Dejesus v. HF Management Services, LLC, No. 12-4565 (2d Cir. 2013)
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Plaintiff filed suit against her employer, Healthfirst, alleging that it failed to pay her overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C. 207(a)(1), and New York Labor Law. The district court granted Healthfirst's motion to dismiss under Rule 12(b)(6). The court agreed with the district court that plaintiff did not plausibly allege that she worked overtime without proper compensation under the FLSA and, therefore, affirmed the judgment of the district court. The court need not decide whether the district court was also correct when it first concluded that plaintiff had not sufficiently alleged that she was an "employer" of Healthfirst within the meaning of the FLSA. Nonetheless, the court offered its views on this issue because the court disagreed with the district court's conclusion.
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12-4565 Dejesus v. HF Management Services, LLC 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2012 4 (Argued: April 30, 2013 Decided: August 5, 2013) 5 Docket No. 12-4565 6 ------------------------------------- 7 RAMONA DEJESUS, 8 Plaintiff-Appellant, 9 - v - 10 HF MANAGEMENT SERVICES, LLC, 11 Defendant-Appellee. 12 ------------------------------------- 13 14 Before: JACOBS, Chief Judge, SACK, Circuit Judge, and Rakoff, District Judge.* The plaintiff appeals from a judgment of the 15 16 United States District Court for the Eastern District of New 17 York (Edward R. Korman, Judge) dismissing her claims under 18 the Fair Labor Standards Act and the New York Labor Law. 19 agree with the district court that the plaintiff failed to 20 allege adequately that she worked overtime without receiving 21 the compensation mandated by the statutes. * Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. We 1 Affirmed. 2 3 4 ABDUL K. HASSAN, Queens Village, New York, for Plaintiff-Appellant. 5 6 7 8 9 SETH L. LEVINE (Scott B. Klugman, on the brief), Levine Lee LLP, New York, New York; Andrew P. Marks, Littler Mendelson P.C., New York, New York, for Defendant-Appellee. 10 11 SACK, Circuit Judge: This is the third in a series of recent decisions 12 by this Court addressing the question of the adequacy of 13 pleadings alleging that defendant health-care companies 14 failed to pay their employees for overtime work as required 15 by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 16 § 207(a)(1). 17 Healthcare Sys., Inc., No. 11-0734, ___ F.3d ___, 2013 WL 18 3743152, 2013 U.S. App. LEXIS 14128 (2d Cir. July 11, 2013); 19 Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106 20 (2d Cir. 2013). 21 alia, (1) the frequent difficulty for plaintiffs in such 22 cases to determine, without first having access to the 23 defendant's records, the particulars of their hours and pay 24 in any given time period; (2) the possible use by lawyers 25 representing plaintiffs in such cases of standardized, bare- 26 bones complaints against any number of possible defendants See Nakahata v. New York-Presbyterian They each reflect a tension among, inter 2 1 about whom they have little or no evidence of FLSA 2 violations for the purpose of identifying a few of them who 3 might make suitable defendants -- which is to say, the 4 ability to engage in "fishing expeditions"; and (3) the 5 modern rules of pleading established by the Supreme Court in 6 Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic 7 Corp. v. Twombly, 550 U.S. 544 (2007). BACKGROUND 8 9 Ramona Dejesus was employed in the Borough of 10 Queens, New York, by HF Management Services, LLC 11 ("Healthfirst"), a company that provides support and 12 administrative services to not-for-profit health-care 13 organizations. 14 subject of this appeal on March 15, 2012, in the United 15 States District Court for the Eastern District of New York, 16 claiming that Healthfirst failed to pay her overtime wages 17 under the FLSA and the New York Labor Law ("NYLL"). 18 Dejesus brought the action that is the Dejesus alleged that she was a wage-earning 19 employee of Healthfirst for the three years preceding August 20 2011, during which time she promoted the insurance programs 21 Healthfirst offered and recruited members of the public to 22 sign up for Healthfirst's services. 23 part of her wage agreement, Dejesus was entitled to receive 24 a commission for each person she recruited to join 3 Compl. ¶¶ 19-20. As a 1 Healthfirst's programs, in addition to her non-commission 2 wage. Id. ¶ 21. Dejesus also alleged that she worked more than 3 4 forty hours per week during "some or all weeks" of her 5 employment and, in violation of the FLSA, through April 2011 6 was not paid at a rate of at least 1.5 times her regular 7 wage for each hour in excess of forty hours.1 8 She relied on the FLSA's provision stating that employers 9 are not permitted to "employ any . . . employees . . . for a Id. ¶ 24. 10 workweek longer than forty hours unless such employee 11 receives compensation for his [or her] employment in excess 12 of [forty hours] at a rate not less than one and one-half 13 times the regular rate at which he [or she] is employed." 14 29 U.S.C. § 207(a)(1).2 1 Dejesus did receive overtime wages for her work after April 2011, but allegedly not for the nearly three years prior. 2 Section 207(a)(1) reads in its entirety: Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. 4 1 Dejesus also alleged that there were weeks in 2 which she was paid for her overtime hours but in which 3 Healthfirst "failed to include the commission payments in 4 the calculation of [her] overtime pay." 5 Compl. ¶ 27. On May 7, 2012, Healthfirst filed a motion to 6 dismiss pursuant to Rule 12(b)(6) of the Federal Rules of 7 Civil Procedure, arguing that Dejesus was exempt from the 8 overtime protections of the FLSA because she was an outside 9 salesperson and that her claim was not properly stated. 10 The district court (Edward R. Korman, Judge) 11 granted the motion to dismiss. 12 Services., LLC, No. 12-cv-1298, 2012 WL 5289571, 2012 U.S. 13 Dist. LEXIS 152263 (E.D.N.Y. Oct. 23, 2012). 14 explained that to properly state a claim, Dejesus was 15 required to allege that: "(1) she was an employee eligible 16 for overtime pay; and (2) that she actually worked overtime 17 without proper compensation." 18 LEXIS 152263, at *3. 19 Dejesus v. HF Management The court Id. at *1, 2012 U.S. Dist. The district court concluded that Dejesus had 20 satisfied neither requirement. 21 forth the precise position she held, any approximation of 22 the number of unpaid overtime hours worked, her rate of pay, 23 or any approximation of the amount of wages due." 24 *2, 2012 U.S. Dist. LEXIS 152263, at *4. 5 She had "fail[ed] to set Id. at Listing her duties 1 as a "promoter," Dejesus had not sufficiently alleged that 2 she was an "employee" within the meaning of the FLSA; and 3 adding a "sole allegation" that she worked more than forty 4 hours "in some or all weeks," she had failed to make any 5 approximation of her hours that would render her claim 6 plausible rather than merely conceivable. 7 U.S. Dist. LEXIS 152263, at 8 conclusions, the court relied on other district court 9 decisions requiring plaintiffs to approximate overtime hours 10 allegedly worked. 11 *4-*5. Id. at *2, 2012 In arriving at its at *4. 12 Id. at *1, 2012 U.S. Dist. LEXIS 152263, The district court dismissed Dejesus's claims 13 without prejudice, providing her the opportunity to "replead 14 to correct the complaint's defects." 15 Dist. LEXIS 152263, at *5. 16 disclaimed any intent to amend her complaint, and, instead, 17 on November 11, 2012, filed a notice of appeal. 18 disclaiming intent to amend, she rendered the district 19 court's otherwise non-final order "final" and therefore 20 immediately appealable. 21 F.3d 215, 224-25 (2d Cir. 2006). Id. at *2, 2012 U.S. Dejesus chose not to replead, By See Slayton v. Am. Express Co., 460 6 DISCUSSION 1 2 I. Governing Legal Standards 3 "We review the District Court's dismissal of a 4 complaint pursuant to Rule 12(b)(6) de novo, accepting all 5 the factual allegations in the complaint as true and drawing 6 all reasonable inferences in favor of the plaintiff." 7 v. Guthrie Clinic, Ltd., 710 F.3d 492, 495 (2d Cir. 2013) 8 (citation omitted). 9 contain sufficient factual matter, accepted as true, to Doe The "complaint must [nonetheless] 10 'state a claim to relief that is plausible on its face.'" 11 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 12 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of 13 14 action, supported by mere conclusory statements, do not 15 suffice." 16 "'naked assertion[s]' devoid of 'further factual 17 enhancement.'" 18 (alteration in original). 19 than conclusions . . . 20 of truth" otherwise applicable to complaints in the context 21 of motions to dismiss. 22 II. 23 We agree with the district court that Dejesus did 24 Id. A complaint must therefore contain more than Id. (quoting Twombly, 550 U.S. at 557) Pleadings that contain "no more are not entitled to the assumption Id. at 679. Whether Dejesus Adequately Alleged Overtime not plausibly allege that she worked overtime without proper 7 1 compensation under the FLSA, and on that basis, affirm the 2 judgment of the district court. 3 Section 207(a)(1) of the FLSA requires that "for a 4 workweek longer than forty hours," an employee working "in 5 excess of" forty hours shall be compensated for those excess 6 hours "at a rate not less than one and one-half times the 7 regular rate at which [she or] he is employed." 8 207(a)(1). 9 29 U.S.C. § In Lundy v. Catholic Health System of Long Island, 10 711 F.3d 106 (2d Cir. 2013), we considered "the degree of 11 specificity" required to make a section 207(a)(1) FLSA 12 overtime claim plausible. 13 federal courts had "diverged somewhat on the question," id., 14 with some requiring an approximation of the total number of 15 uncompensated hours in a given workweek, see, e.g., Nichols 16 v. Mahoney, 608 F. Supp. 2d 526, 547 (S.D.N.Y. 2009), and 17 others not requiring any estimate of overtime, but simply an 18 allegation that the plaintiff worked some amount in excess 19 of forty hours, see, e.g., Butler v. DirectSat USA, LLC, 800 20 F. Supp. 2d 662, 667-68 (D. Md. 2011). 21 Id. at 114. We noted that Formulating our own standard, we concluded that 22 "in order to state a plausible FLSA overtime claim, a 23 plaintiff must sufficiently allege 40 hours of work in a 24 given workweek as well as some uncompensated time in excess 8 1 of the 40 hours." Lundy, 711 F.3d at 114. We also observed 2 that "[d]etermining whether a plausible claim has been pled 3 is a context-specific task that requires the reviewing court 4 to draw on its judicial experience and common sense." 5 (internal quotation marks omitted). 6 to make an approximation of overtime hours a necessity in 7 all cases. 8 help draw a plaintiff's claim closer to plausibility." 9 at 114 n.7. Id. We therefore declined We remarked, however, that an approximation "may Id. Applying that standard, we reasoned that the Lundy 10 11 plaintiffs had failed to allege that they worked 12 uncompensated overtime because, although the employees went 13 to some lengths to approximate the hours they typically 14 worked, even setting out their typical breaks and shift 15 lengths, the hours alleged did not add up to a claim that 16 over forty hours had been worked in any particular week.3 3 For example, when discussing one plaintiff, we observed: Wolman was "typically" scheduled to work three shifts per week, totaling 37.5 hours. She "occasionally" worked an additional 12.5-hour shift or worked a slightly longer shift, but how occasionally or how long, she does not say; nor does she say that she was denied overtime pay in any such particular week. She alleges three types of uncompensated work: (1) 30-minute meal breaks which were "typically" missed or interrupted; 9 1 The allegations in Lundy thus failed because of arithmetic: 2 tallying the plausible factual allegations, we could not get 3 beyond forty hours in any given week, and therefore to a 4 plausible claim for overtime. Very recently, we had occasion to revisit this 5 6 issue. Nakahata v. New York-Presbyterian Healthcare System, 7 Inc., No. 11-0734, ___ F.3d ___, 2013 WL 3743152, *4-*6, 8 2013 U.S. App. LEXIS 14128, *15-*21 (2d Cir. July 11, 2013). 9 In Nakahata, the plaintiffs also had alleged uncompensated 10 work during meal breaks, training sessions, and extra shift 11 time as evidence of an overtime violation without (2) uncompensated time before and after her scheduled shifts, "typically" resulting in an additional 15 minutes per shift; and (3) trainings "such as" a monthly staff meeting, "typically" lasting 30 minutes, and [] training consisting of, "on average," 10 hours per year. She has not alleged that she ever completely missed all three meal breaks in a week, or that she also worked a full 15 minutes of uncompensated time around every shift; but even if she did, she would have alleged a total 39 hours and 45 minutes worked. A monthly 30-minute staff meeting . . . could theoretically put her over the 40-hour mark in one or another unspecified week . . . but her allegations supply nothing but low-octane fuel for speculation, not the plausible claim that is required. Lundy, 711 F.3d at 114-15 (internal citations omitted) (emphases in original). 10 1 demonstrating how these instances added up to forty or more 2 hours in a given week. 3 14128, at *19. 4 lacked the "specificity" required, because though they 5 "raise[d] the possibility" of an overtime claim, "absent any 6 allegation that Plaintiffs were scheduled to work forty 7 hours in a given week," they did not state a plausible claim 8 for relief. 9 Id. at *5, 2013 U.S. App. LEXIS We therefore concluded that the allegations Id., 2013 U.S. App. LEXIS 14128, at *19-*20. Dejesus provided less factual specificity than did 10 the plaintiffs in Lundy or Nakahata, although she made 11 allegations of more widespread improper behavior by the 12 defendant. 13 weeks or provide any other factual context or content. 14 Indeed, her complaint was devoid of any numbers to consider 15 beyond those plucked from the statute. 16 that in "some or all weeks" she worked more than "forty 17 hours" a week without being paid "1.5" times her rate of 18 compensation, Compl. ¶ 24, no more than rephrasing the 19 FLSA's formulation specifically set forth in section 20 207(a)(1). She did not estimate her hours in any or all She alleged only Whatever the precise level of specificity that 11 1 was required of the complaint, Dejesus at least was required 2 to do more than repeat the language of the statute.4 In this regard, Dejesus's claim is similar to one 3 4 that the First Circuit recently confronted. 5 plaintiffs had alleged that they "regularly worked" more 6 than forty hours a week and were not properly compensated. 7 Pruell v. Caritas Christi, 678 F.3d 10, 12 (1st Cir. 2012). 8 The court concluded that such a formulation was "one of 9 those borderline phrases" that while not stating an 10 "ultimate legal conclusion[]," was "nevertheless so 11 threadbare or speculative that [it] fail[ed] to cross the 12 line between the conclusory and the factual." 13 (internal quotation marks omitted). 14 panel reasoned, the allegation was "little more than a 15 paraphrase of the statute." 16 Iqbal, the ones in Pruell were "too meager, vague, or 17 conclusory" to survive a motion to dismiss. 18 quotation marks omitted). Id. 4 There, the Id. at 13 "Standing alone," the Like the allegations in Id. (internal Nor does Dejesus's allegation in paragraph 27 of her complaint regarding the calculation of overtime payments (in the weeks when she allegedly received them) contain sufficient factual specificity. Among other things, Dejesus alleges neither the number of weeks during which Healthfirst improperly calculated her overtime pay, nor which weeks they were. 12 The First Circuit's reasoning is persuasive. 1 2 Dejesus's complaint tracked the statutory language of the 3 FLSA, lifting its numbers and rehashing its formulation, but 4 alleging no particular facts sufficient to raise a plausible 5 inference of an FLSA overtime violation. 6 claims were therefore inadequate and properly dismissed. 7 Lundy's requirement that plaintiffs must allege 8 overtime without compensation in a "given" workweek, 711 9 F.3d at 114, was not an invitation to provide an all-purpose Her FLSA and NYLL5 10 pleading template alleging overtime in "some or all 11 workweeks." 12 provide some factual context that will "nudge" their claim 13 "from conceivable to plausible." 14 While this Court has not required plaintiffs to keep careful 15 records and plead their hours with mathematical precision, 16 we have recognized that it is employees' memory and 17 experience that lead them to claim in federal court that 18 they have been denied overtime in violation of the FLSA in It was designed to require plaintiffs to 5 Twombly, 550 U.S. at 570. In light of the fact that "[t]he relevant portions of New York Labor Law do not diverge from the requirements of the FLSA," our conclusions below about the FLSA allegations "appl[y] equally to [the NYLL] state law claims." Whalen v. J.P. Morgan Chase & Co., 569 F. Supp. 2d 327, 329 n.2 (W.D.N.Y. 2008), rev'd on other grounds sub nom. Davis v. J.P. Morgan Chase & Co., 587 F.3d 529 (2d Cir. 2009). 13 1 the first place. Our standard requires that plaintiffs draw 2 on those resources in providing complaints with sufficiently 3 developed factual allegations. 4 In reaching this conclusion, we would be less than 5 candid if we did not register our concern about the failure 6 of the plaintiff, through counsel, at least to attempt to 7 amend her complaint to add specifics while the district 8 court kept the door open for her to do so.6 9 to believe that the decision not to amend was made for some 10 reason that benefitted Dejesus, rather than as an effort on 11 counsel's part to obtain a judicial blessing for plaintiffs' 12 counsel in these cases to employ this sort of bare-bones 13 complaint. III. Whether Dejesus Adequately Alleged Employment 14 15 We would like Status We conclude that the judgment of the district 16 17 court must be affirmed because, as the court held, Dejesus's 18 pleading that she worked overtime without proper 19 compensation under the FLSA was inadequate. 20 need not decide whether the district court was also correct 6 We therefore Cf. Nakahata, F.3d at , 2013 WL 3743152, at *3, 2013 U.S. App. LEXIS 14128, at *11 ("[W]e will not deem it an abuse of the district court's discretion to order a case closed when leave to amend has not been sought." (internal quotation marks omitted)). 14 1 when it first concluded that Dejesus had not sufficiently 2 alleged that she was an "employee" of Healthfirst within the 3 meaning of the FLSA. 4 issue as guidance for the district courts in light of the 5 spate of similar litigation within this Circuit, the fact 6 that the issue has been fully briefed and argued on appeal, 7 and because we disagree with the district court's conclusion 8 on the point. We nonetheless offer our views on the 9 Under the statute, an "employee" is "any 10 individual employed by an employer," 29 U.S.C. § 203(e)(1), 11 and an "employer" includes "any person acting directly or 12 indirectly in the interest of an employer in relation to an 13 employee," id. § 203(d). 14 permit to work." To "employ" means "to suffer or Id. § 203(g). 15 In her complaint, Dejesus alleged that she "worked 16 for defendant Health First," Compl. ¶ 11, and was "employed 17 by defendant for about three years," id. ¶ 20, as "an hourly 18 employee," id. ¶ 22. 19 "employed by defendant within the meaning of the FLSA." 20 ¶ 29. 21 promote insurance programs to the public and to recruit 22 members of the public to join those insurance programs." 23 Id. ¶ 19. She also alleged that she was She added that as such an employee, she worked "to And she explained her wage structure ("a 15 Id. 1 commission for each person recruited to join the insurance 2 programs promoted by defendant, in addition to a regular 3 non-commission wage"). 4 facts both about her employment status and duties in order 5 to support the inference that she was an employee within the 6 meaning of the FLSA. Id. ¶ 21. Dejesus therefore alleged 7 The Supreme Court has referred to the "striking 8 breadth" of the FLSA's definition of the persons who are 9 considered to be employees. Nationwide Mut. Ins. Co. v. 10 Darden, 503 U.S. 318, 326 (1992); see also Rutherford Food 11 Corp. v. McComb, 331 U.S. 722, 729 (1947) ("This Act 12 contains its own definitions, comprehensive enough to 13 require its application to many persons and working 14 relationships, which prior to this Act, were not deemed to 15 fall within an employer-employee category." 16 quotation marks omitted)); accord Frankel v. Bally, Inc., 17 987 F.2d 86, 89 (2d Cir. 1993) (noting that in light of "the 18 expansive nature of the FLSA's definitional scope and the 19 remedial purpose underlying the legislation," courts, 20 including the Supreme Court, have construed the statute to 21 reach beyond the common law standard for determining 22 employee status). 16 (internal In light of this broad interpretation of 1 2 "employee" under the statute, we have "treated employment 3 for FLSA purposes as a flexible concept." 4 City Health & Hosps. Corp., 537 F.3d 132, 141 (2d Cir. 5 2008); see also Benshoff v. City of Virginia Beach, 180 F.3d 6 136, 140 (4th Cir. 1999)(concluding that employment "is to 7 be determined by its commonly understood meaning"). 8 the context of a motion to dismiss, district courts in this 9 Circuit have therefore found that complaints sufficiently Barfield v. N.Y. And, in 10 allege employment when they state where the plaintiffs 11 worked, outline their positions, and provide their dates of 12 employment. 13 Jewish Health Sys., 770 F. Supp. 2d 497, 508 (E.D.N.Y. 14 2011); Zhong v. August Corp., 498 F. Supp. 2d 625, 628 15 (S.D.N.Y. 2007) (where a plaintiff alleging that he "was an 16 employee" in multiple places was found to have provided a 17 reasonable inference that the relationship was one covered 18 by the statute). See, e.g., DeSilva v. North Shore-Long Island Here, Dejesus detailed where she worked, providing 19 20 Healthfirst's address and its corporate purposes. Compl. ¶¶ 21 9-10, 18. 22 generally entailed, describing her responsibilities and the 23 pay structure. She outlined what her position as a "promoter" Id. ¶¶ 19-21. And she provided her dates of 17 1 employment. Id. ¶¶ 11-13. 2 she was an hourly employee "within the meaning of the FLSA." 3 Id. ¶ 29. 4 was an employee and Healthfirst was her employee under the 5 FLSA, especially in light of the expansive scope of the 6 definition employed in the statute.7 7 Supp. 2d at 508 (concluding similar allegations constituted 8 adequate pleading of employee status). She thus, in our view, adequately pled that she Cf. DeSilva, 770 F. CONCLUSION 9 For the foregoing reasons, we affirm the judgment 10 11 In addition, she alleged that of the district court. 12 7 We also agree with Dejesus that she was not required to plead facts at this stage of the proceedings to support her position that she was a non-exempt employee, that is, one who falls outside of the FLSA's exemptions. A claim of exemption under the FLSA is an affirmative defense, and the employer bears the burden of proof in making any such claim. See, e.g., Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974); Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir. 1991). We think, contrary to Dejesus's position, however, that the district court properly recognized this when it observed that a "claim of exemption under the FLSA is an affirmative defense, on which the employer bears the burden of proof." Dejesus, 2012 WL 5289571, at *2, 2012 U.S. Dist. LEXIS 152263, at *6. 18
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