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LEXIS 143520

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Service: Get by LEXSEE Citation: 2010 U.S. Dist. LEXIS 143520

2010 U.S. Dist. LEXIS 143520, * LILLI MORSE, Plaintiff, vs. JP MORGAN CHASE & CO., Defendant. Case No. 8:11-CV-779-T-27EAJ UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION 2010 U.S. Dist. LEXIS 143520

June 23, 2010, Decided June 24, 2011, Filed CORE TERMS: overtime wages, fair notice, sufficient facts, unpaid, retaliation, grievance, posting, letting, steam, pled, responded

COUNSEL: [*1] For Lilli Morse, on her own behalf and others similarly situated, Plaintiff: William John Gadd, LEAD ATTORNEY, W. John Gadd, Attorney at Law, Clearwater, FL. For JP Morgan Chase & Co., Defendant: Derek Jon Dilberian, Mark E. Zelek, LEAD ATTORNEYS, Morgan, Lewis & Bockius, LLP, Miami, FL. JUDGES: JAMES D. WHITTEMORE, United States District Judge. OPINION BY: JAMES D. WHITTEMORE OPINION

ORDER BEFORE THE COURT is Defendant's motion to dismiss (Dkt. 6). Plaintiff has responded in opposition (Dkt. 8). Upon consideration, the motion (Dkt. 6) is GRANTED in part. Background Lilli Morse commenced this action under the Fair Labor Standards Act, alleging that her former employer, JP Morgan Chase & Co. ("JPM"), failed to pay her overtime wages and, when she complained on her Facebook page, retaliated by terminating her employment. JPM moved to dismiss arguing, first, that Morse failed to plead sufficient facts to state a claim for unpaid overtime wages, and second, that a Facebook posting lacks the hallmarks of a serious complaint to an employer. Morse responded in opposition, arguing that she has pled sufficient facts to support her claims. Discussion

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Get a Document - by Citation - 2010 U.S. Dist. LEXIS 143520

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Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint [*2] provide "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). Although a complaint need not include a detailed recitation of facts, it must contain sufficient allegations which "state a claim to relief that is plausible on its face." Id. at 570. JPM's first argument is that Morse has not stated a claim for unpaid overtime wages under the FLSA. The Court disagrees. "The elements that must be shown are simply a failure to pay overtime compensation and/or minimum wages to covered employees . . . ." Sec'y of Labor v. Labbe, 319 F. App'x 761, 763 (11th Cir. 2008). Notwithstanding JPM's argument, Morse has pled sufficient facts to state a cause of action for unpaid overtime wages. JPM's primary concern appears to be the lack of factual detail regarding any similarly-situated workers who could potentially opt-in, should this become a collective action. While well-taken, the Court is of the opinion that this argument is more appropriately addressed at the conditional certification [*3] stage. See Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258-61 (11th Cir. 2008). JPM's second argument is that Morse cannot base a retaliation claim on a complaint posted on her Facebook page. The FLSA's retaliation provision makes it unlawful "to discharge . . . any employee because such employee has filed any complaint . . . ." 29 U.S.C. 215(a)(3). The question therefore is whether a posting on an employee's Facebook page constitutes the filing of a complaint within the meaning of the FLSA. The requirement that a complaint be "filed" is intended to provide the employer with "fair notice" that an employee "is in fact making a complaint about an Act violation," rather than "just letting off steam." Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1334 (2011). "[A] 'filing' is a serious occasion, rather than a triviality." Id. "As such, the phrase 'filed any complaint' contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns." Id. Although the statutory requirements may be satisfied by an [*4] "informal workplace grievance procedure," Morse does not allege that she made anything close to a serious complaint to her employer. See id. In fact, she never complained to her employer at all. She simply voiced her disagreement with her employer's payment practices on her Facebook page. This "letting off steam" falls far short of the activity protected by 215(a)(3). Id. Conclusion Accordingly, Defendant's motion to dismiss (Dkt. 6) is GRANTED in part, to the extent that Count II is DISMISSED without prejudice. Plaintiff is granted leave to amend Count II within 14 days. If Plaintiff fails to file an amended complaint, Defendant shall answer Count I of the complaint within 28 days of this order. The motion is denied in all other respects. DONE AND ORDERED this 23rd day of June, 2010. /s/ James D. Whittemore JAMES D. WHITTEMORE United States District Judge
Service: Citation: View: Date/Time: Get by LEXSEE 2010 U.S. Dist. LEXIS 143520 Full Friday, August 5, 2011 - 4:58 PM EDT

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