United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE
Hardison formerly worked for Healthcare Training Solutions,
LLC (“Healthcare”) and its chief executive
officer and owner, Carlecia McBryde, but after she complained
twice that she had not been paid her full wages, McBryde
promptly terminated her employment. Compl. ¶¶ 4, 40,
45, ECF No. 1. Hardison filed a five-count complaint in
federal court, alleging failure to pay wages, in violation of
Maryland statutory law; retaliatory termination, in violation
of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201-219; and wrongful discharge, in
violation of Maryland public policy. Compl. ¶¶
51-78. Defendants sought leave to file a motion to dismiss,
specifically identifying defects they perceived in
Hardison’s FLSA claim, ECF No. 6, and I held a
pre-motion conference call on December 15, 2016, ECF No. 8.
Plaintiff’s counsel stated that they believed that they
had stated a claim and they did not need to amend, and I
permitted Defendants to file the motion. See
Defs.’ Mem. 8, ECF No. 9-1.
contend that Hardison’s jurisdictional allegations are
insufficient and that she fails to state a claim under the
FLSA, and they move to dismiss the Complaint in its entirety,
given that all other counts allege violations of state law.
ECF No. 9. In addition to the grounds previously
identified, which are without merit, Defendants also argue
that Hardison does not sufficiently allege (as required for
an FLSA retaliation claim) that her complaints to Defendants
alerted them that she was asserting FLSA rights. Defs.’
Mem. 11. Because Hardison’s Complaint is deficient in
this regard, her FLSA claim is subject to dismissal. Yet,
given that Defendants did not raise this ground for dismissal
in their pre-motion conference request, I will allow Hardison
to cure this deficiency, if she has a good faith basis for
doing so under Rule 11.
first argue for dismissal on a technicality. They correctly
note that “[t]he complaint alleges that this Court has
subject matter jurisdiction over this action because the
action is brought within the statute of limitations for FLSA
lawsuits, ” and then assert that “the mere fact
that a case is brought within the statute of limitations does
not in and of itself confer subject matter
jurisdiction.” Defs.’ Mem. 8 (citing Compl.
¶¶ 6-7). It is true that Rule 8 requires “a
short and plain statement of the grounds for the
court’s jurisdiction, ” Fed.R.Civ.P. 8(a)(1),
which, for an FLSA claim, would be 28 U.S.C. § 1331,
federal question jurisdiction. But, while Hardison does not
cite the proper statute, such that the Court’s
jurisdiction is not plainly articulated in the Complaint, she
clearly brings an FLSA claim and references the FLSA in her
jurisdictional allegations. Because this Court has
jurisdiction over FLSA claims under 28 U.S.C. § 1331, it
has jurisdiction over Plaintiff’s Complaint.
See 28 U.S.C. §§ 1331, 1367. To hold
otherwise or dismiss on this technicality would be to exalt
form over substance, contrary to Rule 1’s requirement
that this Court construe the federal rules of civil procedure
“to secure the just, speedy, and inexpensive
determination of every action and proceeding.”
of Review - Rule 12(b)(6)
FLSA claim is subject to dismissal if it “fail[s] to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A complaint must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2),
and must state “a plausible claim for relief, ”
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
“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.” Iqbal, 556 U.S. at 678.
Rule 12(b)(6)’s purpose “‘is to test the
sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.’” Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md.
Dec. 13, 2012) (quoting Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)).
of FLSA Retaliation Claim
“unlawful for any person . . . to discharge . . . any
employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or
related to [the FLSA].” 29 U.S.C. § 215(a)(3). To
state a claim for retaliation under this provision of the
FLSA, Hardison must allege that “(1) [s]he engaged in
an activity protected by the FLSA; (2) [s]he suffered adverse
action by the employer subsequent to or contemporaneous with
such protected activity; and (3) a causal connection exists
between the employee’s activity and the
employer’s adverse action.” Randolph v. ADT
Sec. Servs., Inc., 701 F.Supp.2d 740, 746 (D. Md. 2010)
(quoting Darveau v. Detecon, Inc., 515 F.3d 334, 340
(4th Cir. 2008) (citations omitted)); see Whyte v. PP
& G, Inc., No. WMN-13-2806, 2015 WL 3441955, at *6
(D. Md. May 26, 2015) (same). Making a complaint is one form
of protected activity. See Kasten v. Saint-Gobain
Performance Plastics Corp., 563 U.S. 1, 7, 14 (2011)
(concluding that “‘an oral complaint of a
violation of the Fair Labor Standards Act” is
“protected conduct under the [Act's]
anti-retaliation provision’” where it is
“sufficiently clear and detailed for a reasonable
employer to understand it, in light of both content and
context, as an assertion of rights protected by the statute
and a call for their protection” (citation omitted)).
FLSA claim is straightforward. In one pay period, she worked
twenty-four hours and initially received only $425, even
though her hourly wage was $21 per hour, such that she should
have received $504. Compl. ¶¶ 35-36. She complained
in writing on September 11, 2015, asserting that “she
was paid incorrectly and that she did not understand how Ms.
McBryde was paying her.” Id. ¶ 40.
Specifically, she complained that “she had only been
paid four hundred and twenty five dollars ($425) for a pay
period in which she worked twenty four (24) hours.”
Id. ¶ 67. She then received an additional
payment of $47.50, for a total of $472.50. Id.
¶ 41. According to Hardison, even with the additional
payment, “Defendants did not pay Ms. Hardison . . . for
1.5 hours of work performed.” Id. ¶ 44.
On September 16, 2015, Hardison “orally complained
about not being paid, ” that is, she “complained
about not being paid correctly, ” because
“[b]ased on her rate of pay of twenty-one (21) dollars
per hour, Ms. Hardison was not paid a minimum wage for 3.76
hours of work performed, ” and McBryde terminated her
that day. Id. ¶¶ 45, 68, 69 (emphasis
added). As Hardison sees it, her “complaints were . . .
protected activity under the FLSA, ” id.
¶ 70, such that her termination was a violation of 29
U.S.C. § 215(a)(3).
briefing with regard to why Hardison fails to state an FLSA
retaliation claim is far from a model of clarity, but it
appears to challenge Hardison’s pleading of the first
element of her § 215(a)(3) claim. See
Defs.’ Mem. 11-14. The essence of Defendants’
argument is that Hardison fails to allege that her complaints
to Defendants alerted them that she was asserting FLSA
rights, as opposed to contractual rights unmoored to any
statutory entitlement, and consequently her lodging of those
complaints was not protected activity. See Id. In
Hardison’s view, she “has pled sufficient factual
allegations showing that she gave Defendants fair notice that
her complaints concerned rights protected by the FLSA”
by “alleg[ing] that she was not paid any wage,
including a minimum wage, on September 11, 2015 for 3.76
hours of work, ” and in response, she complained in
writing that “she was not paid correctly” and
orally “about not being paid.” Pl.’s
Opp’n 5 (citing Compl. ¶¶ 35, 38, 40, 45).
parties agree that Kasten, 563 U.S. at 14, provides
the standard for what a complaint to an employer must assert
to constitute protected activity for purposes of § 215.
See Defs.’ Mem. 11; Pl.’s Opp’n 4.
The Kasten Court held that § 215
“requires fair notice, ” and therefore
a complaint is “filed” when “a reasonable,
objective person would have understood the employee” to
have “put the employer on notice that [the]
employee is asserting statutory rights under the
[Act].” . . . To fall within the scope of the
antiretaliation provision, a complaint must be sufficiently
clear and detailed for a reasonable employer to understand
it, in light of both content and context, as an assertion
of rights protected by the statute and a call for their
protection. This standard can be met, however, by oral
complaints, as well as by written ones.
Kasten, 563 U.S. at 14 (emphases added); see
Minor v. Bostwick Labs., Inc., 669 F.3d 428, 439 (4th
Cir. 2012) ...