UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

R. Alexander Acosta, Secretary of Labor, United States Department of Labor

v. Civil No. 18-cv-274-JD Opinion No.

Quality Granite and Cabinetry, LLC and Christopher Bouchard

O R D E R

The Secretary of Labor filed this Fair Labor Standards Act

(“FLSA”) lawsuit against Quality Granite and Cabinetry, LLC, and

its owner, Christopher Bouchard, alleging violations of the

FLSA’s minimum wage, overtime, and record keeping provisions.

Quality Granite and Bouchard now move to dismiss the Secretary’s

allegations of minimum wage and overtime violations because they

lack sufficient specificity to state a plausible claim for

relief. The Secretary opposes dismissal.

Standard of Review

In considering a motion to dismiss, the court accepts all

well-pleaded facts as true and resolves all reasonable

inferences in the plaintiff’s favor. See Ocasio-Hernández v.

Fortuño-Burset,

(1st Cir. 2011). The court

disregards conclusory allegations that simply parrot the

applicable legal standard. Manning v. Boston Med. Ctr. Corp.,

(1st Cir. 2013). To determine whether a

complaint survives a motion to dismiss, the court should use its

“judicial experience and common sense,” but should also avoid

disregarding a factual allegation merely because actual proof of

the alleged facts is improbable.

(quoting Bell Atlantic

Corp. v. Twombly,

(2007)).

The ultimate question before the court is whether the facts

alleged in the complaint render the plaintiff’s entitlement to

relief plausible.

Rule 8 does not require a plaintiff to

plead specific or detailed allegations beyond what is required

to state a plausible claim. Twombly,

.

Background

Quality Granite is a granite fabricator and installation

contractor located in Concord, New Hampshire. The Secretary

asserts that Quality Granite and Bouchard, Quality Granite’s

owner, violated the FLSA’s minimum wage and overtime provisions,

(minimum wage), and 207 (overtime

compensation). In addition, the Secretary brings a claim for

failure to make and keep records adequately showing Quality

Granite’s employees’ wages and hours, in violation of

(c).1

1Quality Granite and Bouchard do not seek dismissal of this claim.

2 According to the Secretary, Quality Granite and Bouchard

failed to pay two unnamed employees the minimum wage “[d]uring

two specific workweeks after February 1, 2016 . . . .” (Doc. 12

at 3). Without adequate records from Quality Granite showing

the employees’ hours for those specific weeks, the Secretary

calculated the average number of hours worked by the two

employees during the workweeks from February 1, 2016, to August

4, 2017.

One employee, an “installer,” “worked an average of 51.25

hours during the workweek ending February 3, 2017, and several

other weeks.” (Doc. 12 at 3). Quality Granite paid the

installer $350.00 for his work during the workweek ending

February 3, 2017. The installer’s rate of pay for that workweek

when measured against the average number of hours he worked per

week between February 1, 2016, and August 4, 2017, was $6.83 per

hour, which is below the applicable minimum wage set by

(a)(1)(C).

Similarly, the Secretary found that another employee, a

“fabricator,” “worked an average of 46.5 hours” per week, but

during the week ending March 25, 2016, had not been paid at all.

The Secretary further alleges that Quality Granite and

Bouchard violated the FLSA by failing to pay twenty-three

employees premium pay for overtime work between February 1,

3 2016, and August 4, 2017. For his overtime violation claim, the

Secretary calculated the average hours worked by employees in

certain job categories (e.g., installer, fabricator, polisher,

and office worker) and measured those weekly averages against

the actual amount paid to each identified employee per week. In

his complaint, the Secretary asserts that “in many weeks”

Quality Granite failed to compensate its employees for overtime,

but also identifies two workweeks—the week ending on November

18, 2016, and the week ending on February 17, 2017—as specific

weeks in which Quality Granite failed to provide overtime

compensation.

Discussion

Generally, Quality Granite and Bouchard argue that the

Secretary’s FLSA minimum wage and overtime violation claims fail

because the factual allegations lack adequate specificity. The

Secretary responds that Quality Granite and Bouchard overstate

his pleading obligations.

A. Minimum Wage Violations

Quality Granite and Bouchard argue the Secretary cannot

support his claim that they violated the FLSA’s minimum wage

provision by measuring the amount they paid to an employee in a

specific week against the average hours generally worked by that

4 employee. Instead, Quality Granite and Bouchard assert that the

Secretary must allege the actual number of hours an employee

worked during the specific workweek and measure those hours

against the amount paid that week. The Secretary argues that

the pleading standards in FLSA cases do not mandate that

precision.

To show that a defendant violated the FLSA’s minimum wage

provisions, a plaintiff must establish that, during a given

workweek, an employee was paid at a rate below the set minimum.

. A minimum wage violation occurs if the weekly

wage paid to an employee divided by the total time he worked in

that week is less than the applicable minimum wage. United

States v. Klinghoffer Bros. Realty Corp.,

(2d

Cir. 1960); accord Hamilton Partners Healthcare Sys., Inc.,

(D. Mass. 2016).

The Secretary’s use of the employees’ average worked hours

alongside actual payment amounts for certain weeks does not

render its arithmetic too speculative to state a plausible

claim. The average number of hours each employee worked is a

fact that allows a reasonable inference that the employee worked

approximately that number of hours during any typical workweek

in the relevant period.

5 Neither Gould v. First Student Management, LLC,

(D.N.H. Aug. 29, 2017), nor Chesley v. DIRECTV, Inc.,

(D.N.H. June 8, 2015), support defendants’

argument that the FLSA prohibits pleading based on average

hours. In those cases, the plaintiffs alleged only that they

had worked an indefinite number of uncompensated or

undercompensated hours because they regularly performed various

uncompensated activities. Gould,

(overtime

violation), at *6; Chesley,

, at *5 (minimum wage

violation). With only those facts, neither court could

determine without speculation the total number of hours the

employees worked in a given week, approximate or otherwise. See

Gould,

, at *6; Chesley,

, at *5.

Here, the Secretary makes definite, albeit inexact, allegations

about the number of uncompensated or undercompensated hours

Quality Granite’s employees worked.

Of course, the “installer” identified by the Secretary

might have worked less than his average weekly hours during the

workweek in which Quality Granite paid him $350.00. The

Secretary, however, alleges that Quality Granite and Bouchard

failed to maintain adequate employee records. Quality Granite

and Bouchard will likely bear the burden at trial to bring

forward evidence to negate the reasonable inferences that can be

6 drawn from the Secretary’s approximations. See Sec’y of Labor

v. DeSisto,

(1st Cir. 1991) (“Where the

employer has failed to keep adequate employment records, it pays

for that failure at trial by bearing the lion’s share of the

burden of proof.”) (citing Anderson v. Mt. Clemens Pottery Co.,

(1946)). Taking the Secretary’s

allegations as true, however, the Secretary sets out a plausible

claim for an FLSA minimum wage violation.

Quality Granite and Bouchard also challenge the proof

underpinning the Secretary’s allegations and his failure to

explain the methodology he used to calculate the average number

of hours worked per week. Those are issues that may be tested

in a motion for summary judgment or at trial. Further

specificity or proof at this stage is not required. See

Twombly,

; Manning,

. The lack of

supporting evidence or explanation about how the Secretary

arrived at the numbers he alleges are not grounds to dismiss the

complaint.

B. Overtime Violations

As with their argument about the Secretary’s minimum wage

violation allegations, Quality Granite and Bouchard argue that

the Secretary’s use of averaged hours measured against actual

payments cannot support his claim that they violated the FLSA’s

7 overtime pay provision. The Secretary contends that his use of

averaged hours combined with his identification of specific

workweeks in which Quality Granite failed to pay overtime wages

satisfies the pleading requirements for an FLSA unpaid overtime

claim.

To show that a defendant violated the FLSA by failing to

pay proper overtime wages, a plaintiff must establish that an

employee was employed “for a workweek longer than forty hours”

and that hours worked in excess of forty in a week were not

compensated “at a rate not less than one and one-half times the

regular rate.”

(a)(1). A plaintiff need not

allege precisely the dates and number of hours worked giving

rise to the alleged violation. See Chesley,

, at

*5-*6 (“In the context of a claim for unpaid overtime wages,

there is little more for a plaintiff to allege than the number

of hours over 40 that he worked for which he was not compensated

at one and a half times his regular rate.”). If the complaint

sets out facts showing that, for example, “defendants’ pay

practices continuously required” employees to work overtime

without the required premium pay, then the court may be able to

make a reasonable inference that the employees performed

uncompensated work. Manning,

.

8 Quality Granite and Bouchard rely on Pruell v. Caritas

Christi, in which the First Circuit affirmed the dismissal of an

FLSA complaint that stated only that the plaintiff-employees

were “not compensated” for their time worked above forty hours a

week and failed to identify any facts about how much the

employees were paid.

(1st Cir. 2012). Unlike

the plaintiff in Pruell, however, the Secretary here offers

allegations that Quality Granite compensated the twenty-three

identified employees at specific rates that did not include

payment for overtime. Those allegations are enough to state a

plausible and non-speculative claim for relief. Quality Granite

and Bouchard’s challenge to the Secretary’s FLSA overtime

violation claim fails.

Conclusion

For the foregoing reasons, Quality Granite and Bouchard’s

motion to dismiss (document no. 16) is denied.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

October 2, 2018

cc: Robert M. Fojo, Esq. James Glickman, Esq.

9