United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
the Court is Defendants' Partial Motion to Dismiss
Plaintiff's Colorado State Law Claims in First Amended
Complaint [filed January 26, 2017; ECF No. 27].
Pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C. Colo.
LCivR 72.1C, the Honorable Raymond P. Moore referred the
matter to this Court for recommendation. ECF No. 28. The
Motion is fully briefed, and oral argument would not
materially assist the Court in its adjudication.
Defendants' Motion asks the Court to determine whether
Defendant Sykes Enterprises, Inc. (“SEI”) is
subject to the Colorado Minimum Wage Order
(“CMWO”). The Court finds that Plaintiff has
sufficiently alleged facts demonstrating that SEI is in the
commercial support services industry, as defined by the
CMWO. Therefore, the Court respectfully
recommends that the District Court deny Defendants'
Motion to Dismiss.
initiated this lawsuit on November 15, 2016. See
Compl., ECF No 1. Plaintiff's claims arise from SEI's
alleged failure to pay proper wages during Plaintiff's
employment with SEI.
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by Plaintiff in her Amended Complaint,
which the Court takes as true for analysis under Fed.R.Civ.P.
12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
provides customer support services for many well-known global
companies. Am. Compl. ¶ 18, ECF No. 21. SEI employs
approximately 41, 700 customer service representatives in its
call centers, and an additional 7, 500 at-home agents.
Id. at ¶ 3. Each of these employees has
essentially the same job duties-providing customer support to
individuals over the telephone. Id.
employed Plaintiff as an at-home customer service
representative from September 2013 to March 2015, and again
from June 2015 to August 2015. Id. at ¶ 17. In
her capacity as an at-home agent, Plaintiff accessed sales
records and downloaded customer information from several
secure servers to assist customers with various issues.
See Id. at ¶ 5. As part of Plaintiff's job
duties, she was required to “boot up” her
computer and log in to SEI's network. Id. at
¶¶ 6-8. Additionally, when Plaintiff's
designated shift ended, SEI would log her out of her
computer, regardless of whether she had finished her call.
Id. at ¶ 27. Plaintiff alleges SEI did not
properly compensate her (or any other customer service
representative) for the time she spent logging into the
computer system and finishing customer calls after her
designated shift ended. Id. at ¶ 8.
on these factual allegations, Plaintiff filed her original
Complaint on November 15, 2016. Compl., ECF No. 1. After
Defendants filed a Motion to Dismiss, see ECF No.
13, Plaintiff filed an Amended Complaint as a matter of
course on January 12, 2017. Am. Compl., ECF No. 21. Plaintiff
brings four causes of action-two for violations of the Fair
Labor Standards Act and two for violations of the CMWO.
Id. at ¶¶ 62-168.
January 26, 2017, Defendants responded to the Amended
Complaint by filing an Answer and the present Motion.
See Answer, ECF No. 26; Defs.' Mot. to Dismiss,
ECF No. 27. Defendants' Motion argues the Court should
dismiss Plaintiff's state-law claims, because SEI is not
subject to the CMWO. Defs.' Mot. To Dismiss 5-8.
Plaintiff filed a Response on February 16, 2017, which argues
that SEI is in the “retail and service” and
“commercial support service” industries, as those
terms are defined by the CMWO. Pl.'s Response 4-7, ECF
No. 31. Defendants filed a Reply in Support of their Motion
on March 2, 2017. ECF No. 32.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pleaded facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 679-80.
Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma,519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins,656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a ...