                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
MICA SAINT-JEAN, et al.,       )
                               )
     Plaintiffs,               )
                               )
     v.                        )    Civil Action No. 08-1769 (RWR)
                               )
DISTRICT OF COLUMBIA PUBLIC    )
SCHOOLS DIVISION OF            )
TRANSPORTATION, et al.,        )
                               )
     Defendants.               )
______________________________)

                         MEMORANDUM ORDER

     The plaintiffs were ordered to show cause why the complaint

should not be dismissed as to defendant Michelle Smith for

failure to state a claim for which relief can be granted.    In

response, they filed a memorandum conceding that their

Whistleblower Protection Act, quantum meruit, and defamation

claims against Smith should be dismissed.   (Pl.’s Supp’l Mem. at

1 n.1.)   They argue, though, that they have sufficiently pled

facts that reflect Smith’s status as an “employer” to state a

claim against her under the Fair Labor Standards Act (“FLSA”).

     To be liable for a FLSA violation, the defendant must

qualify as an “employer.”   29 U.S.C. §§ 206-07 (2006).   In this

circuit, whether an individual is an employer within the meaning

of the FLSA is determined by the “economic reality” of the

employment relationship, assessing whether the alleged employer

1) has hiring and firing authority, 2) supervises and schedules
                                 -2-
employee work hours or conditions of employment, 3) determines

the rate and method of payment, and 4) maintains employment

records.   Morrison v. Int’l Programs of Consortium, Inc., 253

F.3d 5, 11 (D.C. Cir. 2001).

     Rather than demonstrate how the facts pled satisfy the

Morrison factors, the plaintiffs cite FLSA cases brought against

officers of private corporations where courts assessed the degree

of their ownership interest and operational control over the

corporation’s functions.   See, e.g., Chao v. Hotel Oasis, Inc.,

493 F.3d 26 (1st Cir. 2007); Ventura v. Bebo Foods, Inc., 738 F.

Supp. 2d 1, 6 (D.D.C. 2010).   The complaint here makes no

allegation that Smith has any ownership interest in a government

agency.    Nor have plaintiffs rebutted the judicial doubt cited by

the defendants that Congress ever intended to impose individual

liability upon public employers under the FLSA.   (See Def.’s

Opp’n to Pl.’s Mem. at 4 n.2.)

     Instead, the plaintiffs insist that the complaint survives

since it demonstrates Smith’s operational control over the

Division of Transportation (“DOT”).    For example, plaintiffs cite

Smith’s responsibility for supervising bus drivers and attendants

and for assigning employees’ hours, runs, and suspensions.

(Pl.’s Mem. at 3.)   But the memorandum opinion and show cause

order, Mica Saint-Jean, et al. v. D.C. Pub. Sch. Div. Of Transp.,

Civ. Action No. 08-1769 (D.D.C. March 31, 2011), assumed that the
                                 -3-
complaint satisfied the second Morrison prong.     Id. at 6.    It is

the remaining prongs that the plaintiffs fail to satisfy.

Smith’s alleged ability to temporarily suspend without pay does

not allege any ability to terminate employment.    Nor do the

plaintiffs identify any authority equating the power to suspend

and the power to fire.   (See Am. Compl. ¶ 57; Pl.’s Supp’l Mem.

at 3.)   Compare Gilbert v. Homar, 520 U.S. 924, 932 (1997)

(distinguishing between temporary suspension without pay and

termination from employment in determining what process is due).

And the plaintiffs do not allege that Smith had hiring authority;

they aver that DOT hired them.   Moreover, the complaint does not

allege that when plaintiffs received their pay from DOT, the rate

or method was set by Smith.   The plaintiffs simply allege that

Smith corruptly demanded a cut of their pay after they received

it.    The plaintiffs cite no authority supporting the proposition

that one who orchestrates a kickback scheme controls methods of

pay.   Nor have plaintiffs alleged any facts showing that Smith

maintained employment records.

       The plaintiffs have failed to demonstrate that the complaint

alleges facts reflecting Smith’s status as an employer within the

meaning of the FLSA.   Accordingly, it is hereby
                               -4-
     ORDERED that the complaint be, and hereby is, DISMISSED

against Smith.

     SIGNED this 20th day of June, 2011.

                                              /s/
                                     RICHARD W. ROBERTS
                                     United States District Judge
