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Whenry v. Board of Commissioners

United States District Court, Western District of Pennsylvania

September 8, 2014

DOYLE WHENRY, et al., Plaintiffs,
BOARD OF COMMISIONERS, et al., Defendants.



Pending before the Court is a Motion to Dismiss for Lac]: of Jurisdiction pursuant to Rule 12 of the Federal Rules of Civil Procedure or in the Alternative Motion to Stay Proceedings [ECF No. 12] filed by the Board of Commissioners of Mercer County ("Defendants").

On May 22, 2014 Plaintiffs, fifty-seven (57) individuals, joined later by nine more individuals who consented to opt in (coUecfively referred to as "Plaintiffs"), filed a Complaint in Civil Acfion [ECF No. 1] under the Fair Labor Standards Act ("FLSA") for unpaid wages for mandatory on-the-job time prior to roll call. Plaintiffs are all employed, or were formerly employed, as corrections officers by Defendants [ECF No. 1 at 8]. The Complaint alleges at Count I, a Violafion of Section 7(k) of the FLSA (29 C.F.R. § 553.221) and at Count II, Retaliation under the FLSA at 29 U.S.C. § 215(3) [ECF No. 1]. Plainfiffs seek judgment against Defendants for (a) those sums that may be found to be due and owing to Plaintiffs; (b) for an amount equal as liquidated damages; (c) for interest thereon; (d) for reasonable attorneys' fees; (e) for costs of the suit; and (f) for such other and further relief as the Court may deem proper and just [ECF No. 1 at 10].

On July 21, 2014, Defendants filed their Mofion to Dismiss or in the Alternative to Stay the Proceedings and a supporting Brief [ECF Nos. 12 and 13], alleging that Plaintiffs' claims are covered under a Collective Bargaining Agreement ("CBA") and that they failed to exhaust the mandatory administrative remedies as stipulated in the CBA [ECF No. 13 at 5]. Therefore, they argue the lawsuit should be dismissed for lack of subject matter jurisdiction. In the alternative the Defendants request that the case be stayed until administrative remedies are exhausted. Defendants also allege that the retaliation claim has no merit because there was no actual retaliation only an alleged threat of retaliation [ECF No. 13 at 16].

On August 13, 2014, Plaintiffs filed their Brief in Opposition to the Motion to Dismiss [ECF No. 19] stating that their claims fall out of the purview of the CBA because the CBA terms are contrary to federal law. Therefore, they are not required to adhere to the administrative remedies as set forth in the CBA. Furthermore, Plaintiffs allege that an arbitrator does not have the authority to enforce federal law such as the ELS A [ECF No. 18 at 3], Plaintiffs also assert that the statements made by Defendants' attorney, which they claim to be retaliatory, could have dissuaded Plaintiffs from bringing suit and, therefore, the statements may be considered retaliatory under the law. For the reasons set forth below, Defendants' Motion to Dismiss will be denied.

I. Standard of Review.

In ruling on a Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction, a court must dismiss the case if it determines at any time that it lacks subject-matter jurisdiction. See Fed. R. Civ. Pro. 12(h)(3). The procedure under a motion to dismiss for lack of subject matter jurisdiction necessitates a crucial distinction between 12(b)(1) motions that attack the complaint on its face and 12(b)(1) motions that attack the existence of subject matter jurisdiction in tact, apart from the pleadings. See Mortensen v. First Fed. Sav. & Loan Ass'n. 549 F.2d 884, 891 (3d Cir. 1977). "The facial attack [offers] safeguards to the plaintiff: the court must consider the allegations of the complaint as true. The factual attack, however, differs greatly for here the trial court may proceed as it never could." M. at 891.

Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction its very-power to hear the case there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist


"The relevant question ... in assessing plausibility is not whether the complaint makes any particular factual allegations but, rather, whether 'the complaint warrant[s] dismissal because it failed in toto to render plaintiffs' entitlement to relief plausible.'" Rodriguez-Reyes v. Molina-Rodriguez. 711 F.3d 49, 55 ('' Cir. 2013)(quoting Bell Atlantic Corp. v. Twomblv. 550 U.S. 544, 569 n. 14(1955)).

11. Relevant Facts.

Plaintiffs were represented by Teamsters Local 250 for collective bargaining and are covered by a Collective Bargaining Agreement effective January 1, 2009 through December 31, 2012 [See CBA as Exhibit 1 to Complaint at ECF No. 1]. Though expired, it is undisputed that the parties continue to operate under the terms of this CBA. The CBA provides, "A daily mandatory roll call will be implemented and all employees are to report ten (10) minutes before their actual shift begins. This time will not be paid time and will not be used in the calculation of overtime." [ECF No. 1 at Ex. 1, CBA Art VII].

The CBA between the parties establishes a mandatory grievance and arbitration procedure.

Should differences arise between the Employer and the Union as to the interpretation or application or compliance with the provisions of this Agreement, or as to any question relating to the wages, hours of work or other conditions of employment... an earnest effort shall be made to settle ...

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