United States District Court, District of Columbia
RICHARD J. LEON, UNITED STATES DISTRICT JUDGE.
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.
DC is a District of Columba corporation that owns and
operates entertainment venues within the District. Am. Compl.
¶ 7 [Dkt. #25]. It is also the official convention and
sports authority for the District, responsible for managing
and attracting conventions and sporting events. Am. Compl.
¶ 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. ¶¶ 4-6. The company hired
plaintiffs and classified them as "exempt"
employees. Am. Compl. ¶¶ 9-11. It defined their job
duties to include a number of managerial functions, but in
practice assigned them "perfunctory" tasks. Am.
Compl. ¶¶ 13-15. In addition, Events DC established
a written "comp-time" policy instead of paying
plaintiffs overtime. Am. Compl. ¶¶ 19, 26-27.
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.
Minimum Wage Act ("DCMWA"), D.C. Code §§
32-1001 et seq.,  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. ¶¶ 25-26. It 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. ¶ 27. The second count
asserts that both Events DC and O'Dell failed to pay
overtime wages in violation of the DCMWA. Am. Compl.
moved for partial dismissal in December 2016. They
acknowledge plaintiffs have adequately stated a claim for
overtime wages against Events DC. See Mem. 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. Id. at 1.
They also seek dismissal of O'Dell as a defendant.
Id. at 1-2. Briefing on the Motion was completed in
January, see Pls.' Opp'n Defs.' Partial
Mot. Dismiss ("Opp'n") [Dkt. #27]; Reply Mem.
Supp. Defs.' Partial Mot. Dismiss Am. Compl. [Dkt. #28],
and I took the Motion under advisement shortly thereafter.
move for partial dismissal of the amended complaint for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(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.'" Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl
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 [.]" Sissel v. U.S. Dep't of
Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014).
It "need not, however, accept inferences drawn by a
plaintiff if such inferences are unsupported by the facts set
out in the complaint." Nurriddin v. Bolden, 818
F.3d 751, 756 (D.C. Cir. 2016) (per curiam) (brackets and
quotation marks omitted). Nor must it "accept legal
conclusions couched as factual allegations."
Id. (citing Iqbal, 556 U.S. at 678).
argue plaintiffs' alternative claim for compensatory time
must be dismissed because claims for compensatory time
against a private employer are not cognizable under FLSA. I
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. § 216(b).
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-half times the regular rate." 29 U.S.C. §
207(a)(1) (entitled "maximum hours").
Plaintiffs' alternative claim asserts a violation of a
"written [company] policy" to give compensatory
time. Am. Compl. ¶ 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 192, 201-02 (2nd Cir.
2013) (affirming dismissal of "gap-time" claim);
see also, e.g., Pioch v. IBEX Eng'g Servs.,
Inc., 825 F.3d 1264, 1271 (11th 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. Bd. of Cty. Comm 'rs of Jefferson Cty., Colo.,
771 F.3d 697, 705 (10th 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
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 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. It 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 Defining and Delimiting the Exemptions for
Executive, Administrative, Professional, Outside Sales and
Computer Employees, 69 Fed. Reg. 22122, 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 implement" a
compensation time policy must do so "at a rate of one
and a half hours for each overtime hour worked."
Opp'n 5 n.2. In light of these deficiencies, I must
dismiss plaintiffs' alternative claim for compensatory
time. In reaching this conclusion, however, I need not, and
do not, decide whether plaintiffs were properly classified as
exempt employees, an issue that remains in dispute in this
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
DCMWA. The DCMWA 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 § 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. Ventura v. Bebo Foods,
Inc., 738 F.Supp.2d 1, 5 (D.D.C. 2010) (citing
Morrison v. Int'l Programs Consortium, Inc., 253
F.3d 5, 11 (D.C. Cir. 2001)); see also Guevara v. Ischia,
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."). "In
assessing that 'economic reality, ' courts should
consider factors such as whether the alleged employer
'(1) 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 Design Inc., 201 F.Supp.3d 60, 63
(D.D.C. 2016) (quoting Morrison, 253 F.3d at 11).
This test may show that more than one "employer" is
liable for violations of the DCMWA. See Thompson v. Linda
and A., Inc., 779 F.Supp.2d 139, 152 (D.D.C. 2011).
plaintiffs have failed to allege any facts indicative of the
economic reality prevailing between themselves and
O'Dell, relying instead on the bare allegation that
O'Dell "is the president and chief executive officer
of Events DC." Am. Compl. ¶ 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 "stressed
[defendant's] description of herself as a
consultant" rather than examine whether that title
"mirror[ed] economic reality." 253 F.3d at 11
(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 Bonilla, 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). Instead, observing that the complaint
was "silent" in regard to the economic reality
prevailing between the parties, the court relied on
Morrison 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. It 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.¶¶9-ll, 15,
19. As such, I cannot allow plaintiffs to proceed against
O'Dell without more.
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.
LA. Howard Constr. Co.,134 F.Supp.3d 99, 102 n.1(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 realities between the parties, see, e.g., Villar
v. Flynn Architectural Finishes, Inc.,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); Thompson, 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). Of
course, "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., Murcia
v. A Capital Elec. Contractors, Inc., No. CV 16-2065
(RDM), 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). In short, I ...