Limauro v. Consolidated Edison Company of New York, Inc. et al

Filing 27

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS COUNT VIII OF THE AMENDED COMPLAINT granting 22 Motion to Dismiss. Accordingly, Limauro's amended complaint still does not state a claim for failure to pay overtime und er the New York Labor Law, which is evaluated under the same standard as the federal Fair Labor Standards Act. Id. at 200. His amended Count VIII is dismissed with prejudice. The Clerk is respectfully directed to remove the motion at Docket #22 from the court's list of open motions. (Signed by Judge Colleen McMahon on 3/31/2021) (mml)

Case 1:20-cv-03558-CM Document 27 Filed 03/31/21 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
__________________________________________
JOSEPH LIMAURO,
Plaintiff,
-againstNo. 20-cv-03558 (CM)
CONSOLIDATED EDISON COMPANY OF
NEW YORK, INC.; CHRISTOPHER JANUSZ;
THOMAS BARRETT; AND CONROY
MCPHERSON
Defendants
__________________________________________
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS COUNT VIII OF THE AMENDED COMPLAINT
McMahon, C.J.:
Plaintiff Joseph Limauro was employed as a construction-services supervisor by
Consolidated Edison Company of New York (“ConEd”) from November 1, 2017 until he was fired
on May 31, 2019. Limauro sued ConEd and the associated defendants on May 7, 2020, alleging
eight total claims arising under the Americans with Disabilities Act, the Family Medical Leave
Act, the New York State and City Human Rights Laws, and the New York State Labor Law
(“Labor Law”). On February 9, 2021, the Court denied ConEd’s motion to dismiss seven of the
eight counts, but dismissed Limauro’s Labor Law claim without prejudice for failure to state a
claim. The Court held that Limauro had failed to plausibly allege that ConEd failed to pay him
required overtime in violation of the statute. The Court gave Limauro 21 days to amend his
pleading, which he has timely done.

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Now before the Court is ConEd’s motion to dismiss Limauro’s amended Labor Law claim
for failure to state a claim. The motion is GRANTED. Limauro’s amended Count VIII is
DISMISSED with prejudice.
I.
The Court assumes the parties’ familiarity with Limauro’s allegations, which are recounted
in an earlier decision denying ConEd’s motion to dismiss Limauro’s other causes of action. See
Limauro v. Consolidated Edison Co. of N.Y., No. 20-cv-3558 (CM), 2021 WL 466952 (S.D.N.Y.
Feb. 9, 2021) (“Limauro I”).
In his original complaint, Limauro alleged that his normal shift was from “7am to 3:30pm”
Monday through Friday, but that he “regularly worked more hours by coming in early and staying
later.” (Compl. at ¶ 30). This amounted to regularly working 8.5 hours per day, but the Court held
that the allegation “lack[ed] specificity.” Limauro I, 2021 WL 466952, at *12. It noted that:
if Limauro were expected to work 8.5 hours a day with no breaks for lunch or
otherwise, then he would have routinely worked at least 42.5 hours a week before
any additional time was factored in. . . . However, it is customary for employees to
have shifts that include a lunch break or some other break(s), so in order to plead a
plausible claim of failure to pay overtime under that theory, Limauro would need
to plead that he was not allowed any breaks during his shift. He did not so plead.
Ibid.
The Court thus dismissed Limauro’s failure-to-pay-overtime claim without prejudice, and
granted Limauro “leave to amend to cure the patent deficiency in the pleading.” Id. at *1.
Limauro’s amended complaint adds four paragraphs of new allegations. In full, they are:
221. Indeed, Mr. Limauro typically worked at least 45 hours per week, often more,
and was not paid time and a half for those hours over 40 hours per week, and was
deprived overtime pay.
222. Mr. Limauro often arrived for work at 6:15am, approximately 45 minutes
before his usual start time at 7:00am, for morning meetings and would often stay
until 6:00pm, approximately 3 hours later than his usual end time of 3:00pm.

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223. Approximately twice per month (although sometimes more), Mr. Limauro also
worked weekends (both Saturday and Sunday), in excess of 50 hours per week, but
was not paid time and half for the hours over 40 hours per week that he worked,
and thus was deprived overtime pay.
224. During outages throughout the year, Mr. Limauro also worked seven days per
week for more than two weeks in a row, and thus worked in excess of at least 50
hours per week on those occasions, and he likewise was not paid time and half for
that work and was thus deprived of overtime pay.
These allegations are still insufficient to plead a plausible failure-to-pay-overtime claim.
They suffer from the same deficiencies that plagued the original complaint. The allegations lack
specificity as to when Limauro was required to work more than forty hours a week or the frequency
with which he did so. Instead, they make general assertions about how Limauro “typically” worked
45 hours per week, or how he would “often” arrive to work early. But allegations that a plaintiff
“typically,” “occasionally,” or “regularly” worked more than forty hours a week, without more,
are insufficient to state a claim. See, e.g., Kuck v. Planet Home Lending, LLC, 354 F. Supp. 3d
162, 168–69 (E.D.N.Y. 2018) (collecting cases). “To 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.” Nakahata
v. New York Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013). Limauro’s
vague assertions do not meet this threshold.
Although the amended complaint makes new allegations about how Limauro worked more
during “outages throughout the year,” there is no specificity as to when these outages occurred, or
their frequency. The complaint also claims that Limauro worked weekends “approximately” twice
each month, but again, there is no specificity as to which weekends nor any detail about why the
extra work was required. “The estimates and approximations here invite the same sort of
speculation that the Second Circuit held ‘does not amount to a plausible claim’” for failure to pay

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overtime. Cromwell v. New York City Health and Hosps. Corp., No. 12-cv-4251 (PAE), 2013 WL
2099252, at *4 (S.D.N.Y. May 15, 2013) (quoting Lundy v. Catholic Health Sys. of Long Island
Inc., 711 F.3d 106, 115 (2d Cir. 2013)). Limauro’s new allegations fundamentally lack “factual
context or content” as to the alleged violation, and thus do not state a plausible claim. Dejesus v.
HF Mgmt. Servs., LLC, 726 F.3d 85, 89 (2d Cir. 2013).
There is no allegation that ConEd consistently scheduled Limauro to work more than forty
hours each week or that ConEd never gave Limauro any breaks during his normal workday. In
short, there is no way to identify from the allegations which weeks Limauro was required to work
more than forty hours. See Nakahata, 723 F.3d at 201.
Accordingly, Limauro’s amended complaint still does not state a claim for failure to pay
overtime under the New York Labor Law, which is evaluated under the same standard as the
federal Fair Labor Standards Act. Id. at 200. His amended Count VIII is dismissed with prejudice.
The Clerk is respectfully directed to remove the motion at Docket #22 from the court’s list
of open motions.

Dated: March 31, 2021
______________________________________
Chief Judge

BY ECF TO ALL COUNSEL

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