John Orton v. Johnny's Lunch Franchise, LLC

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0047p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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JOHN ORTON,

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Plaintiff-Appellant,

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No. 10-2044

v.

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JOHNNY’S LUNCH FRANCHISE, LLC;

Defendants-Appellees. -

ANTHONY J. CALAMUNCI,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 10-11013—Gerald E. Rosen, Chief District Judge.

Argued: January 10, 2012

Decided and Filed: February 21, 2012

Before: MERRITT and MOORE, Circuit Judges; MAYS, District Judge.*

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COUNSEL

ARGUED: David M. Blanchard, NACHT, ROUMEL, SALVATORE, BLANCHARD

& WALKER, P.C., Ann Arbor, Michigan, for Appellant. Anthony J. Calamunci,

ROETZEL & ANDRESS, LPA, Toledo, Ohio, for Appellees. ON BRIEF: David M.

Blanchard, NACHT, ROUMEL, SALVATORE, BLANCHARD & WALKER, P.C.,

Ann Arbor, Michigan, for Appellant. Anthony J. Calamunci, ROETZEL & ANDRESS,

LPA, Toledo, Ohio, for Appellees.

MOORE, J., delivered the opinion of the court, in which MAYS, D. J., joined.

MERRITT, J. (p. 12), delivered a separate concurring opinion.

*

The Honorable Samuel H. Mays, United States District Judge for the Western District of

Tennessee, sitting by designation.

1

No. 10-2044 Orton v. Johnny’s Lunch Franchise et al. Page 2

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OPINION

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KAREN NELSON MOORE, Circuit Judge. John Orton appeals from the district

court’s dismissal of his claims against Johnny’s Lunch Franchise, LLC, and Anthony

Calamunci for unpaid wages and expenses from August 2008 to December 2008. Orton

sued under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and

various state laws. The district court granted the defendants’ motion to dismiss the

FLSA claim on the ground that Orton was an exempt salaried employee and

subsequently dismissed the remaining state-law claims. Because we hold that Orton has

adequately pleaded a claim under the FLSA, we REVERSE and REMAND for further

proceedings.

I. BACKGROUND

John Orton’s complaint alleges that he began working for Johnny’s Lunch

Franchise (“JLF”) in September 2007 as Vice President of Real Estate and Site

Selection. His annual base salary was set at $125,000. From September 2007 until

August 2008, JLF paid Orton his wages according to plan, although throughout 2008

Orton alleges JLF had trouble making payroll. In August 2008, Orton alleges that JLF

ceased paying him any wages even though he did not cease working. On December 1,

2008, Orton along with the entire executive staff was formally laid off. Orton sued his

alleged employers JLF and Anthony Calamunci (“Calamunci”) in April 2010 for

damages stemming from the period he claims he worked but was not paid between

August and December 2008.

The defendants moved to dismiss on the basis of Federal Rules of Civil

Procedure 12(b)(2), (3), and (6). Initially, the defendants sought dismissal of only

Calamunci for failure to state a claim under Rule 12(b)(6), arguing that Calamunci was

No. 10-2044 Orton v. Johnny’s Lunch Franchise et al. Page 3

not an “employer” within the meaning of § 203(d) of the FLSA.1 Calamunci concluded

this argument by noting that Orton “admits he was an exempt employee with a [sic]

annual salary of $125,000. . . . Therefore, [Orton] is ‘exempt’ from overtime

compensation under the [FLSA].” R. 7 (Defs.’ Mot. to Dismiss at 4). Calamunci cited

no cases or law to make this argument, nor did he argue that this alone warranted

dismissal of the entire FLSA claim. Orton, however, responded as if the defendants had

moved jointly under Rule 12(b)(6) and addressed both the argument that Calamunci was

not an employer and the suggestion that Orton was exempt. Orton explained how

Calamunci qualifies as an employer under § 203(d) when one applies the law of this

Circuit2 and argued that the defendants failed to meet their burden of establishing that

Orton was exempt during the period they denied him his wages. In their reply, the

defendants focused almost entirely on the argument that Orton was an exempt salaried

employee under the FLSA and that the complaint could therefore be dismissed in its

entirety against both defendants. They argued “[i]n the alternative” that Calamunci was

not an employer. Prior to a ruling, Orton sought leave to file a second amended

complaint to add further allegations that would more clearly refute the affirmative

defense of exemption and establish Calamunci’s status as an employer.

On July 20, 2010, the district court issued its opinion granting the defendants’

motion to dismiss. Orton v. Johnny’s Lunch Franchise, LLC, No. 10-11013, 2010 WL

2854303 (E.D. Mich. July 20, 2010). The district court treated the Rule 12(b)(6) motion

as jointly sought by the defendants and held that Orton had failed to state a claim against

either defendant under the FLSA because “[b]y his own admission, [Orton] is exempt

from protection under FLSA.” Id. at *4. Focusing on the plaintiff’s admission that he

was owed an annual base salary, the district court concluded: “Nothing in the record

indicates that this base salary was subject to reduction because of variations in the

quality or quantity of the work performed. Rather, Mr. Orton’s allegations suggest only

1

The only arguments advanced by JLF in the motion, which was made jointly with Calamunci,

were that dismissal was appropriate under Rules 12(b)(2) and (3) for lack of personal jurisdiction and lack

of venue. Those arguments have since been dropped by the defendants and are not before us on appeal.

2

Calamunci had erroneously cited solely Third Circuit law as controlling.

No. 10-2044 Orton v. Johnny’s Lunch Franchise et al. Page 4

that Defendants stopped paying him this promised salary because of cash flow issues.”

Id. at *5. The withholding of compensation for several months, if true, would be

insufficient according to the district court to convert a position from salary to hourly.

Id. The district court did not mention who had the burden of establishing Orton’s status

as exempt.

Having concluded that the FLSA claim was not viable, the district court did not

address the arguments with respect to Calamunci’s status as an employer and dismissed

the state-law claims without prejudice because it decided it “lack[ed] a basis to exercise

subject matter jurisdiction” over the state-law claims. Id. at *6. The district court denied

Orton’s motion for leave to file a second amended complaint as moot. Id. Orton timely

appealed the district court’s judgment.

II. FLSA CLAIM

We review de novo a district court’s decision to dismiss a complaint for failure

to state a claim under Federal Rule of Civil Procedure 12(b)(6). Hensley Mfg., Inc. v.

ProPride, Inc., 579 F.3d 603, 608-09 (6th Cir. 2009). In reviewing a motion to dismiss,

we must accept non-conclusory allegations of fact in the complaint as true and determine

if the plaintiff has stated a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 129

S. Ct. 1937, 1949-50 (2009).

A. Overview of FLSA Exemptions

The FLSA requires employers to pay minimum wages to certain employees.

29 U.S.C. § 206. Employers must also pay overtime to employees who work more than

forty hours a week. 29 U.S.C. § 207. Some employees, however, are “exempt” from

these requirements under 29 U.S.C. § 213. Relevant to this case, § 213(a)(1) exempts

workers employed in a “bona fide executive, administrative, or professional capacity,”

as defined by the Secretary of Labor. For each of these three functions, the Secretary of

Labor has promulgated rules regarding when an employee qualifies as exempt. See

29 C.F.R. § 541.100 (executive employees); 29 C.F.R. § 541.200 (administrative

employees); 29 C.F.R. § 541.300 (professional employees). Each rule requires the

No. 10-2044 Orton v. Johnny’s Lunch Franchise et al. Page 5

defendant to satisfy three “tests” to qualify: (1) a duties test; (2) a salary-level test; and

(3) a salary-basis test. See 29 C.F.R. § 541.700 (duties test); 29 C.F.R. § 541.600

(salary-level test); 29 C.F.R. § 541.602 (salary-basis test); see also Baden-Winterwood

v. Life Time Fitness, Inc., 566 F.3d 618, 626-27 (6th Cir. 2009).

An employer may raise a plaintiff’s status as an exempt employee as an

affirmative defense to claims brought under the FLSA. Thomas v. Speedway

SuperAmerica, LLC, 506 F.3d 496, 501 (6th Cir. 2007). Exemptions, however, “‘are to

be narrowly construed against the employers seeking to assert them.’” Id. (quoting

Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)). The employer bears the

burden of establishing the affirmative defense by a preponderance of the evidence, and

the employer satisfies this burden only by providing “clear and affirmative evidence that

the employee meets every requirement of an exemption.” Id. (internal quotation marks

omitted).

The district court determined that “the parties appear to concede that Mr. Orton’s

job is administrative in nature,” Orton, 2010 WL 2854303, at *4,3 and then concluded

that Orton was an exempt salaried employee under all three tests based on the allegations

in his complaint. The district court granted the defendants’ motion to dismiss, holding

that exempt salaried employees have no claim under the FLSA for back wages. Because

Orton does not challenge the district court’s holdings with respect to the salary-level test

or the duties test, we review only the district court’s conclusions on the salary-basis test.

B. Salary-Basis Test

The relevant regulation defining the salary-basis test was updated in 2004 and

now states the following:

3

It is unclear where the parties make this concession, or how the single sentence in Orton’s

complaint summarizing his primary responsibilities would be sufficient for the defendants to meet their

burden of establishing that Orton was employed in an administrative capacity, as the district court held he

was. Id. at *6. We do not address this issue on appeal, however, because Orton has not raised it. At oral

argument, Orton conceded that he was employed in at least one of the three relevant capacities:

administrative, executive, or professional.

No. 10-2044 Orton v. Johnny’s Lunch Franchise et al. Page 6

General Rule. An employee will be considered to be paid on a “salary

basis” within the meaning of these regulations if the employee regularly

receives each pay period on a weekly, or less frequent basis, a

predetermined amount constituting all or part of the employee’s

compensation, which amount is not subject to reduction because of

variations in the quality or quantity of the work performed. Subject to

the exceptions provided in paragraph (b) of this section, an exempt

employee must receive the full salary for any week in which the

employee performs any work without regard to the number of days or

hours worked. Exempt employees need not be paid for any workweek

in which they perform no work. An employee is not paid on a salary

basis if deductions from the employee’s predetermined compensation are

made for absences occasioned by the employer or by the operating

requirements of the business. If the employee is ready, willing and able

to work, deductions may not be made for time when work is not

available.

29 C.F.R. § 541.602(a) (2004). The old version stated, in relevant part: “An employee

will be considered to be paid ‘on a salary basis’ within the meaning of the regulations

if under his employment agreement he regularly receives each pay period . . . .” 29

C.F.R. § 541.118(a) (1973) (emphasis added).

We addressed at length the impact of the 2004 changes on the salary-basis test

in Baden-Winterwood, 566 F.3d at 627-28. The new regulation now “focus[es] on pay

received,” rather than the terms of the employment agreement, but the regulation still

requires that a defendant show that the plaintiff was paid: “(1) a predetermined amount,

which (2) was not subject to reduction (3) based on quality or quantity of work

performed.” Id. at 627. The list of deductions that are excepted from this requirement

are provided in subsection (b), and include deductions in pay based on absences for

personal reasons or sickness in certain circumstances. 29 C.F.R. § 541.602(b).

The new regulations also clarified the effect of an improper deduction on an

employee’s status as exempt. 29 C.F.R. § 541.603. An improper deduction alone will

not necessarily render an employee non-exempt: “An employer who makes improper

deductions from salary shall lose the exemption if the facts demonstrate that the

employer did not intend to pay employees on a salary basis.” 29 C.F.R. § 541.603(a)

(2004). An employer’s intent to make improper deductions is demonstrated by “[a]n

No. 10-2044 Orton v. Johnny’s Lunch Franchise et al. Page 7

actual practice of making improper deductions.” Id.4 However, “[i]mproper deductions

that are either isolated or inadvertent will not result in loss of the exemption for any

employees subject to such improper deductions, if the employer reimburses the

employees for such improper deductions.” 29 C.F.R. § 541.603(c).

The district court held that the “Defendants’ failure to pay Mr. Orton for several

months [did not] convert[] his job from a salary-based position to an hourly-based

position.” Orton, 2010 WL 2854303, at *5. Relying primarily on an Eleventh Circuit

case, the district court stated that “administrative employees are exempt from coverage

within the meaning of the FLSA based on the salary that they were owed under their

employment agreements and not based on the on [sic] compensation that they actually

received.” Id. (citing Nicholson v. World Bus. Network, Inc., 105 F.3d 1361, 1365 (11th

Cir.), cert. denied, 522 U.S. 949 (1997)). The district court’s holding is incorrect for two

reasons, both of which warrant reversal.

First, the district court’s holding rests on an outdated rule of law. The new

(2004) regulations, which all parties correctly agree are applicable in this case, establish

that employment agreements are no longer the relevant starting point for whether an

employee is paid on a salary basis. Baden-Winterwood, 566 F.3d at 627. The question

is therefore not what Orton was owed under his employment agreement; rather, the

question is what compensation Orton actually received.

Second, the district court neglected to place the burden of establishing the

exemption on the defendants, failing even to acknowledge that the exemption is an

affirmative defense. The district court instead focused solely on the sufficiency of

Orton’s complaint and the not-yet-created record in this case: “Nothing in the record

indicates that this base salary was subject to reduction because of variations in the

quality or quantity of the work performed. Rather, Mr. Orton’s allegations suggest only

4

These revisions were partly in response to the Supreme Court’s holding in Auer v. Robbins, 519

U.S. 452 (1997), which held that the exemption should be denied if the employer either had an actual

practice of making deductions based on quantity or quality of work, or had a policy that created a

significant likelihood of such deductions. See Baden-Winterwood, 566 F.3d at 627-28 (discussing Auer).

The changes eliminated the “significant likelihood” test. Id. at 628.

No. 10-2044 Orton v. Johnny’s Lunch Franchise et al. Page 8

that Defendants stopped paying him this promised salary because of cash flow issues.”

Orton, 2010 WL 2854303, at * 5 (emphasis added). On a motion to dismiss, there is no

fact “record,” only the plaintiff’s allegations. Here, Orton clearly alleged that from

August 2008 to December 2008 his salary was reduced to zero. The only mention as to

the potential cause of the deduction in Orton’s complaint is that the “Defendants had

trouble making payroll and paying expenses.” R. 4 (Am. Compl. at ¶ 12). Whether

Orton’s allegations “suggest” one reason for the deduction in salary is irrelevant; his

allegations do not preclude multiple reasons for the deduction, and it was the defendants’

burden—not the plaintiff’s—to establish that the reason for the deduction was proper.

See Vance v. Terrazas, 444 U.S. 252, 270 n.11 (1980) (citing 5 CHARLES ALAN WRIGHT

& ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1276 (1969)). Orton’s

allegations are insufficient to establish as a matter of law that the deduction in his pay

was proper under either § 541.602(a) or one of the exceptions in § 541.602(b).

Furthermore, even if Orton had explicitly pleaded that the sole reason for the

deduction was because JLF was experiencing a decline in cash flow, this alone would

tell us nothing about whether the deduction was proper under the FLSA. For example,

a company experiencing cash-flow issues cannot claim the exemption if the company

prevents an otherwise salaried employee from coming in three days a week and then

pays him less accordingly. Such a deduction in pay would undeniably be due to an

absence occasioned by the employer, see 29 C.F.R. § 541.602(a), even though the

employer decided to take the action due to cash flow problems. The regulation makes

no exception for deductions in pay just because they were motivated by cash flow

shortages.5

5

That is not to say a company with cash flow issues is left with no recourse. Nothing in the FLSA

prevents such an employer from renegotiating in good faith a new, lower salary with one of its otherwise

salaried employees. The salary-basis test does not require that the predetermined amount stay constant

during the course of the employment relationship. Of course, if the predetermined salary goes below a

certain amount, the employer may be unable to satisfy the salary-level test, which explicitly addresses the

amount an employee must be compensated to remain exempt. See 29 C.F.R. § 541.600(a) (“To qualify

as an exempt executive, administrative or professional employee under section 13(a)(1) of the Act, an

employee must be compensated on a salary basis at a rate of not less than $455 per week . . . .”).

No. 10-2044 Orton v. Johnny’s Lunch Franchise et al. Page 9

JLF and Calamunci also seek to distinguish between an employee whose pay was

reduced partially and one whose pay was reduced entirely. At first glance, this argument

has some support in pre-2004 case law. See, e.g., Nicholson v. World Bus. Network, Inc.,

105 F.3d 1361, 1365 (11th Cir. 1997) (rejecting FLSA claim for salaried employees who

were not paid in accordance with their contract); Donovan v. Agnew, 712 F.2d 1509,

1517 (1st Cir. 1983) (holding salaried employees not entitled to minimum wages despite

failure of employer to pay their contractual wages during last two weeks of company’s

operation); Reich v. Midwest Body Corp., 843 F. Supp. 1249, 1250-51 (N.D. Ill. 1994)

(holding salaried employee remained exempt despite failure of employer to pay wages

for the final three weeks); Kawatra v. Gardiner, 765 S.W.2d 771, 774-75 (Tenn. Ct.

App. 1988) (failure to pay salaried employee’s wages did not remove exemption because

language in contract trumped amount of funds employee actually received).6 The focus

in all of these cases, however, was on the terms of the employment agreement.

Therefore, to the extent these cases are at all instructive regarding the new regulations,

they support the general principle that the reasons for the reductions in pay are

dispositive, not the amount.

The burden should have been placed on the defendants to show that Orton

“receive[d] . . . [a] predetermined amount.” 29 C.F.R. § 541.602(a). If he did not, the

defendants must have shown by a preponderance of the evidence that their failure to pay

him the predetermined amount was proper either under § 541.602(a) or under one of the

delineated exceptions in subsection (b). We therefore reverse the district court’s

dismissal of Orton’s FLSA claim and remand for further proceedings.

6

But see Takacs v. Hahn Auto. Corp., 246 F.3d 776, 781 (6th Cir.) (actual practice of suspending

managers without pay for improper reasons rendered them not exempt), cert. denied, 534 U.S.889 (2001);

Avery v. City of Talladega, 24 F.3d 1337, 1341-42 (11th Cir. 1994) (three-day suspension without pay for

improper reasons “destroyed” employee’s salaried status and entitled employee to overtime).

No. 10-2044 Orton v. Johnny’s Lunch Franchise et al. Page 10

III. LEAVE TO FILE SECOND AMENDED COMPLAINT

Orton sought leave to amend his complaint for a second time to add allegations

that would address the affirmative defenses, to plead more accurately Calamunci’s role

as an employer, and to add a new defendant in light of the sale of JLF. The district court

did not consider the motion, deeming it moot. Orton, 2010 WL 2854303, at *6. We

review the denial of a motion for leave to amend for abuse of discretion, except when

the denial was due to futility, in which case we review de novo. Inge v. Rock Fin. Corp.,

281 F.3d 613, 625 (6th Cir. 2002). Here, however, the motion for leave to amend was

not addressed on the merits; rather, the district court deemed it moot upon the dismissal

of the complaint on other grounds. Because we vacate the grounds on which dismissal

was predicated, Orton’s motion must be considered on the merits on remand. See UAW

Local 594 v. Int’l Union, UAW, 956 F.2d 1330, 1339 (6th Cir. 1992). We therefore

vacate the district court’s order with respect to the motion for leave to file the second

amended complaint.

IV. STATE-LAW CLAIMS

After dismissing Orton’s FLSA claim, the district court incorrectly held that it

no longer had supplemental jurisdiction over Orton’s related state-law claims. The

district court had original subject matter jurisdiction over Orton’s FLSA claim pursuant

to 28 U.S.C. § 1331; it therefore had supplemental jurisdiction over Orton’s related state-

law claims under 28 U.S.C. § 1367. Such supplemental jurisdiction does not disappear

when the federal claim that gave rise to original jurisdiction in the first place is

dismissed. Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 129 S. Ct. 1862, 1866-67

(2009). Following such a dismissal, the district court in its discretion may properly

choose whether to exercise § 1367(a) jurisdiction over the supplemental state-law

claims; however, such a decision is “purely discretionary.” Id. We therefore reverse the

district court’s dismissal of Orton’s state-law claims for jurisdictional reasons.

No. 10-2044 Orton v. Johnny’s Lunch Franchise et al. Page 11

V. CONCLUSION

For the aforementioned reasons, we REVERSE the district court’s dismissal of

the plaintiff’s complaint and REMAND for further proceedings consistent with this

opinion.

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CONCURRENCE

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MERRITT, Circuit Judge, concurring. I agree with the court that the

“exemption” issue should be decided after the defendant describes the issue in an

affirmative defense and after further proceedings. That was not done here. The district

court decided the case only on a motion to dismiss under Rule 12(b)(6). We do not

know what the facts are. It may be that the parties entered into a new agreement based

on the company’s cash position. We do not know. I would not speculate on how the

exempt status statutory language and regulations should be interpreted for various fact

patterns. Nor would I indicate a view of what the result would be if the company ran out

of cash and so informed its executive employees who decided to stay on the job to see

if the company could get over its problems.