United States District Court, D. Massachusetts
H. HENNESSY, UNITED STATES MAGISTRATE JUDGE.
me is Defendants' second motion to dismiss the complaint
in this action for failure to state a claim. Docket #26;
see Fed.R.Civ.P. 12(b)(6). Plaintiff filed an
opposing memorandum on June 26, 2017. See Docket
#28. In this second motion, Defendants seek dismissal of
Counts I and II (but not Count III) of Plaintiff's First
Amended Complaint. For the reasons that follow, the motion is
GRANTED WITHOUT PREJUDICE as to Count I and DENIED as to
Count II. I allow Plaintiff a final chance to amend Count I
to state a viable claim for unpaid overtime wages.
employment action, Plaintiff Danielle Vinton seeks recovery
from Defendants Tu Moda Spa for Beauty & Wellness, Inc.
and Josue Rosa, Tu Moda's owner and manager, for alleged
unpaid wages, failure to provide meal breaks, unpaid overtime
wages, illegal wage deductions, and failure to pay accrued
sick time. See generally Docket #23. Defendants
removed this action from Worcester District Court, Docket #1,
and the parties consented to my jurisdiction, Docket #15.
Defendants previously moved to dismiss Plaintiff's
original complaint for failure to state a claim. See
Docket #11. I partially granted that motion without
prejudice, denying dismissal of Count III (failure to pay
sick time) and affording Plaintiff an opportunity to remedy
defects in Count I (failure to pay for hours worked and for
overtime) and Count II (illegal wage deductions). Docket #20.
Plaintiff took up that opportunity and filed a First Amended
Complaint on May 4, 2017. Docket #23.
First Amended Complaint alleges the following. Plaintiff worked
for Defendants as an esthetician from September 30, 2012
through February 15, 2016. Docket #23 ¶ 2. Her schedule
varied, but she most often worked twenty-five hours per week.
Id. ¶ 17. Defendants paid Plaintiff weekly on a
commissions-only basis. Id. ¶ 13.
of the First Amended Complaint contends that Defendants
failed to pay Plaintiff for hours worked and for overtime and
did not allow Plaintiff meal breaks to which she was
entitled. In support of these claims, Plaintiff avers that
Defendants forced her to attend meetings, report for unpaid
work days, and spend “other large blocks of time”
on tasks for which she received no commissions and thus no
compensation. Id. These tasks exceeded one fifth of
Plaintiff's total work time “for weeks in which
those [unpaid] days and meetings occurred.”
Id. ¶¶ 2, 18. Defendants also
“occasionally” directed Plaintiff to spend an
entire workday on uncompensated tasks, id. ¶
16, and required that Plaintiff arrive at work fifteen
minutes before her first appointment, id. ¶ 19.
Plaintiff submits that she consequently received insufficient
compensation for her work, in violation of section 206(a)(1)
of the federal Fair Labor Standards Act (the
“FLSA”) and various provisions of the
Massachusetts Wage and Hour Laws.
sparse filing seeks dismissal of Count I for three reasons,
each of which is set forth in one sentence with no supporting
citations. First, Defendants emphasize that the First Amended
Complaint neither states nor establishes that Plaintiff's
compensation ever amounted to less than the federal minimum
wage. Docket #27 at 2. Second, they note that two of the
statutes cited in Count I-Mass. Gen. Laws c. 149 §§
110, 101-govern certain employees' meal breaks, a subject
on which Plaintiff's allegations are
silent. Id. Finally, Defendants argue in
conclusory fashion that the facts in the First Amended
Complaint “give no plausible basis” for
Plaintiff's overtime claim under Massachusetts law.
Count II, Plaintiff alleges that Defendants illegally
deducted charges from her pay. She claims that when she
started her job, she and Defendants agreed that her
compensation would consist entirely of a fifty-five percent
commission of the total bill for each client service she
performed. Docket #23 ¶ 2. According to Plaintiff,
Defendants violated this agreement by deducting from
Plaintiff's commissions arbitrary and unspecified
“service charges” of from one hundred to two
hundred dollars each week. Id. These deductions
included money for Defendants' overhead costs, which
often amounted to more than one quarter of the service charge
exacted in a given pay period. Id.
acknowledges that Defendants' employee handbook called
for commissions of fifty-five percent “after the
service charge is deducted.” Id. ¶ 26.
But she asserts that she never agreed to any such service
charge, that Defendants never told her about the charge, and
that she learned about the charge only from other employees.
Id. ¶¶ 24, 36. Further, Defendant Rosa
allegedly “admitted upon questioning” that the
service charges deducted from Plaintiff's wages
“were arbitrary and did not reflect any real or
cognizant [sic] costs of products or materials.”
Id. ¶ 32. Plaintiff also accuses Defendant Rosa
of repeatedly changing the service charge without notice and
failing to update information about the charge for months at
a time. Id. ¶¶ 30-31. Finally, Plaintiff
alleges that her paychecks simply indicated her gross pay,
with no accounting of the work she performed, no indication
of the amount of the service charge for each pay period, and
no itemized documentation of the costs and expenses on which
the service charge purportedly was based. Id.
¶ 30. Plaintiff maintains that these deductions
contravene the purpose of section 148 of the Massachusetts
Wage Act as interpreted by the Massachusetts
Supreme Judicial Court (“SJC”) in Awuah v.
Coverall North America Inc., 460 Mass. 484 (2011).
See id. ¶ 34.
advance two arguments supporting dismissal of Count II.
First, they seek to distinguish the SJC's Awuah
opinion, which Plaintiff cited in the First Amended
Complaint, from the present case. They highlight that the
SJC's decision dealt with workers who, unlike Plaintiff,
were misclassified as independent contractors by their
employers. See Docket #27 at 2. They also contend
that “[t]he SJC was not asked, and did not address, the
question of whether an employer could deduct from an
employee's pay expenses not statutorily mandated.”
See Id. Second, Defendants argue that an earlier
U.S. District Court opinion in the Awuah litigation,
740 F.Supp.2d 240 (D. Mass. 2010), undercuts Plaintiff's
theory of liability insofar as it expressly noted that no
Massachusetts law prohibited an employer and employee from
agreeing to shift certain costs from the former to the latter
so long as the employee earned minimum wage. See id.
at 2-3. Defendants urge that the legal premise underlying
Count II therefore lacks foundation. Id. at 3.
resolving a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must assume the complaint's
well-pleaded facts to be truthful and must draw all
reasonable inferences from those facts in the plaintiff's
favor. Ruiz v. Bally Total Fitness Holding Corp.,
496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v.
Menino, 175 F.3d 75, 77 (1st Cir. 1999)). The Court also
will consider any materials attached to a complaint or
incorporated into a complaint by reference, as those
materials are deemed part of the pleading itself.
Trans-Spec Truck Serv. v. Caterpillar, 524 F.3d 315,
321 (1st Cir. 2008). However, the plaintiff's
“legal labels and conclusions” are to be
“isolate[d] and ignore[d]” at this stage.
Schatz v. Republican State Leadership Committee, 669
F.3d 50, 55 (1st Cir. 2012); cf. Haag v. United
States, 736 F.3d 66, 69 (1st Cir. 2013) (quoting
Iqbal, 556 U.S. at 678) (“Although we view all
well-pleaded facts in the light most favorable to the
non-moving party, ‘the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.'”). The Court
thus need not credit a party's “bald assertions,
unsupportable conclusions, periphrastic circumlocutions, and
the like.” Centro Medico del Turabo, Inc. v.
Feliciano de Melecio, 406 F.3d 1, 5-6 (1st Cir. 2005)
(quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.
survive this motion, the First Amended Complaint's stated
claims must be facially plausible. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In other words,
Plaintiff's “[f]actual allegations must be enough
to raise a right to relief above the speculative level . . .
on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Id. at
555 (citations omitted). “The plausibility standard is
not akin to a ‘probability requirement, ' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 556).
Dismissal therefore lies if Plaintiff's well-pleaded
facts do not “possess enough heft to show that
[P]laintiff is entitled to relief.” Ruiz Rivera v.
Pfizer Pharms., LLC, 521 F.3d 76, 84 (1st Cir. 2008)
(quotations and alterations omitted).
order to adequately state her claim under the FLSA and the
Massachusetts Wage Act, Plaintiff must allege that 1) she was
Defendants' employee; 2) her work for Defendants involved
an interstate activity; and 3) Defendants undercompensated
her for her work. Manning v. Bos. Med. Ctr. Corp.,
725 F.3d 34, 43 (1st Cir. 2013). Defendants only challenge
the viability of Count I as to ...