Dejesus v. HF Management Services, LLC

12-4565
Dejesus v. HF Management Services, LLC
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2012 3
(Argued: April 30, 2013 Decided: August 5, 2013) 4
Docket No. 12-4565 5
------------------------------------- 6
RAMONA DEJESUS, 7
Plaintiff-Appellant, 8
- v - 9
HF MANAGEMENT SERVICES, LLC, 10
Defendant-Appellee. 11
------------------------------------- 12
Before: JACOBS, Chief Judge, SACK, Circuit Judge, and 13
Rakoff, District Judge. *
14
The plaintiff appeals from a judgment of the 15
United States District Court for the Eastern District of New 16
York (Edward R. Korman, Judge) dismissing her claims under 17
the Fair Labor Standards Act and the New York Labor Law. We 18
agree with the district court that the plaintiff failed to 19
allege adequately that she worked overtime without receiving 20
the compensation mandated by the statutes. 21
* Judge Jed S. Rakoff, of the United States District
Court for the Southern District of New York, sitting by
designation.

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Affirmed. 1
2
ABDUL K. HASSAN, Queens Village, New 3
York, for Plaintiff-Appellant. 4
SETH L. LEVINE (Scott B. Klugman, on 5
the brief), Levine Lee LLP, New York, 6
New York; Andrew P. Marks, Littler 7
Mendelson P.C., New York, New York, 8
for Defendant-Appellee. 9
SACK, Circuit Judge: 10
This is the third in a series of recent decisions 11
by this Court addressing the question of the adequacy of 12
pleadings alleging that defendant health-care companies 13
failed to pay their employees for overtime work as required 14
by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 15
§ 207(a)(1). See Nakahata v. New York-Presbyterian 16
Healthcare Sys., Inc., No. 11-0734, ___ F.3d ___, 2013 WL 17
3743152, 2013 U.S. App. LEXIS 14128 (2d Cir. July 11, 2013); 18
Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106 19
(2d Cir. 2013). They each reflect a tension among, inter 20
alia, (1) the frequent difficulty for plaintiffs in such 21
cases to determine, without first having access to the 22
defendant's records, the particulars of their hours and pay 23
in any given time period; (2) the possible use by lawyers 24
representing plaintiffs in such cases of standardized, bare- 25
bones complaints against any number of possible defendants 26
2

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about whom they have little or no evidence of FLSA 1
violations for the purpose of identifying a few of them who 2
might make suitable defendants -- which is to say, the 3
ability to engage in "fishing expeditions"; and (3) the 4
modern rules of pleading established by the Supreme Court in 5
Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic 6
Corp. v. Twombly, 550 U.S. 544 (2007). 7
BACKGROUND 8
Ramona Dejesus was employed in the Borough of 9
Queens, New York, by HF Management Services, LLC 10
("Healthfirst"), a company that provides support and 11
administrative services to not-for-profit health-care 12
organizations. Dejesus brought the action that is the 13
subject of this appeal on March 15, 2012, in the United 14
States District Court for the Eastern District of New York, 15
claiming that Healthfirst failed to pay her overtime wages 16
under the FLSA and the New York Labor Law ("NYLL"). 17
Dejesus alleged that she was a wage-earning 18
employee of Healthfirst for the three years preceding August 19
2011, during which time she promoted the insurance programs 20
Healthfirst offered and recruited members of the public to 21
sign up for Healthfirst's services. Compl. ¶¶ 19-20. As a 22
part of her wage agreement, Dejesus was entitled to receive 23
a commission for each person she recruited to join 24
3

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Healthfirst's programs, in addition to her non-commission 1
wage. Id. ¶ 21. 2
Dejesus also alleged that she worked more than 3
forty hours per week during "some or all weeks" of her 4
employment and, in violation of the FLSA, through April 2011 5
was not paid at a rate of at least 1.5 times her regular 6
wage for each hour in excess of forty hours. 1 Id. ¶ 24. 7
She relied on the FLSA's provision stating that employers 8
are not permitted to "employ any . . . employees . . . for a 9
workweek longer than forty hours unless such employee 10
receives compensation for his [or her] employment in excess 11
of [forty hours] at a rate not less than one and one-half 12
times the regular rate at which he [or she] is employed." 13
29 U.S.C. § 207(a)(1). 2
14
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

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Dejesus also alleged that there were weeks in 1
which she was paid for her overtime hours but in which 2
Healthfirst "failed to include the commission payments in 3
the calculation of [her] overtime pay." Compl. ¶ 27. 4
On May 7, 2012, Healthfirst filed a motion to 5
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of 6
Civil Procedure, arguing that Dejesus was exempt from the 7
overtime protections of the FLSA because she was an outside 8
salesperson and that her claim was not properly stated. 9
The district court (Edward R. Korman, Judge) 10
granted the motion to dismiss. Dejesus v. HF Management 11
Services., LLC, No. 12-cv-1298, 2012 WL 5289571, 2012 U.S. 12
Dist. LEXIS 152263 (E.D.N.Y. Oct. 23, 2012). The court 13
explained that to properly state a claim, Dejesus was 14
required to allege that: "(1) she was an employee eligible 15
for overtime pay; and (2) that she actually worked overtime 16
without proper compensation." Id. at *1, 2012 U.S. Dist. 17
LEXIS 152263, at *3. 18
The district court concluded that Dejesus had 19
satisfied neither requirement. She had "fail[ed] to set 20
forth the precise position she held, any approximation of 21
the number of unpaid overtime hours worked, her rate of pay, 22
or any approximation of the amount of wages due." Id. at 23
*2, 2012 U.S. Dist. LEXIS 152263, at *4. Listing her duties 24
5

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as a "promoter," Dejesus had not sufficiently alleged that 1
she was an "employee" within the meaning of the FLSA; and 2
adding a "sole allegation" that she worked more than forty 3
hours "in some or all weeks," she had failed to make any 4
approximation of her hours that would render her claim 5
plausible rather than merely conceivable. Id. at *2, 2012 6
U.S. Dist. LEXIS 152263, at *4-*5. In arriving at its 7
conclusions, the court relied on other district court 8
decisions requiring plaintiffs to approximate overtime hours 9
allegedly worked. Id. at *1, 2012 U.S. Dist. LEXIS 152263, 10
at *4. 11
The district court dismissed Dejesus's claims 12
without prejudice, providing her the opportunity to "replead 13
to correct the complaint's defects." Id. at *2, 2012 U.S. 14
Dist. LEXIS 152263, at *5. Dejesus chose not to replead, 15
disclaimed any intent to amend her complaint, and, instead, 16
on November 11, 2012, filed a notice of appeal. By 17
disclaiming intent to amend, she rendered the district 18
court's otherwise non-final order "final" and therefore 19
immediately appealable. See Slayton v. Am. Express Co., 460 20
F.3d 215, 224-25 (2d Cir. 2006). 21
6

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DISCUSSION 1
I. Governing Legal Standards 2
"We review the District Court's dismissal of a 3
complaint pursuant to Rule 12(b)(6) de novo, accepting all 4
the factual allegations in the complaint as true and drawing 5
all reasonable inferences in favor of the plaintiff." Doe 6
v. Guthrie Clinic, Ltd., 710 F.3d 492, 495 (2d Cir. 2013) 7
(citation omitted). The "complaint must [nonetheless] 8
contain sufficient factual matter, accepted as true, to 9
'state a claim to relief that is plausible on its face.'" 10
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 11
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 12
"Threadbare recitals of the elements of a cause of 13
action, supported by mere conclusory statements, do not 14
suffice." Id. A complaint must therefore contain more than 15
"'naked assertion[s]' devoid of 'further factual 16
enhancement.'" Id. (quoting Twombly, 550 U.S. at 557) 17
(alteration in original). Pleadings that contain "no more 18
than conclusions . . . are not entitled to the assumption 19
of truth" otherwise applicable to complaints in the context 20
of motions to dismiss. Id. at 679. 21
II. Whether Dejesus Adequately Alleged Overtime 22
We agree with the district court that Dejesus did 23
not plausibly allege that she worked overtime without proper 24
7

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compensation under the FLSA, and on that basis, affirm the 1
judgment of the district court. 2
Section 207(a)(1) of the FLSA requires that "for a 3
workweek longer than forty hours," an employee working "in 4
excess of" forty hours shall be compensated for those excess 5
hours "at a rate not less than one and one-half times the 6
regular rate at which [she or] he is employed." 29 U.S.C. § 7
207(a)(1). 8
In Lundy v. Catholic Health System of Long Island, 9
711 F.3d 106 (2d Cir. 2013), we considered "the degree of 10
specificity" required to make a section 207(a)(1) FLSA 11
overtime claim plausible. Id. at 114. We noted that 12
federal courts had "diverged somewhat on the question," id., 13
with some requiring an approximation of the total number of 14
uncompensated hours in a given workweek, see, e.g., Nichols 15
v. Mahoney, 608 F. Supp. 2d 526, 547 (S.D.N.Y. 2009), and 16
others not requiring any estimate of overtime, but simply an 17
allegation that the plaintiff worked some amount in excess 18
of forty hours, see, e.g., Butler v. DirectSat USA, LLC, 800 19
F. Supp. 2d 662, 667-68 (D. Md. 2011). 20
Formulating our own standard, we concluded that 21
"in order to state a plausible FLSA overtime claim, a 22
plaintiff must sufficiently allege 40 hours of work in a 23
given workweek as well as some uncompensated time in excess 24
8

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of the 40 hours." Lundy, 711 F.3d at 114. We also observed 1
that "[d]etermining whether a plausible claim has been pled 2
is a context-specific task that requires the reviewing court 3
to draw on its judicial experience and common sense." Id. 4
(internal quotation marks omitted). We therefore declined 5
to make an approximation of overtime hours a necessity in 6
all cases. We remarked, however, that an approximation "may 7
help draw a plaintiff's claim closer to plausibility." Id. 8
at 114 n.7. 9
Applying that standard, we reasoned that the Lundy 10
plaintiffs had failed to allege that they worked 11
uncompensated overtime because, although the employees went 12
to some lengths to approximate the hours they typically 13
worked, even setting out their typical breaks and shift 14
lengths, the hours alleged did not add up to a claim that 15
over forty hours had been worked in any particular week. 3
16
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

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The allegations in Lundy thus failed because of arithmetic: 1
tallying the plausible factual allegations, we could not get 2
beyond forty hours in any given week, and therefore to a 3
plausible claim for overtime. 4
Very recently, we had occasion to revisit this 5
issue. Nakahata v. New York-Presbyterian Healthcare System, 6
Inc., No. 11-0734, ___ F.3d ___, 2013 WL 3743152, *4-*6, 7
2013 U.S. App. LEXIS 14128, *15-*21 (2d Cir. July 11, 2013). 8
In Nakahata, the plaintiffs also had alleged uncompensated 9
work during meal breaks, training sessions, and extra shift 10
time as evidence of an overtime violation without 11
(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

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demonstrating how these instances added up to forty or more 1
hours in a given week. Id. at *5, 2013 U.S. App. LEXIS 2
14128, at *19. We therefore concluded that the allegations 3
lacked the "specificity" required, because though they 4
"raise[d] the possibility" of an overtime claim, "absent any 5
allegation that Plaintiffs were scheduled to work forty 6
hours in a given week," they did not state a plausible claim 7
for relief. Id., 2013 U.S. App. LEXIS 14128, at *19-*20. 8
Dejesus provided less factual specificity than did 9
the plaintiffs in Lundy or Nakahata, although she made 10
allegations of more widespread improper behavior by the 11
defendant. She did not estimate her hours in any or all 12
weeks or provide any other factual context or content. 13
Indeed, her complaint was devoid of any numbers to consider 14
beyond those plucked from the statute. She alleged only 15
that in "some or all weeks" she worked more than "forty 16
hours" a week without being paid "1.5" times her rate of 17
compensation, Compl. ¶ 24, no more than rephrasing the 18
FLSA's formulation specifically set forth in section 19
207(a)(1). Whatever the precise level of specificity that 20
11

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was required of the complaint, Dejesus at least was required 1
to do more than repeat the language of the statute. 4
2
In this regard, Dejesus's claim is similar to one 3
that the First Circuit recently confronted. There, the 4
plaintiffs had alleged that they "regularly worked" more 5
than forty hours a week and were not properly compensated. 6
Pruell v. Caritas Christi, 678 F.3d 10, 12 (1st Cir. 2012). 7
The court concluded that such a formulation was "one of 8
those borderline phrases" that while not stating an 9
"ultimate legal conclusion[]," was "nevertheless so 10
threadbare or speculative that [it] fail[ed] to cross the 11
line between the conclusory and the factual." Id. at 13 12
(internal quotation marks omitted). "Standing alone," the 13
panel reasoned, the allegation was "little more than a 14
paraphrase of the statute." Id. Like the allegations in 15
Iqbal, the ones in Pruell were "too meager, vague, or 16
conclusory" to survive a motion to dismiss. Id. (internal 17
quotation marks omitted). 18
4 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

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The First Circuit's reasoning is persuasive. 1
Dejesus's complaint tracked the statutory language of the 2
FLSA, lifting its numbers and rehashing its formulation, but 3
alleging no particular facts sufficient to raise a plausible 4
inference of an FLSA overtime violation. Her FLSA and NYLL 5
5
claims were therefore inadequate and properly dismissed. 6
Lundy's requirement that plaintiffs must allege 7
overtime without compensation in a "given" workweek, 711 8
F.3d at 114, was not an invitation to provide an all-purpose 9
pleading template alleging overtime in "some or all 10
workweeks." It was designed to require plaintiffs to 11
provide some factual context that will "nudge" their claim 12
"from conceivable to plausible." Twombly, 550 U.S. at 570. 13
While this Court has not required plaintiffs to keep careful 14
records and plead their hours with mathematical precision, 15
we have recognized that it is employees' memory and 16
experience that lead them to claim in federal court that 17
they have been denied overtime in violation of the FLSA in 18
5 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

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the first place. Our standard requires that plaintiffs draw 1
on those resources in providing complaints with sufficiently 2
developed factual allegations. 3
In reaching this conclusion, we would be less than 4
candid if we did not register our concern about the failure 5
of the plaintiff, through counsel, at least to attempt to 6
amend her complaint to add specifics while the district 7
court kept the door open for her to do so. 6 We would like 8
to believe that the decision not to amend was made for some 9
reason that benefitted Dejesus, rather than as an effort on 10
counsel's part to obtain a judicial blessing for plaintiffs' 11
counsel in these cases to employ this sort of bare-bones 12
complaint. 13
III. Whether Dejesus Adequately Alleged Employment 14
Status 15
We conclude that the judgment of the district 16
court must be affirmed because, as the court held, Dejesus's 17
pleading that she worked overtime without proper 18
compensation under the FLSA was inadequate. We therefore 19
need not decide whether the district court was also correct 20
6 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

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when it first concluded that Dejesus had not sufficiently 1
alleged that she was an "employee" of Healthfirst within the 2
meaning of the FLSA. We nonetheless offer our views on the 3
issue as guidance for the district courts in light of the 4
spate of similar litigation within this Circuit, the fact 5
that the issue has been fully briefed and argued on appeal, 6
and because we disagree with the district court's conclusion 7
on the point. 8
Under the statute, an "employee" is "any 9
individual employed by an employer," 29 U.S.C. § 203(e)(1), 10
and an "employer" includes "any person acting directly or 11
indirectly in the interest of an employer in relation to an 12
employee," id. § 203(d). To "employ" means "to suffer or 13
permit to work." Id. § 203(g). 14
In her complaint, Dejesus alleged that she "worked 15
for defendant Health First," Compl. ¶ 11, and was "employed 16
by defendant for about three years," id. ¶ 20, as "an hourly 17
employee," id. ¶ 22. She also alleged that she was 18
"employed by defendant within the meaning of the FLSA." Id. 19
¶ 29. She added that as such an employee, she worked "to 20
promote insurance programs to the public and to recruit 21
members of the public to join those insurance programs." 22
Id. ¶ 19. And she explained her wage structure ("a 23
15

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commission for each person recruited to join the insurance 1
programs promoted by defendant, in addition to a regular 2
non-commission wage"). Id. ¶ 21. Dejesus therefore alleged 3
facts both about her employment status and duties in order 4
to support the inference that she was an employee within the 5
meaning of the FLSA. 6
The Supreme Court has referred to the "striking 7
breadth" of the FLSA's definition of the persons who are 8
considered to be employees. Nationwide Mut. Ins. Co. v. 9
Darden, 503 U.S. 318, 326 (1992); see also Rutherford Food 10
Corp. v. McComb, 331 U.S. 722, 729 (1947) ("This Act 11
contains its own definitions, comprehensive enough to 12
require its application to many persons and working 13
relationships, which prior to this Act, were not deemed to 14
fall within an employer-employee category." (internal 15
quotation marks omitted)); accord Frankel v. Bally, Inc., 16
987 F.2d 86, 89 (2d Cir. 1993) (noting that in light of "the 17
expansive nature of the FLSA's definitional scope and the 18
remedial purpose underlying the legislation," courts, 19
including the Supreme Court, have construed the statute to 20
reach beyond the common law standard for determining 21
employee status). 22
16

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In light of this broad interpretation of 1
"employee" under the statute, we have "treated employment 2
for FLSA purposes as a flexible concept." Barfield v. N.Y. 3
City Health & Hosps. Corp., 537 F.3d 132, 141 (2d Cir. 4
2008); see also Benshoff v. City of Virginia Beach, 180 F.3d 5
136, 140 (4th Cir. 1999)(concluding that employment "is to 6
be determined by its commonly understood meaning"). And, in 7
the context of a motion to dismiss, district courts in this 8
Circuit have therefore found that complaints sufficiently 9
allege employment when they state where the plaintiffs 10
worked, outline their positions, and provide their dates of 11
employment. See, e.g., DeSilva v. North Shore-Long Island 12
Jewish Health Sys., 770 F. Supp. 2d 497, 508 (E.D.N.Y. 13
2011); Zhong v. August Corp., 498 F. Supp. 2d 625, 628 14
(S.D.N.Y. 2007) (where a plaintiff alleging that he "was an 15
employee" in multiple places was found to have provided a 16
reasonable inference that the relationship was one covered 17
by the statute). 18
Here, Dejesus detailed where she worked, providing 19
Healthfirst's address and its corporate purposes. Compl. ¶¶ 20
9-10, 18. She outlined what her position as a "promoter" 21
generally entailed, describing her responsibilities and the 22
pay structure. Id. ¶¶ 19-21. And she provided her dates of 23
17

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employment. Id. ¶¶ 11-13. In addition, she alleged that 1
she was an hourly employee "within the meaning of the FLSA." 2
Id. ¶ 29. She thus, in our view, adequately pled that she 3
was an employee and Healthfirst was her employee under the 4
FLSA, especially in light of the expansive scope of the 5
definition employed in the statute. 7 Cf. DeSilva, 770 F. 6
Supp. 2d at 508 (concluding similar allegations constituted 7
adequate pleading of employee status). 8
CONCLUSION 9
For the foregoing reasons, we affirm the judgment 10
of the district court. 11
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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