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Barnello v. AGC Chemicals Americas

January 29, 2009


The opinion of the court was delivered by: William J. Martini Judge


Dear Counsel:

This matter comes before the Court on Defendant AGC Chemicals Americas, Inc.'s ("AGC") motion to dismiss Plaintiffs' Complaint, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim, or in the alternative to strike portions of the Complaint pursuant to Fed. R. Civ. P. 12(f). The Court did not hold oral argument. Fed. R. Civ. P. 78. For the reasons stated below, AGC's motion to dismiss Plaintiffs' Complaint is DENIED with regards to Counts One, Three, and Five. The Court grants AGC's motion to dismiss Count Two.*fn1


AGC is a wholly owned subsidiary of the Asahi Glass family, a $10 billion multi-national corporation and one of the world's largest manufacturers of chemical products, electronic displays, and glass. (Compl. ¶ 5.) Headquartered in Exton, Pennsylvania, AGC operates plants in various locations including England and Japan. AGC previously maintained a plant in Bayonne, New Jersey, which closed in March 2008. (Id. at ¶ 6.)

Prior to closing, Plaintiffs worked as non-exempt union employees at AGC's Bayonne plant. (Id. at ¶ 7.) Robert Barnello and Frederick Farrell were autoclave operators in the Autoclave Department. Lance Sakowski worked in the Finishing Department, as well as the Autoclave Department from August 2005 to January 2007. (Id.)

Plaintiffs allege that AGC failed to pay non-exempt employees in the Autoclave, Production, Finishing, and Maintenance areas for required time outside of their regularly scheduled shifts. (Id. at ¶ 13.) Specifically, Plaintiffs contend that AGC required non-exempt employees in the Autoclave and Finishing Departments to start their jobs each day at least one-half hour before their scheduled shifts. During this time, workers donned special clothing and attended pre-shift meetings. Employees in the Autoclave Department also familiarized themselves with then-current state of the production cycle, smoothing the transition between shifts. (Id. at ¶¶ 14, 16.)

In the fall of 2006, Plaintiffs maintain that Sakowski objected to numerous AGC supervisors, including training supervisor Ken LaConte, about the company's refusal to pay employees for pre and post-shift time relieving other employees and donning special required clothing. (Id. at ¶ 29.) Shortly after voicing these concerns to LaConte, shift supervisor Scott Quinn began scrutinizing Sakowski closely, literally following Sakowski through the plant and watching his every move. (Id. at ¶ 30.)

After lodging these complaints, in early 2007, AGC fired Sakowski. AGC premised the firing on the manner in which Sakowski pulled the gas from the autoclave after an aborted batch. Plaintiffs allege that other employees engaged in similar behavior without termination. (Id. ¶¶ 31-32.)

Plaintiffs filed the present collective and class action on July 14, 2008. In the Complaint, Plaintiffs seek to proceed as a collective action under 29 U.S.C. § 216(b) for violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and to certify a class action under N.J. Ct. R. 4:32-1 et seq., for violations of the New Jersey Wage and Hour Laws and Regulations ("NJWHL"), N.J.S.A. 34:11-56a et seq., as a result of AGC's refusal to compensate Plaintiffs for work beyond their scheduled shifts. Plaintiffs also bring two individual claims on behalf of Lance Sakowski arising out of his termination. Plaintiffs allege that Sakowski's termination violated the FLSA's discrimination and retaliatory provision, 29 U.S.C. § 215(a)(3), as well as mandates of public policy under the judicially-created cause of action for retaliatory discharge first articulated by the New Jersey Supreme Court in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980). On August 29, 2008, AGC filed the instant motion seeking a dismissal, which Plaintiffs oppose.


When deciding a motion to dismiss under Fed. R. Civ. P. 12(b), all allegations in the complaint must be taken as true and viewed in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed. 2d 343 (1975); Trump Hotels & Casino Resorts, Inc., v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998). In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents if the plaintiff's claims are based upon those documents. See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). If, after viewing the allegations in the complaint in the light most favorable to the plaintiff, it appears that no relief could be granted "under any set of facts that could be proved consistent with the allegations," a court may dismiss a complaint for failure to state a claim. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed. 2d 59 (1984).

Although a complaint need not contain detailed factual allegations, "the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed. 2d 929 (2007). Thus, the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level. See id. at 1964-65. Furthermore, although a court must view the allegations as true in a motion to dismiss, it is "not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations." Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007).


A. Collective Action under the FLSA

In Count One, Plaintiffs request to proceed as a collective action, under 29 U.S.C. ยง 216(b), as a result of AGC's refusal to pay non-exempt employees for hours worked outside of their regularly ...

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