United States District Court, D. Colorado
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE
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.
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). See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
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.
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. ¶
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.
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.
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.
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.
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.
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 ...