United States District Court, N.D. New York
February 8, 2005.
DARCY LAGOY, Plaintiff,
CORRECTIONAL MEDICAL SERVICES; RICHARD H. MILES; STERLING PRICE; GLORIA COOPER; JOHN DOE; and JANE DOE, Defendants.
The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge
DECISION AND ORDER
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 properly
train/supervise. Id. ¶¶ 46-51. LaGoy's fourth and fifth counts assert
individual and vicarious claims for infliction of emotional distress and
defamation. Id. ¶¶ 53-62.
A. Rule 12(b)(1) Motion to Dismiss
Dismissal under Rule 12(b)(1) is proper where the court is without
statutory or constitutional authority to decide a case. See Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). The court must accept as
true the material factual allegations in the complaint, see Atl. Mut.
Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.
1992), and may consider evidence outside the pleadings for the limited
purpose of addressing the Rule 12(b)(1) motion to dismiss. Makarova,
201 F.3d at 113 (citation omitted). The plaintiff has the burden of
proving the court's jurisdiction by a preponderance of the evidence. See
id. (citation omitted).
Here, the issue is whether the NLRA preempts the court's jurisdiction
over LaGoy's section 1983 and state law claims. The parties' positions
are irreconcilable. The CMS defendants argue that LaGoy's claims are
preempted because they are based on conduct governed by the NLRA,
and therefore within the primary jurisdiction of the NLRB. LaGoy contends
that her claims have nothing to do with the NLRA, and should instead be
analyzed as state action infringing on her constitutional rights as a
public employee. At this stage of the case, the court must agree with
1. Preliminary Concerns
The CMS defendants have failed to address a crucial element of LaGoy's
complaint: the allegation that they violated her rights as a government
employee.*fn9 It is well established that neither public employers, nor
public employees, are covered by the NLRA. 29 U.S.C. § 152(2); see, e.g.,
Lyes v. City of Riviera Beach, Fla., 166 F.3d 1332, 1342 (11th Cir.
1999); Jackson v. Temple Univ. of Commonwealth Sys. of Higher Educ.,
721 F.2d 931, 933 (3d Cir. 1983). Thus, whether the NLRA is even
applicable to this case is a question that must be resolved before the
court can turn to the merits of the defendants' arguments. As this
issue has not been addressed by the CMS defendants, their motion
to dismiss must be denied at this stage.
2. NLRA Preemption
The above concerns notwithstanding, the court must reject the CMS
defendants' preemption arguments. As already noted, CMS's chief
contention is that the NLRB has primary jurisdiction over LaGoy's
claims, as they are based on conduct controlled by the NLRA. While the
court may be inclined to agree in part with this argument, the defendants
have failed to address LaGoy's fundamental allegation: that they acted
under color of state law in violating her constitutional rights.
(a) Section 1983 Claims
To the extent LaGoy asserts violations of her constitutional rights
under section 1983, the question whether such claims are preempted by the
NLRA is governed by the standard*fn10 enunciated by the Supreme Court
in Golden State Transit Corporation v. City of Los Angeles, 493 U.S. 103
(1989) ("Golden State II"). See Radcliffe v. Rainbow Constr. Co.,
254 F.3d 772, 780 n. 6 (9th Cir.), cert. denied, 534 U.S. 1020 (2001).
Section 1983 provides remedies for violations of federal statutory and
constitutional rights by persons acting under color of state law.
42 U.S.C. § 1983. Therefore, "the [remedial] coverage of th[is] statute
must be broadly construed." Golden State II, 493 U.S. at 105 (citations
omitted). Additionally, section 1983 "provides a remedy `against all
forms of official violation of federally protected rights.'" Id. at 106
(quoting Monell v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658, 700-701
(1978)). Under Golden State II, the court must apply a two-part test to
determine the validity of a section 1983 claim: (1) if a plaintiff
asserts the deprivation of a federal constitutional or statutory right, a
1983 claim is presumed to exist unless (2) the defendant satisfies its
burden of showing that "Congress specifically foreclosed a remedy under
§ 1983 . . . by providing a comprehensive enforcement mechanism for
protection of a federal right." Id. (internal citations, quotation marks
and alteration omitted).
In this case, LaGoy alleges that the CMS defendants acted under color
of state law and violated her First and Fourteenth Amendment rights.
This contention is unchallenged by the defendants. Therefore, the only
open question is whether the defendants can show that the NLRA provides a
comprehensive enforcement mechanism for these rights.
In Hobbs v. Hawkins, 968 F.2d 471 (5th Cir. 1992), employees and their
union brought suit under section 1983 for violations of their rights
under the NLRA and the First Amendment. Id. at 473. Applying the Golden
State II test, the Fifth Circuit held that the plaintiffs could not
sustain a section 1983 action based on violations of their rights under
the NLRA because Congress had provided a comprehensive enforcement
mechanism for these rights in the statute. Id. at 475-79. However, with
respect to the plaintiffs' First Amendment claims, the Circuit stated:
"The district court concluded that the constitutional injuries . . . were
not `separate and distinct from the type of injury protected by the NLRA'
and thus were within the [NLRB]'s exclusive jurisdiction . . . Whether or
not the NLRB entertains constitutional claims, such claims would not fall
within [its] primary jurisdiction. Thus, the district court had
jurisdiction to consider plaintiffs' constitutional claims." Hobbs,
968 F.2d at 479-80 (internal quotation marks, citation omitted). The
Hobbs holding was based on Communications Workers of America v. Beck,
487 U.S. 735 (1988), where
the Supreme Court noted that constitutional claims were not within the
NLRB's primary jurisdiction, and therefore subject to district court
jurisdiction. Beck, 487 U.S. at 744 n. 1 (collecting cases).*fn11
Adopting the same rationale, the Ninth Circuit stated that "[t]he NLRA
does not provide, of course, a comprehensive scheme for the vindication
of constitutional rights. There is accordingly no preemption of the
plaintiff['s] § 1983 constitutional claims. . . ." Radcliffe,
254 F.3d at 781 (citations omitted).*fn12
Based on the above, and in light of the CMS defendants' uncontested
status as state actors, LaGoy's section 1983 constitutional claims are
not preempted by the NLRA and the court has jurisdiction over them.
Therefore, the motion to dismiss must be denied.
(b) State Law Claims
The CMS defendants' argument that LaGoy's emotional distress and
defamation claims are preempted by the NLRA is without merit. The Supreme
Court has held that these claims, even where they involve
conduct arguably protected or prohibited under the NLRA, may be excepted
from Garmon preemption under certain circumstances. Farmer v. United
Bhd. of Carpenters & Joiners of Am., Local 25, 430 U.S. 290 (1977)
(intentional infliction of emotional distress); Linn v. United Plant
Guard Workers of Am., Local 114, 383 U.S. 53 (1966) (defamation).*fn13
Accordingly, the motion to dismiss LaGoy's state law claims must also be
WHEREFORE, it is hereby
ORDERED that defendants' motion to dismiss is DENIED; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on all
IT IS SO ORDERED.