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:
`
`
`
`
`
`FOR DEFENDANTS-
`APPELLEES:
`
`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.
`
`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 Background2
`
`
`
`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
`
`
`2 The 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).
`9 The dissent suggests that we fault Whiteside for “failing to allege statements or
`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 whe