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February 8, 2005.

DARCY LAGOY, Plaintiff,

The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge


I. Introduction

  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 Page 3 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.

  III. Facts*fn4

  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 two Page 4 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 Page 5 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 pickets. Id.

  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 Page 6 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 Page 7 unconstitutional policies and on their failure to ...

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