United States District Court, W.D. North Carolina, Asheville Division
SARAH B. CONNER, individually and on behalf of all others similarly situated, Plaintiff,
CLEVELAND COUNTY, NORTH CAROLINA, also known as Cleveland County Emergency Medical Services, Defendant.
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge.
MATTER is before the Court on the Plaintiff's
Motion for Collective and Class Certification [Doc. 35]; the
Defendant's Motion to Dismiss [Doc. 40]; the Magistrate
Judge's Memorandum and Recommendation [Doc. 52] regarding
the disposition of the Motion to Dismiss; and the
parties' Objections to the Memorandum and Recommendation
[Docs. 54, 55].
to 28 U.S.C. § 636(b) and the standing Orders of
Designation of this Court, the Honorable W. Carleton Metcalf,
United States Magistrate Judge, was designated to consider
the Defendant's Motion to Dismiss and to submit a
recommendation for its disposition.
27, 2019, the Magistrate Judge filed a Memorandum and
Recommendation in this case containing conclusions of law in
support of a recommendation regarding the Motion to Dismiss.
[Doc. 52]. The parties were advised that any objections to
the Magistrate Judge's Memorandum and Recommendation were
to be filed in writing within fourteen (14) days of service.
The parties filed their respective Objections on July 18,
2019. [Docs. 54, 55].
purpose of the Fair Labor Standards Act (FLSA), 29 U.S.C.
§§ 201-219, is to ensure three things: (1) the
payment of the federal hourly minimum wage; (2) the
limitation of work to the federal maximum number of hours;
and (3) the payment of time-and-a-half for all overtime.
See generally Overnight Motor Transp. Co. v. Missel,
316 U.S. 572, 578 (1942) (discussing history of FLSA). The
FLSA has a special provision pertaining to police officers
and certain other public service employees that allows for
the payment of a set salary for all hours up to a set
“overtime threshold.” 29 U.S.C. § 207(k).
Any hours worked over that threshold number of hours must be
compensated as overtime. Id. The Plaintiff in this
matter, and the class she proposes to represent, are all EMS
personnel who fall within the purview of § 207(k).
Plaintiff's federal claim, as set forth in the Amended
Complaint, is on its face contradictory. In Count I (the only
federal claim), the Plaintiff asserts that the Defendant has
“violated the FLSA by failing to pay the Plaintiff . .
. an overtime premium rate of pay . . . for all hours worked
in excess of forty in a workweek.” [Doc. 22 at 13
¶ 75]. In light of the application of § 207(k) to
the type of position held by the Plaintiff, this would not
appear to state a claim, as the standard “forty-hour
workweek” rule does not apply. This, however, does not
end the analysis of the Plaintiff's claim. The Amended
Complaint contains five pages and forty paragraphs of
“Factual Allegations, ” which set forth the basis
of her claim, notwithstanding the erroneous, one-sentence
summary of paragraph 75. In short, the Plaintiff asserts that
she and other EMS personnel employed by the Defendant should
be paid a salary up to the § 207(k) overtime threshold
pursuant to a particular County ordinance, but instead are
paid a lower salary pursuant to a “CCEMS Section 14-Pay
Plan.” [Id. at 5-7]. The Plaintiff then
proceeds to set forth the conclusory allegation that the
“Defendant evaded the overtime provisions of the FLSA
by failing to correctly calculate and pay all overtime earned
by all CCEMS full-time EMS personnel and by failing to pay
all straight time [below overtime threshold] compensation due
for nonovertime hours under their contract.”
[Id. at 8 ¶ 47]. The first part of that
conclusory allegation, however, is unsupported by any factual
allegations pertaining to an entitlement to overtime
compensation. All the allegations pertain to the dispute
regarding what salary the Plaintiff and others similarly
situated are purportedly owed pursuant to this contract for
“straight time, ” i.e., for the work
hours below the § 207(k) overtime threshold. The
Plaintiff tries to bridge this gap with another unexplained
conclusory allegation that the overtime compensation paid
“cannot be treated as ‘overtime compensation'
because Defendant failed to pay Plaintiff and other similarly
situated employees all straight time compensation due for
nonovertime hours due and earned under their contract with
Defendant.” [Id. at 8 ¶ 50].
Plaintiff has presented no factual allegations to support a
claim that she or any other similarly situated employees have
been insufficiently compensated for hours they worked over
the § 207(k) overtime threshold. In fact, the Plaintiff
appears to concede this point in her Objections to the
Memorandum and Recommendation, stating: “There is no
dispute regarding the number of overtime hours worked, the
amount of overtime owed, or the rate at which overtime should
be paid. The FLSA violation arises solely from the
Defendant's failure to pay all straight time wages each
pay period prior to paying ‘overtime
compensation.'” [Doc. 55 at 5-6]. In short, the
entire claim the Plaintiff presents pertains to what amount
is owed for straight time - not overtime - pursuant to the
contract between the EMS employees and the Defendant.
making this “straight time” claim, the Plaintiff
does not allege that she and others similarly situated worked
straight time hours for which they were not compensated.
Rather, she contends that she and other EMS employees should
have received straight time pay calculated in accordance with
a particular County ordinance, instead of pursuant to the
CCEMS Section 14-Pay Plan. [See Doc. 22 at 8 ¶
49 (“Defendant … calculated compensation based
on the computation set forth in the CCEMS ‘Section
14-Pay Plan,' thus resulting in the failure to pay for
all straight time hours worked; i.e. an amount less than the
salaries established by Cleveland County Code of
Court in Monahan v. County of Chesterfield, 95 F.3d
1263 (4th Cir. 1996), addressed precisely the issue presented
here. “[I]f the mutually agreed upon terms of an
employment agreement do not violate the FLSA's minimum
wage/maximum hour mandates and provide compensation for all
nonovertime hours up to the overtime threshold, there can be
no viable claim for straight gap time under the FLSA if all
hours worked above the threshold have been properly
compensated at a proper overtime rate.”
Monahan, 95 F.3d at 1273. The Plaintiff concedes
that all overtime hours over the overtime threshold have been
properly accounted for and appropriately compensated.
Therefore, in order to make out a viable FLSA claim, the
Plaintiff must assert plausible factual allegations that her
“straight time” compensation agreement either
violates the minimum wage or maximum hour mandates of the
FLSA. The Plaintiff has made no such allegations on behalf of
herself or any other similarly situated employees. Rather,
she merely asserts that she and other employees were shorted
on their straight time pay pursuant to their contract. That
is not a violation of the FLSA. That is a state law contract
arguing that such a purely contractual claim still falls
within the FLSA, the Plaintiff relies on the official
interpretation promulgated by the Department of Labor as set
forth in 29 C.F.R. § 778.315. This interpretative
provision “expressly requires that in order to
determine overtime compensation, one must first look to the
employment agreement to determine whether the employer has
first paid all straight time due under the agreement.”
Monahan, 95 F.3d at 1273. Section 778.315 provides as
In determining the number of hours for which overtime
compensation is due, all hours worked . . . by an
employee for an employer in a particular workweek must be
counted. Overtime compensation, at a rate not less than
one and one-half times the regular rate of pay, must be paid
for each hour worked in the workweek in excess of the
applicable maximum hours standard. This extra
compensation for the excess hours of overtime work under the
Act cannot be said to have been paid to an employee unless
all the straight time compensation due him for the
nonovertime hours under his contract (express or implied) or
under any applicable statute has been paid.
29 C.F.R. § 778.315 (emphasis added). The Court of
Appeals in Monahan, however, held that “if the
mutually agreed upon terms of an employment agreement do not
violate the FLSA's minimum wage/maximum hour mandates and
provide compensation for all nonovertime hours up to the
overtime threshold, there can be no viable claim for straight
gap time under the FLSA if all hours worked above ...