Collette DAVIS; Erica Williams; Kevin Keller; Charlene Murdoch, on behalf of themselves and all other employees similarly situated, Appellants v. ABINGTON MEMORIAL HOSPITAL; Abington Health; Abington Memorial Hospital Foundation; Lansdale Hospital. Kenneth Lynn; Charlene Agnew; Margaret Knapp, on behalf of themselves and all other employees similarly situated, Appellants v. Aria Health System; Aria Health-Frankford Campus; Aria Health-Torresdale Campus; Aria Health-Bucks County Campus. Kenneth Lynn; Acadia Wilcox; Loretta McDonnell; Gerardina Ilaria; Patricia Green, on behalf of themselves and all other employees similarly situated, Appellants v. Jefferson Health System; Thomas Jefferson University Hospital; McGee Rehabilitation Hospital; Main Line Health Inc; Albert Einstein Healthcare Network; Aria Health System. Cassandra Ruff; Kesha Cardwell, on behalf of themselves and all other employees similarly situated, Appellants v. Albert Einstein Healthcare Network; Albert Einstein Medical Center John Duncheskie; Diane Read; Thelma Harris; Eleanor Jackson, Appellants v. Temple University Health; Temple University Hospital; Episcopal Hospital; Jeanes Hospital.
Nos. 12-3512, 12-3514, 12-3515, 12-3521, 12-3522
United States Court of Appeals, Third Circuit
August 26, 2014
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) Feb. 10, 2014.
765 F.3d 236
Contrary to Erwin‘s position, we do not believe that our holding will “end this Court‘s review for miscarriage of justice.” Reply Br. 10. We will continue to review conscientiously whether enforcing defendants’ appellate waivers would yield a miscarriage of justice (as well as whether a waiver was knowingly and voluntarily entered into and whether the issues raised fall within the scope of the waiver) but, as discussed supra, any such defendant must accept the risk that, if he does not succeed, enforcing the waiver may not be the only consequence.
Accordingly, we will grant this relief pursuant to
* * * * * *
“[B]oth the government and the defendant must fulfill promises made to achieve a plea agreement.” United States v. Forney, 9 F.3d 1492, 1500 n. 2 (11th Cir.1993). Yet, “[i]n what has become a common sequence, a defendant who waived his appellate rights as part of a plea bargain, and received a substantial benefit in exchange, has failed to keep his promise.” United States v. Whitlow, 287 F.3d 638, 639 (7th Cir.2002). We hold that, like any defendant who breaches a plea agreement in advance of sentencing, a defendant who breaches his plea agreement by appealing thereby subjects himself to the agreement‘s breach provision. The breach provision in this case permits the Government to withdraw its motion for a downward departure. To that end, we will vacate and remand Erwin‘s judgment of sentence. Consistent with our precedent, Erwin will be resentenced by a different district judge than the one who presided over the now-vacated sentence. See Nolan-Cooper, 155 F.3d at 241; see also Williams, 510 F.3d at 428.13
IV.
For the foregoing reasons, we will vacate Erwin‘s judgment of sentence and remand to the District Court for resentencing before a different judge.
Kristen E. DiMaria, Esq., Julie A. Donahue, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, Andrea M. Kirshenbaum, Esq., Post & Schell, Christopher J. Moran, Esq., Jan P. Levine, Esq., Andrea T. Ohta, Esq., Sara B. Richman, Esq., Robin P. Sumner, Esq., Justin J. Williams, Esq., Pepper Hamilton, Larry R. Wood, Jr., Esq., Blank Rome, Alexandra Bak-Boychuk, Esq., Shannon D. Farmer, Esq., David S. Fryman, Esq., John B. Langel, Esq., Rebecca L. Massimini, Esq., Ballard Spahr, Philadelphia, PA, Eric J. Bronstein, Esq., John M. Elliott, Esq., Mark J. Schwemler, Esq., Gregory S. Voshell, Esq., Elliott Greenleaf & Siedzikowski, Blue Bell, PA, Sean P. McDevitt, Esq., Kali T. Wellington-James, Esq., Pepper Hamilton, Berwyn, PA, for Appellees.
Before: CHAGARES, SHWARTZ, and ALDISERT, Circuit Judges.
CHAGARES, Circuit Judge.
This is an appeal from, inter alia, the District Court‘s order dismissing the third amended complaint in five cases: Collette Davis, et al. v. Abington Memorial Hospital, et al., No. 09-cv-05520; Kenneth Lynn, et al. v. Aria Health System, et al., No. 09-cv-05548; Kenneth Lynn, et al. v. Jefferson Health System, Inc., et al., No. 09-cv-05549; Cassandra Ruff, et al. v. Albert Einstein Healthcare Network, et al., No. 09-cv-05550; and John Duncheskie, et al. v. Temple University Health System, Inc., No. 09-cv-05551.1 Each of these putative collective and class actions arose from the plaintiffs’ allegations that their employers, defendant healthcare systems and affiliates (collectively, the “defendants“), implemented timekeeping and pay policies that failed to compensate them for all hours worked in violation of the Fair Labor Standards Act (“FLSA“) and Pennsylvania law. For the reasons that follow, we will affirm.
I.
The five cases on appeal are among several similar actions brought by a single law firm alleging systemic underpayment in the healthcare industry. The parties are nurses and other patient-care professionals, on behalf of a putative class, and their alleged employers. Allegedly, the defendants2 maintained three unlawful timekeeping and pay policies (collectively, the “Policies“). First, under the “Meal Break Deduction Policy,” the defendants’ timekeeping system automatically deducted thirty minutes of pay daily for meal breaks without ensuring that the employees actually received a break. Second, under the “Unpaid Pre- and Post-Schedule Work Policy,” the defendants prohibited employees from recording time worked outside of their scheduled shifts. Third, under the “Unpaid Training Policy,” the defendants did not pay employees for time spent at “compensable” training sessions. Because of the Policies, the plaintiffs allege that they “regularly worked hours both under and in excess of [forty] per week and were not paid for all of those hours.” Appendix (“App.“) 845, 1469, 1655, 2330-31, 3259.
In November 2009, the plaintiffs filed parallel complaints in the United States District Court for the Eastern District of Pennsylvania against the defendants, asserting violations of the FLSA,
The defendants timely removed six of the seven state court actions to federal court, on the basis that several of the claims were completely preempted by ERISA § 502(a)(1),
The plaintiffs filed amended complaints on October 15, 2010, averring, as before, that the defendants: denied them overtime in violation of the FLSA; failed to keep accurate records and breached their fiduciary duties in violation of ERISA; and, in so doing, violated RICO. The amended complaints also reasserted all of the state law claims. The District Court granted the defendants’ joint motions to dismiss in a consolidated opinion. It found that the amended complaints did not plausibly allege that the defendants were the plain-
After the plaintiffs filed a second amended complaint in each case, the parties stipulated to the filing of third amended complaints. The third amended complaints, which were filed on February 10, 2012, abandoned the ERISA and RICO claims and instead sought relief solely under the FLSA and Pennsylvania law. The defendants moved to dismiss, and the District Court granted their motions in another consolidated opinion. The court dismissed the plaintiffs’ FLSA claims with prejudice5 on the grounds that they failed to plausibly allege employer-employee relationships be-tween the plaintiffs and all of the defendants, or that any of the named plaintiffs had worked overtime and were not compensated. The court again “decline[d] to exercise supplemental jurisdiction” over the remaining state law claims, which it dismissed without prejudice to their reassertion in state court. App. 7, 72. The plaintiffs timely appealed “each and every part of this final order,” including the District Court‘s September 15, 2010 orders denying their motions to remand the state cases to the Philadelphia Court of Common Pleas. App. 8.
II.
The District Court had subject matter jurisdiction over the plaintiffs’ FLSA claims pursuant to
A.
The plaintiffs first argue that the defendants did not compensate them for hours worked in excess of forty per week during meal breaks, at training programs, and outside of their scheduled shifts. The District Court found that the plaintiffs’ overtime claim was factually inadequate, on the ground that, “[t]he abundance of allegations notwithstanding,” the plaintiffs “failed to allege a single specific instance in which a named Plaintiff worked overtime and was not compensated for this time.” App. 70, 72 n.65. On appeal, the plaintiffs insist that “[n]othing in Twombly or Iqbal” requires them to plead the exact dates and times that they worked overtime. Plaintiffs’ Br. 27.
“The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by contract.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 69 (2013). Generally, an employer must pay its employees at least a specified minimum hourly wage for work performed,
The level of detail necessary to plead a FLSA overtime claim poses a more difficult question—one that has “divided courts around the country.” Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir.2013). Some courts have required plaintiffs to allege approximately the number of hours worked for which wages were not received. See, e.g., Jones v. Casey‘s Gen. Stores, 538 F. Supp. 2d 1094, 1102-03 (S.D. Iowa 2008) (holding that a complaint alleging that the plaintiffs “regularly worked regular time and overtime each week but were not paid regular and overtime wages” was “implausible on its face” (quotation marks omitted)). Other courts have adopted a more lenient approach, holding that, “[w]hile Defendants might appreciate having Plaintiffs’ estimate of the overtime hours worked at [the pleading stage],” a FLSA complaint will survive dismissal so long as it alleges that the employee worked more than forty hours in a week and did not receive overtime compensation. Butler v. DirectSat USA, LLC, 800 F. Supp. 2d 662, 668 (D. Md. 2011).
We agree with the middle-ground approach taken by the Court of Appeals for the Second Circuit in Lundy v. Catholic Health System of Long Island Inc., 711 F.3d 106 (2d Cir.2013). In Lundy, the
Similar to the plaintiffs here, the plaintiffs in Lundy alleged that their employers, a collection of hospitals, healthcare providers, and related entities, failed to compensate them adequately for time worked during breaks, outside of scheduled shifts, and during required training sessions. Id. at 109. Plaintiff Patricia Wolman “typically” worked 37.5 hours per week, “occasionally” worked an additional 12.5-hour or “slightly longer” shift, and was not compensated for, inter alia, work done during thirty-minute meal breaks (which were “typically” missed or interrupted) or outside of her scheduled shifts (“typically” an extra fifteen minutes per shift). Id. at 114-15 (quotation marks omitted). The court held that Wolman failed to state a claim for overtime because, while her allegations could “theoretically” put her over the forty-hour mark “in one or another unspecified week (or weeks),” they “suppl[ied] nothing but low-octane fuel for speculation” as to that conclusion. Id. at 115. Plaintiff Kelly Iwasiuk similarly averred that she “typically” worked thirty hours per week, worked extra shifts totaling between 37.5 and forty-five hours “approximately twice a month,” and was not compensated for, inter alia, work done during meal breaks or outside of her scheduled shifts. Id. (quotation marks omitted). Like Wolman, Iwasiuk “d[id] not allege that she was denied overtime pay in a week where she worked ... additional shifts.” Id. The court therefore held that Iwasiuk‘s allegations were similarly implausible. Id.
Under
In the present case, each named plaintiff alleges that he or she “typically” worked shifts totaling between thirty-two and forty hours per week and further alleges that he or she “frequently” worked extra time. For instance, Collette Davis “typically” worked the 3:00 p.m. to 11:30 p.m. shift five days per week, totaling forty hours, exclusive of the 2.5 hours deducted from her pay for meal periods (during which she “frequently” worked), the one to two hours she worked after her shift, and the twenty hours of annual continuing education units she was required to complete. App. 820-21. Because they “typically worked full time, or very close to it” and “also worked several hours of unpaid work each week,” Plaintiffs’ Br. 24, the plaintiffs surmise that “[i]t [is] certainly plausible that at least some of the uncompensated work was performed during weeks when the plaintiffs[‘] total work time was more than forty hours,” Plaintiffs’ Br. 27. We disagree.
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
In reaching this conclusion, we do not hold that a plaintiff must identify the exact dates and times that she worked overtime. For instance, a plaintiff‘s claim that she “typically” worked forty hours per week, worked extra hours during such a forty-hour week, and was not compensated for extra hours beyond forty hours he or she worked during one or more of those forty-hour weeks, would suffice.7 But no such allegation is present in this case.
Accordingly, the District Court did not err in dismissing the plaintiffs’ claims for overtime under the FLSA.
B.
The plaintiffs also challenge the District Court‘s determination that their claims for gap time are not within the FLSA‘s purview.
In addition to seeking unpaid overtime compensation, employees may seek to recover wages for uncompensated hours worked that “fall between the minimum wage and the overtime provisions of the FLSA,” otherwise known as “gap time.” Adair v. City of Kirkland, 185 F.3d 1055, 1062 (9th Cir.1999). Gap time refers to time that is not covered by the overtime provisions because it does not exceed the overtime limit, and to time that is not covered by the minimum wage provisions because, even though it is uncompensated, the employees are still being paid a minimum wage when their salaries are averaged across their actual time worked.
Courts widely agree that there is no cause of action under the FLSA for “pure” gap time wages—that is, wages for unpaid work during pay periods without overtime. See, e.g., Nakahata, 723 F.3d at 201 (“[T]he FLSA is unavailing where wages do not fall below the statutory minimum and hours do not rise above the overtime threshold.“); Monahan v. Cnty. of Chesterfield, Va., 95 F.3d 1263, 1280 (4th Cir.1996) (same). However, some courts have recognized as viable gap time claims by an employee who exceeds the overtime threshold, but whose employment contract does not compensate him or her for all non-overtime hours (“overtime gap time“). See, e.g., Monahan, 95 F.3d at 1272-73; Valcho v. Dallas Cnty. Hosp. Dist., 658 F. Supp. 2d 802, 811-12 (N.D. Tex.2009); Koelker v. Mayor & City Council of Cumberland, 599 F. Supp. 2d 624, 635 (D. Md. 2009); cf., e.g.,
As an initial matter, we agree with the clear weight of authority and hold that pure gap time claims—straight time wages for unpaid work during pay periods without overtime—are not cognizable under the FLSA, which requires payment of minimum wages and overtime wages only. See
C.
The plaintiffs finally contend that the District Court erred in denying them another opportunity to amend the complaint. We review for abuse of discretion. Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir.2002).
In its September 8, 2011 opinion dismissing the amended complaint, the District Court emphasized that any repleaded allegations would have to remedy the “gaping deficiencies” identified by “at least seven other district courts” that had dismissed similar complaints filed by the same counsel. App. 55 & n.70. “A District Court has discretion to deny a plaintiff leave to amend where the plaintiff was
III.
For the foregoing reasons, the District Court‘s orders will be affirmed.