Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bustillos v. Academy Bus, LLC

United States District Court, Second Circuit

January 13, 2014

Walter Bustillos, Plaintiff,
v.
Academy Bus, LLC, et al., Defendants.

OPINION AND ORDER

ALISON J. NATHAN, District Judge.

Plaintiff Walter Bustillos has filed this action alleging violations of the federal Fair Labor Standards Act (FLSA), the New York Minimum Wage Act, and the New York Labor Law's Notices and Record-Keeping Requirements. (Am. Compl. ¶¶ 29-46). Defendants move to dismiss his claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

In determining whether to dismiss a complaint for failure to state a claim, a court must "construe plaintiffs' complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in plaintiffs' favor." Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009); see also Carver v. City of N.Y., 621 F.3d 221, 225 (2d Cir. 2010). However, to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter 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)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although a complaint need not contain detailed factual allegations, it may not rest on mere labels, conclusions, or a formulaic recitation of the elements of the cause of action, and the factual allegations "must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. "Determining 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.'" Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F.3d 106, 114 (2d Cir. 2013) (quoting Iqbal, 556 U.S. at 679)

Taking the allegations in the Amended Complaint as true, Defendants are four limited liability companies offering "transportation services" in New York and a number of nearby states. (Am. Compl. ¶¶ 4-7, 13). Defendants employed Mr. Bustillos as a bus driver between May 2005 and October 2012, during which time he was paid $14.70 per hour. (Am. Compl. ¶¶ 3, 19). Mr. Bustillos alleges that his "weekly schedule varied from week to week and during his tenure with the Defendants, [he] would regularly work from 60 to 90 hours per week, " but he provides no further factual context as to his hours worked. (Am. Compl. ¶ 23).

I. FEDERAL CLAIMS

A. Failure to Pay Minimum Wage

Mr. Bustillos's first claim is for the failure to pay the minimum wage under the FLSA. (Am. Compl. ¶¶ 29-34). The FLSA requires employers pay their employees a legally mandated minimum wage, currently set at $7.25 per hour. See 29 U.S.C. § 206(a)(1); Lundy, 711 F.3d at 116; Spiteri v. Russo, No. 12-cv-2780, 2013 U.S. Dist. LEXIS 128379, at *206-08 (E.D.N.Y. Sept. 7, 2013). Mr. Bustillos has wholly failed to allege facts supporting a claim that he was not paid the minimum wage.

The only allegation in the Amended Complaint as to Mr. Bustillos's hourly rate establishes that he was paid $14.70 per hour-close to twice the current minimum wage. (Am. Compl. ¶ 22). Although Mr. Bustillos alleges in conclusory terms that "[t]hroughout [his] employment with Defendants, Defendants failed to pay him for all hours that he worked, " (Am. Compl. ¶ 20; see also id. ¶ 25), the Amended Complaint contains no further elaboration on this point and there is no indication that at any time Mr. Bustillos worked sufficient unpaid hours that his effective hourly wage fell below the minimum wage. See e.g., Lundy, 711 F.3d at 116 ("So long as an employee is being paid the minimum wage or more, FLSA does not provide recourse for unpaid hours below the 40-hour threshold, even if the employee also works overtime hours the same week."); Nakahata v. New York-Presbyterian Healthcare Sys., 723 F.3d 192, 201-02 (2d Cir. 2013). The Court can only speculate as to the factual basis of this claim, and it is therefore appropriately dismissed.

B. Failure to Pay Time-and-a-Half Overtime Wage

Mr. Bustillos's second claim is for failure to pay time-and-a-half rates for his hours worked in excess of forty hours per week, as required by the FLSA.[1] (Am. Compl. ¶¶ 35-36). The FLSA requires that "for a workweek longer than forty hours, " an employee who works in "excess of forty hours" shall be paid for that excess work "at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1); Lundy, 711 F.3d at 113-14.

Defendants have moved to dismiss Mr. Bustillos's claim for unpaid time-and-a-half overtime wages for failure to meet the pleading standards for such claims. For the most part, Mr. Bustillos's Amended Complaint consists of conclusory statements that he "regularly worked in excess of forty (40) hours per workweek" (Am. Compl. ¶¶ 24, 36) and was not paid a time-and-a-half rate for those excess hours. (Am. Compl. ¶¶ 21, 24, 37-38). Under recent Second Circuit precedent, such restatements of the FLSA's statutory language do not provide sufficient factual context to survive a motion to dismiss. See, e.g., DeJesus v. HF Mgmt. Servs., 726 F.3d 85, 89-90 (2d Cir. 2013); Nakahata v. New York-Presbyterian Healthcare Sys., 723 F.3d 192, 199-02 (2d Cir. 2013). Mr. Bustillos, however, has also added incrementally more detail than these allegations in a single paragraph of his Amended Complaint in which he attests that "Plaintiffs' weekly schedule varied from week to week and during his tenure with Defendants, Plaintiff would regularly work from 60 to 90 hours per week." (Am. Compl. ¶ 23). The question before the Court is whether this assertion provides sufficient factual context to "nudge' [his] claim from conceivable to plausible.'" DeJesus, 726 F.3d 85, 90 (2d Cir. 2013) (quoting Twombly, 550 U.S. at 570).

Last year the Second Circuit published a trio of cases addressing the pleading requirements to state a FLSA claim for unpaid overtime. Taking up the question for the first time in Lundy v. Catholic Health System of Long Island, the Second Circuit held 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. The Second Circuit concluded that the Plaintiffs failed to state a claim because they "have not alleged a single workweek in which they worked at least 40 hours and also worked uncompensated time in excess of 40 hours." Id. For instance, one plaintiff in Lundy alleged (among other things) that she was "typically" scheduled to work three shifts per week, totaling 37.5 hours but would "occasionally" work an additional 12.5 hour shift. Id. The Second Circuit held these allegations were insufficient because she did not indicate "how occasionally" she worked such additional shifts and did not allege "that she was denied overtime pay in any such particular week." Id. at 114-15. Moreover, the plaintiff's other allegations relating to her estimated time working over meal breaks, during trainings, or before and after her scheduled shifts did not plausibly demonstrate that in any given week she worked more than 40 hours. Id. at 114-15

Next, in Nakahata v. New York-Presbyterian Healthcare System, the Second Circuit affirmed the district court's dismissal of a FLSA overtime claim. In that case, the plaintiffs alleged that that the defendants did not pay them for all of the hours that they worked, including meal breaks, training, and activities before and after their shifts. See Nakahata, 723 F.3d at 196-97. More generally, the plaintiffs also alleged that they "regularly worked hours both under and in excess of forty per week and were not paid for all of those hours." See id. at 199. Applying Lundy, the Second Circuit held that "[t]o plead a plausible FLSA overtime claim, plaintiffs must 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. at 201. In light of this rule, the Court affirmed the district court's dismissal of the plaintiffs FLSA overtime claims, explaining the plaintiffs "failed to plead sufficient facts to make it plausible that they worked uncompensated hours in excess of 40 in a given week." Id.

Most recently, in DeJesus v. HF Management Services, LLC, the plaintiff alleged that she worked "more than forty hours per week during some or all weeks' of her employment" and was not paid time-and-a-half for each hour in excess of forty hours. DeJesus, 726 F.3d at 87. DeJesus held that these bare allegations amounted only to a recitation of the statutory language of the FLSA and were insufficient to state a claim. See id. at 89 (quoting with approval a First Circuit case, Pruell v. Caritas Christi, 678 F.3d 10, 13 (1st Cir. 2012), that noted that "such a formulation was one of those borderline phrases' that while not stating an ultimate legal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.