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Chapman v. Yellow Cab Cooperative

United States District Court, E.D. Wisconsin

March 31, 2017



          J.P. Stadtmueller U.S. District Judge.

         Plaintiff 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.[1] 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.

         Chapman 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.[2] 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).[3] Chapman filed a response on February 23, 2017. (Docket #92). Defendants did not timely file a reply.

         Based 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.

         The 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 previously ordered.

         Moreover, 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.[4] Stated briefly, Chapman alleges that he worked for Yellow Cab Cooperative as a cab driver.[5] (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. Id.

         As the 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.

         Chapman's 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.

         In 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.

         Although 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.

         Here, 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 12.

         Chapman 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 ...

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