The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
__________________________________________
JOSEPH LIMAURO,
Plaintiff,
-against-
No. 20-cv-03558 (CM)
CONSOLIDATED EDISON COMPANY OF
NEW YORK, INC.; CHRISTOPHER JANUSZ;
THOMAS BARRETT; AND CONROY
MCPHERSON
Defendants
__________________________________________
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT
McMahon, C.J.:
Plaintiff Joseph Limauro claims that he was fired from his job as a construction services
supervisor with ConEd because of his various physical and mental disabilities. Limauro now sues
his former employer, alleging eight different causes of action arising under the Americans with
Disabilities Act (“ADA”), the New York State Human Rights Law (“NYSHRL”), the New York
City Human Rights Law (“NYCHRL”), the Family Medical Leave Act (“FMLA”), and the New
York State Labor Law (“NYLL”).
ConEd and the associated individual Defendants have filed a motion to dismiss the
complaint as to all counts for failure to state a claim, pursuant to Federal Rule of Civil Procedure
12(b)(6). As to each count except Count VIII, which seeks damages for failure to pay overtime
wages, the motion is DENIED. As to Count VIII, the motion is GRANTED, with leave to amend
to cure the patent deficiency in the pleading.
I. BACKGROUND
A. The Parties
Joseph Limauro is a resident of Connecticut. ConEd hired Limauro to work as a
construction services supervisor in New York City on November 1, 2017. Limauro worked at
ConEd until he was fired on May 31, 2019. (Complaint at ¶¶ 9, 70).
Defendant Consolidated Edison Company of New York (“ConEd”) is a corporation
incorporated and headquartered in New York.
Defendants Christopher Janusz, Thomas Barrett, and Conroy McPherson were ConEd
employees during the events pertaining to this suit. Janusz worked as a construction services
manager and was Limauro’s immediate supervisor. (Id. at ¶¶ 3, 18). Barrett worked as a
construction services operations manager, and McPherson was a human resources representative.
Limauro’s complaint claims that Barrett and McPherson were the ConEd representatives who fired
Limauro and were thus complicit in that decision. (Id. at ¶¶ 67, 70).
B. Plaintiff’s Allegations
On a motion to dismiss, the Court must “accept all factual allegations in the complaint as
true and draw all reasonable inferences in the [plaintiff’s] favor.” Dooley v. JetBlue Airways Corp.,
636 F. App’x 16, 18 (2d Cir. 2015) (quoting Deutsche Bank Nat. Trust Co. v. Quicken Loans Inc.,
810 F. 3d 861, 863 n.1 (2d Cir. 2015)). Thus, the following facts are recounted from Limauro’s
complaint.
1. Limauro’s Disabilities
Limauro suffers from post-traumatic stress disorder (“PTSD”) and major depressive
disorder. (Id. at ¶¶ 14–15). These mental-health ailments substantially affect his day-to-day life –
for instance, by making it difficult for him to get consistent sleep, be happy, or to socialize
regularly. Limauro also suffers from several physical ailments, namely gout and osteoarthritis.
These conditions cause him great pain, and limit his ability to run, walk, or stand for long periods
of time. (Id. at ¶ 16). Despite these limitations, ConEd hired Limauro to serve as a construction
services supervisor on November 1, 2017. (Id. at ¶ 9). Throughout his employment, Limauro was
able to perform his job, and he was never subjected to any discipline, counseling or even given
any warnings regarding his job performance. (Id. at ¶¶ 9, 72–74)
2. Limauro’s Allegations Regarding his Mental Health
In September 2018, Limauro’s symptoms relating to his PTSD and major depressive
disorder worsened, and he began regularly seeing a therapist. (Id. at ¶ 17). Limauro discussed his
mental-health issues with Janusz, his immediate supervisor, and asked for permission to leave
work one hour earlier each Tuesday – he normally worked from 7 AM to 3:30 PM – so that he
could arrive at his therapist’s office in time for his appointments. (Id. at ¶ 21).
Janusz was reluctant to grant the accommodation; he initially suggested that Limauro see
his therapist on weekends. Eventually, he agreed to allow Limauro to leave work thirty minutes
early each Tuesday. (Id. at ¶ 23). Limauro claims that this accommodation was insufficient because
it resulted in him being late for his appointments; he actually missed several altogether. (Id. at ¶
25).
Limauro continued to request that he be allowed to leave one hour early for the next several
months – all the way through November 2018 – but ConEd denied all of these requests. (Id. at ¶
26).
3. Limauro’s Allegations Regarding his Physical Health
Beginning in March 2019, Limauro’s symptoms relating to his gout and osteoarthritis also
worsened, to the point where he was unable to walk more than a few steps at a time. (Id. at ¶ 41).
Limauro’s doctor recommended a period of no physical activity to recover, and so Limauro asked
ConEd for medical leave, which he qualified for under the FMLA. (Id. at ¶ 43). ConEd granted
Limauro’s request, and he went on medical leave for a total of ten weeks. (Id. at ¶¶ 46, 48).
Limauro returned to work on May 28, 2019. On his first day back, Limauro was sent to see
a ConEd doctor to determine his fitness for duty. (Id. at ¶ 49). The doctor placed a physical-exertion
restriction on Limauro, recommending that he limit his walking, standing, and climbing to between
three to six hours per day. (Id. at ¶ 50). Limauro presented these recommendations to Janusz and
asked for an accommodation to his regular duties. According to Limauro, Janusz became angry;
he told Limauro that he could not adequately perform his job with the restrictions in place. (Id. at
¶¶ 53–55). Janusz was unwilling to engage in any type of discussion with Limauro about
alternative accommodations, and instead instructed Limauro to catch up on his yearly training
certifications, which were classes that were conducted online. (Id. at ¶¶ 54, 55, 57).
The next day (May 29), ConEd required Limauro to take a “random” drug test at 7 AM,
which he passed. According to Limauro, this was not a routine procedure for employees who were
returning to work after a period of medical leave. Limauro believes that being required to take the
drug test was a form of retaliation, because he had to walk a significant distance to and from the
facility where he took the test. (Id. at ¶ 65).
At around 2 PM the next day (May 30), Limauro was informed by a co-worker that Barrett
– ConEd’s construction services operations manager (and Janusz’s boss) – wanted to have a
meeting with Limauro on May 31 at 9 AM. Limauro became concerned, because Barrett did not
normally meet with Limauro as part of his job. Limauro left two voice mails for Janusz, asking
why this meeting was taking place and otherwise complaining about how he had been treated since
returning to work. (Id. at ¶ 68). Janusz never returned the calls.
ConEd fired Limauro at the May 31 meeting, just three days after he returned to work from
medical leave. (Id. at ¶ 70). Present at the meeting with Limauro were Barrett and McPherson. The
pair told Limauro that he was being fired because of his poor performance on two projects and for
not properly filling out timesheets while he was on leave. (Id. at ¶ 71).
Limauro claims that ConEd generally uses a progressive discipline policy that escalates
each poor performance before firing, but that it failed to do so before firing him. He also alleges
that several non-disabled coworkers did not properly enter their timesheets but were not fired.
Instead, Limauro believes that he was fired because of his various disabilities.
4. Summary
In sum, Limauro identifies five distinct actions that he asserts qualify as adverse
employment actions that ConEd took against him because of his disabilities: (1) ConEd’s refusal
to permit him to leave work an hour early each week to attend therapy sessions; (2) his “random”
drug test the day after he returned to work from medical leave; (3) ConEd’s assigning him to
complete online training as opposed to his regular work duties; (4) ConEd’s refusal to engage in
an interactive dialogue regarding his physical restrictions after he returned to work; and (5) his
firing, and the denial of a progressive discipline mechanism before his termination.
C. Procedural History
In October 2019, approximately five months after being fired, Limauro filed a Charge of
Discrimination with the New York City Commission on Human Rights (“NYCCHR”) and cross
filed the charge with the Equal Employment Opportunity Commission (“EEOC”). On April 3,
2020, Limauro requested and received a notice of administrative closure from the NYCCHR. He
then received his right-to-sue letter from the EEOC on April 7, 2020. Limauro filed the instant suit
against the Defendants on May 7, 2020.
Limauro’s complaint alleges the following: violations of the NYCHRL, the NYSHRL, and
the ADA based on disability discrimination and failure to accommodate (Counts I, II, and III,
respectively); retaliation under the NYCHRL, NYSHRL, and ADA (Counts V, VI, and VII,
respectively); interference with – and retaliation for exercising – his rights under the FMLA (Count
IV); and a failure to pay overtime, in violation of the NYLL (Count VIII).
Defendants have jointly filed a motion to dismiss all of the claims for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).
II. DISCUSSION
A. Legal Standards
1. Motion to Dismiss
To survive a motion to dismiss for failure to state a claim, a plaintiff’s complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S.
544, 570 (2007)). Although the complaint must raise more than the “sheer possibility that a
defendant has acted unlawfully,” it need not contain “detailed factual allegations,” Twombly, 550
U.S. at 555, as the question “is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.” Villager Pond, Inc. v. Town of Darien,
56 F.3d 375, 378 (2d Cir. 1995) (citation omitted). A motion to dismiss will be denied if the
plaintiff’s allegations are 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. In answering this question, a court must accept all of the plaintiff’s factual
allegations in the complaint as true.
2. Relationship of the ADA, NYSHRL, and NYCHRL.
Six of Limauro’s eight causes of action arise under either the ADA, the NYSHRL, or the
NYCHRL. Claims under the NYSHRL and ADA are evaluated under the same legal framework,
as “New York State disability discrimination claims are governed by the same legal standards as
federal ADA claims.” Rodal v. Anesthesia Grp. Of Onondaga, P.C., 369 F.3d 113, 117 n.1 (2d
Cir. 2004); see also Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 n.3 (2d Cir.
2001); Parker v. Columbia Pictures Indus., 204 F.3d 326, 332 n.1 (2d Cir. 2000).
Analysis under the NYCHRL can be a different matter. For many years, claims arising
under the statute were “treated as coextensive with state and federal counterparts.” Loeffler v.
Staten Island Univ. Hops., 582 F.3d 268, 278 (2d Cir. 2009). That changed in 2005, when the New
York City Council amended the NYCHRL to require courts to construe the statute more broadly
than similarly worded state or federal laws:
The provisions of this [ ] title shall be construed liberally for the accomplishment
of the uniquely broad and remedial purposes thereof, regardless of whether federal
or New York State civil and human rights laws, including those laws with
provisions comparably-worded to provisions of this title, have been so construed.
Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85 (2005).
Courts must now “analyze [the viability of] NYCHRL claims separately and independently
from any federal and state law claims.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715
F.3d 102, 109 (2d Cir. 2013). The Second Circuit has interpreted the amended NYCHRL as
establishing a “‘one-way ratchet,’ by which interpretations of state and federal civil rights statutes
can serve only ‘as a floor below which the City’s Human Rights law cannot fall.’” Ibid (quoting
Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009)). This means that “even if
the challenged conduct is not actionable under federal and state law, federal courts must consider
separately whether it is actionable under the broader New York City standards.” Ibid. Practically
speaking, because the NYCHRL is more protective than its state and federal counterparts, a claim
is automatically stated under the NYCHRL if it is stated under the federal and state statutes – and
a claim may be stated under the NYCHRL even if that same claim would be dismissed under the
ADA or the NYSHRL.
3. Individual Liability
While all but two of Limauro’s claims are brought against all of the defendants, Limauro’s
ADA discrimination and retaliation claims (Counts III and VII) are alleged only against ConEd.
This is because, the “ADA, “which explicitly borrows the remedies set forth in [Title VII], cannot
provide for individual liability. Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010); see also,
e.g., Salas v. New York City Dep’t of Investigation, 298 F. Supp. 3d 676, 682 (S.D.N.Y. 2018).
However, the state and city statutes underlying the rest of Limauro’s claims all provide for
individual liability if the individual defendant has substantial control over employment decisions
regarding Limauro or is someone who has “the authority to hire and fire employees.” Edwards v.
Jericho Union Free Sch. Dist., 904 F. Supp. 2d 294, 304 (E.D.N.Y. 2012) (NYSHRL); see also
Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004) (NYCHRL); Smith v. Westchester Cnty.,
769 F. Supp. 2d 448, 475 (S.D.N.Y. 2011) (FMLA); Fermin v. Las Delicias Peruanas Restaurant,
Inc., 93 F. Supp. 3d 19, 35–36 (E.D.N.Y. 2015) (NYLL). For a theory of individual liability to
survive a motion to dismiss, the plaintiff must “plead that the proposed individual defendants had
substantial control over the aspects of employment alleged to have been violated.” Smith, 769 F.
Supp. 2d at 475–76 (quoting Augustine v. AXA Fin., Inc., No. 07-cv-8362, 2008 WL 5025017, at
*4 (S.D.N.Y. Nov. 24, 2008)).
Here, Limauro has alleged facts that raise an inference that all three of the individual
defendants are subject to liability given their positions within ConEd. All three of Janusz, Barrett,
and McPherson were above Limauro on ConEd’s organizational chart. Barrett (ConEd’s
construction services operations manager), and McPherson (a human resources representative)
were present at Limauro’s firing, and they informed Limauro of ConEd’s apparent reasons for
firing him. One can thus draw the inference that they were responsible for decisions related to his
employment. (Id. at ¶¶ 70–71). Similarly, although Janusz was not at the meeting where Limauro
was fired, he was Limauro’s direct supervisor, had discussions with Limauro regarding his work
assignments and determinations, and had authority over his scheduling. (Id. at ¶¶ 50–56).
Thus, Limauro has alleged enough facts to raise the possibility of individual liability as to
Janusz, Barrett, and McPherson, and the Court will thus analyze all of Limauro’s claims against
the Defendants’ together. Whether those allegations will be buttressed with the evidence needed
to survive a motion for summary judgment or a directed verdict is a matter for another day.
B. Disability Discrimination Based on Disparate Treatment (Counts I, II, III)
Limauro brings disability-discrimination claims under the NYCHRL (Count I), the
NYSHRL (Count II), and the ADA (Count III). For the reasons discussed above, I will see whether
the complaint states a disability-discrimination claim under the ADA. If it does, then it necessarily
states a claim under both the state statute (which is co-extensive with the ADA) and the city statute
(which is more liberal than the ADA).
The ADA provides that “No covered entity shall discriminate against a qualified individual
on the basis of disability in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). A “qualified individual” is one “who, with or
without reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires.” Id. at § 12111(8).
Disability-discrimination claims are analyzed under the familiar framework the Supreme
Court established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See McBride v.
BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009). Under this framework, a plaintiff
can establish a prima facie case of discrimination by demonstrating that: (1) the employer is a
“covered entity,” under the ADA; (2) the plaintiff has a “disability” under the ADA; (3) he “was
qualified to perform the essential functions of the job, with or without reasonable
accommodation”; and (4) he “suffered an adverse employment action because of his disability or
perceived disability.” Kinneary v. City of New York, 601 F.3d 151, 155–56 (2d Cir. 2010).
Yet, at the motion-to-dismiss stage, a plaintiff need not even allege “specific facts
establishing a prima facie case of discrimination under the framework set forth . . . in McDonnell
Douglas,” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002). All that is needed is “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Ibid. (quoting Fed.
R. Civ. P. 8(a)(2)). Swierkiewicz was decided before the Supreme Court heightened pleading
requirements to “plausibility” in Iqbal and Twombly, but the Second Circuit has since clarified the
interplay of these opinions: “prima facie ‘is an evidentiary standard, not a pleading requirement,’”
and so all that a plaintiff must do is “set forth enough factual allegations to plausibly support each
of the . . . basic elements” of a claim under McDonnell Douglas. Mandala v. NTT Data, Inc., 975
F.3d 202, 209 (2d Cir. 2020) (quoting NAACP v. Merrill, 939 F.3d 470, 477 (2d Cir. 2019)).
Fundamentally, this means that at the motion-to-dismiss stage, a court will not dismiss a
discrimination claim as long the complaint alleges facts suggesting that the plaintiff was treated
“‘less well’ because of his disability.” Gonzalez v. City of New York, 377 F. Supp. 3d 273, 301
(S.D.N.Y. 2019) (quoting Mihalik, 715 F.3d at 110).
Here, the first two factors of the claim – that ConEd is a covered employer and that Limauro
suffers disabilities – are uncontested. The only dispute is whether Limauro was otherwise qualified
for his job, and whether he was subjected to an adverse employment action.
1. Limauro has sufficiently alleged that he was qualified for the job
The qualification element of a disability-discrimination claim requires only a “minimal
showing” that the plaintiff “possesses the basic skills necessary for performance of [the] job.”
Owens v. N.Y.C. Hous. Auth., 934 F.2d 405, 409 (2d Cir. 1991) (quoting Powell v. Syracuse Univ.,
580 F.2d 1150, 1155 (2d Cir. 1978)). Limauro’s complaint alleges facts from which one can infer
that he was qualified for his job. The complaint claims that ConEd hired Limauro in November
2017; that he was never cited for poor performance; that he never received any formal counseling
or discipline; and that he never even received any warnings related to his performance before he
was fired in May 2019. (Id. at ¶¶ 9, 72–74). The fact that Limauro was hired and performed his
job without discipline for almost two years before his firing suggests that he was qualified for the
job before he went on medical leave. And while Limauro requested to limit his walking or standing
to between three to six hours per day after he returned to work from medical leave, that was a
limitation placed on him by ConEd’s doctor. (Id. at ¶¶ 49–51). This suggests that ConEd (or at
least its doctor) believed that Limauro could adequately perform his duties with the restrictions in
place.
It can thus be inferred from the allegations of the complaint that Limauro was able to
perform his job duties while limiting his physical activity. Courts have consistently held that a
plaintiff’s ability to hold a job for an extended period of time raises the inference that he was
qualified for the job. For example, in Capobianco v. City of New York, 422 F.3d 47, 61 (2d Cir.
2005), the Second Circuit suggested that a plaintiff being “able to perform [a job] satisfactorily . .
. for some time” raises the inference that he is qualified for the position. Id. at 61. And in Farmer
v. Shake Shack Enterprises, LLC, 473 F. Supp. 3d 309, 325 (S.D.N.Y. 2020), the court held that a
plaintiff pled sufficient facts to survive dismissal when she alleged that she had worked at the
defendant restaurant for “approximately two months” and had “received a raise during her short
tenure.” The fact that Limauro was able to perform the job without any reprimand for an extended
period of time is enough for the Court to infer that he was qualified for the position.
Defendants claim that Limauro failed to state a claim because he did not describe his
“essential job functions” with enough specificity. But there is no such requirement at the motion-
to-dismiss stage. Indeed, because courts – at the summary judgment stage – give “substantial
deference” to “the employer’s judgment as to what functions of a job are essential,” a plaintiff
does not fail to state a claim simply because he does not detail what those functions may be. The
determination of what qualifies as an essential job function – and whether Limauro was otherwise
qualified to fulfill it – is a question reserved for later proceedings. McBride, 583 F.3d at 98. All
that Limauro must do in his complaint is to allege facts that raise an inference that he was qualified.
He has met this requirement.
2. Limauro has sufficiently alleged that he was subjected to an adverse action
The last element of a disability-discrimination claim requires that the plaintiff allege facts
that suggest his employer took an adverse action against him due to the employee’s disability. An
adverse employment action is one that is “‘materially adverse’ with respect to ‘the terms and
conditions of employment.’” Davis v. New York City Dep’t of Educ., 804 F.3d 231, 235 (2d Cir.
2015) (quoting Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)).
Getting fired certainly qualifies as an adverse employment action. Limauro alleges that he
was fired just three days after returning to work from medical leave. (Id. at ¶ 70). Not only that,
Limauro claims that he was fired after asking ConEd for a temporary accommodation specifically
related to his physical disabilities. The adverse action was taken “very close” to when Limauro
returned to work and made his request. Indeed, he had not yet even had the opportunity to try to
perform his regular work duties (i.e., had not yet had the time to demonstrate his competency for
the job) before he was fired. Clark Cty Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). The close
temporal proximity between Limauro’s returning to work, his request for accommodation, and his
firing is sufficient to raise an inference that he was fired because of his disability. See, e.g., Salas,
298 F. Supp. at 687.
C. Failure to Accommodate (Counts I, II, III)
Limauro also brings claims of failure to accommodate under the same counts as his
disability-discrimination claims.
Under the ADA, discriminatory conduct includes, inter alia, “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability . . . unless such covered entity can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. §
12112(b)(5)(A). A plaintiff states a prima facie case for failure to accommodate by alleging that:
(1) plaintiff is a person with a disability under the meaning of the ADA; (2) an
employer covered by the statute had notice of his disability; (3) with reasonable
accommodation, plaintiff could perform the essential functions of the job at issue;
and (4) the employer has refused to make such accommodations.
McMillan v. City of New York, 711 F.3d 120, 125–26 (2d Cir. 2013) (quoting McBride., 583 F.3d
at 97).
Here, ConEd acknowledges that Limauro has sufficiently pled the first two elements of the
claim. It contests only that Limauro failed to plead a reasonable accommodation, and that ConEd
failed to make such accommodations.
A “reasonable accommodation” generally means, “Modifications or adjustments that
enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of
employment as are enjoyed by its other similarly situated employees without disabilities.” 29
C.F.R. § 1630.2 (o) (1) (iii). It may include, “Job restructuring; part-time or modified work
schedules; reassignment to a vacant position” or “other similar accommodations.” Id. at § 1630.2
(o) (2).
The question of what qualifies as a reasonable accommodation is one that is “fact-specific”
and “often must be resolved by a factfinder.” Noll v. Int’l Bus. Machines Corp., 787 F.3d 89, 94
(2d Cir. 2015) (quoting Wernick v. Fed. Rsrv. Bank of N.Y., 91 F.3d 379, 385 (2d Cir. 1996)). If
the plaintiff provides the employer with a request for an accommodation, then the employer will
generally raise an affirmative defense by “demonstrat[ing] that such accommodations would
present undue hardships and would therefore be unreasonable.” McMillan, 711 F.3d at 128. This,
too, is a fact-intensive inquiry. If an employer denies a plaintiff’s initial request for
accommodation, “it may be necessary for the covered entity to initiate an informal, interactive
process,” with the employee, 29 C.F.R. § 1630.2 (o) (3), whereby the two “work together to assess
whether an employee’s disability can be reasonably accommodated.” Jackan v. N.Y.S. Dep’t of
Labor, 205 F.3d 562, 566 (2d Cir. 2000). Whether the employer definitively failed to accommodate
a reasonable request will be evaluated in light of the interactive process.
Ultimately, these fact-intensive questions are reserved for later proceedings. “All that
plaintiffs must do at the motion to dismiss stage is plead the existence of a ‘plausible
accommodation, the costs of which, facially, do not clearly exceed its benefits.’” Shaywitz v. Am.
Bd. of Psychiatry and Neurology, 675 F. Supp. 2d 376, 390 (S.D.N.Y. 2009) (citation omitted)
(emphasis added). In other words, a plaintiff “bears only the burden of identifying an
accommodation” which is reasonable. Novick v. Village of Wappinger Falls, N.Y., 376 F. Supp.
3d 318, 337 (S.D.N.Y. 2019) (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 139 (2d
Cir. 1995)) (emphasis added).
Here, Limauro identifies three accommodations that he requested from ConEd: (1) his
request to leave an hour early each Tuesday to see his therapist; (2) his request to go on medical
leave; and (3) his request to limit his walking and standing to between three to six hours each day
after he returned to work. These requests are better grouped into requests to accommodate his
mental-health disabilities (leaving work early) and those related to his physical disabilities
(medical leave, walking/standing limitation).
1. Requests Related to Limauro’s Mental-Health Disabilities
Limauro claims that his PTSD and major depressive disorder required him to see a
therapist. (Id. at ¶ 17). He asked for permission to leave work one hour early each Tuesday so that
he could arrive at his therapist’s on time. However, ConEd denied the request, and only permitted
him to leave a half hour early each Tuesday. This caused Limauro to often be late to his
appointments, or to miss them altogether. (Id. at ¶ 25).
Defendants argue that Limauro has failed to plead why his request to leave an hour early
each week was necessary for him to perform the essential functions of his job. Courts have granted
summary judgment to defendant employers when the plaintiff failed to show why a request for
accommodation was necessary for the job. See, e.g., Flynn v. McCabe & Mack LLP, No. 15-cv-
5776, 2018 WL 794631, at *8 (S.D.N.Y. Feb. 8, 2018). But at the motion-to-dismiss stage,
Limauro’s allegations have raised an inference that his requests were reasonable in light of his
disabilities. Limauro’s PTSD and major depressive disorder “substantially limits” his “ability to
sleep, regulate his emotions, be happy, and to socialize.” (Id. at ¶ 15). Having relief – however
minor – from those symptoms by seeing a therapist regularly, and by seeing the therapist without
the additional anxiety of having to rush to make the appointment in time, naturally raises the
inference that the request would have enabled Limauro to better perform his job. This is sufficient
for me to conclude that Limauro has pled sufficient facts to state a claim for failure to
accommodate.
Defendants also argue that Limauro’s failure-to-accommodate claim based on his request
to leave early is time barred because he made his original request in September 2018, which was
more than 300 days before he filed his charge of discrimination with the EEOC. In New York, an
employee seeking to file a grievance against his employer must file a discrimination charge with
the EOOC within 300 days of the employment practice. See Gomez v. N.Y.C. Police Dep’t, 191 F.
Supp. 3d 293, 301 (S.D.N.Y. 2016). Here, however, Limauro’s complaint states that he continued
renewing his requests to leave an hour early from work through November 2018, which would be
within the 300-day limitations period. The ADA permits claims to be filed even if the original
discriminatory act fell outside the 300-day period where “the discriminatory acts were part of a
continuing policy and practice of prohibited discrimination,” or “where specific and related
instances of discrimination are permitted by the employer to continue unremedied for so long as
to amount to a discriminatory policy or practice.” Giannattasia v. City of New York, 2011 WL
4629016, at *3 (E.D.N.Y. Sep. 30, 2011) (citations omitted). It appears, based solely on the
allegations of the complaint, that Limauro made at least one request for permission to leave early
to attend therapy that is not time-barred, which is sufficient to prevent dismissal of his federal
claims relating to his requests for a mental-health accommodation.
There is also no statute-of-limitations issue with regard to Limauro’s failure-to-
accommodate claim under the NYSHRL or the NYCHRL, each of which has a three-year statute
of limitations. See, e.g., Bermudez v. City of New York, 783 F. Supp. 2d 560, 573 (S.D.N.Y. 2011).
Thus, even if there were a limitations problem under the ADA, there would be none under the state
or city statutes.
2. Requests Related to Limauro’s Physical Disabilities
After Limauro returned to work from medical leave, he presented ConEd with ConEd’s
own doctor’s recommendation that he limit his walking and standing to between three to six hours
per day. But according to the complaint, ConEd (through Limauro’s supervisor, Janusz) was
unwilling to engage in any conversation about any accommodations related to Limauro’s physical
disabilities, or to otherwise engage in any type of interactive dialogue to come to a consensus on
how to move forward. Even though the accommodations were intended to be temporary, until
Limauro fully recovered from the flareups in his gout and osteoarthritis, ConEd was unwilling to
explain why it thought he was unable to perform his job, or why his request could not be
accommodated. (Id. at ¶¶ 51–57).
These allegations are more than sufficient to make out a plausible claim that ConEd failed
to accommodate Limauro’s requests regarding to his physical disabilities. ConEd claims that
Limauro’s request was unreasonable, but the question of reasonableness is a fact-based inquiry
that is reserved for when there is a more robust record upon which to evaluate the defense.
Limauro’s complaint clearly identifies an accommodation – recommended by ConEd’s own doctor
– that he claims would have allowed him to perform his job while he was recovering. Even if the
request were somehow unreasonable (which, at first glance, it is not), the complaint also clearly
details that ConEd failed to engage in any type of dialogue with Limauro about alternative
accommodations – as it was obligated to do under the ADA.
Limauro has stated failure-to-accommodate claims (along with his disability-
discrimination claims) upon which relief can be granted under the ADA, the NYSHRL, and the
NYCHRL. Therefore, the motion to dismiss Counts I, II and III is denied.
D. Retaliation (Counts V, VI, and VII)
Limauro also alleges in Counts V (NYCHRL), VI (NYSHRL) and VII (ADA) that the
Defendants retaliated against him when he spoke out asking for accommodations.
To state a claim for retaliation under the ADA, a plaintiff-employee must plead that: “(1)
the employee was engaged in an activity protected by the ADA, (2) the employer was aware of
that activity, (3) an employment action adverse to the plaintiff occurred, and (4) there existed a
causal connection between the protected activity and the adverse employment action.” Sarno v.
Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999). This framework is
effectively the same under both the NYSHRL and the NYCHRL, although instead of requiring
that the employer take an adverse employment action, the NYCHRL requires only “that something
happened that would be reasonably likely to deter a person from engaging in protected activity.”
Mihalik, 715 F.3d at 112 (citation omitted).
Although the framework upon which to evaluate the retaliation claim is effectively the
same in that all of the just-discussed elements must be satisfied to establish a prima facie claim,
the New York state and city statutes differ from the ADA as to what qualifies as a “protected
activity.” See Piligian v. Icahn Sch. of Med. at Mount Sinai, No. 17-cv-1975 (ALC), 2020 WL
5758752, at *10 (S.D.N.Y. Sep. 28, 2020).
1. Retaliation Claim Under the ADA (Count VII)
Under the ADA, “Requests for disability accommodation and complaints, whether formal
or informal, about working conditions related to one’s alleged disability are protected activities.”
Gorbea v. Verizon New York, Inc., No. 11-cv-3758 (KAM) (LB), 2014 WL 917198, at *11
(E.D.N.Y. Mar. 10, 2014); see also Goonan v. Fed. Res. Bank of N.Y., 916 F. Supp. 2d 470, 485
(S.D.N.Y. 2013). Since ConEd fired Limauro three days after he requested an accommodation for
his physical disabilities, this is enough to raise an inference that ConEd fired Limauro because he
engaged in the protected activity. Limauro has pled a claim for retaliation under the ADA.
2. Retaliation Claims Under the NYSHRL and the NYCHRL (Counts V and VI)
Limauro and the Defendants disagree over whether a request for an accommodation
qualifies as a protected activity under the NYSHRL and NYCHRL. Several decisions from the
Southern District of New York have reflexively concluded that, because a request for an
accommodation qualifies as a protected activity under the ADA, it similarly qualifies under the
state and city counterparts. See, e.g., Pacheco v. Park South Hotel, LLC, No. 12-cv-9127 (PAC),
2014 WL 292348, at * 4 (S.D.N.Y. Jan. 27, 2014). But a closer examination of the decisions of
New York courts – which this Court is obligated to follow when interpreting New York law –
reveals that at the time the events precipitating this lawsuit took place, “Under both New York
State and New York City Human Rights Laws, a request for reasonable accommodation is not a
protected activity for purposes of a retaliation claim.” Witchard v. Montefiore Med. Ctr., 960
N.Y.S. 2d 402, 403–04 (App. Div. 1st Dep’t 2013); see also D’Amico v. City of New York, 73
N.Y.S.3d 540, 558–59 (App. Div. 1st Dep’t 2018).
New York City has since amended its Human Rights Law, effective November 11, 2019,
to make “clear that requesting a reasonable accommodation is a protected activity under the
NYCHRL.” Piligian, 2020 WL 5758752, at *10. But that amendment had not yet taken effect at
the time Limauro made his requests to ConEd, and there is no indication that the New York City
Council intended for the amended NYCHRL to apply retroactively. Id. at *12. Thus, I must adhere
to the New York courts’ prior interpretation of the statutes.
The fact that New York courts have interpreted that requests for accommodation do not
qualify as “protected activities” for purposes of a retaliation claim is – it appears to me – because
the NYSHRL and NYCHRL both prohibit retaliation only when the employee “has opposed any
practice [or practices] forbidden under” the law. N.Y.C. Admin. Code § 8-107(7); N.Y. Exec. Law
§ 296 (1)(e) (emphasis added). Making a mere request for an accommodation is not an opposition
to an otherwise “forbidden” practice. Indeed, an employer can deny initial requests to
accommodate as long as it engages in an interactive dialogue to come to an agreement with the
employee. Thus, a plaintiff who alleges that he was fired because he had merely requested an
accommodation – without complaining about an otherwise unlawful activity that was already
taking place – does not state a claim under the NYSHRL or the pre-amendment NYCHRL. See,
e.g., McKenzie v. Meridian Capital Grp., LLC, 829 N.Y.S. 2d 129, 129 (N.Y. 2d Dep’t 2006).
New York courts have thus explained:
In order to assert a viable claim of retaliatory discharge, an employee must
demonstrate that there was a reasonable basis to believe that his or her employer
engaged in an actionable discriminatory practice and that the employer discharged
the employee as a result of the employee’s opposition to that practice.
Ibid. (emphasis added). Although this interpretation of the statute appears silly – as it would permit
an employer to fire an employee the moment the employee requested an accommodation – but
would forbid the firing if the employee then complained about the requested accommodation being
denied, it is the construction that the New York courts have given to a New York statute.
Nevertheless, here, Limauro has pled enough facts to indicate that he had opposed and
complained about ConEd’s decision not to engage in the required iterative discussion about an
accommodation – which is forbidden under the law. The complaint alleges that after ConEd denied
the request, Limauro made several complaints to his supervisor, Janusz about the way that he was
being treated upon his return to work. (Id. at ¶¶ 66, 68). Since ConEd was obligated to engage in
an interactive dialogue about Limauro’s accommodation requests, but did not do so, Limauro’s
subsequent complaints about this would qualify as a protected activity. And since Limauro was
fired soon after he made these complaints, he has pled sufficient facts to state a retaliation claim
under both the NYSHRL and the NYCHRL.
E. Interference and Retaliation Claim Under the FMLA (Count IV)
There are two types of claims arising under the FMLA – interference with an FMLA right,
and retaliation. Limauro’s complaint alleges both types of FMLA violations.
To establish a retaliation claim under the FMLA, a plaintiff “must establish that: (1) he
exercised rights protected under the FMLA; (2) he was qualified for his position; (3) he suffered
an adverse employment action; and (4) the adverse employment action occurred under
circumstances giving rise to an inference of retaliatory intent.” Potenza v. City of New York, 365
F.3d 165, 168 (2d Cir. 2004).
To establish an interference claim:
a plaintiff must establish: (1) that she is an eligible employee under the FMLA; (2)
that the defendant is an employer as defined by the FMLA; (3) that she was entitled
to take leave under the FMLA; (4) that she gave notice to the defendant of her
intention to take leave; and (5) that she was denied benefits to which she was
entitled under the FMLA.
Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016). Benefits of the FMLA
include, but are not limited to, being “restored by the employer to the position of employment held
by the employee when the leave commenced” and being “restored to an equivalent position with
equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C.
§ 2614 (a) (1) (A), (B).
Limauro has sufficiently pled an FMLA retaliation claim. He took FMLA medical leave –
for which he qualified – in March 2019, thereby exercising a protected right under the FMLA. And
as discussed earlier in relation to his other counts, Limauro has adequately pled that he was fired
upon his return from FMLA leave simply because of his disability – to which his leave was related.
All that is required to plead an FMLA retaliation claim is that the taking of FMLA leave
“constituted ‘a negative factor in [Defendants’] decision’ to take an adverse employment action
against him.” Smith, 769 F. Supp. 2d at 472 (quoting Sista v. CDC Ixis N. Am., Inc., 445 F. 3d 161,
176 (2d Cir. 2006)). The close timing between Limauro’s return to work and his firing raises an
inference that he was fired for exercising his FMLA right to go on medical leave.
Limauro has also sufficiently pled that ConEd violated the FMLA by interfering with his
protected rights under the act. Defendants argue that there was no interference because Limauro
was assigned back to his original position when he returned from leave. They claim that Limauro’s
complaint about being assigned online-only work the few days that he was back does not constitute
a denial of benefits, because all employees must undergo similar training. But this argument misses
the bigger picture. Limauro was fired. He no longer had a job three days after he returned from
leave. One of the FMLA’s protected benefits is that the employee be restored to a similar position
when he returns from work. That benefit is denied when the employee is fired – plausibly as a
result of taking FMLA leave. Limauro has thus stated a claim for FMLA interference.
F. Failure to Pay Overtime Under the New York Labor Law (Count VIII)
A claim for unpaid overtime under the NYLL is evaluated under the same standard as the
federal Fair Labor Standards Act (“FLSA”). See Nakahata v. New York-Presbyterian Healthcare
Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013). “[T]o survive a motion to dismiss [an FLSA overtime
claim], Plaintiffs must allege sufficient factual matter to state a plausible claim that they worked
compensable overtime in a workweek longer than 40 hours.” Ibid. (quoting Lundy v. Catholic
Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013)). The Second Circuit has held
that a plaintiff must plead that he worked more than forty hours a week with “specificity” and
cannot simply allege that he worked “more” than forty hours without more facts. Dejesus v. HF
Mgmt. Servs., LLC, 726 F. 3d 85, 89 (2d Cir. 2013).
Limauro has not satisfied his burden of pleading a plausibly viable failure-to-pay-overtime
claim.
Limauro states that his normal shift was from “7am to 3:30pm” from Monday through
Friday, although he “regularly worked more hours by coming in earlier and staying later.” (Id. at
¶ 30). That allegation lacks specificity and does not state a claim upon which relief could be
granted.
Of course, 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. It is possible that Limauro is “not merely claiming that [he] ‘occasionally,’
‘typically,’ or ‘regularly’ worked more than 40 hours some weeks” but rather that he consistently
worked more than 40 hours a week – per his regular schedule – and was not paid overtime. Kuck
v. Planet Home Lending, LLC, 354 F. Supp. 3d 162, 168 (E.D.N.Y. 2018). 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’s would need
to plead that he was not allowed any breaks during his shift. He did not so plead.
As pleaded, then, Count VIII must be dismissed. I will dismiss it without prejudice;
Limauro has twenty-one days to file an amended complaint, limited to amending Count VIII with
the specificity needed to survive a motion to dismiss. He can either drop this claim or come up
with more facts that plausibly suggest that ConEd violated the Labor Law by failing to pay him
overtime.
CONCLUSION
For the reasons set forth above, Defendants’ collective motion to dismiss is DENIED as to
all counts except Count VIII; as to that count, it is GRANTED, without prejudice to amend within
21 days of the date of this decision.
The Clerk of the Court is respectfully directed to remove the motion at Dkt. No. 10 from
the Court’s list of pending motions.
Dated: February 9, 2021
ji F jh
( (shee
Chief Judge
BY ECF TO ALL COUNSEL
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