United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE.
August 15, 2017, Linda Gough, pro se, filed a
Complaint against her former employer, Bankers Life and
Casualty Company ("Bankers Life"), care of Omar
Torres, a Unit Sales Manager at Bankers Life. The Complaint
alleged that Bankers Life discriminated against her by paying
"unfair wages" based on her sex, as well as
misclassified her as an independent contractor when she
performed the job responsibilities of an employee, a
classification that would entitle her to additional benefits
under federal and state wage and labor laws. Gough seeks
damages comprising lost wages, unemployment benefits, and
costs of bringing this action. Bankers Life filed a Motion to
Dismiss on October 2, 2017. ECF No. 5. After numerous delays
and additional proceedings. Bankers Life's Motion to
Dismiss is more than ripe for ruling.
following reasons, Bankers Life's Motion to Dismiss is
GRANTED. Gough. however, is given 30 days to
refile her claim as a violation of the Fair Labor Standards
Act ("FLSA"), 29 U.S.C. §201 e/ seq.
If she fails to act within that time, her suit will be
FACTUAL AND PROCEDURAL HISTORY
Complaint states that she worked for Bankers Life as an
"insurance agent" approximately from February,
2016, through July, 2016. ECF No. 1 at 5-6. She describes
spending two days per work week at Bankers Life's office
making phone calls for approximately eight hours each day to
pursue sales leads, while spending the remaining three days
per work week meeting with clients and preparing materials.
Id. at 6. Gough claims that Bankers Life employed
her in a "1099 position," and that Bankers Life
classified its workers this way in order to avoid paying
unemployment benefits and complying with federal and state
minimum wage laws. Id. at 6-7. The Complaint does
not address the reason why Gough stopped working for Bankers
Life after July, 2016.
8, 2017, Gough filed a charge with the Equal Employment
Opportunity Commission ("EEOC") alleging that
Bankers Life had engaged in discriminatory conduct.
Id. at 6. Without making a merits determination, the
EEOC issued Gough a Notice of Right to Sue letter, which she
received on May 18, 2017. Gough then filed the present
Complaint in this Court on August 15, 2017.
October 2, 2017, Bankers Life filed a Motion to Dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. It asserted that Gough had failed to state a claim
for relief based on either sex discrimination for unequal
wages or misclassification of employment status. ECF No. 5.
In response. Gough filed a Motion to Appoint Counsel on
October 6. 2017. ECF No. 7.
Court deferred decision on Gough's Motion to Appoint
Counsel and suspended the due date for Gough to respond to
Bankers Life's Motion to Dismiss, pending appointment by
the Court of counsel to conduct a limited investigation and
prepare an ex parte confidential report to the Court
whether Gough had pled any colorable claims. ECF No. 11.
Bankers Life agreed to the Court proceeding in this way. On
November 20, 2017, the Court appointed Cori M. Cohen,
Esquire, of the firm of Gilbert Employment Law, to conduct
ex parte review of Gough's claims. ECF No. 14.
completed her ex parte review of Gough's claims
in late January, 2018. While she doubted that Gough had pled
a colorable claim of sex discrimination, Cohen concluded
Gough had stated sufficient facts to plead possible FLSA
claims. A copy of Cohen's report was shared with Gough.
Court then issued its first Order Appointing a different Pro
Bono Counsel for Gough. ECF No. 16. Initial pro bono
counsel, however, withdrew, citing the demands of operating a
small firm practice, after which the Court issued a second
Order Appointing Pro Bono Counsel for Gough on April 20,
2018. ECF No. 19. Gough's second pro bono
counsel filed a Motion to Withdraw on June 25, 2018, citing
irreconcilable differences with Gough. ECF No. 26. The Court
granted this Motion on June 27, 2018, and simultaneously
lifted the suspension of Gough's obligation to respond to
Bankers Life's Motion to Dismiss. ECF No. 28.
6. 2018, Gough submitted a letter to the Court requesting a
competency-evaluation of herself to preempt any possible
contention by Bankers Life that she is mentally incompetent
and unable to represent herself. ECF No. 32. In the same
letter, Gough also requested that the Court order that she
receive compensation for the expense of representing
herself;?™ se. Id. The Court denied both of
her requests by Order dated July 17. 2018. ECF No. 33.
acting pro se, Gough filed her Opposition to Bankers
Life's Motion to Dismiss on July 31, 2018. ECF No. 35. In
it, she made no reference to a possible FLSA claim. Bankers
Life filed its Reply on August 13, 2018.
Rule of Civil Procedure 8(a) prescribes "'liberal
pleading standards," requiring only that a plaintiff
submit a "short and plain statement of the claim showing
that [he] is entitled to relief/' Erickson v.
Pardus,551 U.S. 89, 93-94 (2007) (citing Fed.R.Civ.P.
8(a)(2)). To survive a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6). a plaintiff must plead facts
sufficient to "state a claim to relief that is plausible
on its face." Bell Atl. Corp. v. Twombly. 550
U.S. 554, 570 (2007). But this standard requires "more
than a sheer possibility that a defendant has acted
unlawfully." Ashcroft v. Iqbal,556 U.S. 662,
678 (2009). Although a court will accept factual allegations
as true, "[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice." Id. Indeed, the court need not
accept legal conclusions couched as factual allegations or
"unwarranted inferences, unreasonable conclusions, or
arguments." E. Shore Markets. Inc. v. J.D.
Associates Ltd. P'ship,213 F.3d 175, 180 (4th Cir.
2000). In ...