United States District Court, S.D. Indiana, Terre Haute Division
ENTRY ON DEFENDANTS' MOTION TO DISMISS
William T. Lawrence, United States District Judge.
cause is before the Court on the motion to dismiss filed by
the Defendants (Dkt. No. 12). The motion is fully briefed,
and the Court, being duly advised, GRANTS the motion with
regard to the Plaintiff's federal claim and DISMISSES
WITHOUT PREJUDICE the Plaintiff's state law claims for
the reasons set forth below.
Defendants move to dismiss the Plaintiff's Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing
that the Complaint fails to state a claim upon which relief
can be granted. In reviewing a Rule 12(b)(6) motion, the
Court “must accept all well pled facts as true and draw
all permissible inferences in favor of the plaintiff.”
Agnew v. Nat'l Collegiate Athletic Ass'n,
683 F.3d 328, 334 (7th Cir. 2012). For a claim to survive a
motion to dismiss for failure to state a claim, it must
provide the defendant with “fair notice of what the . .
. claim is and the grounds upon which it rests.”
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)
(quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007))
(omission in original). A complaint must “contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.”
Agnew, 683 F.3d at 334 (citations omitted). A
complaint's factual allegations are plausible if they
“raise the right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556 (2007).
Plaintiff, Kimberly Ross, has brought claims against the
Defendants, Nathan Adams, Ed Michaels, and Rick Graves, as
the Commissioners of Greene County, Indiana. For the purposes
of this motion, the Court accepts the following facts as
was the chief deputy auditor in the Greene County
Auditor's Office from January 3, 2011, until July 22,
2014. She was employed by Greene County during this
three-year period. Ross regularly worked in excess of forty
hours per week, but was not compensated for all overtime
hours. Her employment was terminated by the County in
approximately July 2014. At the time of her termination, Ross
asserts that she was owed approximately $4, 732.95 in unpaid
alleges that the Defendants willfully violated the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq.,
(“FLSA”) by failing to pay her minimum wages and
overtime. Ross contends that she was an employee and Greene
County was an employer for the purposes of the FLSA. In the
alternative to her FLSA claim, Ross contends that the
Defendants violated Indiana's Minimum Wage Law of 1965,
Ind. Code § 22-2-9 et seq., by failing to
timely pay earned wages. Ross further claims that the
Defendants breached a contract of employment with her by
failing to pay her wages and to comply with state and federal
requirements to do so.
Fair Labor Standards Act Claim
instant motion, the Defendants argue that Ross was not an
employee for the purposes of the FLSA and, therefore, she
cannot sue under the statute. Specifically, they argue that
she was excluded from the definition of employee under the
FLSA because she was in a policymaking position.
Alternatively, they argue that she was excluded from the
definition because she was a member of the personal staff of
an elected official, or the county was not her employer.
FLSA requires employers to pay a minimum wage to employees.
29 U.S.C. § 206(a). It also requires employers to pay an
overtime wage to employees who work more than forty hours in
a workweek. 29 U.S.C. § 207(a). The FLSA excludes
certain individuals employed by a state, a political
subdivision of a state, or an interstate governmental agency
from its protections, including any individual:
(i) who is not subject to the civil service laws of the
State, political subdivision, or agency which employs ...