Lawtone-Bowles et al v. City of New York, New York
MEMORANDUM & ORDER granting in part and denying in part 17 Motion to Dismiss. For the foregoing reasons, the Court GRANTS in part and DENIES in part the City's motion to dismiss. The Court DENIES the motion to dismiss Count I (failu re to pay overtime) in its entirety. Count II (failure to properly calculate overtime regular rate of pay) is dismissed as to Plaintiffs Alli and Predmore. Count III (untimely payment of overtime) is dismissed as to Plaintiffs Alli, Smith, Predmore, and Tobin. An initial pretrial conference shall be scheduled in a separate order. This resolves Docket Number 17. (Signed by Judge Alison J. Nathan on 9/22/2017) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Nicole Lawtone-Bowles, et al.,
The City of New York,
ALISON J. NATHAN, District Judge:
Plaintiffs, six Motor Vehicle Operators ("MVOs") employed by the New York City
Department of Homeless Services ("DHS"), brought an action on behalf of themselves and all
others similarly situated alleging that Defendant City of New York failed to comply with various
provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. ("FLSA"). First Amended
Complaint ("Am. Compl."), Dkt. No. 14. Specifically, Plaintiffs allege that the City failed to
properly compensate them for overtime, incorrectly calculated their rate of overtime pay, and
failed to pay overtime in a timely manner. Id. Defendant moves, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, to dismiss the Amended Complaint in its entirety for failure to
state a claim. Defendant's Memorandum of Law in Support of Its Motion to Dismiss the First
Amended Complaint ("Br."), Dkt. No. 18.
For the following reasons, the Court GRANTS in part and DENIES in part the
motion to dismiss.
On a Rule 12(b)(6) motion, a court must take the facts alleged in the complaint as true
and draw all reasonable inferences in plaintiffs' favor. See NY Life Ins. Co. v. United States,
724 F.3d 256, 261 (2d Cir. 2013). Accordingly, the following statement of facts is drawn from
the Amended Complaint.
Plaintiffs are, and at all material times have been, employed as MVOs by DHS. Arn.
Cornpl. ii 4. Named Plaintiffs Nicole Lawtone-Bowles, Rarnzan Alli, Gib Brown, Lance
Predmore, Dennis Tobin, and Charles Smith all worked at DHS's Prevention Assistance and
Temporary Housing (PATH) center in the Bronx, and they bring the action on behalf of all
MVOs who work or have worked for DHS at the material times. Id.
homeless individuals and families to temporary housing placements, train stations and airports,
and transport DHS employees between DHS facilities, among other duties. Id.
generally scheduled for 5 shifts of 8 hours and 30 minutes each week, of which 30 minutes each
day is automatically deducted for uncompensated meal period; thus, Plaintiffs are scheduled to
work 40 hours per week. Id.
According to the Amended Complaint, the City's approach to compensating MVOs for
overtime violates the FLSA in three ways.
First, Plaintiffs plead that MVOs frequently work uncompensated overtime hours.
Plaintiffs "frequently work overtime on their scheduled work days and weekends" because they
"frequently work through the unpaid meal periods without compensation," and "frequently work
additional hours before the official start time and after the official end time of their regularly
scheduled shifts," causing them to "work in excess of 40 hours in each week that they perform
off-the-clockduties." Id. Pfaintiffs allege that they "regularly work these additional
uncompensated hours in workweeks in which they work over 40 hours." Id. The Amended
Complaint goes on to plead more specifics about uncompensated overtime, which the Court
addresses below. Id.
iiii 11-19, 25-29.
Second, Plaintiffs allege a miscalculation of the rate ofMVOs' overtime pay. When
MVOs work the "night shift," they are entitled to receive "night shift differential pay" equal to
ten percent of their basic rate of pay, but Defendant fails to include this in the regular rate of pay
when calculating overtime. Id.
20. The Amended Complaint goes on to plead more specifics
about improperly calculated overtime rates, which the Court addresses below. Id.
Third, Plaintiffs claim that when they are paid overtime compensation in cash, Defendant
improperly delays the payment beyond the next pay period. Id.
22. The Amended Complaint
goes on to plead more specifics about delayed overtime payment, which the Court addresses
Plaintiffs seek to recover liquidated damages equal to their unpaid compensation, interest
on their unpaid compensation, attorney's fees and costs, and declaratory judgment. Id. at 17.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient
factual matter to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Id. Although a
complaint need not contain detailed factual allegations, it may not rest on mere labels,
conclusions, or a formulaic recitation of the elements of the cause of action, and the factual
allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550
U:S. at 555. "Determining whether a pl~usible claim has been pled is 'a context-specific task "
that requires the reviewing court to draw on its judicial experience and common sense.'" Lundy
v. Catholic Health Sys. ofLong Island, Inc., 711F.3d106, 114 (2d Cir. 2013) (quoting Iqbal,
556 U.S. at 679)
While allegations made upon information and belief satisfy the pleading standards,
especially when "facts are peculiarly within the possession and control of the defendant," Arista
Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010), that the defendant possesses the exact
records does not allow plaintiffs to shirk their pleading obligations. Angiulo v. Cty. of
Westchester, No. 11-CV-7823(CS), 2012 WL 5278523, at *3, n. 4 (S.D.N.Y. Oct. 25, 2012).
The FLSA requires that "for a workweek longer than forty hours," an employee who
works in "excess of forty hours" shall be paid for that excess work "at a rate not less than one
and one-halftimes the regular rate at which he is employed." 29 U.S.C. § 207(a)(l). Therefore,
"in order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours
of work in a given workweek as well as some uncompensated time in excess of 40 hours." Lundy
v. Catholic Health Sys. ofLong Island, Inc., 711F.3d106, 114 (2d Cir. 2013).
Defendant analyzes Plaintiffs' claims of uncompensated overtime using two separate
groups of Plaintiffs. The complaint pleads more detail in relation to one group than the other.
The Court addresses each in tum.
Plaintiffs Lawtone-Bowles, Alli, Smith, and Brown
Defendants argue that Plaintiffs fail to plausibly plead a FLSA overtime claim with
respect to four of the named Plaintiffs - Lawtone-Bowles, Alli, Smith, and Brown. Br. at 12. For
all named plaintiffs, and for those similarly situated, Plaintiffs plead that they are scheduled for
five shifts of 8 hours and 30 minutes each week, for which 30 minutes is uncompensated meal
time. Am. Gompl.
if 10. Plaintiffs therefore are scheduled to perform·~minimum of 40 hours qf
work per week. Id. The overtime work arises, according to the complaint, when Plaintiffs
"frequently" work through their unpaid meal periods and "frequently" work additional time
before the official start and end of their scheduled shifts. Id. Plaintiffs "regularly work these
additional uncompensated hours in workweeks in which they work over 40 hours." Id.
As to the pre-shift work, all plaintiffs are more specifically alleged to "begin work 10
minutes to 30 minutes before the official start time of their shifts and perform pre-shift activities,
including but not limited to the [usual tasks discussed above] as well as preparing for their shift
by retrieving equipment and vehicle keys, walking to the parking garage to retrieve the vehicle,
cleaning the vehicle and taking the vehicle for repairs, for which they are not properly
Uncompensated post-shift work activities occur "approximately 2 to 4 times a week" and
include MVOs' normal tasks "as well as transporting families and individuals, solving problems
with placement sites, helping families unload their luggage, driving through heavy traffic,
refilling the vehicle's fuel tank, cleaning the vehicle, returning the vehicle to the parking garage,
finalizing trip sheets and submitting receipts." Id.
Plaintiffs provide that they work through their 30-minute meal periods "approximately 2
to 4 times a week, performing the [usual tasks discussed above] for which they are not
compensated, such as transporting families and individuals to various locations." Id.
The Complaint then proceeds to give specific examples as to the four above-named
plaintiffs. For Lawtone-Bowles, she "arrives and begins working approximately 30 minutes
before the start of every shift," preparing by "retrieving equipment for her work vehicle,
retrieving the work vehicle keys, walking to the parking garage to pick up her work vehicle,
cleaning the vehicle and filling it with gas." Id.
She also works after the end of her shift
"approximately 2 to 3 times a week for approximately 30 to 90 minutes," as she is still
"transporting families and individuals to placement sites." Id. This may be caused by "traffic," a
"problem with the placement site," or if "the family has a lot of luggage to unload." Id. After her
shifts-~'Lawtone-Bowles'aiso "refills the vehicle's fuel tank, ci~ans the vehicle, returns the vehicle
to the parking garage and walks 2.5 blocks from the garage to PATH." Id. At PATH, "she
organizes receipts an'd finalizes her trip log before she clocks out." Id. Plaintiffs continue that
these tasks cause her to work in excess of 40 hours per week without compensation, and offer
two specific weeks -February 2, 2014 to February 8, 2014 and December 27, 2015 to January 2,
2016 - in which she worked more than 40 hours while not being compensated for 2 hours and
1.5 hours of overtime respectively. Id. Moreover, the Complaint alleges that during these weeks
in which she performed "off-the-clock duties," she also worked during her meal periods without
Similar claims are made for the other three: Alli, Smith, and Brown. See id.
ifif 13-15. For
example, Alli begins working "approximately 15 to 30 minutes before the start of his shift
approximately 3 times a week," doing similar tasks to Lawtone-Bowles. Id.
weeks - May 3, 2015 to May 9, 2015 and June 7, 2015 to June 13, 2015 - are referenced as
times in which Alli was not compensated for the entirety of his overtime. Id. For Plaintiff
Brown, the Complaint does not specify on which days he is normally scheduled for shifts, id.
15, but given the earlier statement that "MVOs are scheduled for 5 shifts," id.
if 10, this is not
fatal to Brown's claim.
Defendant argues that these allegations are insufficient to state a claim, dismissing the
claims that each plaintiff "routinely" works in excess of 40 hours per week as a "boilerplate"
allegation. Br. at 12. When it comes to the eight specific weeks mentioned (two for each
plaintiff), Defendant objects that the pleadings "do not allege what tasks were performed that led
to this uncompensated work, when such tasks were performed (i.e., before or after a plaintiff's
shift), or with what frequency plaintiffs performed these tasks leading them to work
uncompensated time." Id. at 13. Moreover, Defendant attempts to tum the allegations around on
these plaintiffs, as the specific allegations suggest that they were compensated for much of their
overtime, and argues that the "failure to plead any facts explaining what plaintiffs were doing
that was uncompensated,is fatal to their claims." Id. at 13-14.
' The case8'relied upon by Defendant do not support its position. Take Lundy for exathple,
a Second Circuit case upon which both parties rely extensively. 711 F.3d at 106. In Lundy, the
Court held that "in order to state a plausible FLSA overtime claim, a plaintiff must suffieiently
allege 40 hours of work in a given workweek as well as some uncompensated time in excess of
the 40 hours." Id. at 114. Plaintiffs have done so here with respect to each of these four
individuals. Am. Compl. iii! 10, 12-17. The Lundy plaintiffs did not regularly work 40 hours a
week, and so their failure to allege that their uncompensated time put them over the 40-hour
mark in any given week was fatal. Id. at 114-15. That is not the case here.
Other recent Second Circuit cases also rely upon markedly different facts in affirming a
district court's dismissal of a FLSA overtime claim. In Nakahata v. New York-Presbyterian
Healthcare System, the Second Circuit held that "[t]o plead a plausible FLSA overtime claim,
plaintiffs must provide sufficient detail about the length and frequency of their unpaid work to
support a reasonable inference that they worked more than forty hours in a given week." 723
F.3d 192, 201 (2d Cir. 2013). Plaintiffs here have done so directly, providing details about the
length, frequency, and nature of their pre-shift, post-shift, and lunch-time activities, on top of
allegations that Plaintiffs were scheduled to work forty hours a week. Am. Compl.
contrast, in Nakahata, Plaintiffs had not alleged that they were scheduled to work forty hours
such that their additional tasks would yield a work week above forty hours. 723 F.3d at 201.
And in Dejesus, the Circuit elaborated on Lundy's requirement that a plaintiff "allege overtime
without compensation in a 'given' workweek," and said that "[ w ]hile this Court has not required
plaintiffs to keep careful records and plead their hours with mathematical precision," they are
required to draw on their memory and experience to provide complaints with "sufficiently
developed factual allegations." Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 90 (2d Cir.
2013); see Bustillos v. Academy Bus, LLC, No. 13-CV-565(AJN), 2014 WL 116012, at *3
(S.D.N.Y. Jan. 13, 2014). Again, this describes what Plaintiffs have done. Am. Compl.
17; cf DeJesus, 726 F.3d at 89 (finding that "Dejesus provided less factual specificity that did
the plaintiffs in Lundy or N.akahata'.').
Plaintiffs Predmore and Tobin
The only difference in how Predmore's and Tobin's claims are pled from the other four
named plaintiffs is in the lack of any specific week cited as one in which Predmore or Tobin
worked more than 40 hours. Am. Compl.
Instead, with respect to their claims,
Plaintiffs rely on more generalized statements of approximation. Consequently, Defendant's
arguments for dismissal are stronger here. 1
For Predmore and Tobin, in addition to the generalized claims made with respect to all
six named plaintiffs, Plaintiffs offer certain specifics. The Amended Complaint alleges that
Predmore arrives "approximately 20 to 30 minutes before the start of his shift and performs preshift activities," including "checking emails, filling the vehicle's fuel tank, cleaning the vehicle[,]
taking the vehicle for repairs, and transporting families and individuals to and from placement
sites, airports and train stations." Id.
if 16. When he performs these activities, as well as when he
"performed work activities identified above during his meal periods," it causes him "to work in
excess of 40 hours per week, for which he is not compensated." Id. The specifics offered for
Plaintiff Tobin are similar in form and substance. Id.
Defendant compares the allegations for Predmore and Tobin to the plaintiffs in a series of
cases in which dismissal was granted. Br. at 9. But the cases Defendant cites are factually
distinct in material ways.
In Cromwell v. New York City Health & Hospitals Corporation, the plaintiff was
regularly scheduled to work 37.5 hours per week, meaning that any alleged "uncompensated
work" did not necessarily push him over the 40 hour mark to allege uncompensated overtime.
No. 12-CV-4251(PAE), 2013 WL 2099252 (S.D.N.Y. May 15, 2013). This is a fatal deficiency
because, "[ s]o long as an employee is being paid the minimum wage or more, FLSA does not
provide recourse for unpaid hours below the 40-hour threshold, even if the employee also works
overtime hours the same week." Lundy, 711 F.3d at 116. The same exact deficiency is present in
Lundy, as the plaintiffs, who all worked regular shifts of under 40 hours a week, did not make, .
allegations sufficient to connect the dots between their uncompensated tasks and the weeks in .
which they allegedly worked more than 40 hours. Id. at 114. In Ramos, this same deficiency is
While paragraph IO of the complaint alleges that Plaintiff Tobin works five shifts a week like all other
MVOs, paragraph 17 only lists four shifts. Am. Comp I. ii 10, 17. Plaintiffs offer a correction in their briefing
opposing this motion, clarifying that Mr. Tobin does work five shifts. Plaintiffs' Opposition to Defendant's Motion
to Dismiss at 18, n. 2. The Court will excuse the inconsistency.
present, as the complaint fails to allege that "any single plaintiff engaged in such ['off the clock']
activities during a week that he or she worked more than 40 hours, or that these activities
resulted in a single plaintiff working more than 40 hours in a week." Ramos v. City ofNY. Fire
Dept., No. 13-CV-9225(KBF), 2014 WL 2111687, at *5 (S.D.N.Y. May 9, 2014). For Predmore
and Tobin, who normally work 40 hours a week, any additional work they perform is overtime
In Walz, Judge McMahon granted the motion to dismiss because the plaintiffs did not
provide "an estimate of how often they worked overtime or for how many hours, nor do they
provide the time frame for when these unpaid hours were earned." Walz v. 44&X Inc., No. 12CV-5800(CM), 2012 LEXIS 161382, at *12 (S.D.N.Y. Nov. 7, 2012). She continues, "[e]ven
stating 'most weeks during the entire course of my employment, I worked at least two hours later
than my shift, plus a two-hour meeting every day' would be enough detail for this Court." Id.
Predmore and Tobin meet this minimal standard.
In Bustillos, the deficiency is of a slightly different variety, but one inapposite to the
present case nonetheless. Bustillos v. Academy Bus, LLC, No. 13-CV-565(AJN), 2014 WL
116012 (S.D.N.Y. Jan. 13, 2014). The plaintiffs bare allegation that he would "regularly work
60 to 90 hours per week," absent any factual allegations that gave context to his claim, was
insufficient to move plaintiffs claim from speculative and conclusory to plausible. Id. at *3.
Here, however, Predmore and Tobin add context that helps explain why they worked more than
forty hours in a week. Am. Compl. ifif 16-17.
As Judge Forrest explains in Ramos, "Put simply, plaintiffs must allege both that they
.actually performed work for 40 hours in a week,..and then.work of some amount over 40 hours
for which they were not compensated.?' 2014 WL 2111687, at *3 (emphasis in original). The·
failure of Predmore and Tobin to cite a specific week is not fatal when their baseline workweek
is alreacly 40 hours. The Court fincls thilt all Plilintiff.c;; aclequntely state a claim for
Failure to Apply Differential Rate to Overtime
Defendant argues that Plaintiffs do not plausibly plead their claim that Defendant
miscalculated plaintiffs' overtime pay by failing to include the night shift differential. In
addition to Plaintiffs' general allegations as to their overtime work and entitlement to the rate,
their Amended Complaint also provides reference to specific weeks during which four of the six
named plaintiffs (all but Alli and Predmore) should have, but did not, receive this differential
rate applied to their overtime compensation. Am. Compl.
Section 207(e) of the FLSA, pursuant to regulations promulgated by the Department of
Labor, 29 CFR Part 778, et seq., requires that all forms ofremuneration be included in the rate at
which overtime is paid. The collective bargaining agreement between the City of New York and
plaintiffs' union specifies that plaintiffs should receive a ten percent shift differential for all
scheduled hours worked between 6 P .M. and 8 A.M. with more than one hour of work between 6
P .M. and 8 A.M. See Declaration of Aliza Balog, Exhibit A ("Collective Bargaining
Agreement"), Art. III, Sec. 1. Plaintiffs allege that the "failure to include night shift differential
pay in plaintiffs' regular rates means that when plaintiffs receive paid overtime for working over
40 hours a week, they are paid at a rate that is below the rate mandated by the FLSA." Am.
Compl. if 33.
Defendant argues that plaintiffs fail to plausibly plead this claim in a number of ways.
First, the City reiterates its argument that plaintiffs have not sufficiently pled that they worked
more than 40 hours in a given workweek such that the requirement that the night shift differential
be included in the calculation of overtime takes effect. Br. at 15. As discussed above, the Court
this argument, as, Plaintiffs plead sufficient facts, drawing inferences in their favor, to
establish that they work over 40 hours in a work week at various times.
Defendant lodges other criticisms, including that plaintiffs have not "pled that their
regular rate includes them working hours between 6 P .M. and 8 A.M.," that they have not
alleged that "they worked at least a full hour between 6 P.M. and 8 A.M .... so as to qualify for
the night shift differential," and that some plaintiffs have not alleged "what tasks they were
perfo1ming that caused them to work between 6 P .M. and 8 A.M., given that their alleged regular
shifts end before 6 P.M." Id.
While Defendant makes various factual errors, 2 these criticisms are valid as to certain
named plaintiffs. Plaintiffs Lawtone-Bowles, Smith, and Brown are asserted to have regular
schedules in which their entire shifts fall within the night shift window of time. Am. Compl.
12, 14, 15. Additionally, Tobin, whose shifts nonnally run mostly during the daytime, is
specifically alleged to have worked "5 shifts between the hours of 6:00 PM to 8:00AM," during
the week of January 11, 2015 to January 17, 2015, "for which defendant failed to include the
night shift differential when calculating the regular rate for overtime payments." Id.
drawing inferences in favor of the plaintiffs, if an individual's normal schedule has him or her
working 40 hours a week at night, it stands to reason that any overtime should be compensated
with the inclusion of the ten percent shift differential.
By contrast, there are no factual allegations specific to Plaintiffs Alli and Predmore
establishing that they ever worked hours entitling them to night shift differential pay. For this
reason, there is little question that the complaint does not adequately plead this claim for those
plaintiffs, and any claims brought on these grounds with respect to Plaintiffs Alli and Predmore
Improper Delay in Overtime Payment
Finally, Plaintiffs allege that when they are paid for overtime compensation in cash,
"defendant delays the payment of overtime beyond the next pay period for which the plaintiffs
are paid for their regular work hours," in violation of29 USC§ 207(a) and 29 CFR § 778.106.
The FLSA allows for delays·'"reasonably necessary for the employer to compute and
arrange for payment of the amount due and in no event may payment be delayed beyond the next
payday after such computation can be made." 29 CFR § 778.106. But Plaintiffs allege that the
Compare Br. at 15 (alleging Plaintiff Smith works only four shifts, and that plaintiffs do not plead that
they regularly work a night shift) with Am. Compl. iii! 12, 14-15.
delays are due, in actuality, to "a failure by management personnel to approve overtime
payments or management's withholding of such payments until the next budgetary quarter." Am.
Plaintiffs offer two specific instances, related to Brown and Lawtone-Bowles, to
supplement an otherwise conclusory allegation. Id.
Defendant moves to dismiss this claim on two related grounds. First, as the prompt
payment requirement only applies to overtime, if, as Defendant argues, Plaintiffs did not plead
more than 40 hours of work in a given workweek, this claim would fall. Br. at 16. Given the
above discussion regarding overtime, the Court finds that this was sufficiently pleaded. Second,
Defendant argues that Plaintiffs' failure to allege that the specific instances cited were during
weeks of more than 40 hours of work is a fatal omission. Id. The Court, drawing inferences in
plaintiffs' favor, finds that the use of the word "overtime" within this context implies that the
plaintiffs worked more than 40 hours in a given workweek, triggering the application of this
provision of the FLSA.
However, Defendant, in its reply brief, also points to a difference between two groups of
plaintiffs in how their claims are pleaded, highlighting a flaw similar to that discussed above
with respect to the shift differential claims. While Plaintiffs point to specific weeks of overtime
for Brown and Lawtone-Bowles that were not timely paid, Am. Compl. if 23, in the absence of
similarly specific allegations for the other four named plaintiffs, their claims remain purely
conclusory. Reply at 9 ("[C]laims as to two plaintiffs are not sufficient to plead plausible claims
as to all plaintiffs."). Simply stating that an unlawful thing occurred is insufficient. 3 The Court
grants the motion to dismiss on Count III for Plaintiffs Alli, Smith, Predmore, and Tobin .
For the foregoing reasons, the Court GRANTS in part and DENIES in part the City's
motion to dismiss. The Court DENIES the motion to dismiss Count I (failure to pay overt~me) in
The few additions to the Amended Complaint in this case that Plaintiffs' counsel made when compared to
the Complaint in Campbell v. City ofNew York, are not enough to save these claims. See No. 16-CV-8719 (AJN),
2017 WL 3206332 (S.D.N.Y. July 25, 2017).
its entirety. Count II (failure to properly calculate overtime regular rate of pay) is dismissed as to
Plaintiffs Alli and Predmore. Count III (untimely payment of overtime) is dismissed as to
Plaintiffs Alli, Smith, Predmore, and Tobin.
An initial pretrial conference shall be scheduled in a separate order.
This resolves Docket Number 17.
New York, New York
United States District Judge
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