21-1700-cv Knight v. MTA-New York City Transit Authority

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of March , two thousand twenty-two.

PRESENT: PIERRE N. LEVAL, RICHARD J. SULLIVAN, MYRNA PÉREZ, Circuit Judges. _____________________________________ CHRISTINE N. KNIGHT, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Plaintiff-Appellant, v. No. 21-1700-cv

MTA-NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellee. _____________________________________ FOR PLAINTIFF-APPELLANT: ARTHUR Z. SCHWARTZ (Laine Alida Armstrong, on the brief), Advocates for Justice, New York, NY.

FOR DEFENDANT-APPELLEE: JOSHUA S. FOX (Steven D. Hurd, on the brief), Proskauer Rose LLP, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Broderick, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Plaintiff-Appellant Christine N. Knight is a current employee of the MTA-

New York City Transit Authority (“NYCT”), where she has worked for over

twenty years. Knight alleges that, during the six years prior to the

commencement of this action, she occasionally worked in excess of forty hours per

week and that NYCT failed to pay her at a premium rate for those hours. Instead,

Knight alleges, NYCT required her to “bank” 160 hours of overtime as

“compensatory hours.” App’x at 12. Knight contends that NYCT’s failure to

pay her a premium rate for overtime hours violates the Fair Labor Standards Act

2 (“FLSA”),

(a)(1); section 134 of the New York State Civil Service

Law; and the New York Code of Rules and Regulations (“NYCRR”), 9 NYCRR §

135.1. The district court granted NYCT’s motion to dismiss for failure to state a

claim, holding that Knight failed to sufficiently plead facts as to the length and

frequency of her unpaid work. The district court also held that, even if Knight

could raise a plausible claim that she worked in excess of 40 hours in a given work

week, Knight failed to adequately plead a violation of section 207(a) based on

NYCT’s policy of compensating its employees in compensatory time instead of

overtime pay. Knight appeals the dismissal of her overtime claim under the

FLSA. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

On appeal, Knight exclusively challenges the district court’s conclusion that

she failed to “provide sufficient detail about the length and frequency of [her]

unpaid work to state a FLSA overtime claim.” App’x at 22. But she overlooks

entirely the district court’s alternative – and independent – holding that Knight

failed to plead an FLSA overtime claim because the parties had a valid agreement

that NYCT would compensate her for overtime work with compensatory time off

in lieu of overtime pay, as permitted under section 207(o)(2).

3 Although

(a) requires time-and-a-half overtime pay for hours

worked in excess of forty hours per week, section 207(o) provides an exception to

this general mandate. Under section 207(o), a public agency may provide

“compensatory time off at a rate not less than one and one-half hours for each hour

of employment for which overtime compensation is required” pursuant to

“applicable provisions of a collective bargaining agreement, memorandum of

understanding, or any other agreement between the public agency and

representatives of such employees,” or “an agreement or understanding arrived

at between the employer and employee before the performance of the work.”

(o)(2)(A). In her complaint, Knight alleged that she was required to

“bank” 160 overtime hours as compensatory hours in lieu of overtime payment

for those hours. App’x at 10. The court determined that, based on the facts

alleged, this agreement fell within the scope of § 207(o)(2). Accordingly, the

district court concluded that, even assuming Knight had plausibly alleged that she

worked more than 40 hours a week in a given workweek, “Plaintiff has not

adequately pleaded a violation of § 207.” 1

1 Because the district court dismissed Knight’s federal claims, it declined to exercise supplemental jurisdiction over her state law claims.

4 Since the district court’s alternative holding is sufficient by itself to warrant

dismissal of her FLSA claim, Knight’s failure to challenge it is fatal to her appeal.

It is well settled in the Second Circuit “that issues not discussed in an appellate

brief will normally be deemed abandoned.” Beatty v. United States,

(2d Cir. 2002); see also Schwapp v. Town of Avon,

(2d Cir. 1997)

(“We consider abandoned any claims not adequately presented in an appellant's

brief.”); LoSacco v. City of Middletown,

, 92–93 (2d. Cir. 1995) (collecting

cases where an issue was deemed abandoned when the appellant did not raise it

in brief). And although “[a]n abandoned claim may nevertheless be considered

if manifest injustice would otherwise result,” Ocean Ships, Inc. v. Stiles,

(2d Cir. 2002), such circumstances are not present here. In her reply brief,

Knight does not even attempt to explain why she failed to address the section

207(o) holding in her opening brief (or refute the argument that the issue has been

abandoned). See Knight’s Reply Br. at 1–6.

Given Knight’s abandonment of a challenge to the district court’s

determination that she was subject to the section 207(o) overtime exception, we

affirm the district court’s dismissal on that ground, without addressing her

arguments concerning the sufficiency of the pleadings as to the length and

5 frequency of her unpaid work.

We have considered all of Knight’s remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court

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