UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

WAYNE COFFEN, et al., )
)
Plaintiffs, )
)

v. ) Civil Case No. 16-1064 (RJL)
)
Washington Convention & Sports Authority )
t/a EVENTS DC, et al., )

) F I L E D

Defendants. ) SEP 25 2017

C| k U S
er. ..Dl tri t&B
MEMORANDU M OPIN]-ON Courts for the SD|s‘t:rlct ofa?),i)r|iii)riliia

(september ZZ, 2017) [Dkt. #26]

Plaintiffs are three individuals formerly employed by Events DC. Their lawsuit
asserts that defendants paid them unlawful wages in violation of federal and District of
Columbia law. Before the Court is defendants’ Partial Motion to Dismiss the Amended
Complaint [Dkt. #26]. Upon consideration of the pleadings, relevant law, and the entire
record herein, the Court will GRANT the Motion.

BACKGROUND

Events DC is a District of Columba corporation that owns and operates
entertainment venues within the District. Am. Compl. 11 7 [Dkt. #25]. lt is also the official
convention and sports authority for the District, responsible for managing and attracting
conventions and sporting events. Am. Compl. 1 7. For several years, Events DC employed
Wayne Coffen, Terra Gannt, and Andrea Massengile (collectively “plaintiffs”) as event
managers and senior event manager. Am. Compl. 1111 4_6. The company hired plaintiffs

and classified them as “exempt” employees. Am. Compl. 111 9_ll. lt defined their job

duties to include a number of managerial functions, but in practice assigned them
“perfunctory” tasks. Am. Compl. jill 13-15. ln addition, Events DC established a written
“comp-time” policy instead of paying plaintiffs overtime. Am. Compl. M 19, 26-27.

ln June 2016, plaintiffs sued Events DC and its president and chief executive officer,
Gregory O’Dell. Plaintiffs’ two-count amended complaint, filed November 2016, asserts
claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and the
D.C. l\/linimum Wage Act (“DCMWA”), D.C. Code §§ 32-lOOl et seq.,l alleging that
defendants misclassified plaintiffs as exempt employees and failed to pay them overtime
or compensatory time even though they worked in excess of forty hours every week. The
first count asserts that Events DC failed to pay overtime wages in violation of FLSA. Am.
Compl. W 25-26. lt asserts, in the alternative, that Events DC violated FLSA when it
failed to provide compensatory time pursuant to the company’s written policy. Am.
Compl. 1[ 27. The second count asserts that both Events DC and O’Dell failed to pay
overtime wages in violation of the DCl\/IWA. Am. Compl. M 40-48.

Defendants moved for partial dismissal in December 2()16. They acknowledge
plaintiffs have adequately stated a claim for overtime wages against Events DC. See l\/lem.
Supp. Defs.’ Partial Mot. Dismiss Am. Compl. 2 [Dkt. #26-1]. But they seek to dismiss as
inadequately pled plaintiffs’ alternative claim for compensatory time. Ia’. at l. They also
seek dismissal ofO’Dell as a defendant Id. at l-2. Briefing on the l\/lotion was completed

in January, see Pls.’ Opp’n Defs.’ Partial Mot. Dismiss (“Opp’n”) [Dkt. #27]; Reply l\/lem.

 

' The original complaint also asserted a claim under the D.C. Wage Payment and Collection Law,
D.C. Code §§ 32-1301 el seq. Compl. 1136 [Dkt. #2]. The amended complaint omits that claim.

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Supp. Defs.’ Partial Mot. Dismiss Am. Compl. [Dkt. #28], and l took the Motion under

advisement shortly thereafter.

STANDARD OF REVIEW

Defendants move for partial dismissal of the amended complaint for failure to state
a claim upon which relief can be granted. Fed. R. Civ. P. l2(b)(6). To survive a Rule
l2(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.”’ Ashcrofi v. Iqbal, 556 U.S.
662, 678 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. “The
court assumes the truth of all well-pleaded factual allegations in the complaint and
construes reasonable inferences from those allegations in the plaintiffs favor[.]” Sz'ssel v.
U.S. Dep’t OfHealth & Human Servs., 760 F.3d l, 4 (D.C. Cir. 2014). lt “need not,
however, accept inferences drawn by a plaintiff if such inferences are unsupported by the
facts set out in the complaint.” Nurrl`a’a’in v. Bola’en, 818 F.3d 75l, 756 (D.C. Cir. 2016)
(per curiam) (brackets and quotation marks omitted). Nor must it “accept legal conclusions
couched as factual allegations.” Ia’. (citing Iqbal, 556 U.S. at 678).

ANALYSIS

Defendants argue plaintiffs’ alternative claim for compensatory time must be
dismissed because claims for compensatory time against a private employer are not
cognizable under FLSA. l agree. FLSA provides a cause of action against “[a]ny employer

who violates the provisions of section 206 or section 207 of this title.” 29 U.S.C. § 2l6(b).

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Section 206 establishes a federal minimum wage. See 29 U.S.C. § 206 (entitled “minimum
wage”). Section 207 caps the work week for covered employees at forty hours and entitles
them to receive overtime compensation for any additional hours worked “at a rate not less
than one and one-halftimes the regular rate.” 29 U.S.C. § 207(a)(l) (entitled “maximum
hours”). Plaintiffs’ alternative claim asserts a violation of a “written [company] policy” to
give compensatory time. Am. Compl. il 27. But it does not even purport to assert a
violation of FLSA’s minimum wage requirement or overtime-premium requirement The
claim therefore is not cognizable under FLSA. “[T]he statutory language simply does not
contemplate a claim for wages other than minimum or overtime wages.” Nakahata v. New
York-Presbyterian Healthcare Sys., Inc., 723 F.3d l92, 201-02 (2nd Cir. 2013) (affirming
dismissal of “gap-time” claim); see also, e.g., Pioch v. IBEXEng’g Servs., Inc., 825 F.3d
1264, l27l (llth Cir. 2016) (“The FLSA . .. is not a vehicle for litigating breach of
contract disputes between employers and employees.”) (affirming dismissal where
employer withheld final paycheck); Albers v. Ba’. of Cly. Comm ’rs of Jejj"erson Cly., Colo.,
77l F.3d 697, 705 (lOth Cir. 2014) (“The FLSA is not an all-purpose vehicle to resolve
wage disputes between employers and their employees.”) (affirming dismissal where
employer failed to pay promised overtime rate above statutory premium).2

Plaintiffs attempt to avoid this obvious result by pressing the novel theory that 29

C.F.R. § 541.604 provides them with a cause of action for their compensatory time claim

 

2 Claims for compensatory time are cognizable against a “public agency” that provides compensatory
time “in in lieu of overtime compensation.” 29 U.S.C. § 207(0)(1); see also Chrl'stensen v. Harris Cly.,
529 U.S. 576 (2000). The amended complaint does not allege Events DC is a public agency.

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in the event plaintiffs are determined to have been properly classified as exempt employees.
See Opp’n 4-5. But that provision does no such thing. lt merely states that an “[a]n
employer may provide an exempt employee with additional compensation without losing
the exemption or violating the salary basis requirement, if the employment arrangement
also includes a guarantee of at least the minimum weekly-required amount paid on a salary
basis.” 29 C.F.R. § 541.604(a) (emphasis added); see also Defl`ning and Deli)nitz'ng the
Exemptions for Executl`ve, Ad)nl`nlstratl've, Professl'onal, Outsz'de Sales and Computer
Employees, 69 Fed. Reg. 22l22, 22183-84 (Dep’t of Labor Apr. 23, 2004) (adopting and
explaining final rule). “Such additional compensation may be paid on any basis (e.g., flat
sum, bonus payment, straight-time hourly amount, time and one-half or any other basis),
and may include paid time off.” 29 C.F.R. § 541.604(a) (emphasis added). The language
of the Rule thus directly contradicts plaintiffs’ assertion (which is unburdened by citation
to any authority) that an “employer [who] chooses to impleinent” a compensation time
policy must do so “at a rate ofone and a half hours for each overtime hour worked.” Opp’n
5 n.2. ln light of these deficiencies, l must dismiss plaintiffs’ alternative claim for
compensatory time. ln reaching this conclusion, however, l need not, and do not, decide
whether plaintiffs were properly classified as exempt employees, an issue that remains in
dispute in this litigation.

Defendants also argue that defendant O’Dell must be dismissed from this case
because the amended complaint fails to allege that he was an “employer” within the
meaning of the DCl\/IWA. The DCl\/IWA requires an employer to pay his employees an

overtime premium for any hours worked in excess of forty hours per week. See D.C. Code

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§ 32-1003(c). The term “employer” includes “any individual, partnership, general
contractor, subcontractor, association, corporation, business trust, or any person or group
of persons acting directly or indirectly in the interest of an employer in relation to an
employee.” D.C. Code § 32-1002(3). The parties agree that courts apply this definition
by looking to the “economic reality” of the employment relationship. Ventnra v. Bebo
Foods, Inc., 738 F. Supp. 2d l, 5 (D.D.C. 2010) (citing Morrison v. Int’l Progranas
Consorn`un/z, Inc., 253 F.3d 5, ll (D.C. Cir. 200])); see also Gnevara v. lscln`a, Inc., 47 F.
Supp. 3d 23, 26 (D.D.C. 2014) (“[T]he word ‘employer’ in the FLSA and the DCMWA is
generally interpreted in the same way.”). “ln assessing that ‘economic reality,’ courts
should consider factors such as whether the alleged employer ‘(l) had the power to hire
and fire the employees, (2) supervised and controlled employee work schedules or
conditions of employment, (3) determined the rate and method of payment, and (4)
maintained employment records.”’ Bonilla v. Power Desl'gn ]nc., 201 F. Supp. 3d 60, 63
(D.D.C. 2016) (quoting Morrison, 253 F.3d at ll). This test may show that more than one
“employer"' is liable for violations of the DCMWA. See Tho)npson v. Linda and A., Inc.,
779 F. Supp. 2d l39, 152 (D.D.C. 201l).

Here, plaintiffs have failed to allege any facts indicative of the economic reality
prevailing between themselves and ()’Dell, relying instead on the bare allegation that
O’l)ell "is the president and chief executive officer of Events DC.” Am. Compl. il 8
(capitalization altered); see Opp’n 8 (“As president and chief executive officer of Events

DC, [d]efendant O’Dell can be held personally liable as an employer[.]”). In Morrison our

Circuit reversed a grant of summary judgment where the district court erroneously

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“stressed [defendant’s] description of herself as a consultant” rather than examine whether
that title “mirror[ed] economic reality.” 253 F.3d at ll (quotation marks omitted).
Applying that principle at the motion to dismiss stage, courts in this District have rejected
claims that are bare of factual allegations beyond a position or job title. For example, in
Bonz`lla, the district court refused “to infer from the label ‘ general contractor’ that
[defendant] inherently wielded indirect control over those working at the project site.” 201
F. Supp. 3d at 64 (quotation marks and alteration omitted). lnstead, observing that the
complaint was “silent” in regard to the economic reality prevailing between the parties, the
court relied on Morrz`son to find that reciting the title “general contractor” was no substitute
for alleging factual content concerning the employment relationship Id. The same
reasoning applies here. The amended complaint contains no facts beyond reciting O’Dell’s
title. lt does not allege, for example, that O’Dell determined the rate of payment or that he
controlled the conditions of plaintiffs’ employment To the contrary, the amended
complaint specifically states that defendant Events DC hired plaintiffs, set their
compensation, and defined their duties. See Am. Compl. 1111 9-11, 15, 19. As such, l cannot
allow plaintiffs to proceed against O’Dell without more.

Other cases from this District confirm my assessment of the amended complaint.
Although “[t]he overwhelming weight of authority is that a corporate officer with
operational control of a corporation’s covered enterprise is an employer along with the
corporation,” Ventura v. L.A. Howard Consln Co., 134 F. Supp. 3d 99, 102 n.l (D.D.C.
2015), careful review of the cases shows that the vast majority of the complaints surviving
the motion to dismiss stage contain detailed factual allegations describing the economic

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realities between the parties, see, e.g., Vlllar v. Flynn Arclziteclu)”al Flnlshes, [nc., 664 F.
Supp. 2d 94, 97 (D.D.C. 2009) (denying motion to dismiss where defendant owned
company, assigned work, paid bonuses, and personally fired plaintiff); Tlion/lpson, 779 F.
Supp. 2d at 152, 154 (denying motion to dismiss where “[t`_`|he undisputed facts” indicated
defendant “exercised a high degree of operational control over the circumstances of the
plaintiffs’ employment, including supervising and hiring the plaintiffs” and requiring
personal auditions). Ofcourse, “detailed” allegations are not required by Rule 8. but even
complaints that barely surpass the low federal pleading standard contain more factual
allegations than plaintiffs offer here. See, e.g., Mnrcia v. A Capz'l'al Elec. Contractors, Inc.,
No. CV 16-2065 (RDl\/l), 2017 WL 3891665, at *4 (D.D.C. Sept. 5, 2017) (recognizing as
“thin” and “barely enough” allegations that plaintiffs were supervised and had their hours
set by defendant). ln short, l have found no case, and plaintiffs cite none, where a plaintiff
surmounts a motion to dismiss merely by affixing the labels “president” and “chief
executive officer” to a defendant, as plaintiffs try to do here. Because the amended
complaint is bereft of anything more than these labels, O’Dell must be dismissed
CONCLUSION

For all of the forgoing reasons, the Court will GRANT defendants’ Partial Motion

to Dismiss. An Order accompanies this Memorandum Opinion.
lzlu»M-ml

RICHARD J. a N
United States District Judge

