United States District Court, D. Colorado
Brooke Jackson United States District Judge
August 2014 the Boys & Girls Club of the Pikes Peak
Region (“Boys & Girls Club”) hired Elizabeth
Simmons as a Teen Coordinator. The position was originally
classified as exempt from the Fair Labor Standards Act's
(“FLSA”) overtime requirements, so Ms. Simmons
did not receive overtime pay. However, Boys & Girls Club
later reclassified the position as non-exempt and paid Ms.
Simmons $947.76, which it believes more than compensated for
her prior overtime hours.
months later Ms. Simmons became the Branch Director of the
E.A. Tutt Club, one of Boys & Girls Club's locations.
Although Ms. Simmons now thinks she should have earned
overtime pay, this role was also classified as exempt from
the FLSA's requirements. Ms. Simmons further alleges that
while she was Branch Director, Boys & Girls Club and its
CEO, James M. Sullivan III, pressured her into submitting
fraudulent documentation to the federal government. She
claims that she refused to do so and was fired in
Simmons filed this lawsuit against Boys & Girls Club and
Mr. Sullivan, alleging violations of the FLSA and the
Colorado Minimum Wage Order, extreme and outrageous conduct,
and wrongful discharge in violation of public policy and the
False Claims Act. Am. Compl., ECF No. 5. Defendants have
moved for judgment on the pleadings on two of these claims,
ECF No. 18.
motion for judgment on the pleadings is reviewed under the
standard applicable to a Rule 12(b)(6) motion to dismiss.
Martin Marietta Materials, Inc. v. Kansas Dep't of
Transp., 810 F.3d 1161, 1171 (10th Cir. 2016).
Therefore, in ruling on a motion for judgment on the
pleadings, courts consider whether the complaint contains
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. 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.
move for judgment on the pleadings on plaintiff's
Colorado Minimum Wage Order claim against Boys & Girls
Club and plaintiff's False Claims Act (“FCA”)
retaliation claim against Mr. Sullivan. The motion is
Colorado Minimum Wage Order regulates wages for Colorado
employers in the following industries: “Retail and
Service, ” “Food and Beverage, ”
“Commercial Support Service, ” and “Health
and Medical.” 7 Colo. Code Regs. § 1103-1:1. As
defendants point out, however, plaintiff's complaint does
not allege that Boys & Girls Club falls into any of these
four covered industries. See ECF No. 5. On the
contrary, plaintiff asserts that Boys & Girls Club
“receives significant financing from governmental
grants, ” id. at ¶ 21, seemingly at odds
with, for example, the requirement that it “generate
50% or more of its annual dollar volume of business
from” the sales of goods or services to be considered
part of the Retail and Service industry, 7 Colo. Code Regs.
response brief includes a conclusory allegation that
“Boys & Girls Club's status within the Retail
and Service industry” might support a claim under the
Colorado Minimum Wage Order, yet she nevertheless
“agrees to dismiss [the] claim without
prejudice.” ECF No. 19 at 1 n.1. But dismissal without
prejudice would be inappropriate here. Mere “labels and
conclusions” cannot support a claim to relief, and
plaintiff failed to cure this deficiency in her first amended
complaint or even identify in her brief any factual
allegations that might support this claim. Twombly,
550 U.S. at 555. Plaintiff's second claim for relief is
therefore dismissed with prejudice. See Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir.
defendants argue that the FCA's anti-retaliation
provision creates a cause of action only against employers,
not individual defendants. After being amended in 2009 the
Any employee, contractor, or agent shall be entitled to all
relief necessary to make that employee, contractor, or agent
whole, if that employee, contractor, or agent is discharged,
demoted, suspended, threatened, harassed, or in any other
manner discriminated against in the terms and conditions of
employment because of lawful acts done by the employee,
contractor, agent or associated others in furtherance of an
action under this section or other efforts to stop 1 or more
violations of this subchapter.
31 U.S.C. § 3730(h). “Before the passage of the
2009 amendments, federal courts uniformly held that the FCA
created a cause of action against only a plaintiff's
employer.” Howell v. Town of Ball, 827 F.3d
515, 530 (5th Cir. 2016). But plaintiff contends that the
amendments' omission of the phrase “by his or her
employer” limiting the list of retaliatory actions
expands the scope of defendants that may be held liable.
argument has been rejected so many times in recent years that
it warrants little discussion here. “[T]he overwhelming
majority of courts, including the Fifth Circuit, have held
that the current version of § 3730(h) does not create a
cause of action against supervisors sued in their individual
capacities.” Brach v. Conflict Kinetics Corp.,
221 F.Supp.3d 743, 748 (E.D. Va. 2016); accord Roberto v.
Kent State Univ., No. 5:16CV1305, 2017 WL 1155563, at *2
(N.D. Ohio Mar. 28, 2017) (collecting twenty-five cases). As
the Fifth Circuit noted, “[V]iewing the changes to
§ 3730(h) as a whole, it is clear that the reference to
an ‘employer' was deleted to account for the
broadening of the class of FCA plaintiffs to include
‘contractors' and ‘agents, ' not to
provide liability for individual, non-employer
defendants.” Howell, 827 F.3d at 529-30.
Indeed, the text of the statute “failed to substitute
‘person' for ‘employer'” as one
would expect if Congress intended to cover individual
defendants, and its legislative history is “silent on
the issue of the class of potential defendants.”
Aryai v. Forfeiture Support Assocs., 25 F.Supp.3d
376, 387 (S.D.N.Y. 2012). ...