judgment.” Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999) (quoting
Richmond, Fredericksburg & Potomac R. Co. v.
U.S., 945 F.2d 765, 768 (4th Cir. 1991)) (internal
quotation marks omitted).
Motion to Dismiss - Fed.R.Civ.P. 12(b)(6)
purpose of a Rule 12(b)(6) motion to dismiss is to test the
sufficiency of Plaintiffs' complaint. See Edwards v.
City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In
considering a Rule 12(b)(6) motion, a court must accept all
factual allegations in the complaint as true and must draw
all reasonable inferences in favor of the plaintiff.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). The
Federal Rules of Civil Procedure “require[ ] only
‘a short and plain statement of the claim showing that
the pleader is entitled to relief,' in order to
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.'” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(omission in original) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). Legal conclusions in the guise of
factual allegations, however, are not entitled to a
presumption of truth. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); see also Twombly, 550 U.S. at 555
(requiring a complaint to contain facts sufficient “to
raise a right to relief above the speculative level”
and to “state a claim to relief that is plausible on
Motion for Judgment on the Pleadings - Fed.R.Civ.P.
12(c) of the Federal Rules of Civil Procedure permits a party
to move for judgment on the pleadings. In reviewing a Rule
12(c) motion filed by a defendant, the court applies the same
standard that would apply to a Rule 12(b)(6) motion to
dismiss for failure to state a claim. PETA v. U.S.
Dep't of Agric., 861 F.3d 502, 506 (4th Cir. 2017).
Thus, the court may grant the Defendant's Rule 12(c)
motion only “if, after accepting all well-pleaded
allegations in the plaintiff's complaint as true and
drawing all reasonable factual inferences from those facts in
the plaintiff's favor, it appears certain that the
plaintiff cannot prove any set of facts in support of his
claim entitling him to relief.” PETA, 861 F.3d
at 506 (internal quotation marks omitted); see also
Twombly, 550 U.S. at 555, 570 (requiring a complaint to
contain facts sufficient “to raise a right to relief
above the speculative level” and to “state a
claim to relief that is plausible on its face”).
Motion to Strike - Fed.R.Civ.P. 12(f)
Rule of Civil Procedure Rule 12(f) permits the court to
strike from a pleading any matter that is redundant,
immaterial, impertinent, or scandalous. The function of a
12(f) motion to strike is “to avoid the expenditure of
time and money that must arise from litigating spurious
issues by dispensing with those issues prior to trial.”
Gregory v. Belfor USA Grp., Inc., No. 2:12cv11, 2012
WL 2309054, at *1 (E.D. Va. June 15, 2012) (quoting
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,
973 (9th Cir. 2010). “The standard upon which a motion
to strike is measured places a substantial burden on the
moving party.” Cameron v. MTD Prods., Inc.,
No. Civ.A.5:03 CV 75, 2004 WL 3256003, at *2 (N.D. W.Va. Jan.
7, 2004). Usually a motion to strike requires a showing that
denial of the motion would prejudice the moving party.
United States v. Gwinn, No. 5:06-cv-00267, 2006 WL
3377636, at *1 (S.D. W.Va. Nov. 20, 2006). Moreover,
“[a] motion to strike is a drastic remedy which is
disfavored by the courts and infrequently granted.”
Clark v. Milam, 152 F.R.D. 66, 70 (S.D. W.Va. 1993).
Rule 12(f) motions are generally viewed with disfavor,
Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316,
347 (4th Cir. 2001), they are proper where “the
challenged allegations have no possible relation or logical
connection to the subject matter of the controversy and may
cause some form of significant prejudice to one or more of
the parties to the action.” Bailey v. Fairfax
County, No. 1:10-cv-1031, 2010 WL 5300874, *4 (E.D. Va.
Dec. 21, 2010) (internal quotations omitted).
Untimely Motion to Dismiss Pursuant to Rule
threshold matter, Plaintiffs argue that LGMC's Motion to
Dismiss should be denied as untimely because LGMC filed its
Answer seven hours before filing its Rule 12(b) motions.
See Dkt. Nos. 21, 23, & 27. Indeed, LGMC filed
its Answer on August 15 at 11:50 a.m., its Motion for
Judgment on the Pleadings at 12:25 p.m., and the Motions to
Dismiss at 6:50 p.m. Id. Rule 12(b) motions must be
filed prior to a responsive pleading if one is allowed.
See Fed.R.Civ.P. 12(b) (“A motion pleading any
of these defenses must be made before pleading if a
responsive pleading is allowed.”). Plaintiff argues
that because LGMC filed its Answer seven hours before its
Rule 12(b) motions, the motions must be denied. See
Pl.'s Opp'n to Def.'s Partial Mot. to Dismiss 10.
the court may construe an untimely Rule 12(b)(6) motion as a
motion for judgment on the pleadings under Rule 12(c), and
doing so does not change the legal standard. See Burbach
Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401,
405-06 (4th Cir. 2002) (“Because . . . the pleadings
were closed at the time of the motion [, ] . . . we construe
the motion as one for judgment on the pleadings. However, the
distinction is one without a difference, as we . . . [apply]
the same standard for Rule 12(c) motions as for motions made
pursuant to Rule 12(b)(6).”) (citing Edwards v.
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Both
require the court to assume the well-pleaded facts are true
and to draw all reasonable inferences in plaintiffs'
a Rule 12(b)(6) motion, a Rule 12(c) motion and a Rule
12(b)(1) motion are not waived at the close of pleadings.
Compare Fed.R.Civ.P. 12(h)(1) with
Fed.R.Civ.P. 12(h)(3) and 12(h)(3). Therefore, because
LGMC's 12(b)(6) motion may be construed as a motion for
judgment on the pleadings, which is not waived, under the
same legal standard, the court will construe LGMC's Rule
12(b)(6) motion as a motion for judgment on the pleadings and
allow it to proceed. See Edwards, 760 F.Supp.2d at
614. Likewise, to the extent aspects of the Rule 12(b)(1)
motion are not jurisdictional and should instead be addressed
under Rule 12(b)(6), the court will treat those portions as a
motion for judgment on the pleadings.
Motion to Dismiss Pursuant to Rule 12(b)(1)
asserts that Plaintiffs' Title VII claims in Counts I
(discrimination) and III (retaliation) should be dismissed
for failure to exhaust administrative remedies, failure to
state a claim, and lack of jurisdiction.
a plaintiff can file suit under Title VII, he must file a
charge of discrimination with the EEOC and exhaust the
administrative procedures set forth in 42 U.S.C.
§2000e-5, including obtaining a Notice of Right-to-Sue
from the EEOC. Requiring a party to first file a charge with
the EEOC ensures that the employer is given notice of the
alleged claims, allows the employer a chance to remedy the
discrimination before litigation commences, and provides the
parties recourse to resolution in a more efficient and less
formal manner. Sydnor v. Fairfax County, Va., 681
F.3d 591, 593 (4th Cir. 2012). Failure to exhaust
administrative remedies by ...