Aldridge v. MS Dept of Corrections

Case: 20-60311 Document: 00515772396 Page: 1 Date Filed: 03/09/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

March 9, 2021

No. 20-60311 Lyle W. Cayce

Clerk

Mary Aldridge; Ben Alexander; Tara Alexander;

Barbara Allen; Theodore Ambrose; Et al,

Plaintiffs—Appellants,

versus

Mississippi Department of Corrections; State of

Mississippi; Burl Cain, Commissioner, Mississippi

Department of Corrections; Tate Reeves, In his

official capacity as Governor of the State of

Mississippi; John Doe Defendants 1-25,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:19-CV-868

Before Wiener, Dennis, and Duncan, Circuit Judges.

Wiener, Circuit Judge:

The issue presented here is one of first impression in our circuit, viz.,

does the Fair Labor Standards Act preempt redundant state law tort claims

for unpaid minimum wages and overtime compensation when the state’s law

does not provide for minimum wages and overtime compensation? We join

the Fourth Circuit in answering “yes,” and therefore affirm.

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***

The Fair Labor Standards Act of 1938 (“FLSA” or “Act”) created

“a comprehensive federal wage-and-hour scheme.”1 Congress enacted the

FLSA to eliminate “labor conditions detrimental to the maintenance of the

minimum standard of living necessary for health, efficiency, and general well-

being of workers.”2 The principal purpose of the Act is “to protect all

covered workers from substandard wages and oppressive working hours.” 3

“[T]he FLSA was designed to give specific minimum protections to

individual workers and to ensure that each employee covered by the Act

would receive ‘“[a] fair day’s pay for a fair day’s work”’ and would be

protected from ‘the evil of “overwork” as well as “underpay.”’” 4

Workers covered by the Act are entitled to a minimum wage and

overtime compensation.5 Importantly for this case, the Act contains its own

enforcement mechanism: Employees have a private right of action against

employers for unpaid minimum wages and overtime compensation.6 The Act

also contains a “savings clause” which states: “No provision of this chapter

or of any order thereunder shall excuse noncompliance with any . . . State law

or municipal ordinance establishing a minimum wage higher than the

minimum wage established under this chapter or a maximum workweek

1

Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1882 (2019); see also

29 U.S.C. § 201 et seq.

2

29 U.S.C. § 202(a).

3

Barrentine v. Arkansas–Best Freight Sys., Inc., 450 U.S. 728, 739 (1981).

4

Id. (quoting Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578 (1942))

(second alteration in original) (emphasis omitted).

5

29 U.S.C. §§ 206–07.

6

Id. § 216(b).

2

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lower than the maximum workweek established under this chapter . . . .” 7

The Act also includes an anti-retaliation provision, which prohibits

employers from retaliating against employees for filing complaints about

violations of the FLSA.8

Circuit courts are all over the map on whether plaintiffs may bring

state law claims in addition to FLSA claims for the same conduct, but one

thing is consistent based on the facts of each case: The answer depends on

the nature of the state law cause of action and whether there is an equivalent

FLSA cause of action. The Ninth Circuit has said that an employee may bring

a state law cause of action for fraud and misrepresentation in addition to an

FLSA claim because the anti-retaliation provision does not include a cause of

action for fraud or misrepresentation.9 The Fourth Circuit, on the other

hand, has stated that the FLSA precludes state law claims for unpaid

minimum wage and overtime compensation when the state’s law does not

provide for minimum wages and overtime compensation because the FLSA

provides a cause of action for such nonpayments.10 The common thread is

this: When the FLSA provides a remedial measure, it conflicts with similar

7

Id. § 218(a).

8

Id. § 215(a)(3).

9

Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1147, 1157 (9th Cir. 2000).

10

Anderson v. Sara Lee Corp., 508 F.3d 181, 191–95 (4th Cir. 2007). The First

Circuit has similarly concluded that an employee may not sue under state law and the FLSA

for unpaid minimum wage and overtime compensation. See Roman v. Maietta Constr., Inc.,

147 F.3d 71, 76 (1st Cir. 1998). We find the First Circuit’s reasoning persuasive but note

that the facts of the case are distinguishable because Maine has a state law minimum wage

and overtime compensation provision. See id. at 76. Whether the FLSA preempts state law

claims when the state does provide for minimum wages and overtime compensation is not

before us, so we save that issue for a different day.

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state law causes of action and thus preempts them; when the FLSA does not

provide a remedial measure, there is no preemption.

This does not mean that the FLSA provides the exclusive relief for

these types of actions. In fact, the FLSA’s savings clause states that the Act

is not meant to prevent compliance with state laws.11 So, employees may

bring a state law cause of action for unpaid minimum wages and overtime-

compensation, if the law in their state allows for that, or a cause of action

under the FLSA, but not both.12 The principle on which this is based—

conflict preemption—we discuss in our opinion today.

I. Background

The facts of this case are not complex, because Plaintiffs-Appellants

provide few facts to support their claims. The Plaintiff class consists of 890

current and former employees of the Mississippi Department of Corrections

(“Employees”). Employees sued Defendants-Appellees, the Mississippi

Department of Corrections, the State of Mississippi, the Department of

Corrections Commissioner in her official capacity, and the Governor of

Mississippi (together, the “DOC”) in Mississippi state court, asserting

violations of the FLSA and state law. Specifically, Employees alleged that the

DOC failed to properly calculate and dispense wages, including overtime

wages, for hours worked. Employees claimed that the DOC was negligent,

negligent per se, and grossly negligent for failing to comply with both the

FLSA and Mississippi state law. Employees also alleged negligent and

intentional infliction of emotional distress, conversion, civil conspiracy to

commit civil conversion, reckless disregard for the rights and safety of the

employees, and res ipsa loquitur, without mentioning the FLSA in these

11

See 29 U.S.C. § 218(a).

12

See, e.g., Roman, 147 F.3d at 76; Anderson, 508 F.3d at 191–95.

4

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claims, but all based on failure to pay minimum wages and overtime

compensation, which is only covered by the FLSA in Mississippi. Employees

lastly alleged violations of the FLSA, presumably because Mississippi law

does not provide for minimum wages or overtime compensation.13 They

listed various parts of the FLSA with which they claimed the DOC did not

comply, but they failed to list any specific state laws with which the DOC did

not comply.

After the DOC removed the case to federal court, and after that court

denied Employees’ motion to remand, the district court concluded that the

DOC was entitled to sovereign immunity on the FLSA claims. That court

also held that all of Employees’ state law claims arose out of violations of the

FLSA and were thus preempted. Employees then filed a motion to amend

their complaint without attaching a new complaint or explaining what facts

they would add in an amended complaint. The district court denied the

motion to amend because the employees did not show how an amendment

would change the conclusion that the FLSA preempted their claims.

Employees timely appealed.

II. Standard of Review

We review a district court’s dismissal under Federal Rule of Civil

Procedure 12(c), applying the same de novo standard as to a Rule 12(b)(6)

motion to dismiss.14 “[T]he central issue is whether, in the light most

13

See State Minimum Wage Laws, U.S. DEP’T OF LABOR,

http://www.dol.gov/agencies/whd/minimum-wage/state (last updated Jan. 1, 2021);

Steve P. Calandrillo & Taylor Halperin, Making the Minimum Wage Work: An Examination

of the Economic Impact of the Minimum Wage, 22 STAN. J.L. BUS. & FIN. 147, 160 (2017)

[hereinafter, Calandrillo & Halperin, Making the Minimum Wage Work].

14

Waller v. Hanlon, 922 F.3d 590, 599 (5th Cir. 2019).

5

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favorable to the plaintiff, the complaint states a valid claim for relief.” 15 We

accept all factual allegations in the pleadings as true. 16 However, the plaintiffs

must plead “enough facts to state a claim to relief that is plausible on its

face.”17

III. Discussion

Employees contend that their state law claims are not preempted by

the FLSA.18 They also assert that the district court erred in dismissing their

claims with prejudice and denying them leave to amend.

A. Preemption

We review the preemptive effect of a federal statute de novo.19

The Supremacy Clause of the United States Constitution renders

federal law the “supreme Law of the Land.”20 The doctrine of federal

preemption that arises out of the Supremacy Clause requires that “any state

15

Doe v. MySpace, 528 F.3d 413, 418 (5th Cir. 2008) (alteration in original) (quoting

Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001)).

16

Hughes, 278 F.3d at 420.

17

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

18

The district court incorrectly noted that the employees “implicitly

acknowledge” that state law claims are preempted by the FLSA to the extent they are

predicated on violations of the FLSA. Contrariwise, the employees contended in their

response to the DOC’s motion to dismiss that the court should “follow other Fifth Circuit

district courts and their findings that the” FLSA does not preempt state law claims.

Therefore, the employees’ argument is not waived.

19

Franks Inv. Co. LLC v. Union Pac. R.R. Co., 593 F.3d 404, 407 (5th Cir. 2010).

20

U.S. CONST. art. VI, cl. 2.

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law, however clearly within a State’s acknowledged power, which interferes

with or is contrary to federal law, must yield.” 21

There are three types of federal preemption: (1) express preemption;

(2) field preemption; and (3) conflict preemption.22 We have previously held

that the FLSA does not contain express preemption language,23 and we find

no reason to depart from that conclusion. We have not, however, considered

whether the other two forms of preemption apply to redundant state law

claims for unpaid minimum wages and overtime compensation.

Under field and conflict preemption, which are both forms of implied

preemption, “a state claim is preempted where [1] ‘Congressional intent to

preempt is inferred from the existence of a pervasive regulatory scheme or . .

. [2] ‘state law conflicts with federal law or interferes with the achievement

of federal objectives.’”24 Field preemption exists when (1) “the scheme of

federal regulation is sufficiently comprehensive to make reasonable the

inference that Congress ‘left no room’ for supplementary state regulation,”

or (2) “where the field is one in which ‘the federal interest is so dominant

that the federal system will be assumed to preclude enforcement of state laws

on the same subject.’”25 Circuit courts have consistently held that there is no

field preemption in the FLSA, or they have declined to weigh in on that

21

Felder v. Casey, 487 U.S. 131, 138 (1988) (quoting Free v. Bland, 369 U.S. 663, 666

(1962)).

22

Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992); Hillsborough Cnty., Fla.

v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985).

23

See Casey v. Rainbow Grp., Ltd., 109 F.3d 765, *5 (5th Cir. 1997) (unpublished)

(finding “no indication of express preemption” in the FLSA).

24

Witty v. Delta Air Lines, Inc., 366 F.3d 380, 384 (5th Cir. 2004) (quoting Hodges

v. Delta Airlines, Inc., 44 F.3d 334, 335 n.1 (5th Cir. 1995) (en banc)).

25

Automated Med. Labs., 471 U.S. at 713 (quoting Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230 (1947)).

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issue.26 We agree that there is no field preemption in the FLSA because of

the FLSA’s “savings clause,” which clearly requires that employers also

comply with state laws.

We therefore turn to conflict preemption. Conflict preemption, which

is not “rigidly distinct”27 from field preemption, is present when (1)

“compliance with both state and federal law is impossible,” or (2) state law

“stands as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.”28 “[B]oth forms of conflicting state

law are ‘nullified’ by the Supremacy Clause . . . .”29

“‘[T]he purpose of Congress is the ultimate touchstone’ of pre-

emption analysis.”30 We “start[] with the basic assumption that Congress

did not intend to displace state law.”31 Congress’s intent may be express or

implied,32 but unlike field preemption, conflict preemption does not require

“a specific, formal agency statement identifying conflict in order to conclude

that such a conflict in fact exists.”33

26

See, e.g., Anderson, 508 F.3d at 191 n.10 (holding that field preemption is

“inapposite”); Williamson, 208 F.3d at 1151 (concluding that there is no field preemption

in the FLSA because of the savings clause); Roman, 147 F.3d at 76 (failing to analyze field

preemption).

27

English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5 (1990).

28

California v. ARC Am. Corp., 490 U.S. 93, 100–01 (1989) (quoting Hines v.

Davidowitz, 312 U.S. 52, 67 (1941)).

29

Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 873 (2000).

30

See Cipollone, 505 U.S. at 516 (alteration in original) (quoting Malone v. White

Motor Corp., 435 U.S. 497, 504 (1978)); see also Planned Parenthood of Hous. & S.E. Tex. v.

Sanchez, 403 F.3d 324, 336 (5th Cir. 2005).

31

Maryland v. Louisiana, 451 U.S. 725, 746 (1981).

32

Cipollone, 505 U.S. at 516.

33

Geier, 529 U.S. at 884.

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Here, it is clear that there is a conflict. Congress’s intent in enacting

the FLSA was to protect workers from unfair working conditions and from

receiving inadequate pay.34 Employees in this case have a private right of

action under the FLSA against employers for unpaid minimum wages and

overtime compensation.35 It is not “impossible” to comply with both federal

and state law unpaid minimum wages and overtime compensation

requirements, the first instance in which conflict preemption applies.36

However, “[t]he rule of state tort law for which [Employees] argue would

stand as an ‘obstacle’ to the accomplishment of that objective,” namely,

protecting workers from overwork and underpayment.37 In other words, the

purposes of the two laws overlap with each other and thus the federal law

must control. We know this because

Congress’s intention to create exclusive remedies was clear in

that ‘the FLSA mandates that the commencement of an action

by the Secretary of Labor terminates an employee’s own right

of action’—a special feature of the FLSA’s enforcement

scheme . . . that would be rendered superfluous if workers were

able to circumvent that scheme while pursuing their FLSA

rights.38

As we stated above, this does not mean that employees may not sue under

state law for unpaid minimum wages and overtime compensation when state

law provides for that cause of action; it only means that they may not sue

34

See 29 U.S.C. § 202(a); see also Barrentine, 450 U.S. at 739.

35

29 U.S.C. § 216(b).

36

See ARC Am. Corp., 490 U.S. at 100–01.

37

Geier, 529 U.S. at 886.

38

Anderson, 508 F.3d at 194 (quoting Kendall v. City of Chesapeake, Va., 174 F.3d

437, 443 (4th Cir. 1999)).

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simultaneously under both state law and the FLSA for these violations if state

law does not independently provide for such a cause of action.

Employees contend that some of their state law claims are

independent of the FLSA. They assert that these claims are based entirely on

Mississippi law. We disagree. Every one of Employees’ claims relates to

unpaid minimum wages and overtime compensation. Furthermore, even if

the claims do not refer to the FLSA, they are based on the FLSA. Mississippi

does not have laws governing minimum wages and overtime. 39 Courts

therefore analyze these types of claims under the FLSA only. Because all of

Employees’ state law claims are based on violations of the FLSA, they are

preempted.

In reaching this conclusion, we are guided by other circuits that have

confronted the same issue. In Anderson v. Sara Lee Corp., the Fourth Circuit

considered whether state law claims for breach of contract, negligence, and

fraud, all based on violations of the FLSA, were preempted on the basis of

conflict preemption.40 The court first noted the Secretary of Labor’s broad

authority to oversee distribution of unpaid wages due and to bring

enforcement actions against employers. 41 It emphasized the importance that

workers have a private right of action under specific circumstances.42 The

court next recognized this private right of action: A worker may petition the

Secretary of Labor to commence an enforcement action—a “special feature”

that would be “rendered superfluous if workers were able to circumvent that

39

See State Minimum Wage Laws, U.S. DEP’T OF LABOR,

https://www.dol.gov/agencies/whd/minimum-wage/state (last updated Jan. 1, 2021);

Calandrillo & Halperin, Making the Minimum Wage Work at 160.

40

508 F.3d at 191–95.

41

Id. at 192.

42

Id.

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scheme while pursuing their FLSA rights.”43 And when the Secretary of

Labor commences an enforcement action, the employee’s own right of action

is terminated.44 The court held finally that “Congress prescribed exclusive

remedies in the FLSA for violations of its mandates.” 45 The Act therefore

precluded the plaintiff’s state law claims.46

In Roman v. Maietta Construction, Inc., the First Circuit likewise held

that state law claims were precluded by the FLSA, although it did not use the

terms “preemption” or “conflict.”47 In affirming the district court’s

judgment, the circuit court agreed that “the FLSA is the exclusive remedy

for enforcement of rights created under the FLSA.”48 “That is, ‘the [worker]

cannot circumvent the exclusive remedy prescribed by Congress by asserting

equivalent state claims in addition to the FLSA claim.’” 49 Because the

worker claimed minimum wage and overtime pay violations under both the

FLSA and state law, his state law claim was preempted.50

This rule of conflict preemption in the context of redundant state law

claims has been applied by district courts in this circuit. The Eastern District

of Texas, for example, has concluded at least twice that claims of unjust

enrichment for violating the FLSA’s overtime compensation requirement

were preempted because the FLSA “provides the exclusive remedy for an

43

Id. at 194.

44

Id.

45

Id.

46

Id.

47

147 F.3d at 76.

48

Id.

49

Id. (quoting Tombrello v. USX Corp., 763 F. Supp. 541, 545 (N.D. Ala. 1991)).

50

Id.

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alleged violation of a wage-hour matter.”51 This ruling is consistent across

the board.52

The Ninth Circuit has also weighed in on this issue but has concluded

that certain state law claims are not preempted by the FLSA. 53 That case,

however, does not at all conflict with our preemption analysis. The Ninth

Circuit considered whether the workers’ state law fraud claims were conflict

preempted.54 The fraud claims were based on the employer threatening the

workers for considering to join a class-action lawsuit over the employer’s

failure to pay overtime wages.55 The Ninth Circuit concluded that conflict

preemption did not apply to the state law fraud claims because the anti-

retaliation clause of the FLSA does not cover this type of fraud. 56 In the

instant case, by contrast, the FLSA provides a cause of action for unpaid

minimum wages and overtime compensation.57 The Ninth Circuit’s

reasoning is thus consistent with our analysis and did not create a circuit split.

51

Kharb v. Ericsson, Inc., 2018 WL 8369848, at *8 (E.D. Tex. Nov. 5, 2018); see also

Guerrero v. JPMorgan Chase & Co., 2010 WL 457144, at *4 (E.D. Tex. Feb. 5, 2010).

52

See, e.g., Wiatrek v. Flowers Foods, Inc., 2018 WL 3040583, *7 (W.D. Tex. June

16, 2018) (“District courts in this circuit, including this Court, have concluded that state-

law claims are preempted by the FLSA to the extent the state-law claim is predicated on an

alleged violation of the FLSA.”); Estraca v. Rockwater Energy Sols., Inc., 2016 WL 3748612,

at *2 (W.D. Tex. July 7, 2016); Newsom v. Carolina Logistics Servs., Inc., 2012 WL 3886127,

at *3 (N.D. Miss. Sept. 6, 2012); Coberly v. Christus Health, 829 F. Supp. 2d 521, 525 (N.D.

Tex. 2011); Botello v. COI Telecom, L.L.C., 2010 WL 3784202 (W.D. Tex. Sept. 21, 2010);

Valcho v. Dallas Cnty. Hosp. Dist., 658 F. Supp. 2d 802 (N.D. Tex. 2009).

53

See Williamson, 208 F.3d at 1157.

54

Id. at 1152–53.

55

Id. at 1147.

56

Id. at 1152.

57

See 29 U.S.C. § 216(b).

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The employees cite Washington v. Fred’s Stores of Tennessee, Inc. for

the proposition that their state law claims are not preempted. Washington is

distinguishable and, to the extent it is not, is nonbinding. In that case, the

Southern District of Mississippi held that there was no conflict or field

preemption between the FLSA and state law negligence and conversion

claims.58 However, those claims “d[id] not directly overlap with the claim

under FLSA.”59 That district court likely would have concluded differently

if the workers had sought “overtime pay itself through either of the state law

claims, as they d[id] through the claim under the FLSA.”60

We conclude that the FLSA preempts redundant state law claims for

nonpayment of minimum wages and overtime compensation by way of

conflict preemption.

B. Dismissal with Prejudice and Motion to Amend

We now turn to Employees’ assertions that their complaint should not

have been dismissed with prejudice and that they should have been allowed

leave to amend. Employees first contend that their state law claims that do

not contain a reference to the FLSA should not have been dismissed with

prejudice. Mississippi does not have state labor laws governing minimum

wage or overtime,61 so it would be impossible for Employees to state a claim

for wage and hour violations under state law independent of the FLSA.

Furthermore, it would be impossible for Employees to state a claim under the

58

427 F. Supp. 2d 725, 729–30 (S.D. Miss. 2006).

59

Id. at 729.

60

Id.

61

See State Minimum Wage Laws, U.S. DEP’TOR LABOR,

https://www.dol.gov/agencies/whd/minimum-wage/state (last updated Jan. 1, 2021);

Calandrillo & Halperin, Making the Minimum Wage Work at 160.

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FLSA because sovereign immunity bars suit against the DOC. Their state law

claims based on violations of the FLSA similarly fail because of preemption.

We therefore hold that dismissal with prejudice was appropriate.

Employees next contend that they should have been allowed leave to

amend. Rule 15(a) provides that leave to amend shall be freely given “when

justice so requires.”62 “A district court has the discretion to consider

numerous factors in evaluating whether to allow amendment, including the

futility of amending, the party’s repeated failure to cure deficiencies by

previous amendments, undue delay, or bad faith.”63 We review a district

court’s denial of leave to amend for abuse of discretion. 64

Employees provided no reasons to the district court for why they

sought to amend their complaint. On appeal, they contend that they should

be allowed to allege failure to supervise, manage, and implement policies

consistent with the FLSA. They again cite Washington, insisting that they

should be allowed to allege their state law conversion claim based on failure

to remit federal or state withholding taxes to the government.

We will not consider assertions that were not raised in the district

court.65 Furthermore, the district court did not abuse its discretion in denying

leave to amend because all of Employees’ state law claims were based on

violations of the FLSA which, as discussed, preempts the redundant state law

claims. Employees did not present any additional facts that they would add

to an amended complaint and did not attach a proposed amended

62

FED. R. CIV. P. 15(A).

63

U.S. ex rel. Marcy v. Rowan Cos., Inc., 520 F.3d 384, 392 (5th Cir. 2008).

64

Molina–Aranda v. Black Magic Enters., L.L.C., 983 F.3d 779, 784 (5th Cir. 2020).

65

See State Indus. Prods. Corp. v. Beta Tech., Inc., 575 F.3d 450, 456 (5th Cir. 2009).

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complaint.66 Finally, granting leave to amend would have been futile, because

“the complaint as amended would be subject to dismissal” on the basis of

preemption and sovereign immunity.67

***

For the foregoing reasons, we AFFIRM all dispositions of the district

court.

66

See Goldstein v. MCI WorldCom, 340 F.3d 238, 255 (5th Cir. 2003) (affirming

denial of leave to amend where the plaintiff did not specify how a second amended

complaint would differ and did not attach a proposed second amended complaint);

McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 315 (5th Cir. 2002) (finding no abuse of

discretion in the district court’s denial of leave to amend where the plaintiffs failed to file

an amended complaint as a matter of right or submit a proposed amended complaint in a

request for leave of the court and the plaintiffs failed to alert the court as to the substance

of any proposed amendment).

67

See Varela v. Gonzales, 773 F.3d 704, 707 (5th Cir. 2014) (quoting Ackerson v.

Bean Dredging, LLC, 589 F.3d 196, 208 (5th Cir. 2009)).

15