1 18-1781 Bonn-Wittingham et al. v. Project OHR, Inc.



### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 , IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for th e Second Circuit, held at the Thurgood Marshall United States Co urthouse, 40 Foley Square, in the City of New York, on the 25 th day of November, two thousand nineteen.

Present: P IERRE N. L EVAL , R ICHARD C. W ESLEY , D EBRA A NN L IVINGSTON , Circuit Judges

.

_____________________________________
J UDY B ONN -W ITTINGHAM , M ELVA J ONES , G ERMITA F REMONT , M AISIE B ECKFORD , L ENA B ARTON , D ULCIE J ONES , G RETA K EISER , E NID L EWIS , M ARIE P AULA E UGENE , G LORIA B ENT , G RACE Y ARDE , L INDA H ENDERSON , V ESTA D OUGLAS , E VELYN C IMA , M ERLE H OYTE , O CTAVIA C RICK , A LBERTINA T HOMAS , S UZY D ORCE , P. M ARY E UGENE , A LBERTHA F ENELON , P ARBATI S INGH , V ERNA R ICKETTS , G ILLIAN B OWEN , F ARIL B EST , C ORNELIOUS G REEN , G LADYS E NRIQUEZ , O LIVE D UTCHIN , M IGNAN B ARRY , S HERAN J AMES , D EBBIE A NN B ROWN , P AULINE G RANT , I RMA A NDERSON , M ARIE A FREH , O MODELE J OHNSON , A DALSIE H OUSTON , C ECILIA B EST , M ARTHA G ROVES , L AUNA J ONES , A NGELA A RMSTRONG , I ONIE S ENIOR , Y VONNE L EWIS , M ARGARET C OTTERELL , M ARIE Y ANICK J OSEPH , E LLA P OMPEY , M ARIE -L G ILLES , M ARIE M ILFORD , M ARIE D. P IERRE , M ERLE L OPEZ , B EVERLENE G RANT , E LAINE T AYLOR , L INNETT W ILLIAMS , R OXANNE C AMBRIDGE , K ATHLENE M ORGAN , S AWARIE R AMLOCHAN , A NNE M ARIE2 M ORGAN , L EONIE H USSETT , L INETTE C ORNWALL , F AY M CKENZIE , M ARIE D ORSAINVILLE , C ARMEL A NDERSON , Y OLANDA G AYLE , P AULINE C LARKE , A LVIRA H ENRY , L YNETTE V YENT , S YLVIA H OYTE , U NA S EALE , L ORENTE S IMEON , P EARLINE D ONALDSON -R EID , O LGA C ADET , J UDY T AYLOR , LYNETTE A. W ILLIAMS , C AROLINE L ONG , M ARJORIE J OHNSON , W ALTERINE L EVINS , V ELDA M AYERS , Y VONNE M ACK , I SOLYN P ALMER , D ONNA H EADLEY , C LAUDETTE G RIMES , S EORAJNI P ERSAUD , N EELA W ARDEN , E ILEEN T UCKER , A NNETTE D AVIS , C ARMEN P ELZER , A NN S ABAL , J ACQUELINE E LLIS , S YLVIA P ETERS , M ARIE L AGUERRE , T ANISHA G OODEN , E LSIE C OLLINS , B EVERLY R OYAL M CPHERSON , A UDREY C ROSDALE , M ARIYA S UDNISHNIKOVA , W ALETINA R USZCZYK , H ODA H OSSANE , H UGUETTE N ELSON , S ANDRA M CINTOSH , Y VELINE M. B EAUCHAMP , J ULIETH M ELBOURNE , A DELINE J ERMAIN , G ISLAINE J OCELYN , M ARINA B ESSARABOVA , M ARTHE L ATOUR , J EANINE E LIE , M ARIE L ONGUEFOSSE , Y PPOLIA D ECOPAIN , D IGNA G ARCIA , P AULA G ARCIA , V ITOLD S TANKEVICH , Z OIA S TANKEVICH , C RYSTAL E DWARDS , J OSEFINA A RIA , F ARRAH C HACAN , D AISY C ASTILLO , and C ARMEN T ORIBIO , Plaintiffs-Appellants
,

M ARIE P LAISIR , M ARIE M ONPREMIER , J EMMA L EWIS , E LIZA H AMILTON , B ARBARA R OSLANIEC , U NICA G EORGE , I MMACULA A UGUSTE , C ATHERINE J ESSAMY , A NITA L UBIN , M ARIE F LEURIMONT , E UNICE S TAFFORD , J OAN L EACOCK , L UCY I NEUS , F LORENCE C UVILLY , P ATRICIA C OSMAS , J OAN M ARAGH , M IROSLAWA B ARTOLD , M ARINA K ISINA , L UDMILLA A RMONAVICA , E STHER L OPEZ , J ANINA W ERYNSKA , C ONSESORA L IRIANO , M ARIANELA S ORIANO , M ERCEDES G ARCIA , K RYSTYNA B UNKOWSKA , A NATALIE J EAN , C ANDIDA P AREDES , A SYA C HERNINA , S OPHI B UNBURY , P RISCILLA J ENKINS , E UGENEA G ORBACHEVA , D ANUTA M ALMON , T ERESA R UDNICKI , A NNA G ARVEY , U NICEY D ESHIELDS , B EVERLY C ALDWELL , S HIRLEY E DWARDS , T HEMA J AMES , R OSEANNE C RANDON , Y OLANDE J EAN -B ART , M ORINE W RIGHT , E LAINE3 C LARKE , M YRNA T HOMAS , B ETTYANNE A LEXANDER , C ARMEN P OWNALL , G ERDA A NTOINE , V ANETTA G RANT , J ULIETTE H AMILTON , I MMACULA D ORISMOND , L IDIYA B ERDNKOVA , R AMONA J AVIER , A NA M. G OMEZ , M ARIE G RAND -P IERRE , A LMA A RIZA , N ELI K ORINTELI , C ICELY D ALY , Plaintiffs
,
v. 18-1781

P ROJECT OHR, I NC ., Defendant-Appellee
,

M ETROPOLITAN C OUNCIL ON J EWISH P OVERTY , D’ V ORAH K OHN , Defendants. *

_____________________________________ For Plaintiffs-Appellants: D AVID W IMS , Law Office of Davi d Wims, Brooklyn, New York
For Defendant-Appellee: K EVIN J. O’C ONNOR , Peckar & Abramson, P.C., New York, New York
Appeal from a judgment of the United States District Court for the Eastern District of

New York (Ross, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED

. Plaintiffs-Appellants, a group of hom e healthcare workers employed by
Defendant-Appellant Project OHR (Office for Hom ecare Referral) (“OHR”), appeal from a May
18, 2018 judgment of the district court followi ng a December 2016 opinion and order which, in
relevant part, dismissed Plaintif fs-Appellants’ claims for overtim e and minimum wage violations

* The Clerk of Court is respectfully directed to amend the caption as set forth above.4 under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). We
assume the parties’ familiarity with the underlying facts, the pro cedural history of the case, and
the issues on appeal.

This Court reviews de novo the dismissal of a complaint for failure to state a claim upon
which relief can be granted, “accepting all factual allegations in the complaint as true, and
drawing all reasonable inferences in the plaintiff's favor.” Holmes v. Grubman, 568 F.3d 329,
335 (2d Cir. 2009) (internal quotation marks omit ted). “To survive a motion to dismiss, a
complaint must contain sufficient fa ctual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks

omitted). However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclu sory statements, do not suffice.” Id.
OHR is a nonprofit corporati on providing homecare services to elderly and disabled
persons. Plaintiffs-Appellants worked for OHR as home health aides in and around New York
City between June 2009 and May 2015. During twenty-fou r-hour “sleep-in” shifts,
Plaintiffs-Appellants stayed overnight at their c lient’s residences and were responsible for the
care of their clients throughout th e duration of the work shift. For such shifts, OHR had a
policy of automatically deducting eight hours per day for sleep time and three hours per day for
meal periods without regard to whether Plaintiffs in fact work ed through said time periods.
Employees working sleep-in shifts were paid the equivalent of twelve hours at the regular hourly
rate ($10.00 per hour for weekdays and $11.25 per hour for weeke nds), plus a single “per diem”
payment of $16.95, amounting to $136.95 for a w eekday sleep-in shift and $151.95 for a

weekend sleep-in shift.5 On appeal, Plaintiffs-Appellants challenge the district court’s dismis sal of overtime and
minimum wage claims brought by em ployees who alleged that they worked either two or three
sleep-in shifts in a single week. Plaintiffs -Appellants’ primary arguments are that (1) the
district court erred in applyi ng this Circuit’s FLSA pleading standards by failing to take
well-pleaded allegations as true and draw favorabl e inferences in favor of Plaintiffs-Appellants;

and (2) the district court erred by failing to provide Plaintiffs -Appellants with an additional
opportunity to amend their complaint. Neither of these arguments has merit.
The district court correctly applied this Circuit’s pleading standard in granting the motion
to dismiss Plaintiffs-Appellants’ overtime claims . As Plaintiffs-Appellants set forth in their
complaint, OHR maintained th e practice, common in the home healthcare industry, of assigning
employees to so-called “twenty- four hour” sleep-in shifts during which employees were actually
expected to work only thirteen hours, with eight hours deducte d for sleeping and three hours

deducted for meal breaks. This kind of arrangement is per mitted under FLSA. See 29 C.F.R.
§ 785.22(a) (“Where an employee is required to be on duty for 24 hours or more, the employer and
the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled
sleeping period of not more th an 8 hours from hours worked”). 1 Working hours in the home

health aide context are calculat ed in the same way under the NY LL, as recently confirmed by the
New York Court of Appeals. See Andryeyeva v. N.Y. Health Care, Inc. , 124 N.E.3d 162, 165

(N.Y. 2019); see also id. at 167 (upholding the New York De partment of Labor’s (“DOL”)
interpretation of the Minimum Wage Act, whic h provided that home hea lth care aides assigned
to a twenty-four-hour shift “must be paid not less than for thirteen hours per twenty-four hour

1 If an employee cannot obtain at least five hours of uninterrupted sleep, the entire eight-hour period must be counted towards working time. See 29 C.F.R. § 785.22(b).6 period provided that they are afforded at leas t eight hours for sleep an d actually receive five
hours of uninterrupted sleep”). 2 Thus, the Plaintiffs-Appellant s did not sufficiently plead a
workweek in excess of forty hours simply by pleading that they worked two or three sleep-in shifts
in a given week; rather, in order to clear the fo rty-hour threshold, they ha d to sufficiently plead
additional work during meal times or sufficient interruption of their sleep breaks to trigger a
compensation obligation fo r those break periods. 3

The district court correctly determined thatPlaintiffs-Appellants failed to sufficiently
plead any additional, unpaid work, as necessary to render their overtime claims plausible. “[I]n
order to state a plausible FLSA overtime claim, a plai ntiff must sufficien tly allege 40 hours of
work in a given workweek as well as some un compensated time in ex cess of the 40 hours.”

Lundy v. Catholic Health Sys. of Long Island Inc. , 711 F.3d 106, 114 (2d Cir. 2013). Plaintiffs
must “provide sufficient detail about the length and frequency of their unpaid work to support a
reasonable inference that they worked mo re than forty hours in a given week.” Nakahata v.

N.Y.-Presbyterian Healthcare Sys., Inc. , 723 F.3d 192, 201 (2d Cir. 2013) . Allegations that an
employee “occasionally” or “typically” missed break s provides “nothing but low-octane fuel for
speculation, not the plausible claim that is required.” Lundy , 711 F.3d at 115. Similarly,
allegations that an employee “regularly worked” more than forty hours per week are merely legal

2 On appeal, Plaintiffs-Appellants argue that the DO L’s guidance applied only to residential employees. This position has no merit. The DOL’s March 2010 opinion letter specifically addresses home health care aides assigned to sleep-in shifts and makes cl ear that such employees are considered live-in, non-residential employees who must be paid for at l east thirteen hours of work in a twenty-four-hour shift. N.Y. Dep’t of Labor, Opinion Letter on Live-in Companions (Mar. 11, 2010). This interpretation was upheld in Andryeyeva. 124 N.E.3d at 165.

3 Plaintiffs-Appellants who pleaded that they worked two sleep-in shifts in a single week, totaling 26 hours of scheduled work, had to plead an addition al fifteen hours in a given week to exceed the forty-week threshold. Plaintiffs-Appellants who plead ed that they worked th ree sleep-in shifts in a single week, totaling 39 hours of scheduled work, had to plead two additional hours worked in a given week.7 conclusions that constitute “little more than a paraphrase of the statute” and cannot, standing
alone, establish a plausible claim. DeJesus v. HF Mgmt. Servs., LLC , 726 F.3d 85, 89 (2d Cir.

2013).
Despite numerous amendments to their complaint, Plaintiffs-Appellants’ bare allegations
regarding additional work do not satisfy this st andard. Contrary to Plaintiffs-Appellants’
argument, the district court was under no obligation to accept as true their statement, amounting to
a bare legal conclusion, that they worked in exce ss of forty hours; more over, absent any supporting
factual detail, there were no plausible inferences to be drawn in their favor. The district court thus
correctly dismissed Plaintiffs-Appellants’ overtime claims.
The complaint similarly fails to set forth necessary factual de tail to support the inference
of the additional working hours necessary for Pl aintiffs-Appellants’ effe ctive hourly wage to
drop below the minimum wage. That deficiency requires dismissal of Plaintiffs-Appellants’
minimum wage claims.
Finally, it is manifest that the district cour t did not abuse its discretion by refraining from
providing Plaintiffs-Appellants with another opport unity to amend their complaint, which had
already been amended three times. As a general principle, district cour ts should freely grant a
plaintiff leave to amend the complaint. Kleinman v. Elan Corp., 706 F.3d 145, 156 (2d Cir.

2013). Nonetheless, “we will not de em it an abuse of the district co urt’s discretion to order a case
closed when leave to amend has not been sought.” Anatian v. Coutts Bank (Switzerland), 193
F.3d 85, 89 (2d Cir. 1999) (internal quotation marks and citation omitted). “In addition, without
any indication by appellants of how further amendment would cure the deficiencies in pleading,
we ordinarily do not find an a buse of discretion where appellants have already had ample time to8 amend the complaint.” Campaniello Imps., Ltd. v. Saporiti Italia S.p.A. , 117 F.3d 655, 664 n.3

(2d Cir. 1997).
Plaintiffs-Appellants did not seek leave to amend the complaint in the wake of the district
court’s decision—a logical choice, given that plain tiffs’ counsel explicitly agreed at the October 4,
2016 conference that the third amended complaint woul d be “best and last pleading” in the case.
S.A. 25. Despite the fact that the district c ourt directed Plaintiffs-A ppellants to controlling
precedent, alerted them to the de ficiencies of their complaint, and granted multiple opportunities
to replead, Plaintiffs-Appellants fa iled to marshal any details or supporting facts as required to
render their claims plausible. The district court thus acted well within its discretion in closing

the case without sua sponte granting further l eave to amend.
We have considered Plaintiffs-Appellants’ remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk