United States District Court, D. New Jersey
FAVILLE BAIRD LAW OFFICES ERIC A. SHORE, P.C. TWO PENN CENTER
ATTORNEY FOR CARMINE DECAMILLIS, III.
KATHERINE D. HARTMAN MARK ALAN GULBRANSON, JR. ATTORNEYS
HARTMAN, CHARTERED ATTORNEY FOR CHARLES M. IVORY.
L. HILLMAN, U.S.D.J.
case concerns one claim for violation of the Fair Labors
Standards Act (“FLSA”) for failure to pay the
appropriate overtime rate. Presently before the Court is
Defendant Charles M. Ivory's Motion to Dismiss the
Amended Complaint (“Motion to Dismiss”). For the
reasons stated herein, the Motion to Dismiss will be denied.
Court takes its recitation of facts from Plaintiff's
Amended Complaint. On July 14, 2014, Plaintiff was hired as
an installation technician for the Educational Information
and Resource Center (“EIRC”). EIRC, according to
Plaintiff, is a “now-defunct public agency specializing
in education-related programs and services for parents,
schools, communities, nonprofit organizations[, ] and
privately held businesses throughout New Jersey.”
(Pl.'s Am. Compl. ¶ 10.) Plaintiff's work
consisted of installing low voltage cabling in schools in New
alleged that Defendant Ivory was the Executive Director of
EIRC throughout most of Plaintiff's time there. According
to Plaintiff, Defendant Ivory “determined
Plaintiff's wages and decided not to pay Plaintiff
overtime for hours worked in excess of forty hours per
week.” (Pl.'s Am. Compl. ¶ 23.) Defendant
Michael Procopio is alleged to have been EIRC's Director
of Technology. Defendant Procopio set Plaintiff's work
schedule, determining when and where Plaintiff would work.
Plaintiff usually worked a forty-hour work week and sometimes
worked overtime. Until September 2016, his pay was $18.00 per
hour. In September 2016, that rate was raised to $18.30 per
provides a chart in his Amended Complaint that appears to
include columns for (1) the check number for his paycheck,
(2) the date the check was issued, (3) the hours worked, (4)
the overtime hours worked, and (5) the amount of the
check. Multiplying the hours worked by the rate
of pay reveals the following:
• The first two rows appear to show Plaintiff was
• The next five of six rows, excluding the one that does
not list hours worked, appear to show Plaintiff was paid
exactly $18.00 per hour, even though it appears he worked
• Many of the later rows, excluding those that do not
list the hours worked, appear to show that Plaintiff was
undercompensated, even assuming a rate of just $18.00 or
$18.30 per hour.
while the chart is difficult to understand with certainty,
Plaintiff clearly alleges that he (1) worked a significant
amount of overtime (based on the Court's reading of the
chart that amount is around 900 hours) and (2) never received
alleges Defendant violated the FLSA by not paying him the
appropriate overtime rate for overtime hours. Plaintiff alleges
Defendant EIRC was covered by FLSA, that all Defendants were
FLSA “employers, ” that he was a FLSA
“employee” and not an “exempt”
employee, and that non-payment was willful. Plaintiff
requests compensatory relief as well as costs and expenses.
February 13, 2019, Defendant Ivory filed the present Motion
to Dismiss. On March 18, 2019, Plaintiff filed a brief in
opposition. On March 26, 2019, Defendant Ivory filed a reply
brief. Accordingly, Defendant Ivory's ...