KAREN DUNN, ) result, Plaintiff continued to perform the duties of Treasurer without compensation. ) Additionally, BPWD’s part-time Water Supply Operator, often failed to perform his Plaintiff, ) ) duties. Accordingly, Plaintiff frequently performed his duties, including shutting off vs. ) Case No. 22-CV-3015 BUNCOMBE PUBLIC WATER ) ) meters and reading meters. Plaintiff was not compensated for these additional duties. D ISTRICT, ) ) Plaintiff often worked substantially more than forty hours during the work weeks, Defendant. but she was not compensated for any overtime work. When the part-time Water Supply MEMORANDUM & ORDER Operator retired, BPWD expected Plaintiff to take on his responsibilities, without DUGAN, District Judge: compensation, in addition to her Office Manager position and her uncompensated Pending before the Court is a Motion to Dismiss, pursuant to Federal Rule of Civil Treasurer work. BPWD pressured Plaintiff to act as the Water Supply Operator, in Procedure 12(b)(6), filed by Defendant Buncome Public Water District (“BPWD”) (Docs. addition to her other duties, even while she was on workers’ compensation leave for a 8 & 9). Plaintiff Karen Dunn opposes the motion (Doc. 13). For the reasons set forth below, shoulder injury she suffered while performing the duties of Water Supply Operator. the motion is DENIED. Given these circumstances, Plaintiff resigned. I. Background Following her resignation, BPWD hired a new 25-year old Office Manager and The following facts are alleged in Plaintiff’s Complaint (Doc. 1). BPWD is a public hired two new employees to complete the field work Plaintiff had been required to entity governed by the Public Water District Act, 70 ILCS 3705. Plaintiff began working perform in addition to her Office Manager duties. The newly hired employees were for BPWD in 1995 when she was hired to be the Office Manager. After Plaintiff was hired, provided with a company truck to use while performing field work, even though BPWD BPWD added numerous additional duties to her job description, including serving as required Plaintiff to use her personal vehicle at her own expense to do such work. both Secretary and Treasurer of the Board of Trustees. After approximately ten years, BPWD’s management directed and/or was aware that Plaintiff was engaging in BPWD decided that a single employee could not serve as both Secretary and Treasurer of off-the-clock work. Nonetheless, BPWD’s management did not allow Plaintiff to record the Board of Trustees. Accordingly, BPWD hired a new male employee to serve as or report overtime work for compensation until October 2021. Treasurer. This employee received a $50.00 per month stipend. Plaintiff never received 2
In her Complaint, Plaintiff brings two claims against BPWD: (1) failure to properly order to ‘give the defendant fair notice of what the ... claim is and the grounds upon pay wages earned under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 (Count which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d I), and (2) age-based discrimination in violation of the Age Discrimination in 929 (2007) (citation omitted). Although a complaint need not contain detailed facts, Employment Act (“ADEA”). surviving a Rule 12(b)(6) motion “requires more than labels and conclusions .... Factual On February 7, 2023, BPWD filed a Motion to Dismiss pursuant to Federal Rule of allegations must be enough to raise a right to relief above the speculative level on the Civil Procedure 12(b)(6) and Local Rule 7.1(c) (Docs. 8 and 9). BPWD contends that assumption that all the allegations in the complaint are true ....” Id. “A claim has facial Plaintiff’s claims must be dismissed with prejudice because she is not a covered plausibility when the plaintiff pleads factual content that allows the court to draw the “employee” under either the FLSA or the ADEA. Plaintiff opposes the motion (Doc. 13). reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. BPWD also contends that Plaintiff’s FLSA claim should be dismissed without prejudice Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at for failure to allege that BPWD was engaged in interstate commerce and for failure to file 556, 127 S.Ct. 1955). a written notice of consent. III. Discussion II. Legal Standard A. Covered Employee – FLSA and ADEA “A motion to dismiss pursuant to Federal Rule of Civil Procedure BPWD contends that Plaintiff’s claims must be dismissed with prejudice because 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon she is not a covered employee under either the FLSA or the ADEA. BPWD argues Plaintiff which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th is excluded from the definition of employee under both statutes because she was a Cir. 2014) (citing Fed. R. Civ. P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., member of an elected official’s personal staff, she was appointed by an elected official on 128 F.3d 1074, 1080 (7th Cir. 1997)). When reviewing a complaint attacked by a Rule a policymaking level, and/or she was an immediate advisor to an elected official 12(b)(6) motion, the Court must accept all of the factual allegations as true and draw all regarding that official’s constitutional or legal powers. reasonable inferences in the light most favorable to the Plaintiff. Erickson v. Pardus, 551 As is relevant to the instant case, in defining the term “employee” the FLSA U.S. 89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Reynolds v. CB Sports Bar, Inc., 623 excludes certain individuals employed by a state, a political subdivision of a state, or an F.3d 1143, 1146 (7th Cir. 2010). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a interstate governmental agency from its protections, including any individual: (II) issta sfefl,e cted by the holder of such an office to be a member of his personal act as immediate advisors with respect to the exercise of the constitutional or legal powers (III) is appointed by such an officeholder to serve on a policymaking level, of the Board of Trustees. Therefore, BPWD argues, Plaintiff’s allegation that she was (IV) is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or employed as the Secretary and Treasurer for BPWD defeats her FLSA and ADEA claims. (V) is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative “The determination of status as a policymaker in many cases presents a difficult library of such State, political subdivision, or agency. factual question.” Nekolny v. Painter, 653 F.2d 1164, 1169 (7th Cir.1981); see also Soderbeck 29 U.S.C. § 203(e)(2)(c) (emphasis added). v.
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KAREN DUNN, ) result, Plaintiff continued to perform the duties of Treasurer without compensation. ) Additionally, BPWD’s part-time Water Supply Operator, often failed to perform his Plaintiff, ) ) duties. Accordingly, Plaintiff frequently performed his duties, including shutting off vs. ) Case No. 22-CV-3015 BUNCOMBE PUBLIC WATER ) ) meters and reading meters. Plaintiff was not compensated for these additional duties. D ISTRICT, ) ) Plaintiff often worked substantially more than forty hours during the work weeks, Defendant. but she was not compensated for any overtime work. When the part-time Water Supply MEMORANDUM & ORDER Operator retired, BPWD expected Plaintiff to take on his responsibilities, without DUGAN, District Judge: compensation, in addition to her Office Manager position and her uncompensated Pending before the Court is a Motion to Dismiss, pursuant to Federal Rule of Civil Treasurer work. BPWD pressured Plaintiff to act as the Water Supply Operator, in Procedure 12(b)(6), filed by Defendant Buncome Public Water District (“BPWD”) (Docs. addition to her other duties, even while she was on workers’ compensation leave for a 8 & 9). Plaintiff Karen Dunn opposes the motion (Doc. 13). For the reasons set forth below, shoulder injury she suffered while performing the duties of Water Supply Operator. the motion is DENIED. Given these circumstances, Plaintiff resigned. I. Background Following her resignation, BPWD hired a new 25-year old Office Manager and The following facts are alleged in Plaintiff’s Complaint (Doc. 1). BPWD is a public hired two new employees to complete the field work Plaintiff had been required to entity governed by the Public Water District Act, 70 ILCS 3705. Plaintiff began working perform in addition to her Office Manager duties. The newly hired employees were for BPWD in 1995 when she was hired to be the Office Manager. After Plaintiff was hired, provided with a company truck to use while performing field work, even though BPWD BPWD added numerous additional duties to her job description, including serving as required Plaintiff to use her personal vehicle at her own expense to do such work. both Secretary and Treasurer of the Board of Trustees. After approximately ten years, BPWD’s management directed and/or was aware that Plaintiff was engaging in BPWD decided that a single employee could not serve as both Secretary and Treasurer of off-the-clock work. Nonetheless, BPWD’s management did not allow Plaintiff to record the Board of Trustees. Accordingly, BPWD hired a new male employee to serve as or report overtime work for compensation until October 2021. Treasurer. This employee received a $50.00 per month stipend. Plaintiff never received 2
In her Complaint, Plaintiff brings two claims against BPWD: (1) failure to properly order to ‘give the defendant fair notice of what the ... claim is and the grounds upon pay wages earned under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 (Count which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d I), and (2) age-based discrimination in violation of the Age Discrimination in 929 (2007) (citation omitted). Although a complaint need not contain detailed facts, Employment Act (“ADEA”). surviving a Rule 12(b)(6) motion “requires more than labels and conclusions .... Factual On February 7, 2023, BPWD filed a Motion to Dismiss pursuant to Federal Rule of allegations must be enough to raise a right to relief above the speculative level on the Civil Procedure 12(b)(6) and Local Rule 7.1(c) (Docs. 8 and 9). BPWD contends that assumption that all the allegations in the complaint are true ....” Id. “A claim has facial Plaintiff’s claims must be dismissed with prejudice because she is not a covered plausibility when the plaintiff pleads factual content that allows the court to draw the “employee” under either the FLSA or the ADEA. Plaintiff opposes the motion (Doc. 13). reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. BPWD also contends that Plaintiff’s FLSA claim should be dismissed without prejudice Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at for failure to allege that BPWD was engaged in interstate commerce and for failure to file 556, 127 S.Ct. 1955). a written notice of consent. III. Discussion II. Legal Standard A. Covered Employee – FLSA and ADEA “A motion to dismiss pursuant to Federal Rule of Civil Procedure BPWD contends that Plaintiff’s claims must be dismissed with prejudice because 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon she is not a covered employee under either the FLSA or the ADEA. BPWD argues Plaintiff which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th is excluded from the definition of employee under both statutes because she was a Cir. 2014) (citing Fed. R. Civ. P. 12(b)(6); Gen. Elec. Capital Corp. v. Lease Resolution Corp., member of an elected official’s personal staff, she was appointed by an elected official on 128 F.3d 1074, 1080 (7th Cir. 1997)). When reviewing a complaint attacked by a Rule a policymaking level, and/or she was an immediate advisor to an elected official 12(b)(6) motion, the Court must accept all of the factual allegations as true and draw all regarding that official’s constitutional or legal powers. reasonable inferences in the light most favorable to the Plaintiff. Erickson v. Pardus, 551 As is relevant to the instant case, in defining the term “employee” the FLSA U.S. 89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Reynolds v. CB Sports Bar, Inc., 623 excludes certain individuals employed by a state, a political subdivision of a state, or an F.3d 1143, 1146 (7th Cir. 2010). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a interstate governmental agency from its protections, including any individual: (II) issta sfefl,e cted by the holder of such an office to be a member of his personal act as immediate advisors with respect to the exercise of the constitutional or legal powers (III) is appointed by such an officeholder to serve on a policymaking level, of the Board of Trustees. Therefore, BPWD argues, Plaintiff’s allegation that she was (IV) is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or employed as the Secretary and Treasurer for BPWD defeats her FLSA and ADEA claims. (V) is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative “The determination of status as a policymaker in many cases presents a difficult library of such State, political subdivision, or agency. factual question.” Nekolny v. Painter, 653 F.2d 1164, 1169 (7th Cir.1981); see also Soderbeck 29 U.S.C. § 203(e)(2)(c) (emphasis added). v. Burnett County, 752 F.2d 285, 288–89 (7th Cir.1985). This case is no exception. BPWD The relevant section of the ADEA tracks the FLSA’s definition of “employee”, contends that Plaintiff is not a covered employee based on the statutorily defined duties providing that “employee” shall not include:1 for the Secretary and Treasurer positions. But Plaintiff does not allege that she was elected any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such to the positions of Secretary and Treasurer. She alleges that she was hired “to be the Office officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise Manager,” but was expected to take on numerous additional duties over the years of the constitutional or legal powers of the office. without compensation, including duties normally assigned to the Secretary and 29 U.S.C. § 630(f) (emphasis added). Treasurer. (Doc. 1, ¶¶ 8-10, 12). The position of “Office Manager” does not necessarily According to BPWD, pursuant to applicable statutes and ordinances, of which the imply that Plaintiff is not an “employee” under the FLSA or ADEA. Court may take judicial notice, the Secretary and Treasurer positions are elected positions BPWD provides additional facts for the Court to consider. For example, BPWD not subject to civil service laws. Specifically, BPWD contends the Illinois Public Water claims that (1) all business of BPWD had to go through Plaintiff; (2) Plaintiff was elected District Act (PWDA) and BPWD’s own ordinances establish the following: (1) the Board by the Board of Trustees and compensated for her work as Secretary and Treasurer; and of Trustees is the corporate authority of BPWD; (2) the Board of Trustees elects (3) Plaintiff was responsible for various “governmental” duties. But these additional individuals to serve as Secretary and Treasurer for BPWD; (3) the Secretary and Treasurer factual allegations cannot be considered by the Court at this stage of the litigation. are chosen by the Board of Trustees to serve as personal staff; (4) the Secretary and Accordingly, BPWD’s Motion to Dismiss Plaintiff’s FLSA and ADEA claims with 1 The ADEA was interpolated into the Fair Labor Standards Act, and its definition of employee tracks the FLSA’s prejudice on the ground that she is not a covered employee under either statute is definition of employee. 29 U.S.C. § 203(e). See also E.E.O.C. v. Sidley Austin Brown & Wood, 315 F.3d 696, 708 ( 7th Cir. 2002) DENIED. 5 6
B. Interstate Commerce – Individual or Enterprise Coverage C. Written Consent The FLSA imposes minimum and hourly overtime wage requirements for Finally, BPWD moves to dismiss Plaintiff’s FLSA claim on the ground that Plaintiff employees who are “engaged in commerce or in the production of goods for commerce” has failed to file a written notice of consent as required under Section 216(b). Section (individual coverage) or who are “employed in an enterprise engaged in commerce or in 216(b) provides in pertinent part: the production of goods for commerce” (enterprise coverage). 29 U.S.C. §§ An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer ... by any one or more 206(a), 207(a)(1). BPWD asserts that Plaintiff’s FLSA claim should be dismissed because employees for and on behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action she has failed to plead facts establishing individual coverage or enterprise coverage. unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. The Complaint alleges that BPWD “is a local water district authorized under the 29 U.S.C. § 216(b) (emphasis added). laws of the State of Illinois,” which “operates a public water district.” (Doc. 1, ¶¶ 3, 6). BPWD contends that this section requires all plaintiffs who seek to maintain an These factual allegations – assumed to be true at this stage of the litigation – are sufficient action under the FLSA to file written consent to be a party plaintiff. BPWD’s contention to place BPWD within the FLSA’s definition of “public agency,” and therefore to place is erroneous. Section 216(b) was amended in 1947 as part of the “Portal-to-Portal Act.” Its BPWD within the scope of the FLSA’s enterprise coverage. See 29 U.S.C. §§ purpose was to “combat the problem of one employee bringing suit on behalf of himself 203(x) (“public agency” includes “the government of a State or political subdivision and ‘other employees similarly situated,’ often hundreds and sometimes thousands of thereof” and “any agency of... a State, or a political subdivision of a State”); 29 U.S.C. § employees, without naming the other employees.” Allen v. Atlantic Richfield Co., 724 F.2d 203(s)(1)(C) (“enterprise engaged in commerce” includes an enterprise that “is an activity 1131, 1134 (5th Cir.1984). In Allen, the Fifth Circuit Court of Appeals explained why this of a public agency”). See also Bankston v. State of Illinois, No. 93 C 39, 1993 WL 141785, at was problematic: *2 (N.D. Ill. Apr. 30, 1993) (denying motion to dismiss for failure to establish that [T]he defendant employer would not know which other members of the defendants were engaged in interstate commerce where defendants were employees of a class were actually going to participate, and the employer could be surprised by their testimony or other evidence at trial. As well, some courts public agency). Therefore, despite BPWD’s arguments to the contrary, Plaintiff has had held that a favorable judgment for the named plaintiffs was res judicata for the entire class. The clear intent of the provisions set out above was to sufficiently alleged enterprise-based coverage.2 p thr ao td hu ac vti eo n b eo ef n g moo od vs e df o inr c oo r m prm oder uc ce e, d o fr o h r a cs o ‘ mem mp erlo cey ,e ’e as n h da hn ad sl i an ng , ‘ as ne nll uin ag l go rr o o ssth ve or lw ui mse e w ofo sr ak li en sg m o an d g eo oo rd bs u o sr i nm esa st e dr oia nl es make the members of the class of unnamed plaintiffs who wished to SO ORDERED. A SL, / participate in, and be bound by, the action identify themselves for the benefit of the defendant. The class members were allowed to do so by filing Dated: August 28, 2023 ‘Bare L a written consent to the suit. *2 Id. at 1134-35 (citation omitted). DAVID W. DUGAN Considering this legislative history, the Fifth Circuit concluded that 22 named United States District Judge plaintiffs bringing suit jointly under the FLSA (but not as a collective action) were not required to filed written consents because “it is clear that a plaintiff does not need to file a written consent if an individual action is maintained.” The Seventh Circuit has reached. the same conclusion. See Harkins v. Riverboat Serus., Inc., 385 F.3d 1099, 1101 (7th Cir. 2004)(the written consent requirement is “applicable only to collective actions.”); Anderson v. Montgonery Ward & Co., Inc., 852 F.2d 1008, 1018-19 (7th Cir.1988) (written consent requirement “applies only to those parties who are not named as plaintiffs in the complaint”). See also Morelock v. NCR Corp., 586 F.2d 1096, 1103 (6th Cir.1978), cert. denied, 441 US. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979) (“The consent requirement of § 216(b), ... is apposite solely to representative actions”). The instant case is not a collective action; Plaintiff only brings claims on behalf of herself. As such, Plaintiff's failure to file a written consent form with the Court is not a basis for dismissing her FLSA claim. IV. Conclusion For the reasons set forth herein, Defendant Buncome Public Water District’s Motion to Dismiss (Doc. 8) is DENIED.
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