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Driscoll v. George Washington Univ.

United States District Court, D. Columbia.

September 10, 2012

DAVID M. DRISCOLL, et al., Plaintiffs,

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For DAVID M. DRISCOLL, Individually and on behalf of all others similarly situated, Plaintiff: Lesley Anne Tse, Michael J.D. Sweeney, LEAD ATTORNEYS, PRO HAC VICE, Dan Charles Getman, GETMAN & SWEENEY, PLLC., New Paltz, NY.


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ELLEN SEGAL HUVELLE, United States District Judge.

David Driscoll, a former employee of George Washington University (" GWU" ),

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has sued on behalf of himself and others similarly situated alleging that GWU violated federal and D.C. law by failing to pay overtime wages to certain employees. (First Amended Class Action Complaint, June 29, 2012 [Dkt. No. 8] (" Am. Compl." ).) GWU moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (July 3, 2012 [Dkt. No. 9] (" GWU Mot." )), and in opposing GWU's motion (July 17, 2012 [Dkt. No. 11] (" Driscoll Opp'n" )), Driscoll filed a cross-motion to amend his complaint (July 17, 2012 [Dkt. No. 12] (" Driscoll Mot." )), which GWU has, in turn, opposed (Aug. 3, 2012 [Dkt. No. 16] (" GWU Opp'n" )). Both parties filed replies in support of their respective motions. ( See GWU Reply in Support of its Motion to Dismiss, July 27, 2012 [Dkt. No. 15] (" GWU Reply" ); Driscoll Reply in Support of his Motion to Amend, August 13, 2012 [Dkt. No. 18] (" Driscoll Reply" ).) For the reasons stated, the Court will deny GWU's motion to dismiss and grant in part and deny in part Driscoll's motion to amend.


Driscoll alleges that he was employed as an Executive Coordinator at GWU from April 2010-February 2012. (Am. Compl. ¶ 38.) With other Executive Coordinators, Executive Aides, Executive Assistants, Executive Support Assistants, and Executive Associates, he was classified by GWU as an exempt employee under the federal Fair Labor Standards Act, 29 U.S.C. § § 201 et seq. (" FLSA" ), and similar D.C. Code provisions, and was not paid " overtime wages for all hours worked over 40 in a week." (Am. Compl. ¶ 40.) In 2011, GWU reclassified these employees as non-exempt " under the FLSA and D.C. Code and began to pay them overtime wages" ( id. ¶ 41), and " made a payment to [each of] them for back wages owed for the period two years prior to the reclassification." ( Id. ¶ 44.) Driscoll alleges, however, that these payments were calculated according to an improper method, the " 'half-time' method" ( id. ¶ 45), that " resulted in [the employees] receiving only one-third or less of the back overtime wages due under the FLSA and D.C. Code." ( Id. ¶ 46.) Driscoll further alleges that the " payments for back wages were not based on the overtime hours [the employees] actually worked." ( Id. ¶ 47.) Finally, Driscoll claims that when " he questioned [whether GWU's] payment of back overtime wages [was] in violation of the FLSA, 29 U.S.C. § 215," GWU " discriminated against [him] by discharging him." (Am. Compl. ¶ 55.)

Driscoll's first amended complaint alleges four causes of action: 1) individual and collective-action claims under the FLSA for overtime wages; 2) an individual claim under the FLSA for retaliation; 3) individual and collective-action claims under the D.C. Minimum Wage Act Revision Act, D.C. Code § § 32-1001 et seq. (" DCMWA" ), for overtime wages; and 4) individual and class-action claims under the D.C. Wage Payment and Collection Law, D.C. Code § § 32-1301 et seq. (" DCWPCL" ), for failure to pay wages when due. [1] Driscoll's proposed second amended complaint, along with alleging additional facts in response to GWU's motion to dismiss, asserts the same First, Second, and Fourth causes of action, but with regard to the Third Cause

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of Action alleges an opt-out class action, pursuant to Fed.R.Civ.P. 23, under the DCMWA. ( See Driscoll Mot., Ex. A (" Second Am. Compl." ).) GWU argues that Driscoll's first amended and proposed second amended complaints fail to state a claim under Rule 12(b)(6), and it opposes Driscoll's motion to amend, claiming prejudice.



Driscoll has already amended his complaint once, " as a [m]atter of [c]ourse," Fed.R.Civ.P. 15(a)(1), and because GWU has not consented to his amending a second time, he may amend again " only with . . . the [C]ourt's leave." Rule 15(a)(2).

Rule 15 instructs courts to " freely give leave [to amend] when justice so requires," id., and the " 'rule is to be construed liberally.'" In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218, 393 U.S. App.D.C. 415 (D.C. Cir. 2010) (quoting Belizan v. Hershon, 434 F.3d 579, 582, 369 U.S. App.D.C. 160 (D.C. Cir. 2006)). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court instructed:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, [or] undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be " freely given."

Id. at 182. " [T]he grant or denial of an opportunity to amend is within [the Court's] discretion . . . ." Id. " Because amendments are to be liberally granted, the non-movant bears the burden of showing why an amendment should not be allowed." Abdullah v. Washington, 530 F.Supp.2d 112, 115 (D.D.C. 2008); see Hajjar-Nejad v. George Washington Univ., 873 F.Supp.2d 1, 2012 WL 89973, at *7 (D.D.C. 2012) (" the party opposing amendment bears ...

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