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Hardy v. Lewis Gale Medical Center, LLC

United States District Court, W.D. Virginia, Roanoke Division

March 27, 2019

KEITH HARDY, individually and on behalf of all other employees and former employees of Lewis Gale Medical Center, LLC similarly situated, et al., Plaintiffs,
v.
LEWIS GALE MEDICAL CENTER, LLC, Defendant.

          AMENDED [1] MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge.

         In this 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.[2]

         I. BACKGROUND

         a. Title VII Claims

         Plaintiffs 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.

         Plaintiffs 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 actions. Id.

         On 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.

         b. FLSA Claims

         i. Rounding Time

         Plaintiffs 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.¶ 108.

         The 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.

         Specifically, 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.

         LGMC's 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.

         Plaintiffs 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.

         ii. Failure to Compensate

         On 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.

         Plaintiffs 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 ¶ B 3-5.

         II. STANDARD OF REVIEW

         a. Motion to Dismiss - Fed.R.Civ.P. 12(b)(1)

         Subject 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).

         b. Motion to Dismiss - Fed.R.Civ.P. 12(b)(6)

         The 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 its face”).

         c. Motion for Judgment on the Pleadings - Fed.R.Civ.P. 12(c)

         Rule 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”).

         d. Motion to Strike - Fed.R.Civ.P. 12(f)

         Federal 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).

         Although 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).

         III. ANALYSIS

         a. Untimely Motion to Dismiss Pursuant to Rule 12(b)(6)

         As a 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.

         However, 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' favor.

         Unlike 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.

         b. Motion to Dismiss Pursuant to Rule 12(b)(1)

         LGMC 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.

         Before 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 ...


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