Smith et al v. Town of Patterson et al
Filing
25
OPINION & ORDER re: 21 MOTION to Amend/Correct 2 Complaint . filed by Town of Patterson, Rich Williams, 16 FIRST MOTION to Dismiss Plaintiffs' Complaint. filed by Town of Patterson, Rich Williams. For the foregoing reasons, Defendants' motion to dismiss is GRANTED. All of Plaintiffs' claims are dismissed without prejudice. Plaintiffs' motion to amend the Complaint is DENIED in part and GRANTED in part. Plaintiffs' motion to amend the Complaint is DENIED as futile insofar as Plaintiffs seek leave to file the Proposed Amended Complaint. Plaintiffs' motion to amend the Complaint is otherwise GRANTED in accordance with this Opinion. Plaintiffs are granted leave t o replead any claims that were dismissed without prejudice. They may file an Amended Complaint consistent with this Opinion on or before February 17, 2023. Failure to file an Amended Complaint within the time allowed, and without good cause to exc use such failure, will result in dismissal with prejudice of all claims that this Court has dismissed without prejudice in this Opinion. If Plaintiffs do file an Amended Complaint, Defendants are directed to file an answer or otherwise respond to the Amended Complaint on or before March 10, 2023. The Clerk of Court is kindly directed to terminate the motions at ECF Nos. 16 and 21. ( Amended Pleadings due by 2/17/2023.) (Signed by Judge Nelson Stephen Roman on 1/17/2023) (ate)
Case 7:22-cv-00313-NSR Document 25 Filed 01/17/23 Page 1 of 10
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
1/17/2023
TAMMY SMITH and BRITTANY LOWE,
Plaintiffs,
-against-
22-cv-313 (NSR)
OPINION & ORDER
TOWN OF PATTERSON, et al.,
Defendants.
NELSON S. ROMÁN, United States District Judge:
Plaintiffs Tammy Smith and Brittany Lowe (“Plaintiffs”) commenced the instant action
against Defendants Town of Patterson (“Town of Patterson”), Town of Patterson Supervisor Rich
Williams (“Supervisor Williams”), and John Does 1-10 (collectively, “Defendants”) alleging
claims arising under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”). (Complaint
(“Compl.”) (ECF No. 2).) Before the Court is Defendants’ motion to dismiss the Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) and Plaintiffs’ subsequently-filed crossmotion to amend the Complaint. (ECF Nos. 16 & 21.) For the following reasons, this Court
GRANTS Defendants’ motion to dismiss and DENIES in part and GRANTS in part Plaintiffs’
cross-motion to amend.
BACKGROUND
The following facts are derived from the Complaint and are accepted as true for the
purposes of this motion except as otherwise noted.
Plaintiffs were employed by the Town of Patterson as Court Clerks at the Town of Patterson
Justice Court. (Compl. at ¶ 4.) Plaintiff Smith worked as a Court Clerk for the Town of Patterson
from January 2011 through May 17, 2021. (Id. at ¶¶ 12, 44.) Plaintiff Lowe worked as a Court
Clerk from September 3, 2013 through July 16, 2020. (Id. at ¶¶ 13, 45.) Plaintiffs were initially
hired as hourly employees, and their wages were not “conditioned upon the amount of revenue
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generated by the Town of Patterson as a result of case prosecutions in the Town of Patterson Justice
Court.” (Id. at ¶¶ 16, 30.)
In or around December 2018, Plaintiffs were re-classified as “salaried” employees. (Id. at
¶¶ 28–31.) As salaried employees, Plaintiffs received two forms of compensation: (1) a salary “not
conditioned upon” revenue generated for the Town, and (2) a stipend for each court date Plaintiffs
attended. (Id. at ¶¶ 16, 19–21.) Plaintiffs allege that Supervisor Williams—who was “dissatisfied
with the amount of money being generated by the Court through fine imposition”—proposed a
Preliminary Budget for 2020 which (1) reduced Plaintiffs’ salary by 5.0% and (2) conditioned
Plaintiffs’ stipends on performance metrics. (Id. at ¶¶ 16, 19–21, 23–24, 26.)
Specifically,
Plaintiffs only earned a stipend for a respective court date when Plaintiffs “worked for at least two
hours” and processed at least 40 “cases resulting in fines.” (Id. at ¶¶ 25–26.)
After Plaintiffs were re-classified as “salaried” employees, Plaintiffs allege Defendants
prevented Plaintiffs from using their accumulated “flex time” or “roll[ing] it over.” (Id. at ¶ 33.)
To that end, Defendant Williams issued a policy memorandum on March 25, 2019 directing
employees to use their “flex time” within the same payroll period it was accrued. (Id. at ¶ 36.)
Defendants, Plaintiffs allege, used their new “flex time” policy to force Plaintiffs to “work without
pay as it is not possible for them to use the accrued time within the same payroll period.” (Id. at ¶
37.)
In sum, Plaintiffs assert that Defendants failed to pay Plaintiffs overtime compensation and
refused to pay Plaintiffs for work performed during meal periods. (Id. at ¶ 38.) Plaintiffs also
assert that Defendants failed to pay accrued compensatory time when Plaintiffs left employment
with Defendants and otherwise did not provide FLSA protection to earned compensatory time.
(Id. at ¶ 38.) In addition, Plaintiffs allege that after they “ma[de] inquiry” to the Town regarding
“flex time,” they were “compelled to leave their employment with Defendants.” (Id. at ¶¶ 34, 40.)
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LEGAL STANDARDS
In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor.
Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013). To survive a motion to dismiss,
a complaint must 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 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions” or “formulaic recitation[s]
of the elements of a cause of action will not do”; rather, the complaint’s “[f]actual allegations must
be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In
applying these principles, the Court may consider facts alleged in the complaint and documents
attached to it or incorporated by reference. Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53
(2d Cir. 2002) (internal quotation marks and citation omitted).
DISCUSSION
Plaintiffs bring two claims against Defendants: (1) violations of FLSA Section 207 for
unpaid overtime compensation; and (2) constructive discharge. The Court addresses each in turn.
Fair Labor Standards Act § 207(a): Recovery of Unpaid Overtime Compensation
I.
Section 207(a)(1) of FLSA protects an employee who works “in excess of” 40 hours in a
workweek.1 Section 207(a)(1) does so by mandating an employer compensate that employee for
This Court assumes arguendo that Plaintiffs are indeed non-exempt employees subject to
Section 207(a)(1) of FLSA. Because “application of an exemption to FLSA is an affirmative
defense,” it may be raised by Defendants in a Rule 12(b)(6) motion “if the defense appears on the
face of the complaint.” Chen v. Major League Baseball Properties, Inc., 798 F.3d 72, 81 (2d Cir.
2015). A plaintiff, however, need not “plead the absence of such a defense.” Id. (“[A]n employer
invoking an exemption to the FLSA bears the burden of proving that the establishment is covered
by the exemption.”) Here, Plaintiffs do not allege facts to establish an exemption to FLSA as an
affirmative defense (see generally Compl.), and Defendants make clear their motion is not based
on any purported exemption (see ECF No. 20 at 3–4).
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each overtime hour “at a rate not less than one and one-half times the regular rate” for that
employee. To state a FLSA overtime claim, a plaintiff “must allege sufficient factual matter to
state a plausible claim that they worked compensable overtime in a workweek longer than 40
hours.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 113–14 (2d Cir. 2013).
The Second Circuit elaborated on this standard in a trio of cases.
First, in Lundy v. Catholic Health System of Long Island, Inc., 711 F.3d 106 (2d Cir. 2013),
the Second Circuit considered “the degree of specificity needed to state an overtime claim under
FLSA.” Id. at 114. It concluded that 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.” Id. In so doing,
the Court affirmed the lower court’s dismissal of a complaint in which plaintiff alleged she
“typically” worked 37.5 hours per week in addition to an “occasional” 12.5-hour shift. Id. at 114.
She did not allege “how occasionally or how long” she worked in any particular week, “nor [did]
she say that she was denied overtime pay in any such particular week.” Id. at 115. As such, the
Court explained her allegations “suppl[ied] noting but low-octane fuel for speculation, not the
plausible claim that is required.” Id.
Second, in Nakahata v. New York–Presbyterian Healthcare System, 723 F.3d 192 (2d Cir.
2013), the Second Circuit applied its decision in Lundy to affirm the lower court’s dismissal of
plaintiffs’ FLSA overtime claim. Nakahata, 723 F.3d at 199–201. Plaintiffs alleged they “were
not compensated for work performed during meal breaks, before and after shifts, or during required
trainings.” Id. at 201. The Court was unsatisfied, finding that plaintiffs’ allegations were less
specific than those dismissed in Lundy and only “raise[d] the possibility that plaintiffs were
undercompensated in violation of the FLSA.” Id. The Court explained that plaintiffs failed to
“provide sufficient detail about the length and frequency of their unpaid work to support a
reasonable inference that they worked more than forty hours in a given week.” Id.
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Lastly, in DeJesus v. HF Management Services, 726 F.3d 85 (2d Cir. 2013), the Second
Circuit again affirmed dismissal of a FLSA overtime claim where plaintiffs alleged they worked
more than 40 hours “some or all weeks” without receiving overtime compensation. DeJesus, 726
F.3d at 88–90. These allegations were formulated so as to not state an “ultimate legal conclusion,”
yet they were “nevertheless so threadbare or speculative that [they] failed to cross the line between
the conclusory and the factual.” Id. at 89 (citing Pruell v. Caritas Christi, 678 F.3d 10, 13 (1st Cir.
2012) (affirming dismissal of allegations that plaintiffs had “regularly worked” more than 40 hours
a week and were not properly compensated)). The Court clarified that it did not require plaintiffs
to “keep careful records and plead their hours with mathematical precision,” but it did require
plaintiffs to “draw” upon their “memory and experience” to “provid[e] complaints with sufficiently
developed factual allegations.” Id. at 90.
Plaintiffs’ allegations do not meet the pleading requirements set forth by the Second
Circuit. Taking the complaint on its face, Plaintiffs fail to approximate the number of overtime
hours worked or the amount of wages due. Plaintiffs allege facts with less specificity than those
dismissed in Lundy. Plaintiffs do not state the number of hours they work in a given week, the
frequency of court dates, or the average length of a court session. Moreover, Plaintiffs do not state
the number of weeks in which scheduled court dates caused Plaintiffs to work in excess of 40
hours. Without more, this Court cannot identify if Plaintiffs ever worked a long enough court
session to push their workweek beyond 40 hours. Even if Plaintiffs properly stated the number of
excess hours, they do not allege for which court dates, if any, Plaintiffs failed to work two hours
or generate 40 “transactions.” (See Compl. at ¶¶ 24, 26.) Without that information, this Court
cannot assess whether Defendants ever failed to pay Plaintiffs for overtime work. Although
Plaintiffs were not required to “keep careful records,” Plaintiffs’ allegations read more like the
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elements of the claim itself rather than facts “draw[n]” from Plaintiffs’ “memory and experience.”
DeJesus, 726 F.3d at 90. As such, this Court dismisses Plaintiffs’ FLSA overtime claims.
This Court now turns to Plaintiffs’ claims for constructive discharge.
II.
Constructive Discharge
Plaintiffs bring claims for constructive discharge. It is unclear from the face of the
Complaint whether Plaintiffs bring these claims under federal or state law. As a result, this Court
addresses both in turn.
A. Fair Labor Standards Act § 215(a): Retaliation for Protected Activity
Section 215(a)(1) of FLSA prohibits retaliation against an employee for engaging in
protected activity. To state a claim for retaliation under FLSA, a plaintiff must show: “(1)
participation in protected activity known to the defendant, like the filing of a FLSA lawsuit; (2) an
employment action disadvantaging the plaintiff; and (3) a causal connection between the protected
activity and the adverse employment action.” Mullins v. City of N.Y., 626 F.3d 47, 53 (2d Cir.
2010). An individual engages in protected activity when that individual “explicitly or implicitly
communicates to his or her employer or other covered entity a belief that its activity is unlawful.”
Greathouse v. JHS Sec. Inc., 784 F.3d 105, 115 (2d Cir. 2015) (internal quotations omitted)
(quoting 2 EEOC Compliance Manual, Section 8: Retaliation § 8–II(B)(1) (May 20, 1998)).
Although an individual need not “invoke the Act by name,” id. at 116, a complaint must “be
sufficiently clear and detailed for a reasonable employer to understand it, in light of both content
and context, as an assertion of rights protected by the statute and a call for their protection.” Kasten
v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011).
Plaintiffs do not allege they participated in “protected activity,” and thus they fail to state
a plausible claim under FLSA. At best, Plaintiffs allege they “inquire[d]” about “flex time” during
a Town audit. (Compl. at ¶ 33.) Plaintiffs’ “inquiry” falls well short of an “assertion of rights
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protected by” FLSA. See Kasten, 563 U.S. at 14 (cautioning employers to avoid retaliatory action
“where the recipient has been given fair notice that a grievance has been lodged and does, or
should, reasonably understand the matter as part of its business concerns”). Even if Plaintiffs
engaged in protected activity, Plaintiffs fail to establish any temporal proximity between the
protected activity and their “constructive[ ] discharge[ ].” (Compl. at ¶¶ 44–45.) This is so in part
because Plaintiffs provide no information as to when they “made inquiry” to Defendants. (Id. at ¶
34.) Read generously, however, the Complaint appears to suggest Plaintiffs’ alleged “protected
activity” took place before March 25, 2019. (See id. at ¶¶ 29–36.) Plaintiff Smith and Lowe allege
they were “constructively discharged” two years and two months and one year and four months
after the alleged protected activity (id. at ¶¶ 44–45), respectively, “thus undermining any causal
nexus based on temporal proximity.” Chang v. Safe Horizons, 254 F. App’x 838, 839 (2d Cir.
2007) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)).
Accordingly, Plaintiffs fail to state a FLSA retaliation claim.
B. State Law Claim for Retaliation
“[D]istrict courts may decline to exercise supplemental jurisdiction over a claim ... if ...
the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §
1367(c)(3). With the dismissal of Plaintiffs’ FLSA overtime and retaliation claims, there remains
no independent jurisdictional basis for Plaintiffs’ remaining state law claims for retaliation (to the
extent they were alleged in the first place). See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy,
convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the
remaining state-law claims.”). In addition, where the federal claims are dismissed at an early stage
in the litigation, the Second Circuit has generally held that it is inappropriate for the district court
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to exercise supplemental jurisdiction. See, e.g., Giordano v. City of New York, 274 F.3d 740, 754–
55 (2d Cir. 2001); Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998); Castellano v. Bd. of Trs.
of Police Officers’ Variable Supplements Fund, 937 F.2d 752, 758 (2d Cir. 1991).
Accordingly, the Court declines to exercise supplemental jurisdiction over Plaintiffs’
remaining state law claims against Defendants.
III.
Plaintiffs’ Motion to Amend the Complaint
In the event the Complaint is dismissed, Plaintiffs request this Court grant leave to file an
Amended Complaint. (ECF No. 21.) To that end, Plaintiffs filed a Proposed Amended Complaint.
(Proposed Amended Complaint (“PAC”) (ECF No. 22-9).)
A district court may deny leave to amend when amendment would be futile because the
problem with the claim “is substantive [and] better pleading will not cure it.” Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000); see also Milanese v. Rust—Oleum Corp., 244 F.3d 104, 110 (2d
Cir. 2001) (“Leave to amend should be granted unless there is evidence of undue delay, bad faith,
undue prejudice, or futility.”). A proposed amendment is “futile” and thus must be denied where
it “fail[s] to cure prior deficiencies or to state a claim under Rule 12(b)(6) of the Federal Rules of
Civil Procedure.” Thea v. Kleinhandler, 807 F.3d 492, 496–97 (2d Cir. 2015) (internal quotation
marks and citation omitted).
Here, Plaintiffs propose a number of new allegations. These new allegations, however, do
little to move Plaintiffs’ claims from “conceivable” to “plausible.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). For example, Plaintiffs allege they “regularly worked in excess of 40 hours
per week but were denied overtime for hours worked in excess of 40 hours.” (PAC at ¶ 42.)
Moreover, Plaintiffs also allege they worked “beyond the end of the Court calendar but were denied
payment for those hours worked” and that they were “required to work during lunch without pay.”
(Id. at ¶ 43, 45.) Similar to the original Complaint, these allegations again leave out crucial details:
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the number of hours Plaintiffs work in a given week; the frequency of court dates; the average
length of a court session; the number of weeks in which scheduled court dates caused Plaintiffs to
work in excess of forty hours; and for which court dates, if any, Plaintiffs failed to work two hours
and generate 40 “transactions.” (See id. at ¶ 26.)
Plaintiffs attach exhibits to buttress their claims, but the exhibits provide little clarity. In
fact, Exhibit A to the PAC, a memorandum from Supervision Williams to the Town Board dated
September 25, 2019, suggests court dates occur “on average” twice a month for an average
duration of 2.6 hours. (ECF No. 22-9 at 14.) Considered alongside Exhibit C, a memorandum
from the Town Board to Plaintiffs dated December 28, 2018, it appears Plaintiffs were scheduled
to work 37.5-hour workweeks. (Id. at 18.) They only worked more than their standard 37.5-hour
workweek twice a month “on average,” and it is unclear when and if they worked enough hours to
exceed a 40-hour workweek. Moreover, even if they did exceed a 40-hour workweek, Plaintiffs
do not allege when and if they met the criteria for receiving a stipend for court attendance. Without
more specificity, Plaintiffs’ PAC fails to state a FLSA overtime claim.
Plaintiffs’ PAC also fails to state a FLSA retaliation claim. Although Plaintiffs now allege
they made a “complaint,” not an “inquiry,” into the Town’s alleged “FLSA violations,” they still
fail to articulate when this complaint was made and the substance of the complaint. (Compare
Compl. at ¶ 34 with PAC at ¶ 34, 40.) More importantly, Plaintiffs’ new allegations suffer from
the same defect as the original: the distance between the alleged protected activity and constructive
discharge spans more than a year, “thus undermining any causal nexus based on temporal
proximity.” Chang v. Safe Horizons, 254 F. App’x 838, 839 (2d Cir. 2007). Plaintiffs’ threadbare
factual allegations—that “Defendants thereafter retaliated against Plaintiffs by creating a work
environment so hostile as to compel Plaintiffs to leave their employment” (PAC at ¶ 41)—are
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insufficient to show how Plaintiffs’ complaint led to their constructive discharge over a year later.
Plaintiffs’ PAC fails to state a FLSA retaliation claim.
Because Plaintiffs’ PAC fails to state a claim, this Court denies the PAC as “futile.” This
Court, however, acknowledges that the problems with the PAC may be cured with “better
pleading” in accordance with this Opinion. Cuoco, 222 F.3d at 112. Plaintiffs are thus granted
leave to replead any claims that were dismissed without prejudice.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. All of Plaintiffs’
claims are dismissed without prejudice. Plaintiffs’ motion to amend the Complaint is DENIED in
part and GRANTED in part. Plaintiffs’ motion to amend the Complaint is DENIED as futile
insofar as Plaintiffs seek leave to file the Proposed Amended Complaint. Plaintiffs’ motion to
amend the Complaint is otherwise GRANTED in accordance with this Opinion.
Plaintiffs are granted leave to replead any claims that were dismissed without prejudice.
They may file an Amended Complaint consistent with this Opinion on or before February 17,
2023. Failure to file an Amended Complaint within the time allowed, and without good cause to
excuse such failure, will result in dismissal with prejudice of all claims that this Court has
dismissed without prejudice in this Opinion.
If Plaintiffs do file an Amended Complaint,
Defendants are directed to file an answer or otherwise respond to the Amended Complaint on or
before March 10, 2023.
The Clerk of Court is kindly directed to terminate the motions at ECF Nos. 16 and 21.
SO ORDERED:
Dated:
January 17, 2023
White Plains, New York
NELSON S. ROMÁN
United States District Judge
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