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Gough v. Bankers Life & Casualty Co.

United States District Court, D. Maryland

September 21, 2018

LINDA GOUGH, Plaintiff,



         On 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.

         For the 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 dismissed.


         Gough's 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.

         On May 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.

         On 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.

         The 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.

         Cohen 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.

         The 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.

         On July 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.

         Finally, 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.


         Federal 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 ...

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