CHARLESTON – A federal judge has denied KC Transport’s motion to dismiss in a lawsuit alleging Fair Labor Standards Act violations.

KC Transport argued that the complaint should be dismissed because it, and the work performed by the plaintiff, Angela Underwood, are exempt from the overtime-pay provisions of the FLSA pursuant to the motor carrier exemption.

“The exemption covers employees whose activities ‘affect safety of operation’ and who work for a private motor carrier engaged in interstate commerce,” the order states. “The parties disagree on whether Ms. Underwood satisfies the interstate-commerce prong of the analysis and, therefore, whether the exemption applies to her, barring a FLSA claim.”

As Underwood notes, if the court were to consider the affidavit attached to the motion to dismiss, it would have to convert it to a motion for summary judgment.

“Given the early stage of the litigation and the probability that discovery will bring out further relevant information, this the court will not do,” U.S. District Judge John T. Copenhaver Jr. wrote. “Accordingly, the court declines to consider the affidavits attached by both parties to their briefs.”

Copenhaver wrote that it is plain that the defendant’s argument for dismissal rests on an affirmative defense, namely, the motor carrier exemption from the FLSA.

“As is well established, the court can only dismiss a complaint for failure to state a claim on an affirmative defense if ‘facts sufficient to rule on an affirmative defense are alleged in the complaint,’” Copenhaver wrote. “In this case, the complaint specifically alleges that Ms. Underwood is not covered by the motor carrier exemption. And the facts alleged do not allow the court to rule on the affirmative defense.”

While KC Transport maintains that drivers, including Underwood, frequently haul coal to railroad cars which then proceed to transport the goods interstate, it relies on an affidavit that cannot be considered at this juncture, according to the order.

The complaint itself makes no such allegation, according to the order.

“Inasmuch as discovery is needed for further factual development of the case, dismissal is unwarranted,” Copenhaver wrote. “The court notes that other courts both in this circuit and beyond, when confronted with similar situations, deny the motion to dismiss. In one instance, the court denied dismissal when the application of a de minimis exception to the motor carrier exemption was disputed.”

KC Transport also moves to dismiss the class action for lack of standing and failure to allege essential elements but it is premature to do so before discovery can bring out the information necessary to establish them.

Copenhaver wrote that KC Transport makes its argument in support of such request explicitly contingent on the dismissal of plaintiff’s individual claims.

Copenhaver ordered the motion to dismiss be denied.

Underwood filed the lawsuit on April 26 in the U.S. District Court for the Southern District of West Virginia against KC Transport and Kenny Compton.

She claimed she was employed by KC as a truck driver and was not informed her position was classified as exempt or non-exempt from overtime wages under the FLSA. She claimed she typically work 60 to 70 hours per week, sometimes more.

Underwood claimed her job duties did not qualify her for any exemption from the overtime provisions of the FLSA and that she was entitled to overtime pay for each hour worked over 40 hours in a workweek.

On Aug. 31, 2016, the defendants terminated Underwood’s employment and failed to keep accurate records of hours worked by her and other similarly situated employees.

Underwood claims the defendants’ failure to pay wages and overtime wages in violation of FLSA was willful and deliberate.

Underwood is seeking compensatory damages. She is being represented by Mark L. French of the Law Office of Mark L. French.

U.S. District Court for the Southern District of West Virginia case number: 2:17-cv-02522

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