United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
Thomas Edward Chapman (“Chapman”), proceeding
pro se, filed a complaint against Defendants Ali
Mohamed (“Mohamed”) and Yellow Cab Cooperative,
alleging various causes of action arising from his
termination from employment as a taxicab driver. His first
complaint failed to state any viable claims, and the Court
granted him leave to amend. Chapman v. Yellow Cab
Cooperative, Case No. 15-C-533, 2016 WL 756533, at *5-6
(E.D. Wis. Feb. 24, 2016). His next complaint came close to
stating a claim for retaliation under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §
215(a)(3), but Chapman failed to adequately allege that he
was an employee of Defendants as defined in the FLSA and the
relevant case law. Chapman v. Yellow Cab
Cooperative, Case No. 15-CV-533-JPS, 2016 WL 6956624, at
*4 (E.D. Wis. Nov. 28, 2016). Each of Chapman's other
claims was patently meritless and was dismissed. Id.
at *5-7. Additionally, the Court noted that one of the prior
defendants, Parashu Giri (“Giri”), was not
properly served with process as required by Federal Rule of
Civil Procedure 4. Id. at *7-8. The Court gave
Chapman “one final opportunity to amend his complaint
and provide the detailed, specific allegations necessary to
state a cognizable FLSA retaliation claim.”
Id. at *8-9.
filed his latest amended complaint on December 19, 2016.
(Docket #80). It is a 59-page, stream-of-consciousness
document containing factual allegations, legal argument,
copies of pages from various texts, and what appear to be
Chapman's objections to the Court's order dismissing
his amended complaint. Defendants moved to dismiss this complaint
on February 7, 2017, arguing that it failed to properly
allege that Chapman was their employee as required under the
FLSA. (Docket #87). Chapman filed a response on February 23,
2017. (Docket #92). Defendants did not timely file a reply.
on its review of the parties' submissions and
Chapman's third amended complaint, the Court is obliged
to grant Defendants' motion to dismiss. Because this is
the third time the Court has addressed the sufficiency of
Chapman's complaint, it will assume familiarity with the
relevant standards, as explained in its prior orders. See
Chapman, 2016 WL 6956624, at *3.
third amended complaint fails, as did its predecessors, to
state any claims for relief. Initially, the Court notes that
despite ordering the dismissal of all of Chapman's
claims, save the FLSA retaliation claim, with prejudice,
Chapman included all those allegations again in his third
amended complaint. The Court will not repeat the lengthy
analysis of why those other claims are without merit. See
Id . at *5-7. They stand dismissed with prejudice as
Chapman failed in the one task the Court set him in its last
order: to provide sufficient allegations that he was an
employee of Defendants for purposes of his FLSA retaliation
claim. Stated briefly, Chapman alleges that he
worked for Yellow Cab Cooperative as a cab
driver. (Docket #80 at 2). On January 30, 2013, he
filed a wage complaint against the company with the Wisconsin
Department of Workforce Development Equal Rights Division
(“ERD”), alleging that he was not being paid the
minimum wage. Id. at 2-3. Yellow Cab Cooperative was
informed of the ERD complaint by letter on February 19, 2013.
Id. at 3. On March 4, 2013, Chapman arrived at
Giri's house to pick up the cab to start his shift.
Id. at 2. (He shared a cab with Giri.) However, Giri
told him that Mohamed had fired him from Yellow Cab
Cooperative because of Chapman's wage complaint.
Court has already found, these allegations appear to state a
claim for retaliation in violation of the FLSA. See
Chapman, 2016 WL 6956624, at *4. What was lacking in the
last complaint, and what continues to be absent here, are
allegations which adequately support the inference that
Chapman was Defendants' employee such that they can be
liable under the FLSA for retaliating against him. As the
Court explained in its last order, the standards applicable
to this inquiry are fairly straightforward:
The FLSA defines the term “employee” as
“any individual employed by an employer.” 29
U.S.C. § 203(e)(1). The FLSA further defines an
“employer” as “any person acting directly
or indirectly in the interest of an employer in relation to
an employee, ” and defines “employ” as
“to suffer or permit to work.” Id.
§ 203(d), (g). These statutory definitions “are
broad and comprehensive in order to accomplish the remedial
purposes of the Act.” Secretary of Labor v.
Lauritzen, 835 F.2d 1529, 1534 (7th Cir. 1987). As a
consequence, common law concepts of “employee”
and “independent contractor” are generally
inapplicable in FLSA cases; instead, courts must look to the
“economic reality” of the relationship between
the purported employer and employee. Id. Several
factors, none of which is controlling, bear on this inquiry:
(1) the nature and degree of the alleged employer's
control as to the manner in which the work is to be
performed; (2) the alleged employee's opportunity for
profit or loss depending upon his managerial skill; (3) the
alleged employee's investment in equipment or materials
required for his task, or his employment of workers; (4)
whether the service rendered requires a special skill; (5)
the degree of permanency and duration of the working
relationship; and (6) the extent to which the service
rendered is an integral part of the alleged employer's
business. Id. At bottom, “employees are those
who as a matter of economic reality are dependent upon the
business to which they render service.” Bartels v.
Birmingham, 332 U.S. 126, 130 (1947).
Id. at *4.
factual allegations do not meet the standards outlined above,
even when the Court construes his allegations liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
First, Chapman alleges that he paid a fixed rental rate to
either Giri or the owner of the cab, Dennis Edwards
(“Edwards”), or both, and kept his fares and tips
for himself. (Docket #80 at 4-5); id. at 11 (noting
that Giri “leases the cab by contract by paying so much
money big money every year” to Edwards); id.
at 16 (stating that Chapman paid the “leaser, ”
Giri, a flat fee of between $300 and $500). But this
allegation actually cuts against Chapman's
theory. In his complaint, Chapman discusses at length (and
even partially reproduces) N.L.R.B. v. Friendly, 512
F.3d 1090 (9th Cir. 2008), a decision from the Ninth Circuit
analyzing employer-employee relationships in the taxicab
context. There, the Circuit court observed that when a driver
pays a flat rental fee to the cab company, it raises a
“strong inference” that the driver is an
independent contractor, not an employee. Id. at
1097. This is because “the employer does not have an
incentive to control the means and manner of the drivers'
performance when the employer makes the same amount of money
irrespective of the fares received by the drivers.”
Id. Thus, Chapman's allegation that he and Giri
paid flat rental fees for their cab use is indicative that
they were not employees of Yellow Cab Cooperative.
Friendly, other factors indicative of non-employee
status were that the cab company did not set work hours and
did not withhold taxes or provide any benefits to its
drivers. Id. In this vein, Chapman alleges that
because he and Giri (and perhaps Edwards) sorted out amongst
themselves the 24-hour work shift for the cab they shared,
this constituted Defendants' exercise of control over
Chapman's work hours. (Docket #80 at 16). Or, in
Chapman's words, it suggested that Defendants exerted a
“strong influence” over those hours. Id.
Yet Chapman fails to connect the collaborative efforts
between cab owner and drivers to Defendants. It does not
appear, nor can it be inferred from Chapman's
allegations, that Defendants themselves had anything to do
with setting Chapman's hours of work. Quite the
contrary-Chapman alleges that Yellow Cab Cooperative got a
flat fee regardless. See Id . Thus, as in
Friendly, this fact undermines Chapman's claim
that he was Defendants' employee.
the Ninth Circuit in Friendly ultimately concluded
that there existed an employment relationship despite the
flat-fee arrangement, this conclusion was premised on facts
which Chapman has not alleged here. Id. at 1098.
These include: (1) drivers were prohibited from operating
their own cab business on the side; (2) drivers could not
sublease the cabs they leased, even to other drivers for the
same company; (3) drivers had to abide by strict regulations
over the manner in which they drove, such as how they should
accelerate and brake and when to stop their cab for a
potential fare; (4) drivers were required to display
advertisements given to them by the company without
compensation; (5) drivers underwent strict discipline for any
violation of orders from the dispatcher; (6) drivers had to
accept company-issued fee vouchers; (7) the cab company
imposed a very specific dress code; and (8) the company had a
policy manual which required drivers to undergo company
training which exceeded the minimum regulatory requirements.
Id. at 1098-1101.
only a few of these factors are present and none to the
extent as in Friendly. Chapman contends that Yellow
Cab Cooperative exerts control over its drivers through its
radio dispatch system and accompanying rules, the violation
of which can subject a driver to discipline. (Docket #80 at
11). Discipline can include de-authorizing the driver's
onboard computer so that he cannot accept new calls or fares,
suspension, termination, or the imposition of a fine.
Id. However, in contrast to Friendly,
Chapman gives little specificity as to what infractions
result in what punishments, and what sorts of orders
dispatchers give. As best the Court can tell, the most common
rule violation here is the driver's failure to timely
answer a request from the dispatcher. See Id . at
also gestures at several other company rules. These include a
dress code and a prohibition on cell phone use while driving
with a customer inside the cab. Id. at 12, 17. There
also appear to be rules against stealing another driver's
customer and mandatory “radio fees, ” though
whether these rules existed during the relevant period is not
clear. See Id . at 51-52. Such allegations might
suffice in a different case to establish the requisite
control. But recall that Chapman has by his own allegations
raised a “strong inference” that he is not
Defendants' employee. Friendly, 512 F.3d at
1097. His other allegations, unlike those in
Friendly, are not enough to overcome this inference.
For instance, Chapman does not describe how exacting is
Yellow Cab Cooperative's dress code. Likewise, the rules
Chapman has cursorily described pale in comparison to the
demanding policies at issue in Friendly, such as
regulating the rates of acceleration and braking.
Id. at 1098. Finally, at least one of these
factors-whether drivers could sublease their cabs-is in this
case the opposite of the situation in Friendly,
since Chapman ...