UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
MICA SAINT-JEAN, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 08-1769 (RWR)
)
DISTRICT OF COLUMBIA PUBLIC )
SCHOOLS DIVISION OF )
TRANSPORTATION, et al., )
)
Defendants. )
______________________________)
MEMORANDUM ORDER
The plaintiffs were ordered to show cause why the complaint
should not be dismissed as to defendant Michelle Smith for
failure to state a claim for which relief can be granted. In
response, they filed a memorandum conceding that their
Whistleblower Protection Act, quantum meruit, and defamation
claims against Smith should be dismissed. (Pl.’s Supp’l Mem. at
1 n.1.) They argue, though, that they have sufficiently pled
facts that reflect Smith’s status as an “employer” to state a
claim against her under the Fair Labor Standards Act (“FLSA”).
To be liable for a FLSA violation, the defendant must
qualify as an “employer.” 29 U.S.C. §§ 206-07 (2006). In this
circuit, whether an individual is an employer within the meaning
of the FLSA is determined by the “economic reality” of the
employment relationship, assessing whether the alleged employer
1) has hiring and firing authority, 2) supervises and schedules
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employee work hours or conditions of employment, 3) determines
the rate and method of payment, and 4) maintains employment
records. Morrison v. Int’l Programs of Consortium, Inc., 253
F.3d 5, 11 (D.C. Cir. 2001).
Rather than demonstrate how the facts pled satisfy the
Morrison factors, the plaintiffs cite FLSA cases brought against
officers of private corporations where courts assessed the degree
of their ownership interest and operational control over the
corporation’s functions. See, e.g., Chao v. Hotel Oasis, Inc.,
493 F.3d 26 (1st Cir. 2007); Ventura v. Bebo Foods, Inc., 738 F.
Supp. 2d 1, 6 (D.D.C. 2010). The complaint here makes no
allegation that Smith has any ownership interest in a government
agency. Nor have plaintiffs rebutted the judicial doubt cited by
the defendants that Congress ever intended to impose individual
liability upon public employers under the FLSA. (See Def.’s
Opp’n to Pl.’s Mem. at 4 n.2.)
Instead, the plaintiffs insist that the complaint survives
since it demonstrates Smith’s operational control over the
Division of Transportation (“DOT”). For example, plaintiffs cite
Smith’s responsibility for supervising bus drivers and attendants
and for assigning employees’ hours, runs, and suspensions.
(Pl.’s Mem. at 3.) But the memorandum opinion and show cause
order, Mica Saint-Jean, et al. v. D.C. Pub. Sch. Div. Of Transp.,
Civ. Action No. 08-1769 (D.D.C. March 31, 2011), assumed that the
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complaint satisfied the second Morrison prong. Id. at 6. It is
the remaining prongs that the plaintiffs fail to satisfy.
Smith’s alleged ability to temporarily suspend without pay does
not allege any ability to terminate employment. Nor do the
plaintiffs identify any authority equating the power to suspend
and the power to fire. (See Am. Compl. ¶ 57; Pl.’s Supp’l Mem.
at 3.) Compare Gilbert v. Homar, 520 U.S. 924, 932 (1997)
(distinguishing between temporary suspension without pay and
termination from employment in determining what process is due).
And the plaintiffs do not allege that Smith had hiring authority;
they aver that DOT hired them. Moreover, the complaint does not
allege that when plaintiffs received their pay from DOT, the rate
or method was set by Smith. The plaintiffs simply allege that
Smith corruptly demanded a cut of their pay after they received
it. The plaintiffs cite no authority supporting the proposition
that one who orchestrates a kickback scheme controls methods of
pay. Nor have plaintiffs alleged any facts showing that Smith
maintained employment records.
The plaintiffs have failed to demonstrate that the complaint
alleges facts reflecting Smith’s status as an employer within the
meaning of the FLSA. Accordingly, it is hereby
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ORDERED that the complaint be, and hereby is, DISMISSED
against Smith.
SIGNED this 20th day of June, 2011.
/s/
RICHARD W. ROBERTS
United States District Judge