The opinion
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
AMY MURPHY, on behalf of herself and all :
others similarly situated, :
: Case No. 3:23-cv-69
Plaintiff, :
: Judge Thomas M. Rose
v. : Magistrate Judge Peter B. Silvain, Jr.
:
KETTERING ADVENTIST HEALTHCARE, :
et al. :
:
Defendants.
______________________________________________________________________________
ENTRY AND ORDER DENYING MOTION OF DEFENDANTS KETTERING
ADVENTIST HEALTHCARE AND DAYTON OSTEOPATHIC HOSPITAL,
INC. TO DISMISS PLAINTIFF’S FIRST AMENDED COLLECTIVE AND
CLASS ACTION COMPLAINT (DOC. NO. 20)
______________________________________________________________________________
Presently before the Court is the Motion of Defendants Kettering Adventist Healthcare and
Dayton Osteopathic Hospital, Inc. to Dismiss Plaintiff’s First Amended Collective and Class
Action Complaint (“Motion”) (Doc. No. 20). Plaintiff Amy Murphy (“Plaintiff”) filed Plaintiff’s
First Amended Collective and Class Action Complaint for Violations of the Fair Labor Standards
Act and Ohio Law, alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§
201, et seq., and the Ohio Prompt Pay Act (“OPPA”), Ohio Rev. Code § 4113.15, against
Defendants Kettering Adventist Healthcare and Dayton Osteopathic Hospital, Inc. (collectively,
“Defendants”) for their alleged failure to pay overtime wages. (Doc. No. 14.) Defendants argue
that Plaintiff has failed to allege sufficient facts to state a claim under the FLSA or OPPA. (Doc.
No. 20 at PageID 132.) For the reasons discussed below, the Court DENIES the Motion.
I. BACKGROUND
Plaintiff was employed as a Registered Nurse (“RN”) by Defendants in one of their Dayton,
Ohio facilities from February 2019 to November 2022. (Doc. No. 14 at PageID 61.) Plaintiff, and
other similarly situated healthcare employees1, “were responsible for providing nursing care to
patients in all settings in collaboration with other healthcare providers, coordinating the day-to-
day activities of the patient care units, assisting and delivering patient care duties, assisting
providers in the examination and treatment of patients, and performing miscellaneous delegated
duties.” (Doc. No. 14 at PageID 65-66.)
Plaintiff alleges that she and other similarly situated healthcare employees were scheduled
to work forty hours per week. (Id. at PageID 66.) Plaintiff also alleges that Defendants required
healthcare employees to take a 30-minute meal break deduction. (Id.) Plaintiff further alleges that
Defendants required her and other similarly situated healthcare employees to deduct this time even
when they were unable to take their full 30-minute meal break because they were interrupted by
substantive job duties. (Id.)
Plaintiff describes the substantive job duties that interrupted her meal breaks as:
[C]onducting electrocardiogram tests, taking blood and other lab draws, assisting
patients to the bathrooms, performing wound dressings, and engaging in general
nursing duties, such as observing patients, assessing patients’ conditions,
administering patients’ medicines and treatments, recording patients’ medical
histories and symptoms, providing patient care, creating plans for patients’ care,
and consulting with doctors and other healthcare professionals concerning patients’
care (among other nursing duties).
(Id.)
As a result of the required 30-minute meal break deduction, Plaintiff alleges that she and
other similarly situated healthcare employees regularly worked more than forty hours per week
without proper compensation. (Id. at PageID 67.) Plaintiff alleges that she and other healthcare
1 Plaintiff defines “healthcare employees” as including, but not limited to, RNs, Certified Nursing Assistants
(“CNAs”), Licensed Practical Nurses (“LPNs”), State Tested Nursing Assistants (“STNAs”), medical assistants,
patient care support employees, and other hourly employees who provide direct care to patients.
employees were entitled to a one-and-a-half times increase in their rate of pay for overtime hours.
(Id.)
Plaintiff filed her Complaint on March 6, 2023. (Doc. No. 1.) On May 5, 2023, Defendants
filed Motion of Defendants Kettering Adventist Healthcare and Dayton Osteopathic Hospital, Inc.
to Dismiss Plaintiff’s Collective and Class Action Complaint. (Doc. No. 13.) On May 12, 2023,
Plaintiff filed Plaintiffs’ First Amended Collective and Class Action Complaint (“Amended
Complaint”) (Doc. No. 14). Defendants filed the present Motion on June 16, 2023 (Doc. No. 20)
and Plaintiff filed her opposition on July 7, 2023 (Doc. No. 24). Defendants filed their reply on
July 21, 2023. (Doc. No. 27.) The matter is fully briefed and ripe for review and decision.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” While this rule “does not
require ‘detailed factual allegations’ … it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167
L. Ed. 2d 929 (2007)).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint. Fed. R. Civ. P. 12(b)(6) (providing for motions to assert a “failure
to state a claim upon which relief can be granted”). “To 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.” Iqbal, 556 U.S. at 678. A claim is facially plausible when it includes “factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. This standard is not the same as a probability standard, but “asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that
are merely consistent with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Id. (internal quotation marks omitted). Thus, if a plaintiff
has “not nudged [its] claims across the line from conceivable to plausible, [the] complaint must be
dismissed.” Twombly, 550 U.S. at 570.
When ruling on a motion to dismiss, the Court must accept the factual allegations of the
complaint as true and construe them in a light most favorable to the non-moving party. Twombly,
550 U.S. at 554-55. However, the Court is not bound to accept as true a legal conclusion couched
as a factual allegation. Id. at 555-56. “In evaluating a motion to dismiss [a court] may consider
the complaint and any exhibits attached thereto, public records, items appearing in the record of
the case and exhibits attached to the defendant’s motion to dismiss so long as they are referred to
in the complaint and are central to the claims contained therein.” Luis v. Zang, 833 F.3d 619, 626
(6th Cir. 2016) (internal quotation marks omitted).
III. ANALYSIS
Defendants argue that Plaintiff has failed to plead her claims with the requisite specificity
necessary to survive under the Twombly/Iqbal standard for a motion to dismiss. (Doc. No. 20 at
PageID 138.) Defendants’ challenge to the Amended Complaint breaks down into two separate
arguments. First, Defendants argue that the Amended Complaint does not sufficiently state what
“substantial duties” she was required to perform in lieu of a lunch break and that those duties were
for the employer’s benefit. (Id. at PageID 138-40.) Second, Defendants argue that Plaintiff has
failed to plead “any information about how often her meal breaks were interrupted, whether and
when those missed meal breaks occurred in weeks during which she worked 40 or more hours, or
an approximation of the number of overtime hours worked.” (Id. at PageID 140.)
a. FLSA Background and Pleading Standard
The FLSA requires employers to pay employees at least a specified minimum wage for
each hour worked. 29 U.S.C. § 206(a). The statute further requires employers to compensate
employees “at a rate not less than one and one-half times the regular rate,” for time worked in
excess of forty hours in a workweek. 29 U.S.C. § 207(a)(1).
While the FLSA does not define “work,” in 1944 the Supreme Court, defined the term as,
“physical or mental exertion (whether burdensome or not) controlled or required by the employer
and pursued necessarily and primarily for the benefit of the employer and his business.” Tennessee
Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949
(1944). In response to this interpretation by the Supreme Court, Congress passed the Portal-to-
Portal Act in 1947, which, in part, exempts employers from paying overtime compensation for
“activities which are preliminary to or postliminary to said principal activity or activities.” 29
U.S.C. § 254(a)(2). In turn, the Supreme Court has consistently interpreted “‘the term ‘principal
activity or activities’ [to] embrac[e] all activities which are an ‘integral and indispensable part of
the principal activities.’” Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 33, 135 S. Ct. 513, 190
L.E.2d 410 (2014) (quoting IBP, Inc. v. Alvarez, 546 U.S. 21, 29–30, 126 S.Ct. 514, 163 L.Ed.2d
288 (2005)). “An activity is therefore integral and indispensable to the principal activities that an
employee is employed to perform if it is an intrinsic element of those activities and one with which
the employee cannot dispense if he is to perform his principal activities.” Busk, 574 U.S. at 33.
An FLSA overtime claim is properly pled where the complaint alleges: “(1) the defendants
were employees as defined by the statute, (2) [plaintiff] and other similarly situated employees
regularly worked overtime without compensation, and (3) defendants knew [ ] plaintiffs worked
overtime and did not pay them for it.” Douglas v. Aspen Mgmt. USA, LLC, No. 2:19-cv-5568,
2022 U.S. Dist. LEXIS 18548, at *9-10, 2022 WL 306982, at *4 (S.D. Ohio Feb. 2, 2022) (citing
Roberts v. Corr. Corp. of Am., No. 3:14-cv-2009, 2015 U.S. Dist. LEXIS 82575, at *20, 2015 WL
3905088, at *6 (M.D. Tenn. June 25, 2015)). Moreover, “the FLSA is a remedial statute that ‘has
been construed liberally to apply to the furthest reaches consistent with congressional direction.’”
Douglas, 2022 U.S. Dist. LEXIS 18548, at *10, 2022 WL 306982, at *4 (quoting Mitchell v.
Lublin, McGaughy & Assocs., 358 U.S. 207, 211, 79 S. Ct. 260, 3 L. Ed. 2d 243, (1959)). While
other circuits employ a heightened pleading standard in FLSA cases, “‘courts in the Sixth Circuit
have rejected attempts to tighten the post-Twombly/Iqbal pleading standard under the FLSA.’”
Hutt v. Greenix Pest Control, LLC, No. 2:20-cv-1108, 2020 U.S. Dist. LEXIS 220748, at *10,
2020 WL 6892013, at *4 (S.D. Ohio Nov. 24, 2020) (qutoing Comer v. Directv, LLC, No. 2:14-
cv-1986, 2016 U.S. Dist. LEXIS 27842, at *28, 2016 WL 853027, at *9 (S.D. Ohio Mar. 4, 2016)).
Consequently, courts in this circuit have held that, “‘extensively detailed factual pleading is not
required in the context of an FLSA claim, so long as a defendant is given sufficient notice of the
prima facie claim that it is being asked to defend.’” Hutt, 2020 U.S. Dist. LEXIS 220748, at *10,
2020 WL 6892013, at *4 (quoting Roberts, 2015 U.S. Dist. LEXIS 82575, at *27, 2015 WL
3905088, at *7)).
b. Application
In this instance, Defendants only challenge the second element of the FLSA pleading test,
“[plaintiff] and other similarly situated employees regularly worked overtime without
compensation….” Douglas, , 2022 U.S. Dist. LEXIS 18548, at *9-10, 2022 WL 306982, at *4
(citing Roberts, 2015 U.S. Dist. LEXIS 82575, at *20, 2015 WL 3905088, at *6).
1. Substantial Duties
Defendants argue that the Amended Complaint fails to state a claim for relief because it
does not adequately allege that her meal breaks were disrupted by “substantial duties” that were
“predominantly for the employer’s benefit.” (Doc. No. 20 at PageID 139.) In response, Plaintiff
argues that the Amended Complaint contains two paragraphs with detailed descriptions of her job
duties and the duties she performed when her meal breaks were interrupted. (Doc. No. 24 at
PageID 169.)2
“‘An automatic meal deduction system is lawful under the FLSA.’” Parker v. Breck’s
Ridge LLC, No. 2:17-cv-633, 2019 U.S. Dist. LEXIS 167936, at *25, 2019 WL 4743750, at *9
(S.D. Ohio Sep. 30, 2019) (quoting White v. Baptist Mem’l Health Care Corp., 699 F.3d 869, 873
(6th Cir. 2012)). “‘As long as the employee can pursue his or her mealtime adequately and
comfortably, is not engaged in the performance of any substantial duties, and does not spend time
predominantly for the employer’s benefit, the employee is relieved of duty and is not entitled to
compensation under the FLSA.’” White, 699 F.3d at 873 (quoting Hill v. United States, 751 F.2d
810, 814(6th Cir. 1984)). “‘Time spent predominantly for the employer’s benefit during a period,
although designated as a lunch period or under any other designation, nevertheless constitutes
working time compensable under the provisions of the [FLSA].’” White, 699 F.3d at 873 (quoting
F.W. Stock & Sons, Inc. v. Thompson, 194 F.2d 493, 496–97 (6th Cir. 1952)). A de minimis rule
applies when “‘the matter in issue concerns only a few seconds or minutes of work beyond the
scheduled working hours.’” White, 699 F.3d at 873 (quoting Hill, 751 F.2d at 815).
Defendants argue that Plaintiff, “fails to specify which of those activities purportedly
‘often’ interrupted or shortened her meal break….” (Doc. No. 20 at PageID 140.) They further
argue that ¶ 37 is a, “sparse assertion [that] ‘doesn’t even attempt to detail’ the work activities
2 Plaintiff also attaches job postings from Defendants’ hospitals to her opposition. (Doc. No. 24 at PageID 168; Doc.
No. 24-1; Doc. No. 24-2; Doc. No. 24-3.) Generally, a court may not consider evidence outside the pleadings on a
motion to dismiss. Fed. R. Civ. P. 12(d). Moreover, these documents were not referenced in Plaintiff’s Amended
Complaint and do not fall within the category of documents the Court may generally consider without converting the
motion to dismiss into a motion for summary judgment. See Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016) (“a
court may consider exhibits attached to the complaint, public records, items appearing in the record of the case, and
exhibits attached to defendant’s motion to dismiss, so long as they are referred to in the complaint and are central to
the claims contained therein, without converting the motion to one for summary judgment”). Therefore, the Court
will not consider the documents attached to Plaintiff’s opposition for purposes of deciding the motion to dismiss.
Plaintiff claims to have performed during her meal breaks, nor does it shed any light on ‘whether
those duties were an intrinsic element’ of Plaintiff’s job.’” (Id.) (emphasis in original.)
As an initial matter, ¶ 37 cannot be read in isolation, as Defendants appear to do. Instead,
the Amended Complaint states:
36. Although Defendants required the deduction of a daily 30-minute meal break,
Named Plaintiff and other similarly situated healthcare employees were often
unable to take a fully uninterrupted, bona fide meal break of thirty (30) minutes or
otherwise took a shortened meal break because their break was interrupted with
substantive job duties.
37. In addition to the duties listed in Paragraph 33, these substantive job duties also
include, but are not limited to conducting electrocardiogram tests, taking blood and
other lab draws, assisting patients to the bathrooms, performing wound dressings,
and engaging in general nursing duties, such as observing patients, assessing
patients’ conditions, administering patients’ medicines and treatments, recording
patients’ medical histories and symptoms, providing patient care, creating plans for
patients’ care, and consulting with doctors and other healthcare professionals
concerning patients’ care (among other nursing duties).
(Doc. No. 14 at PageID 66.) As can be seen from ¶ 36, the substantive job duties listed in ¶ 37
were the tasks that interrupted the meal breaks of Plaintiff and other similarly situated healthcare
employees. Moreover, any further level of specificity as to which tasks interrupted meal breaks in
specific weeks is likely out of Plaintiff’s hands. Plaintiff would need to consult patient’s medical
records to know if she performed specific tasks in lieu of taking lunch during a particular week.
This specific information, i.e., patient records and administrative records, are in the hands of
Defendants.
As discussed in the prior section, a substantial activity is essentially one that “is an
intrinsic element of those activities and one with which the employee cannot dispense if [they are]
to perform [their]” duties. Busk, 574 U.S. at 33. It is difficult to conclude that the tasks listed in
¶ 37 are not intrinsic to the duties of a nurse or other healthcare employee. Every item listed by
Plaintiff in ¶ 37 involves patient care in some form. A nurse is defined, at its most basic, as, “a
person who cares for the sick or infirm.” Nurse, MERRIAM-WEBSTER (11th ed. 2023). The
intrinsic element of a nurse’s, or any Healthcare employee’s, duties is patient care.
2. Hours Worked in Excess of Forty
Defendants next argue that Plaintiff has failed to plead “any information about how often
her meal breaks were interrupted, whether and when those missed meal breaks occurred in weeks
during which she worked 40 or more hours, or an approximation of the number of overtime hours
worked.” (Doc. No. 20 at PageID 140.) Indeed, Defendants point to Forrester v. Am. Sec. & Prot.
Serv. LLC & F. Michael Jones, No. 21-5870, 2022 U.S. App. LEXIS 12959, 2022 WL 15514905
(6th Cir. 2022), for the fact that the district court found such deficiencies warranted dismissal and
the Sixth Circuit affirmed the dismissal. (Id.)
The district court in Forrester certainly did find that, “[m]issing from Plaintiff's complaint
is any information about the specific weeks that she worked overtime, the length of her average
workweek during the applicable period, or an approximation of the number of overtime hours
worked.” Forrester v. Am. Sec. & Prot. Serv. LLC & F. Michael Jones, No. 5:20-cv-204, 2021
U.S. Dist. LEXIS 171078, at *8, 2021 WL 4134043, at *3 (W.D. Ky. Sep. 9, 2021) aff’d sub nom.
Forrester, 2022 U.S. App. LEXIS 12959, 2022 WL 15514905. However, the Sixth Circuit makes
no mention of this rationale in the Forrester majority opinion. See Forrester, 2022 U.S. App.
LEXIS 12959 at *1-11, 2022 WL 15514905, at *1-4. Defendants suggestion that because the
Sixth Circuit affirmed the result of the district court’s ruling means that it affirmed all of the district
court’s rational, even where the circuit provided its own independent rationale for affirming, is
flawed.
Moreover, many district courts in the Sixth Circuit have not required a plaintiff in a FLSA
action to plead specific weeks where overtime was worked or the approximate number of overtime
hours worked. Gibbs v. Sedgwick Claims Mgmt. Servs., Inc., No. 2:21-cv-2153, 2022 U.S. Dist.
LEXIS 227, at *10-11, 2022 WL 36688, at *4 (W.D. Tenn. Jan. 3, 2022); Roberts, 2015 U.S. Dist.
LEXIS 82575, at *28, 2015 WL 3905088, at *8 (finding that plaintiffs were “not required to allege
specific weeks in which they were denied overtime”); Pope v. Walgreen Co., No. 3:14-cv-439,
2015 U.S. Dist. LEXIS 12960, at *11-12, 2015 WL 471006, at *5 (E.D. Tenn. Feb. 4, 2015) (“[t]o
require the present plaintiffs to each specify in their complaint a particular week in which they
worked more than 40 hours without overtime pay would, again, be rigidly harsh and inconsistent
with Iqbal and Twombly”); Mabry v. Directv, LLC, No. 3:14-cv-00698, 2015 U.S. Dist. LEXIS
125685, at *12, 2015 WL 5554023, at *4 (W.D. Ky. Sep. 21, 2015) (“Twombly and Iqbal do not
require a FLSA plaintiff to plead in detail the number of hours worked, their wages, or the amount
of overtime owed to state a claim for unpaid minimum wages or overtime wages”).
Defendant points to Hutt and Brown v. Allied Commc’ns Corp., No. 1:18-cv-689, 2020
U.S. Dist. LEXIS 29947, at *13, 2020 WL 868207, at *6 (S.D. Ohio Feb. 21, 2020), as supporting
the position that Plaintiff needs to plead with specificity the weeks she worked overtime hours and
the amount of overtime worked. (Doc. No. 27 at PageID 206.) Both Hutt and Brown reference
that the plaintiffs in those cases pled that they had worked an approximate number of overtime
hours in a given period of time. Hutt, 2020 U.S. Dist. LEXIS 220748, at *10-11, 2020 WL
6892013, at *4; Brown, 2020 U.S. Dist. LEXIS 29947, at *13, 2020 WL 868207. However, the
Court does not interpret these findings as an adoption of a more stringent standard requiring a
plaintiff in a FLSA action to plead an approximate number of overtime hours in a given period of
time. Indeed, both cases specifically state that the district courts in the Sixth Circuit have largely
“rejected attempts to tighten the post-Twombly/Iqbal pleading standard under the FLSA.” Hutt,
2020 U.S. Dist. LEXIS 220748, at *10-11, 2020 WL 6892013, at *4; Brown, 2020 U.S. Dist.
LEXIS 29947, at *13, 2020 WL 868207. The Court will not impose a higher pleading standard
on Plaintiff than what is currently required by the courts in this circuit. Indeed, such an approach
is consistent with the directive to liberally construe the FLSA. Douglas, 2022 U.S. Dist. LEXIS
18548, at *10, 2022 WL 306982, at *4 (quoting Mitchell, 358 U.S. at 211).
Therefore, the Court finds that Plaintiff has sufficiently stated a claim upon which relief
may be granted under the FLSA.
3. OPPA Claim
Defendants finally argue that if Plaintiff’s FLSA claim fails then its OPPA claim must also
fail. (Doc. No. 20 at PageID 142.) Plaintiff does not address this point in her opposition.
“Courts interpret overtime claims brought under the [OPPA] in tandem with the FLSA and
in a unitary fashion.” Stang v. Paycor, Inc., 582 F. Supp. 3d 563, 567 (S.D. Ohio 2022) (citing
Myers v. Mem’l Health Sys. Marietta Mem’l Hosp., No. 2:15-cv-2956, 2019 U.S. Dist. LEXIS
51703, at *16, 2019 WL 1384396, at *6 (S.D. Ohio Mar. 27, 2019)). Moreover, the OPPA claim
can “rise and fall” with Plaintiff’s FLSA claim. Brandenberg v. Cousin Vinny’s Pizza, LLC, No.
3:16-cv-516, 2019 U.S. Dist. LEXIS 20437, at *4-5, 2019 WL 6310376, at *2 (S.D. Ohio Nov.
25, 2019) (citing Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382, 385, n. 1 (6th Cir. 2016)).
As the Court has determined that Plaintiff’s FLSA claim may proceed and Defendants
make no other argument regarding the OPPA claim, the Court finds that Plaintiff has sufficiently
stated a claim upon which relief may be granted under the OPPA.
IV. CONCLUSION
For the reasons stated above, the Court DENIES Defendants Kettering Adventist
Healthcare and Dayton Osteopathic Hospital, Inc. to Dismiss Plaintiffs’ First Amended Collective
and Class Action Complaint (Doc. No. 20).
DONE and ORDERED in Dayton, Ohio, this Monday, August 7, 2023.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE