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Leticia Ceja-Corona, On Behalf of Herself and Others Similarly Situated v. Cvs Pharmacy

March 1, 2013




On October 9, 2012, Plaintiff Leticia Ceja-Corona ("Plaintiff") filed her class action complaint alleging causes of action for (1) failure to pay the minimum wage and overtime under California law; (2) failure to provide reporting time pay under California law; (3) a violation of California Labor Code section 226(a); (4) penalties pursuant to California Labor Code section 203; (5) a violation of California's Business and Professions Code sections 17200 et seq; and (6) a violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Defendant CVS Pharmacy, Inc. ("Defendant") has filed a motion to dismiss Plaintiff's sixth cause of action for violation of the FLSA pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff has filed an opposition to Defendant's motion to dismiss.


A complaint must contain a short and plain statement showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). A court must take all the complaint's allegations of material fact as true and construe them in the light most favorable to the nonmoving party. Id. A party may move to dismiss based on the failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. Parks School Of Business v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

In making a 12(b)(6) determination, district courts have followed a two-step approach. Bell Atlantic v. Twombly, 550 U.S. 544, 564-570, 127 S.Ct. 1955, 167 L.Ed.2d 919 (2009). First, district courts should carefully examine the complaint to smoke out any "merely legal conclusions resting on the prior allegations." Id. at 564. If an allegation is deemed "conclusory," it is entitled to no weight in the Rule 12(b)(6) calculus. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1951, 173 L.Ed.2d 868 (2009). Second, district courts should weigh the remaining facts and determine if they are sufficient to "nudge the claims across the line from conceivable to plausible." Bell Atlantic, 550 570. While a complaint "need not contain detailed factual allegations, it must plead enough facts to state a claim of relief that is plausible on its face." Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).

Plausibility can be met even if a judge disbelieves a complaint's factual allegations. Aschroft, 129 S. Ct. at 1959 (stating that "no matter how skeptical the court may be... 'Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations.'"). "A claim has facial plausibility," and thus survives a motion to dismiss, "when the pleaded factual content allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1940. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than sheer possibility that a defendant acted unlawfully." Id. at 1949. A Rule 12(b)(6) analysis is "not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims" advanced in his or her complaint. Scheuer v. Rhodes, 414 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

FACTS (alleged)

Plaintiff is an employee of Defendant and works at Defendant's distribution center as a nonexempt hourly employee. Compl. 5: 21-25. Plaintiff alleges that Defendant has for years knowingly failed to compensate California and Nationwide Employees, including Plaintiff, for all wages, overtime, and reporting-time pay earned and due under the FLSA. Compl. 13:22-24. According to Plaintiff, from at least four years prior to the filing of this action and continuing to the present, Defendant failed to compensate Plaintiff and those employed by Defendant ("Other Employees") for time spent changing into and out of their work aprons at the work place and for time spent undergoing Defendant's security checks. Compl. 13:8-12. Plaintiffs allege that this off-the-clock work sometimes caused the total hours worked by Plaintiff and other employees to exceed eight hours in a day or forty hours in a week for which such employees were entitled to no less than time and one-half their regular pay rates. Compl. 13:15-19.


Plaintiff's Sixth Cause of Action (Violation of the Fair Labor Standards Act) Plaintiff asserts in her Class Action Complaint a sixth cause of action for violation of the FLSA premised on the allegations that Defendant failed to compensate former and current distribution center employees for time spent: (1) changing in and out of their aprons at the beginning and end of their work day; and (2) waiting to pass through a mandatory security check at the start and end of their shifts.

Under the Fair Labor Standards Act ("FLSA"), employers must pay employees for all hours worked. See Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir. 2003), aff'd, 546 U.S. 21 (2005); see also 29 U.S.C. §§ 206, 207. The FLSA ensures that employers receive a "fair day's pay for a fair day's work." Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 578 (1942) (superseded by statute); see also 29 U.S.C. § 251 (2006). The statute provides:

No employer shall employ any of his employees... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1) (2006). To "employ" a worker means "to suffer or permit to work," 29 U.S.C. § 203(g). Because the statute does not define "work," courts are left to interpret the term. Courts have defined "work" 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." Tennessee Coal, Iron & R. Co. Vv. Muscoda Local No. 123, 321 U.S. 590, 598 (1944) (superseded by the Portal-to-Portal Act, 29 U.S.C. § 251 (2006)). However, "that such activity is work as a threshold matter does not mean without more that the activity is necessarily compensable." Alvarez, 339 F.3d at 902(italics added).

This definition, while broad, has been expanded further. The Supreme Court has held that work may also include "non-exertional acts" where "an employer... may hire a man to do nothing, or to do nothing but wait for something to happen." Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944). The Supreme Court has endorsed an expansive definition of "work," holding that exemptions are "to be narrowly construed against... employers and are to be withheld except as to persons 'plainly and unmistakably within their terms and spirit.'" Auer v. Robbins, 519 U.S. 452, 462 (1997) (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)).

The Portal-to-Portal Act carves out exceptions to the FLSA's compensable work requirement. See 29 U.S.C. § 254(a). Under the Portal-to-Portal Act, activities excluded from the FLSA coverage are:

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such ...

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