United States District Court, D. Colorado
VIOLETA SOLIS, CESAR SALAZAR, EDGAR CEBALLOS, AARON SALAS, HILDEBERTO ALDECO BALTAZAR, JUAN RAMON RODRIGUEZ, ADRIANA LIRA, NANCY GUTIERREZ, BEATRIZ MIRAMONTES, and those similarly situated, Plaintiffs,
THE CIRCLE GROUP, LLC, LAG. DRYWALL, INC., a/k/a LA DRYWALL, INC., JAVIER MARTINEZ DRYWALL, LLC, and GULF COAST CONSTRUCTION, INC., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
CIRCLE GROUP'S MOTION TO DISMISS AND GRANTING DEFENDANT
LAG'S PARTIAL MOTION TO DISMISS
Brooke Jackson United States District Judge
order addresses defendant The Circle Group, LLC's
("Circle Group") motion to dismiss and defendant
L.A.G. Drywall, Inc.'s ("LAG") partial motion
to dismiss. For the reasons given below, the Court grants in
part and denies in part Circle Group's motion, and grants
case concerns the alleged underbelly of the construction boom
in Denver and elsewhere across the country. Plaintiffs are
several laborers who claim that the defendant subcontractor
and sub-subcontractors have used illegal employment practices
to exploit them.
few volleys of pleadings and motions from the two sides, we
now have plaintiffs' fourth amended complaint. Plaintiffs
raise claims for violation of (1) the Fair Labor Standards
Act ("FLSA"), (2) the Equal Pay Act, (3) the
Colorado Trust Fund Act ("CTFA"), (4) various
states' minimum wage, overtime, and wage-payment laws,
and (5) the Colorado Wage Claim Act ("CWCA"), as
well as (6) quantum meruit under Tennessee law, (7) breach of
contract under Tennessee law, (8) discrimination on the basis
of various classes protected by Title VII of the Civil Rights
Act, (9) discrimination on the basis of race, national
origin, and ancestry in violation of Title VII, (10)
discrimination in violation of 42 U.S.C. § 1981, and
(11) retaliation in violation of the FLSA and CWCA. The
complaint proceeds against all defendants on a "joint
employer" theory, which seeks to hold liable the
subcontractor and its subcontractors alike.
Group has responded with a motion to dismiss the complaint
outright, ECF No. 104, and LAG has filed a partial motion to
dismiss the claim for unidentified states' wage laws, ECF
No. 106. The motions have been fully briefed. See
ECF Nos. 116, 117, 118, 120.
survive a 12(b)(6) motion to dismiss, the complaint must
contain "enough facts to state a claim to relief that is
plausible on its face." Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting
Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). While the Court must accept the well-pleaded
allegations of the complaint as true and construe them in the
light most favorable to the plaintiff, Robbins v.
Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely
conclusory allegations are not entitled to be presumed true,
Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).
However, so long as the plaintiff offers sufficient factual
allegations such that the right to relief is raised above the
speculative level, he has met the threshold pleading
standard. See Twombly, 550 U.S. at 556.
attacks on plaintiffs' eleven claims can be grouped into
three questions: first, whether plaintiffs have pleaded
sufficient facts to support their theory that Circle Group is
a joint employer for the purposes of federal labor laws;
second, whether these allegations can sustain a joint
employer theory under other federal and state laws; and
third, setting aside the joint employer theory, whether
plaintiffs have pleaded enough facts to support the remainder
of their claims. The Court will consider each of these issues
initial matter, however, I note that my review of these
questions will exclude all evidentiary material attached by
Circle Group. "[W]hen parties submit materials outside
of the pleadings in support of or in opposition to a Rule
12(b)(6) motion, a court has broad discretion whether to
accept and consider them." Dobson v. Anderson,
319 F.App'x 698, 702 (10th Cir. 2008). It would be
inappropriate to consider Circle Group's submissions here
because plaintiffs do not concede the authenticity of these
documents, do not attach these documents to their complaint,
and do not even reference most of these documents in their
complaint. Circle Group's arguments can be addressed
without converting its motion to dismiss into a motion for
Joint Employment Under Federal Labor Laws.
settled law that multiple entities may be held liable as
"joint employers" under the FLSA and Title VII.
See Falk v. Brennan, 414 U.S. 190, 195 (1973)
(FLSA); Knitter v. Corvias Military Living, LLC, 758
F.3d 1214, 1226 (10th Cir. 2014) (Title VII).
Tenth Circuit has not yet addressed the issue of joint
employment under the FLSA, but many courts follow the Ninth
Circuit's four-factor Bonnette test. This test
considers "whether an alleged employer: (1) had the
power to hire and fire the employees, (2) supervised and
controlled employee work schedules or conditions of
employment, (3) determined the rate and method of payment, or
(4) maintained employment records." Zachary v.
Rescare Oklahoma, Inc.,471 F.Supp.2d 1175, 1179 (N.D.
Okla. 2006) (citing Bonnette v. Cal. Health & Welfare
Agency,704 F.2d 1465, 1470 (9th Cir. 1983)). However,
these factors are not exhaustive. Indeed, the Supreme Court
has held that an entity can be a joint employer "even
when it does not hire and fire its joint ...