Gomez v. Children's Hospital Colorado

          ORDER

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE

         Defendant Children's Hospital Colorado (“CHCO”) seeks to dismiss five of Plaintiff Veronica Gomez' ten causes of action, which arise from Ms. Gomez' employment with CHCO. I hold the FLSA preempts Ms. Gomez' breach of contract and promissory estoppel claims arising out of CHCO's failure to pay overtime. Additionally, Ms. Gomez fails to allege a violation of the Colorado Wage Claim Act (“CWCA”) based on CHCO's refusal to pay out her accrued sick leave at the time of her resignation. However, Ms. Gomez sufficiently alleges breach of contract and promissory estoppel claims for failure to pay straight time while on call. Accordingly, I grant in part and deny in part CHCO's Partial Motion to Dismiss.

         BACKGROUND

         I. Facts

         The following are relevant factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Ms. Gomez in her Amended Complaint, which I take as true for my analysis under Fed.R.Civ.P. 12(b)(6).^[1] See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Ms. Gomez began working for CHCO as a medical assistant in November 2007. Am. Compl. ¶ 14, ECF No. 21. On August 30, 2015, Ms. Gomez transferred to CHCO's risk management department as a non-supervisor risk management analyst. Id. ¶ 17. This position, which is salaried, required Ms. Gomez to occasionally work overtime and on-call shifts. See Id. ¶¶ 35, 47, 58, 88. CHCO classified Ms. Gomez as exempt pursuant to the FLSA and its On-Call/Callback Pay Policy (“on-call policy”). Id. ¶¶ 17, 136, 149. The on-call policy used essentially identical standards as the Fair Labor Standards Act (“FLSA”) to determine whether an employee is exempt. Id. ¶ 137.

         Ms. Gomez alleges the on-call policy required that CHCO pay exempt employees $4.00 per hour for time spent on call. Id. ¶ 138. Non-exempt employees received $4.00 per hour in addition to straight time or overtime pay, if applicable. Id. ¶ 181. CHCO did not pay Ms. Gomez $4.00 per hour, and it did not provide straight time or overtime pay for her time spent on call. Id. ¶ 182.

         In April 2016, Ms. Gomez discussed with a co-worker the possibility of switching to an hourly position, because Lisa Shannon (Ms. Gomez' supervisor) told her that she was required to stay at work until 5:00 p.m. Id. ¶¶ 46-47. Although Ms. Shannon initially informed Ms. Gomez that she could transfer to an hourly position, she told Ms. Gomez four days later that she must remain a salaried employee. Id. ¶¶ 58, 64.

         In early May 2016, Ms. Gomez contacted Ms. Shannon about her belief that CHCO must pay her for on-call time. Id. ¶ 62. When Ms. Gomez and Ms. Shannon met on May 27, 2016, Ms. Shannon informed Ms. Gomez that salaried employees do not receive on-call pay. Id. ¶ 65. In a July 13, 2016 meeting with BJ Thompson in Human Resources (“HR”), Ms. Gomez asked for clarification regarding the on-call policy. Id. ¶¶ 105, 121. Mr. Thompson informed Ms. Gomez that the policy is outdated and not all exempt employees receive on-call pay. Id. ¶ 122.

         After Ms. Gomez and Ms. Shannon had numerous disagreements regarding Ms. Gomez' work performance and Ms. Shannon's differential treatment of her, Ms. Gomez told Ms. Shannon that her last day would be September 21, 2016. Id. ¶¶ 66-75, 131. However, Ms. Shannon informed Ms. Gomez that she could finish working on September 16 but remain on payroll until September 21. Id. ¶ 132.

         Ms. Gomez had 396.46 unused hours of sick leave when she resigned. Id. ¶ 206. Although Ms. Gomez provided a written demand requesting that CHCO compensate her for this time, CHCO failed to do so. Id. ¶¶ 207-08.

         II. Procedural History

         Based on the preceding allegations, Ms. Gomez initiated this case in Colorado state court on November 28, 2017. Compl., ECF No. 6. In an Amended Complaint filed on February 13, 2018, Ms. Gomez asserts ten causes of action: (1) breach of contract for refusal to pay on-call wages; (2) promissory estoppel based on failure to pay wages for time spent on-call; (3) denial of overtime pay in violation of the FLSA; (4) denial of overtime pay in violation of the CWCA; (5) breach of contract for failure to pay overtime and straight time while on call; (6) promissory estoppel based on refusal to pay overtime and straight time for on-call hours; (7) breach of implied contract for failure to pay overtime; (8) promissory estoppel based on a denial of overtime pay; (9) refusal to pay accrued illness hours in violation of the CWCA; and (10) sex discrimination in violation of Title VII. Am. Compl. ¶¶ 134-228, ECF No. 21. At first glance, the first and fifth claims appear to be duplicative; however, a review of Ms. Gomez' allegations reveals she pleads these claims in the alternative. The first claim alleges CHCO failed to pay her wages as an exempt employee pursuant to the on-call policy. Id. ¶¶ 138-39. Ms. Gomez' fifth claim asserts CHCO improperly classified her as exempt and failed to pay her straight time and overtime wages required by the on-call policy for non-exempt employees. Id. ¶¶ 181-82.

         On February 13, 2018, CHCO responded to the Amended Complaint by filing the present Partial Motion to Dismiss, ECF No. 25. CHCO seeks dismissal of Ms. Gomez' fifth, sixth, seventh, eighth, and ninth causes of action. Id. According to CHCO, the FLSA preempts the fifth through eighth claims to the extent they seek overtime. Id. at 5-7. Additionally, CHCO contends the fifth and sixth claims fail to allege Ms. Gomez was entitled to straight time for her on-call hours. Id. at 7-9. Lastly, CHCO ...