United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE.
the Court is Defendants' Motion to Dismiss
Plaintiffs' Amended Complaint, Doc. 23. Plaintiffs are
former employees of Sulphur Boomarang Diner, LLC, one of a
chain of “Boomarang” diners in Oklahoma. They
brought an Amended Complaint (Doc. 21) for individual and
collective Fair Labor Standards Act (“FLSA”)
violations and state-law defamation against nine Boomarang
diners and Ms. Sheila Moehringer, a manager at each of
Defendants' diners. Defendants' main issue with the
Amended Complaint concerns whether employees of Sulphur
Boomarang can sue the other Boomarangs for conduct that
Defendants believe was limited to the Sulphur location, and
if so whether Plaintiffs can sue on behalf of non-Sulphur
Boomarang employees. The Court answers “yes” to
both questions because Plaintiffs allege a plausible joint
employment relationship. The Motion to Dismiss is denied with
respect to these arguments and others, but granted as to
Plaintiffs' individual claims for FLSA retaliation that
fail to state a plausible claim for relief.
Court accepts as true the following facts alleged in the
Amended Complaint, Doc. 21. The Defendant Boomarang diners
have a unique employment arrangement. On the one hand, they
appear to share authority over and benefit from each
other's employees-as in the employees that usually work
at a particular location. Specifically, the diners have a
“common pooling” arrangement in which they
“specially assign employees” between locations
for training and shift-covering purposes; utilize a
“common payment source” and “central
payroll system by which wages are paid to all of the
defendants' employees”; exercise “joint
control over” work conditions; share “common
managers” across diners, such as Defendant Sheila
Moehringer, “who acted as a manager at all of the
defendants' Boomarang locations”; and host monthly
meetings at Pauls Valley Boomarang with their managers and
assistant managers to collect cash earned at each diner since
the prior meeting. Id. at 2-4. Plaintiff Tish
Thomas, a Sulphur Boomarang “assistant manager, ”
trained at Davis Boomarang, occasionally filled in for absent
Davis employees, and attended the monthly Pauls Valley
meetings. Id. at 4-5, 11. Plaintiff Makita McGill, a
Boomarang server, only worked at the Sulphur location.
Id. at 5.
other hand, the Defendant Boomarang diners share a similar
problem of wage and hour issues. Defendants did not pay wages
to Thomas for time spent traveling to and from monthly Pauls
Valley meetings, nor did they pay her mileage. Id.
at 5. They also failed to pay wages to Thomas and other
employees for time spent traveling on “special
assignments” between Boomarang locations. Id.
at 7, 11-12. Moreover, Plaintiffs and other similarly
situated Boomarang employees “routinely worked in
excess of 40 hours per week for the defendants without
receiving overtime compensation.” Id. at 5, 7.
This was because Defendants instructed Thomas, McGill, and
others not to “clock in” at certain times, such
as when traveling to and from these special assignments.
Id. at 4-5.
Thomas and McGill also experienced issues at Sulphur
Boomarang that may have led to their June 2017 exit.
Id. at 5. Plaintiffs inquired “into being paid
overtime pursuant to the FLSA.” Id. at 8-10.
Sometime after this, Defendant Moehringer, another Boomarang
manager Curtis Abernathy, and Sulfur employee Andrew Tyson,
knowingly circulated a false rumor to Plaintiffs'
coworkers, “the community at large, including
Thomas' children, ” and “diner
patrons.” Id. at 8-11. They said that
Plaintiffs “had been stealing from the Sulphur location
by charging defendants' customers full price but
recording the sale as discounted, and then pocketing the
discount.” Id. at 8-9. Moehringer fired Thomas
on June 21, 2017, and McGill left two days later due to what
she calls “hostile working conditions” at Sulphur
Boomarang amidst the stealing rumors. Id. at 5, 9.
assert the following individual claims in their Amended
Complaint: (1) FLSA failure to pay wages and overtime
(“Count 1, ” Doc. 21, at 4-6); (2) defamation
(“Count 3, ” id. at 8-1.); and
(3) FLSA retaliation (“Count 3, ” id.).
Plaintiffs also bring collective claims under the FLSA, 29
U.S.C. § 216(b), “on behalf of all persons who
have been, are and/or will be employed by the business entity
defendants in a nonexempt position wherein the employees
worked more than 40 hours per week but were not paid the
overtime pay required by the FLSA, ” for (4) failure to
pay overtime (“Count 2, ” Doc. 21, at 6-8); and
(5) failure to pay wages for “special assignment”
travel (“Count 4, ” id. at 11-12).
complaint may be dismissed under Federal Rule of Civil
Procedure 12(b)(6) for “failure to state a claim upon
which relief can be granted.” Dismissal is proper
“if, viewing the well-pleaded factual allegations in
the complaint as true and in the light most favorable to the
non-moving party, the complaint does not contain
‘enough facts to state a claim to relief that is
plausible on its face.'” MacArthur v. San Juan
County, 497 F.3d 1057, 1064 (10th Cir. 2007) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
(2007)); see Ashcroft v. Iqbal, 556 U.S. 662, 676-80
raise three arguments to dismiss Claims 1, 4, and 5 under the
FLSA, which allows aggrieved employees to bring wage and hour
claims on behalf of himself “and other employees
similarly situated.” 29 U.S.C. § 216(b). For the
purpose of this Motion, Defendant Boomarang diners and
“common manager” Defendant Moehringer are
Plaintiffs' joint employers, and Plaintiffs allege
plausible claims for FLSA overtime compensation.
Boomarang Defendants' joint employment
first argue for dismissal of Plaintiffs' FLSA claims
against the non-Sulphur Boomarang Defendants because
Plaintiffs are only employees of Sulphur Boomarang-the
question is whether all Defendant Boomarang diners jointly
employed Plaintiffs or is only Sulphur Boomarang liable for
potential FLSA violations.
outset, the parties disagree whether Defendants' joint
employment status is a Rule 12(b)(1) jurisdictional question
bearing on Plaintiffs' standing to bring a claim
or a 12(b)(6) question about the elements of
Plaintiffs' FLSA action. Courts have treated this joint
employment question differently, based largely on varying
interpretations of the FLSA's 29 U.S.C. § 216(b) and
whether Congress “clearly state[d] that a threshold
limitation on [its] scope shall count as
jurisdictional.” Arbaugh v. Y&H Corp., 546
U.S. 500, 515 (2006).
Court declines to settle this debate because under either
inquiry-deciding if Plaintiffs meet standing's
“causation” and “redressability”
elements or assessing the plausibility of Plaintiffs'
FLSA claims-the Court examines the nature of the employment
relationship, accepting “as true all material
allegations of the complaint” and “constru[ing]
the complaint in favor of the complaining party,
” and finds in Plaintiffs' favor.
Warth v. Seldin, 422 U.S. 490, 501 (1975); see
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016).
FLSA circularly defines an “employer” as
“any person acting directly or indirectly in the
interest of an employer in relation to an employee, ”
and “employ” means to “suffer or permit to
work.” Baker v. Flint Eng'g & Const.
Co., 137 F.3d 1436, 1440 (10th Cir. 1998) (quoting 29
U.S.C. § 203(d), (g)). A “striking[ly]”
broad definition, “the meaning of ‘employee'
. . . cover[s] some parties who might not qualify as such
under a strict application of traditional agency law
principles.” Id. (quoting Nationwide Mut.
Ins. Co. v. Darden, 503 U.S. 318, 326 (1992)). The
Court's prime focus is “the economic realities of
the relationship” between putative employee and
employer-“whether the alleged employer has the power to
hire and fire employees, supervises and controls employee
work schedules or conditions of employment, determines the
rate and method of payment, and maintains employment
records.” Id. None of the factors is
dispositive; “the test is instead based on the totality
of the circumstances.” Johnson v. Unified Gov't
of Wyandotte Cty./Kansas City, Kansas, 371 F.3d 723, 729
(10th Cir. 2004).
this “economic realities test” is a broad one,
Department of Labor regulations provide guidance on
discerning “joint employment”-when a
“single individual . . . stand[s] in the relation of an
employee to two or more employers at the same time” for
FLSA purposes-from “disassociated” employment. 29
C.F.R. § 791.2. If an employee works for two or more
employers during a work week, the employers are
“disassociated” if they act “entirely
independently of each other” with respect to that
employee. Id. § 791.2(a). By contrast, if an
employee's work “simultaneously benefits two or
more employers or works for two or more employers at
different times during the workweek, ” joint employment
is generally present in three types of situations:
(1) Where there is an arrangement between the employers to
share the employee's services, as, for example, to
interchange employees; or
(2) Where one employer is acting directly or indirectly in
the interest of the other employer (or employers) in relation
to the employee; or
(3) Where the employers are not completely disassociated with
respect to the employment of a particular employee and may be
deemed to share control of the employee, directly or
indirectly, by reason of the fact that one employer controls,
is controlled by, or is under common control with the other
Id. § 791.2(b) (footnotes omitted). See
also Hall v. DIRECTV, LLC, 846 F.3d 757, 768 (4th Cir.
2017), cert. denied,138 S.Ct. 635, (2018)
(examining “the relationships between and
among [putative joint ...