Dejesus v. HF Mgmt. Servs., LLC

• Decision Date: 05 August 2013
• Docket Number: Docket No. 12–4565.
• Citation: 726 F.3d 85
• Parties: Ramona DeJESUS, Plaintiff–Appellant, v. HF MANAGEMENT SERVICES, LLC, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

726 F.3d 85

Ramona DeJESUS, Plaintiff–Appellant,

v.HF MANAGEMENT SERVICES, LLC, Defendant–Appellee.

Docket No. 12–4565.

United States Court of Appeals, Second Circuit.

Argued: April 30, 2013.

Decided: Aug. 5, 2013.

Abdul K. Hassan, Queens Village, NY, for Plaintiff–Appellant.

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, NY, for Defendant–Appellee.

Before: JACOBS, Chief Judge, SACK, Circuit Judge, and RAKOFF, District Judge.^*

SACK, Circuit Judge:

This is the third in a series of recent decisions by this Court addressing the question of the adequacy of pleadings alleging that defendant health-care companies failed to pay their employees for overtime work as required by the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a)(1). See Nakahata v. New York–Presbyterian Healthcare Sys., Inc., No. 11–0734, 723 F.3d 192, 2013 WL 3743152 (2d Cir. July 11, 2013); Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106 (2d Cir.2013). They each reflect a tension among, inter alia, (1) the frequent difficulty for plaintiffs in such cases to determine, without first having access to the defendant's records, the particulars of their hours and pay in any given time period; (2) the possible use by lawyers representing plaintiffs in such cases of standardized, barebones complaints against any number of possible defendants about whom they have little or no evidence of FLSA violations for the purpose of identifying a few of them who might make suitable defendants—which is to say, the ability to engage in “fishing expeditions”; and (3) the modern rules of pleading established by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

BACKGROUND

Ramona Dejesus was employed in the Borough of Queens, New York, by HF Management Services, LLC (“Healthfirst”), a company that provides support and administrative services to not-for-profit health-care organizations. Dejesus brought the action that is the subject of this appeal on March 15, 2012, in the United States District Court for the Eastern District of New York, claiming that Healthfirst failed to pay her overtime wages under the FLSA and the New York Labor Law (“NYLL”).

Dejesus alleged that she was a wage-earning employee of Healthfirst for the three years preceding August 2011, during which time she promoted the insurance programs Healthfirst offered and recruited members of the public to sign up for Healthfirst's services. Compl. ¶¶ 19–20. As a part of her wage agreement, Dejesus was entitled to receive a commission for each person she recruited to join Healthfirst's programs, in addition to her non-commission wage. Id. ¶ 21.

Dejesus also alleged that she worked more than forty hours per week during “some or all weeks” of her employment and, in violation of the FLSA, through April 2011 was not paid at a rate of at least 1.5 times her regular wage for each hour in excess of forty hours.¹Id. ¶ 24. She relied on the FLSA's provision stating that employers are not permitted to “employ any ... employees ... for a workweek longer than forty hours unless such employee receives compensation for his [or her] employment in excess of [forty hours] at a rate not less than one and one-half times the regular rate at which he [or she] is employed.” 29 U.S.C. § 207(a)(1).²

Dejesus also alleged that there were weeks in which she was paid for her overtime hours but in which Healthfirst “failed to include the commission payments in the calculation of [her] overtime pay.” Compl. ¶ 27.

On May 7, 2012, Healthfirst filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Dejesus was exempt from the overtime protections of the FLSA because she was an outside salesperson and that her claim was not properly stated.

The district court (Edward R. Korman, Judge) granted the motion to dismiss. Dejesus v. HF Management Services., LLC, No. 12–cv–1298, 2012 WL 5289571 (E.D.N.Y. Oct. 23, 2012). The court explained that to properly state a claim, Dejesus was required to allege that: “(1) she was an employee eligible for overtime pay; and (2) that she actually worked overtime without proper compensation.” Id. at *1, 2012 U.S. Dist. LEXIS 152263, at *3.

The district court concluded that Dejesus had satisfied neither requirement. She had “fail[ed] to set forth the precise position she held, any approximation of the number of unpaid overtime hours worked, her rate of pay, or any approximation of the amount of wages due.” Id. at *2, 2012 U.S. Dist. LEXIS 152263, at *4. Listing her duties as a “promoter,” Dejesus had not sufficiently alleged that she was an “employee” within the meaning of the FLSA; and adding a “sole allegation” that she worked more than forty hours “in some or all weeks,” she had failed to make any approximation of her hours that would render her claim plausible rather than merely conceivable. Id. at *2, 2012 U.S. Dist. LEXIS 152263, at *4–*5. In arriving at its conclusions, the court relied on other district court decisions requiring plaintiffs to approximate overtime hours allegedly worked. Id. at *1, 2012 U.S. Dist. LEXIS 152263, at *4.

The district court dismissed Dejesus's claims without prejudice, providing her the opportunity to “replead to correct the complaint's defects.” Id. at *2, 2012 U.S. Dist. LEXIS 152263, at *5. Dejesus chose not to replead, disclaimed any intent to amend her complaint, and, instead, on November 11, 2012, filed a notice of appeal. By disclaiming intent to amend, she rendered the district court's otherwise non-final order “final” and therefore immediately appealable. See Slayton v. Am. Express Co., 460 F.3d 215, 224–25 (2d Cir.2006).

DISCUSSION

I. Governing Legal Standards

“We review the District Court's dismissal of a complaint pursuant to Rule 12(b)(6)de novo, accepting all the factual allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff.” Doe v. Guthrie Clinic, Ltd., 710 F.3d 492, 495 (2d Cir.2013) (citation omitted). The “complaint must [nonetheless] contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A complaint must therefore contain more than “ ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955) (alteration in original). Pleadings that contain “no more than conclusions ... are not entitled to the assumption of truth” otherwise applicable to complaints in the context of motions to dismiss. Id. at 679.

II. Whether Dejesus Adequately Alleged Overtime

We agree with the district court that Dejesus did not plausibly allege that she worked overtime without proper compensation under the FLSA, and on that basis, affirm the judgment of the district court.

Section 207(a)(1) of the FLSA requires that “for a workweek longer than forty hours,” an employee working “in excess of” forty hours shall be compensated for those excess hours “at a rate not less than one and one-half times the regular rate at which [she or] he is employed.” 29 U.S.C. § 207(a)(1).

In Lundy v. Catholic Health System of Long Island, 711 F.3d 106 (2d Cir.2013), we considered “the degree of specificity” required to make a section 207(a)(1) FLSA overtime claim plausible. Id. at 114. We noted that federal courts had “diverged somewhat on the question,” id., with some requiring an approximation of the total number of uncompensated hours in a given workweek, see, e.g., Nichols v. Mahoney, 608 F.Supp.2d 526, 547 (S.D.N.Y.2009), and others not requiring any estimate of overtime, but simply an allegation that the plaintiff worked some amount in excess of forty hours, see, e.g., Butler v. DirectSat USA, LLC, 800 F.Supp.2d 662, 667–68 (D.Md.2011).

Formulating our own standard, we concluded that “in order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.” Lundy, 711 F.3d at 114. We also observed that “[d]etermining whether a plausible claim has been pled is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (internal quotation marks omitted). We therefore declined to make an approximation of overtime hours a necessity in all cases. We remarked, however, that an approximation “may help draw a plaintiff's claim closer to plausibility.” Id. at 114 n. 7.

Applying that standard, we reasoned that the Lundy plaintiffs had failed to allege that they worked uncompensated overtime because, although the employees went to some lengths to approximate the hours they typically worked, even setting out their typical breaks and shift lengths, the hours alleged did not add up to a claim that over forty hours had been worked in any particular week. ³ The allegations in Lundy thus failed because of arithmetic: tallying the plausible factual allegations, we could not get beyond forty hours in any given week, and therefore to a plausible claim for overtime.

Very recently, we had occasion to revisit this issue. Nakahata v. New York–Presbyterian Healthcare System, Inc., No. 11–0734, 723 F.3d 192, 199–203, 2013 WL 3743152, *4–*6, 2013 U.S.App. LEXIS 14128, *15–*21 (2d Cir. July 11, 2013). In Nakahata, the plaintiffs also had alleged uncompensated work during meal breaks, training sessions, and extra shift time as evidence of an overtime violation without demonstrating how these instances added up to...