Whiteside v. Hover-Davis-Inc.

20-798
Whiteside v. Hover-Davis-Inc.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term 2020

(Argued: October 9, 2020 Decided: April 27, 2021)

No. 20-798

––––––––––––––––––––––––––––––––––––

MARK WHITESIDE

Plaintiff-Appellant,

-v.-

HOVER-DAVIS, INC., UNIVERSAL INSTRUMENTS CORPORATION

Defendants-Appellees.

––––––––––––––––––––––––––––––––––––

Before: LIVINGSTON, Chief Judge, CHIN, Circuit Judge, and ENGELMAYER,
District Judge. 1

Plaintiff-Appellant Mark Whiteside appeals from a March 2, 2020 judgment
of the United States District Court for the Western District of New York (Siragusa,
J.) dismissing this action pursuant to Federal Rule of Civil Procedure 12(b)(6). On
appeal, Whiteside argues that the district court erred in holding that the Fair Labor
Standards Act’s general two-year statute of limitations bars his claim for unpaid

1 Judge Paul A. Engelmayer, United States District Judge for the Southern
District of New York, sitting by designation.

1
overtime wages. Instead, Whiteside maintains that the Fair Labor Standards
Act’s three-year statute of limitations for willful violations should apply to his
claim because he alleged that his employer willfully violated the Fair Labor
Standards Act. We hold that the mere allegation of willfulness is insufficient for
a plaintiff to secure the benefit of the three-year exception to the Fair Labor
Standards Act’s general two-year statute of limitations at the pleadings stage.
Rather, for the three-year exception to apply at the pleadings stage, a plaintiff must
plead facts that plausibly give rise to an inference of willfulness. Whiteside failed
to do so here. Accordingly, we AFFIRM the judgment of the district court.

Judge Chin dissents in a separate opinion.

FOR PLAINTIFF-
APPELLANT: DEBRA L. GREENBERGER (Ananda V. Burra,
on the brief), Emery Celli Brinckerhoff &
Abady LLP, New York, NY.

CHRISTOPHER Q. DAVIS, The Law Office of
Christopher Q. Davis, PLLC, New York,
NY.

FOR DEFENDANTS-
APPELLEES: MICHAEL D. BILLOK, Bond, Schoeneck &
King PLLC, Saratoga Springs, NY.

DEBRA ANN LIVINGSTON, Chief Judge:

Plaintiff-Appellant Mark Whiteside (“Whiteside”) commenced this action

against Defendants-Appellees Hover-Davis, Inc. (“Hover-Davis”) and Universal

Instruments Corporation (together, “Defendants”) on January 8, 2019. Whiteside

alleges, inter alia, that Defendants violated the Fair Labor Standards Act (“FLSA”)

by failing to pay him overtime wages from January 2012 through January 26, 2016.

2
He further alleges that Defendants willfully violated the FLSA—i.e., with

knowledge that, or reckless disregard as to whether, the FLSA prohibited their

conduct.

Claims for unpaid overtime compensation under the FLSA are generally

subject to a two-year statute of limitations. 29 U.S.C. § 255(a). But claims for

unpaid overtime compensation arising out of an employer’s willful violation of the

FLSA are subject to a three-year statute of limitations. Id. The district court

(Siragusa, J.) dismissed Whiteside’s FLSA claim as barred by the two-year

limitations period because Whiteside failed to allege plausibly that Defendants

willfully violated the FLSA. This appeal addresses whether a plaintiff at the

pleadings stage must allege facts that give rise to a plausible inference of

willfulness for the three-year exception to the FLSA’s general two-year statute of

limitations to apply. We conclude that a plaintiff must do so and that Whiteside

failed to do so here. Accordingly, we AFFIRM the judgment of the district court.

3
 BACKGROUND

I. Factual Background 2

From August 1999 to June 2018, Whiteside worked for Hover-Davis, a

wholly owned subsidiary of Universal Instruments Corporation, in Rochester,

New York. Hover-Davis specializes in the design, development, and

manufacture of automation assembly equipment. Throughout his employment

at Hover-Davis, Whiteside’s job title was “Quality Engineer,” and Defendants

classified him as a salaried employee exempt from overtime pay requirements

under the FLSA. Whiteside’s job responsibilities as a Quality Engineer included

monitoring production lines and developing and implementing product tests to

ensure product quality.

In January 2012, an unidentified Hover-Davis employee asked Whiteside

“to switch positions” and to perform the work of a “Repair Organization

Technician.” App’x at 11. From that point until January 26, 2016, Whiteside

exclusively performed the work of a Repair Organization Technician, fixing

products that Defendants manufactured. Whiteside’s supervisor, Juliann

2The factual background presented here is derived from the allegations in the
Third Amended Complaint, which we accept as true in considering a motion to dismiss.
“App’x” refers to the joint appendix, Dkt. No. 35.

4
Nelson, knew that Whiteside was performing repair work, and he continued to

assign Whiteside such work, as did Nelson’s supervisor, Operations Manager

Ronald Bradley (“Bradley”).

At the time, Defendants classified Repair Organization Technicians as

hourly employees, not exempt from overtime pay requirements under the FLSA.

Indeed, Defendants classified the individual who Whiteside replaced in the role,

and all of Whiteside’s co-workers in the role, as non-exempt employees. Despite

the change in Whiteside’s role and responsibilities, Defendants continued to treat

him as a salaried employee exempt from overtime pay requirements under the

FLSA. Consequently, although Whiteside worked approximately 45 to 50 hours

per week throughout the period from January 2012 through January 2016,

Defendants neither paid him overtime nor provided him with accurate wage

statements.

Whiteside resumed his work as a Quality Engineer on January 26, 2016.

But in August 2017, he was diagnosed with cancer. Intensive medical treatments

required Whiteside to take disability leave for several months. When Whiteside

returned to work in April 2018, Bradley told him that Hover-Davis was ceasing

5
production of prosthetic arms, the product with which he had been working.

Whiteside’s employment was terminated on June 18, 2018.

II. Procedural History

Whiteside commenced this action on January 8, 2019, alleging various

claims under the Americans with Disabilities Act (“ADA”), the New York Human

Rights Law (“NYHRL”), the FLSA, and the New York Labor Law (“NYLL”). He

filed the operative pleading—the Third Amended Complaint (“TAC”)—on June

19, 2019. Like the original complaint, the TAC seeks relief under the ADA, the

NYHRL, the FLSA, and the NYLL.

On July 3, 2019, Defendants filed a motion to dismiss the TAC pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure, which the district court

subsequently granted. The district court dismissed Whiteside’s FLSA claim as

barred by the applicable two-year statute of limitations. According to the district

court, the three-year exception for willful violations of the FLSA did not apply

because Whiteside failed to allege plausibly that Defendants willfully violated the

FLSA. As for Whiteside’s ADA claim, the district court found that Whiteside

failed to allege facts plausibly giving rise to an inference of discrimination on the

basis of Whiteside’s medical condition. Having disposed of Whiteside’s federal

6
claims, the district court declined to exercise supplemental jurisdiction over his

remaining state law claims. Whiteside appeals, challenging only the district

court’s decision to dismiss his FLSA claim.

DISCUSSION

“We review de novo the district court’s judgment granting Defendants’

motion to dismiss.” Stratte-McClure v. Morgan Stanley, 776 F.3d 94, 99–100 (2d

Cir. 2015). Generally, “[t]he lapse of a limitations period is an affirmative defense

that a defendant must plead and prove.” Staehr v. Hartford Fin. Servs. Grp., Inc.,

547 F.3d 406, 425 (2d Cir. 2008) (citing FED. R. CIV. P. 8(c)(1)). Nevertheless, “a

defendant may raise an affirmative defense in a pre-answer Rule 12(b)(6) motion

if the defense appears on the face of the complaint.” Id. A court accordingly

may dismiss a claim on statute-of-limitations grounds at the pleadings stage “if

[the] complaint clearly shows the claim is out of time.” Harris v. City of New York,

186 F.3d 243, 250 (2d Cir. 1999). The limitations period for FLSA claims is two

years, “except that a cause of action arising out of a willful violation may be

commenced within three years.” 29 U.S.C. § 255(a).

Whiteside challenges the district court’s dismissal of his FLSA claim on two

grounds. First, contrary to the reasoning of the district court, Whiteside argues

7
that an FLSA plaintiff need not plead any facts giving rise to an inference of

willfulness to secure the benefit of the extended three-year statute of limitations

for willful violations of the FLSA. Rather, in Whiteside’s view, an FLSA plaintiff

need only assert at the pleadings stage that the defendant willfully violated the

FLSA. Second, Whiteside argues that, in any event, he pleaded facts sufficient to

give rise to an inference of willfulness.

We disagree and hold that: (1) a plaintiff must allege facts at the pleadings

stage that give rise to a plausible inference that a defendant willfully violated the

FLSA for the three-year exception to apply; and (2) Whiteside’s allegations fail to

give rise to such an inference here. Because the TAC clearly shows that Whiteside

commenced this action almost one year after the applicable two-year limitations

period expired, we conclude that the district court properly dismissed his FLSA

claim.

I

We first consider whether a plaintiff must plead facts that give rise to an

inference of willfulness to invoke the three-year exception at the pleadings stage.

Whiteside principally argues that the mere allegation of willfulness suffices in

light of the general tenet that a plaintiff need not anticipate a defendant’s possible

8
affirmative defenses. Defendants, on the other hand, maintain that Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),

require a plaintiff to allege willfulness plausibly.

We note at the outset that the Courts of Appeals are divided as to the

applicable pleading requirements in cases in which a plaintiff alleges willfulness

to obtain the benefit of an extended limitations period. On the one hand, for

instance, the Tenth Circuit has held that the mere allegation of willfulness suffices

for the three-year exception to apply under the FLSA. Fernandez v. Clean House,

LLC, 883 F.3d 1296, 1298–99 (10th Cir. 2018). On the other hand, the Sixth Circuit

has held that “[a] plaintiff ‘must do more than make the conclusory assertion that

a defendant acted willfully’” to invoke the three-year exception under the

structurally analogous Family and Medical Leave Act (“FMLA”). 3 Crugher v.

Prelesnik, 761 F.3d 610, 617 (6th Cir. 2014) (quoting Katoula v. Detroit Entm’t, LLC,

557 F. App’x 496, 498 (6th Cir. 2014)). The district courts of this Circuit are

likewise divided. Compare, e.g., Henry v. Nannys for Grannys Inc., 86 F. Supp. 3d

3 Like FLSA claims, FMLA claims are subject to a two-year limitations period that
extends to three years when the violation is “willful.” 29 U.S.C. § 2617(c)(1)–(2). Albeit
in a non-precedential summary order, this Court has previously required an FMLA
plaintiff plausibly to allege willfulness to obtain the benefit of this extended limitations
period. Offor v. Mercy Med. Ctr., 676 F. App’x 51, 53–54 (2d Cir. 2017) (summary order).

9
155, 161 (E.D.N.Y. 2015) (holding that the “general averment of willfulness

suffice[d]” for the three-year exception to apply), with Watkins v. First Student, Inc.,

No. 17-CV-1519, 2018 WL 1135480, at *7–8 & n.12 (S.D.N.Y. Feb. 28, 2018) (holding

that the willfulness exception did not apply because the plaintiff “failed to plead

sufficient facts to render plausible the conclusion that [the defendant] acted

willfully”).

We respectfully disagree with the Tenth Circuit and hold that FLSA

plaintiffs must plausibly allege willfulness to secure the benefit of the three-year

exception at the pleadings stage. At the start, in Twombly and Iqbal, the Supreme

Court emphasized that claims must rest on well-pleaded factual allegations. See

Iqbal, 556 U.S. at 678–80. Twombly and Iqbal accordingly suggest that courts

undertake a “two-pronged approach” in evaluating motions to dismiss, under

which they: (1) “identify[] pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth”; and (2) determine

whether the remaining “well-pleaded factual allegations,” assumed to be true,

“plausibly give rise to an entitlement to relief.” Id. at 679; see also Hayden v.

Paterson, 594 F.3d 150, 161 (2d Cir. 2010). The working principle underlying the

first step of this analysis is the notion that a court should not accept as true

10
allegations that amount to mere “legal conclusions,” Iqbal, 556 U.S. at 678,

including those concerning a defendant’s state of mind, id. at 686–87; see also Biro

v. Conde Nast, 807 F.3d 541, 544–45 (2d Cir. 2015).

Under this framework, a court need not accept as true a plaintiff’s

conclusory allegation that a defendant willfully violated the FLSA. Even prior to

Iqbal and Twombly, FLSA plaintiffs bore some obligation to allege willfulness to

obtain the benefit of the three-year exception at the pleadings stage—that is, where

an FLSA complaint did not aver willfulness, the two-year limitations period

applied by default. 4 Cf. Frasier v. Gen. Elec. Co., 930 F.2d 1004, 1008 (2d Cir. 1991)

(noting that upon amending her complaint on remand, the plaintiff would be

required to “in good faith allege that [the defendant’s] conduct was willful . . . to

assert a viable claim with respect to conduct that occurred prior to” the two-year

limitations period). In requiring FLSA plaintiffs to allege willfulness plausibly,

we merely conform that obligation to the plausibility pleading regime. Whether

a defendant has willfully violated the FLSA is a mixed question of law and fact on

which the plaintiff carries the burden of proof. See Herman v. RSR Sec. Servs. Ltd.,

4 The same was true of FMLA plaintiffs who sought to obtain the benefit of the
FMLA’s three-year limitations period for willful violations. See Ricco v. Potter, 377 F.3d
599, 602–03 (6th Cir. 2004), abrogated by Crugher, 761 F.3d at 617 n.9.

11
172 F.3d 132, 139, 141 (2d Cir. 1999). An averment of “willfulness” is thus precisely

the sort of legal conclusion that Twombly and Iqbal counsel must be supported by

factual allegations at the pleadings stage.

To be sure, as Whiteside notes, the question of willfulness under the FLSA

is relevant to the statute-of-limitations affirmative defense and a plaintiff

ordinarily need neither anticipate, nor plead facts to avoid, a defendant’s

affirmative defenses at the pleadings stage. See Abbas v. Dixon, 480 F.3d 636, 640

(2d Cir. 2007). But Whiteside’s reliance on this general rule ignores the

substantive distinction that Congress drew in the FLSA between claims for

ordinary and willful violations.

The Supreme Court underscored this distinction in McLaughlin v. Richland

Shoe Co., in which it defined willfulness under the FLSA in part through an

analysis of the history of the FLSA’s limitations provision. 486 U.S. 128, 131–33

(1988). As the Court recounted, when Congress enacted the FLSA in 1938, it did

not contain a limitations provision. Id. at 131. But in 1947, Congress enacted the

Portal-to-Portal Act, which provided a two-year limitations period for all FLSA

claims. Id. at 131–32. Almost two decades later, in 1965, the Secretary of Labor

proposed replacing the two-year limitations period with a general three-year

12
limitations period. Id. at 132. Congress declined to adopt the proposal but “for

reasons that are not explained in the legislative history,” it enacted the three-year

willfulness exception. Id.

Based on this history, the Court reasoned, “[t]he fact that Congress did not

simply extend the limitations period to three years, but instead adopted a two-

tiered statute of limitations, makes it obvious that Congress intended to draw a

significant distinction between ordinary violations and willful violations” of the

statute. Id. (emphasis added). Out of concern for “virtually obliterat[ing]” this

distinction, the Court declined to adopt a standard for willfulness that would have

required a plaintiff to show only “that an employer knew that the FLSA ‘was in

the picture.’” Id. at 132–33. Instead, it adopted a standard requiring a plaintiff

to show “that the employer knew or showed reckless disregard for the matter of

whether its conduct was prohibited by the statute.” Id. at 133.

Bearing in mind the distinction the Supreme Court highlighted, willfulness

operates as an independent element of claims for willful violation of the FLSA—a

subset of FLSA claims pursuant to which an employer is subject to heightened

liability. 5 In contrast to claims for willful violation of the FLSA, intent is relevant

5 In this respect, we disagree with the Tenth Circuit’s conclusion “that willfulness

13
to ordinary FLSA claims only to the extent that an employer can defeat an award

of liquidated damages upon “establishing, by ‘plain and substantial’ evidence,

subjective good faith and objective reasonableness.” Reich v. S. New Eng.

Telecomms. Corp., 121 F.3d 58, 70–71 (2d Cir. 1997) (quoting Martin v. Cooper Elec.

Supply Co., 940 F.2d 896, 907 (3d Cir. 1991)). In extending the limitations period

for an additional year based upon an employer’s intent, claims for willful violation

of the FLSA act as “a punitive measure” for employers who are more culpable than

those who violate the statute only negligently. Brock v. Richland Shoe Co., 799 F.2d

80, 84 (3d Cir. 1986), aff’d, McLaughlin, 486 U.S. 128. Ultimately, requiring FLSA

plaintiffs plausibly to plead willfulness respects the distinction between ordinary

FLSA claims and claims for willful violations and prevents blurring that

distinction, which the McLaughlin Court cautioned against.

It also aligns an FLSA plaintiff’s pleading burden with her burdens of proof

on summary judgment and at trial, avoiding “the unusual circumstance[]” in

which “the burdens of pleading and persuasion are not on the same party.”

Fernandez, 883 F.3d at 1299. Of course, an FLSA defendant bears the usual burden

is not relevant to the elements of [a plaintiff’s] claims but only to the statute-of-limitations
defense.” Fernandez, 883 F.3d at 1298.

14
of proving its statute-of-limitations defense at trial by showing that the plaintiff’s

claim is out of time. But as noted above, the plaintiff, not the defendant, “bears

the burden of proof” as to the question of willfulness, Herman, 172 F.3d at 141—

i.e., as to whether the two-year or three-year limitations period will apply. This

question is therefore distinguishable from those typically attendant to our

evaluation of a defendant’s affirmative defense at the pleadings stage. 6

Moreover, the plausibility requirement we acknowledge here accords with

decisions in which we have required plaintiffs to plead the elements of certain

exceptions to the statute of limitations. The FLSA’s three-year limitations period

for willful violations is the exception, not the rule. See 29 U.S.C. § 255(a)

(providing that the limitations period for FLSA claims is two years “except that a

cause of action arising out of a willful violation” is subject to a three-year

limitations period (emphasis added)); McLaughlin, 486 U.S. at 129, 132, 135

(characterizing the three-year limitations period as an “exception”). We have

previously required plaintiffs relying “on a theory of equitable estoppel to save a

6 By contrast, for example, an FLSA plaintiff need not allege any facts at the
pleadings stage to support the position that she is a non-exempt employee under the
statute because “a claim of exemption under the FLSA is an affirmative defense, on which
the employer bears the burden of proof.” Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85,
91 n.7 (2d Cir. 2013) (internal quotation marks and citation omitted).

15
claim that otherwise appears untimely on its face . . . [to] specifically plead facts

that make entitlement to estoppel plausible (not merely possible).” Thea v.

Kleinhandler, 807 F.3d 492, 501 (2d Cir. 2015). When a plaintiff relies on a theory

of willfulness to save an FLSA claim that otherwise appears untimely on its face,

it should similarly be incumbent on the plaintiff to plead facts that make

entitlement to the willfulness exception plausible.

Last, to the extent that Whiteside argues that Rule 9(b) allows him to plead

willfulness, without more, to obtain the benefit of the three-year limitations

period, he is mistaken. Rule 9(b) provides that “[m]alice, intent, knowledge, and

other conditions of a person’s mind may be alleged generally.” FED. R. CIV. P.

9(b). In Iqbal, the Supreme Court explained that “‘generally’ is a relative term . . .

[that] is to be compared to the particularity requirement applicable to fraud or

mistake” and that Rule 9(b) “does not give [a party] license to evade the less

rigid—though still operative—strictures of Rule 8.” 556 U.S. at 686–87. We

have since affirmed that “Rule 8’s plausibility standard applies to pleading intent.”

Biro, 807 F.3d at 544–45 (2d Cir. 2015).

For these reasons, we hold that the mere allegation of willfulness is

insufficient to allow an FLSA plaintiff to obtain the benefit of the three-year

16
exception at the pleadings stage. Rather, a plaintiff must allege facts that permit

a plausible inference that the defendant willfully violated the FLSA for that

exception to apply. We decline to adopt a rule that would allow a claim that a

“complaint clearly shows [to be] out of time,” Harris, 186 F.3d at 250, to proceed

through discovery upon the insertion of a single legal conclusion—indeed, a single

word—into a complaint.

II

Having determined that an FLSA plaintiff must plausibly allege willfulness

to secure the benefit of the three-year limitations period, we next consider whether

Whiteside met that burden here. We conclude that the TAC fails to allege facts

that give rise to a plausible inference that Whiteside’s employer willfully violated

the FLSA. Accordingly, the district court did not err in dismissing this complaint

pursuant to Rule 12(b)(6).

A claim is facially plausible “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Iqbal, 556 U.S. at 678. For a plaintiff to nudge her claim

“‘across the line from conceivable to plausible,’ [she] must ‘raise a reasonable

expectation that discovery will reveal evidence’ of the wrongdoing alleged, ‘even

17
if it strikes a savvy judge that actual proof of those facts is improbable.’” Citizens

United v. Schneiderman, 882 F.3d 374, 380 (2d Cir. 2018) (quoting Twombly, 550 U.S.

at 570, 556). However, “[w]here a plaintiff pleads facts that are ‘merely consistent

with’ a defendant’s liability, [her complaint] ‘stops short of the line between

possibility and plausibility,’” and she fails to demonstrate an entitlement to relief.

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

“An employer willfully violates the FLSA when it ‘either knew or showed

reckless disregard for the matter of whether its conduct was prohibited by’ the

Act.” Young v. Cooper Cameron Corp., 586 F.3d 201, 207 (2d Cir. 2009) (quoting

McLaughlin, 486 U.S. at 133). “Mere negligence is insufficient.” Id. That is, “if

an employer acts unreasonably, but not recklessly, in determining its legal

obligation, its action should not be considered willful.” Reich v. Waldbaum, Inc.,

52 F.3d 35, 39 (2d Cir. 1995) (internal quotation marks and alterations omitted)

(quoting McLaughlin, 486 U.S. at 135 n.13).

Here, Whiteside asks this Court to infer willfulness from the mere fact that

he was asked for a period of time to perform job responsibilities typically

performed by non-exempt employees even though he was classified as exempt.

Whiteside does not allege that Defendants adjusted his salary to reflect that of a

18
non-exempt employee. 7 Nor, as the district court noted, does he allege that he

ever complained about the situation to his managers. Similarly, Whiteside fails

to allege any details about who asked him to change roles or whether that

manager, or any other manager, said anything to him suggesting an awareness of

impropriety—details that would have plainly been within his knowledge and that

he could have included in any of his four complaints. Cf. Parada v. Banco Indus.

De Venezuela, C.A., 753 F.3d 62, 71 (2d Cir. 2014) (finding that summary judgment

was proper as to the question of willfulness under the FLSA because the plaintiff

“failed to adduce any evidence regarding how the misclassification occurred”).

Indeed, Whiteside fails to allege that his managers acted in any manner suggesting

an awareness that their actions violated or could violate the FLSA.

Overall, these allegations do not permit a plausible inference that

Defendants willfully violated the statute—whether by actual knowledge or, as the

dissent suggests, by reckless disregard. 8 On the contrary, they permit at most an

7 Notably, the TAC does not detail Whiteside’s salary as an exempt Quality
Engineer, and it does not indicate whether Whiteside’s salary exceeded that of a non-
exempt Repair Organization Technician working forty-five to fifty hours per week.
8 Of course, as the dissent notes, a plaintiff may plead willfulness on the theory
that the employer recklessly disregarded whether its conduct was prohibited by the
FLSA, even where the employer “may not have had actual knowledge of the violative
practices.” Dissent at 2 (quoting Herman, 172 F.3d at 141). But as we note above,

19
inference that Defendants negligently failed to reclassify Whiteside as a non-

exempt employee which, without more, is insufficient. In other words,

Whiteside fails to “raise a reasonable expectation that discovery will reveal

evidence of” Defendants’ willfulness. Citizens United, 882 F.3d at 380 (internal

quotation marks omitted) (quoting Twombly, 550 U.S. at 570, 556). Rather, he

“pleads facts that are merely consistent” with Defendants’ purported willfulness,

and his claim “stops short of the line between possibility and plausibility.” Iqbal,

556 U.S. at 678 (internal quotation marks omitted) (quoting Twombly, 550 U.S. at

557). 9

Whiteside simply fails to allege facts that in our view give rise to a plausible inference of
reckless disregard. Cf. Kuebel v. Black & Decker Inc., 643 F.3d 352, 363, 366 (2d Cir. 2011)
(holding that the question of willfulness was properly left for trial where one of the
plaintiff’s supervisors “conveyed to him that he was not to record overtime no matter
how many hours he actually worked”); Herman, 172 F.3d at 141–42 (holding that an
employer willfully violated the FLSA when he had “extensive knowledge” of the FLSA’s
requirements, knew of previous violations, and relied on assurances by corporate
decisionmakers despite their prior illegal activities).
The dissent suggests that we fault Whiteside for “failing to allege statements or
9

actions by defendants that directly demonstrate an awareness of their obligation to pay
Whiteside overtime.” Dissent at 4 (emphasis in original). We agree with the dissent
that an FLSA plaintiff may offer circumstantial allegations sufficient to permit a plausible
inference of willfulness at the pleadings stage. After all, as the dissent notes, the
question of willfulness may very well “turn on factors which a plaintiff cannot reasonably
be expected to know.” Gomez v. Toledo, 446 U.S. 635, 641 (1980). In our view, however,
the circumstantial allegations that Whiteside offers here are insufficient, without more,
to nudge his claim “across the line from conceivable to plausible,” Twombly, 550 U.S. at
570.

20
 Consequently, the FLSA’s general two-year statute of limitations governs

the timeliness of Whiteside’s claim. The TAC alleges that Defendants violated

the FLSA only through January 26, 2016, when Whiteside resumed work as a

Quality Engineer. The two-year statute of limitations thus expired on January 26,

2018. But Whiteside did not commence this action until almost another year later,

on January 8, 2019. As a result, the TAC itself demonstrates that Whiteside

commenced this action well after the two-year limitations period expired.

Accordingly, the district court properly dismissed Whiteside’s FLSA claim.

III

Because the district court properly dismissed Whiteside’s FLSA claim—and

Whiteside does not challenge the district court’s treatment of his ADA claim—the

district court did not abuse its discretion in declining to exercise supplemental

jurisdiction over his remaining state law claims. See Klein & Co. Futures, Inc. v.

Bd. of Trade of N.Y., 464 F.3d 255, 262 (2d Cir. 2006) (“It is well settled that where,

as here, the federal claims are eliminated in the early stages of litigation, courts

should generally decline to exercise pendent jurisdiction over remaining state law

claims.”).

21
 CONCLUSION

In sum, we conclude that an FLSA plaintiff must plausibly allege willfulness

to secure the benefit of the three-year limitations period for willful violations of

the FLSA at the pleadings stage and that Whiteside failed to do so here.

Consequently, the district court properly dismissed this action pursuant to the

FLSA’s general two-year statute of limitations. For the foregoing reasons, we

AFFIRM the judgement of the district court.

22
Whiteside v. Hover-Davis, 20-798, dissent

DENNY CHIN, Circuit Judge, dissenting:

The majority holds that for plaintiffs to take advantage of the three-

year statute of limitations for claims under the Fair Labor Standards Act (the

"FLSA"), they must plausibly allege willfulness, and that here plaintiff-appellant

Mark Whiteside failed to do so. In my view, even assuming the majority is

correct that willfulness must be alleged, Whiteside has plausibly alleged a willful

violation of the FLSA. Accordingly, I dissent.

As alleged in his third amended complaint (the "Complaint"),

Whiteside was hired by defendant-appellee Hover-Davis, Inc. ("Hover-Davis"), a

wholly owned subsidiary of defendant-appellee Universal Instruments

Corporation (together, "defendants"), as a Quality Engineer -- a position that

defendants classified as exempt from the FLSA's overtime requirements.

Thereafter, he "was asked to switch positions," and from 2012 to 2016, he was

"doing the work of a Repair Organization Technician." J. App'x at 11.

Whiteside's "immediate supervisor Juliann Nelson and Operations Manager

Ronald Bradley knew he was doing the work of a de facto Repair Organization

Technician and assigned him to do the work of this role." J. App'x at 16.
 Defendants classified Repair Organization Technicians as non-

exempt employees eligible for overtime pay. Whiteside was scheduled to work

45 hours per week and often worked beyond his scheduled hours. And yet, he

did not receive overtime pay. He alleges that defendants' failure to pay him

overtime was willful because "[d]efendants, with reckless disregard as to

whether their conduct was prohibited under statute, failed to pay the statutorily

required overtime rate for the hours" he worked in excess of 40 hours per week.

J. App'x at 16.

In my view, these allegations are sufficient to plausibly plead

willfulness. "An employer willfully violates the FLSA when it either knew or

showed reckless disregard for the matter of whether its conduct was prohibited

by the Act." Young v. Cooper Cameron Corp., 586 F.3d 201, 207 (2d Cir. 2009)

(internal quotation marks omitted). An employer can be said to have recklessly

disregarded whether its conduct is prohibited by the FLSA even when it "may

not have had actual knowledge of the violative practices." Herman v. RSR Sec.

Servs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999); see id. at 141-42 (holding that an

employer willfully violated the FLSA -- even though he was not aware that

employees were not being paid overtime -- when he knew the FLSA's

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requirements, knew of previous violations, and relied on the assurances of others

instead of independently investigating practices); see also Keubel v. Black & Decker,

Inc., 643 F.3d 352, 366 (2d Cir. 2011) (holding that a triable fact question existed as

to willfulness where the employer was aware that the employee's responsibilities

might require over 40 hours of work per week and instructed him not to record

overtime). To survive a motion to dismiss, plaintiffs need only plead facts

supporting an inference of willfulness. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) ("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.").

Whiteside's allegations -- namely, that (1) Repair Organization

Technicians were classified as non-exempt employees eligible for overtime pay;

(2) he was assigned to do the work of a Repair Organization Technician and, as

his supervisor and manager were both aware, he did so for four years; (3) his

regularly scheduled hours exceeded 40 hours per week; and (4) he was never

paid overtime -- support the inference that defendants were aware of their

obligation to pay him overtime and that they either intentionally or recklessly

failed to do so. Defendants were aware that Repair Organization Technicians

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were entitled to overtime pay, as evidenced by defendants' decision to classify

those employees as eligible for overtime. That defendants reassigned Whiteside

to this role and scheduled him to work over 40 hours per week supports the

inference that defendants were also aware that Whiteside was entitled to

overtime pay. Accordingly, defendants' failure to pay Whiteside overtime, in

light of the other facts alleged, supports the inference that defendants at least

recklessly disregarded their obligations under the FLSA.

While the majority acknowledges that willfulness may be proven by

circumstantial evidence, it essentially faults Whiteside for failing to allege

statements or actions by defendants that directly demonstrate an awareness of

their obligation to pay Whiteside overtime. For example, the majority faults

Whiteside for not alleging that his managers "said anything to him suggesting an

awareness of impropriety" or that "he ever complained about the situation to his

managers." Maj. Op. at 19.

No doubt, plaintiffs bear the burden of proving willfulness at trial,

Parada v. Banco Indus. De Venez., C.A., 753 F.3d 62, 71 (2d Cir. 2014), but at the

motion to dismiss stage, the majority requires too much -- especially because

"[t]he existence of a subjective belief will frequently turn on factors which a

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plaintiff cannot reasonably be expected to know," Gomez v. Toledo, 446 U.S. 635,

641 (1980). On a motion to dismiss for failure to state a claim, "the question is not

whether a plaintiff is likely to prevail, but whether the well-pleaded factual

allegations plausibly give rise to an inference of unlawful discrimination." Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015); see also Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 511 (2002) ("[U]nder a notice pleading system, it is

not appropriate to require a plaintiff to plead facts establishing a prima facie

case . . . ."). It is sufficient for the Complaint to "raise a reasonable expectation

that discovery will reveal evidence of illegal[ity]." Arista Recs., LLC v. Doe 3, 604

F.3d 110, 120 (2d Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007)); accord Citizens United v. Schneiderman, 882 F.3d 374, 380 (2d Cir. 2018) (for

plaintiffs to "'nudge[ ] their claims across the line from conceivable to plausible,'

they must 'raise a reasonable expectation that discovery will reveal evidence' of

the wrongdoing alleged, 'even if it strikes a savvy judge that actual proof of those

facts is improbable'" (alteration in original) (quoting Twombly, 550 U.S. at 556,

570)). While Whiteside's allegations may fall short of alleging actual knowledge

of a violation, they are sufficient in my view to plausibly allege reckless

disregard.

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 Because I believe that Whiteside's allegations support the inference

that defendants willfully violated the FLSA on a recklessness theory, I

respectfully dissent.

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