The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge
Plaintiff Darcy LaGoy brings this suit under 28 U.S.C. §§ 1331 and
1343.*fn1 She asserts claims under 42 U.S.C. §§ 1983 and 1981,*fn2
alleging that Correctional Medical Services (CMS) and the individual
defendants (collectively the "CMS defendants") acted under color of state
law to violate her constitutional rights under the First and Fourteenth
Amendments. Invoking the court's supplemental jurisdiction under
28 U.S.C. § 1367, LaGoy also asserts state law claims for defamation and
intentional and/or negligent infliction of emotional distress. She seeks
declaratory and injunctive relief,*fn3 compensatory and punitive
damages, and attorney's fees and costs.
The CMS defendants have moved to dismiss under Rule 12(b)(1) of
the Federal Rules of Civil Procedure, contending that LaGoy's claims are
preempted by sections 7 and 8 of the National Labor Relations Act (NLRA),
29 U.S.C. §§ 157, 158, and are subject to the National Labor Relations
Board's (NLRB) primary jurisdiction. For the following reasons, the CMS
defendants' motion to dismiss is denied.
II. Procedural Background
LaGoy commenced this action on November 14, 2002. Dkt. No. 1. The
present motion was filed on February 24, 2003. Dkt. No. 11-16. The case
was reassigned to this court on February 17, 2004, Dkt. No. 18, and the
motion was taken on submit on February 3, 2005.
LaGoy was employed as a nurse for CMS, a Missouri corporation that
provides medical services at the Albany County Correctional Facility
(ACCF). These services are rendered pursuant to a contract with the City
of Albany. Complaint ¶¶ 5, 12,*fn5 16, Dkt. No. 1. CMS has allowed only
union organizations in its nearly three hundred facilities nationwide.
Id. ¶ 14. Moreover, CMS's written policies provide that all CMS
facilities should be "union free," and require employees to attend "union
free workplace" seminars where the company actively discourages
association with labor unions. Id. ¶ 13.
Dissatisfied with poor working conditions at CMS, LaGoy and several
other employees began to organize a local chapter of the Civil Service
Employees Association (CSEA). Id. ¶ 15. On September 12, 2002, CSEA held
a rally at ACCF seeking union membership for CMS employees. Id. ¶ 16.
LaGoy participated in this rally along with other CMS employees and CSEA
members. Id. ¶ 17. The following day, LaGoy and her coworkers received a
letter from CMS and Cooper maintaining that the rally violated the notice
provisions of the NLRA by failing to provide the requisite tendays' notice
before picketing a "health care site." Id. ¶ 18. CMS then filed a charge
of unfair labor practices with the NLRB, claiming that CSEA had violated
section 8(g) of the NLRA, and requested injunctive relief. Id.; Burns
Aff., Ex. A, Dkt. No. 12. The NLRB issued a complaint*fn6 against
CSEA. Compl. ¶ 19; Burns Aff., Ex. B.
According to LaGoy, CMS claimed it would "take no actions [relative to
your employment] other than as authorized by the NLRB." Compl. ¶ 18. She
also asserts that the NLRB complaint "did not imply, much less require,
the termination of any CMS employee for participating in the supposedly
illegal rally." Id. ¶ 20. She contends that the NLRA, even if it applied
to her case, only allows employers to terminate employees for
participation in unauthorized strikes or work stoppages, and not illegal
Based on the NLRB's preliminary findings, CMS claimed it was authorized
to terminate LaGoy. Id. ¶ 21. In a letter from Price, CMS claimed that
its investigation had confirmed that LaGoy*fn7 had "participated in
picket activity . . . by carrying [signs] and/or walking the picket line
showing support for the illegal picket." Id. On September 30, 2002, CMS
terminated LaGoy without a hearing, based on her "participati[on] in an
illegal picket." Id. ¶¶ 5, 21-22. LaGoy also claims that the decision to
terminate her was made collectively by the individual defendants,
including Miles. Id. ¶ 23.
Following her termination, CMS allegedly made public defamatory
statements to media outlets, claiming LaGoy was terminated for
participating in "illegal activity." Id. ¶ 22. LaGoy alleges that the
media focus on her, combined with the loss of her job and employee
benefits, has caused her severe emotional distress and humiliation. Id.
¶ 24. She further alleges that her job opportunities have diminished.
Id. ¶ 25.*fn8
LaGoy's first three counts assert violations of her civil rights under
42 U.S.C. § 1983. The first count alleges that the CMS defendants, while
acting under color of state law, violated a number of her First Amendment
rights as a government employee. Id. ¶¶ 28-35. In her second count, LaGoy
alleges that the CMS defendants (again acting under color of state law)
violated her Fourteenth Amendment due process rights by depriving her of
property and liberty interests as a government employee. Id. ¶¶ 37-44. The
third count alleges that CMS, Miles, and unknown defendants violated
LaGoy's First and Fourteenth Amendment rights based on
unconstitutional policies and on their failure to ...