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Ricioppo v. County of Suffolk

March 31, 2006


The opinion of the court was delivered by: Hurley, District Judge



Plaintiff Ercole Ricioppo ("Plaintiff") filed the present complaint on August 23, 2004 against Defendants County of Suffolk ("Suffolk"); Suffolk County Community College ("SCCC"); the Board of Trustees of Suffolk County Community College ("Board"); Michael Hollander ("Hollander"); Brian Foley ("Foley"); Vivian Fisher ("Foley"); Eric Kopp ("Kopp"); and Anthony Appolaro ("Appolaro") alleging that they violated his right to free speech, equal protection, and due process, pursuant to 42 U.S.C. § 1983 ("§ 1983"); that they conspired to violate his constitutional rights, in violation of 42 U.S.C. § 1985 ("§ 1985"); and that they breached their contractual obligations pursuant to New York common law. Defendants did not submit an answer. Instead, Defendants Suffolk, SCCC, Board, Foley, Fisher, Kopp and Appolaro (collectively "County Defendants") move to dismiss the complaint, along with Defendant Hollander, who filed a separate motion. For the reasons set forth below, the Court GRANTS Defendants' motions as to Court I, portions of Count II, Count III, and Count IV. The Court DENIES Defendants' motions as to portions of Count II. Finally, the Court grants Plaintiff leave to amend.


The following summary of facts is drawn from the Complaint. Plaintiff is a resident of Nassau County, New York. Defendant Suffolk is a municipal corporation existing pursuant to the laws of New York. Defendant SCCC is an institution of higher-learning, maintained and operated by Suffolk. The Board is the duly appointed or elected body that constitutes the legally responsible authority of Defendant SCCC. Defendant Hollander is the Chairman of the Board. Defendants Foley and Fisher are elected legislators of the County of Suffolk. Defendant Kopp is the Chief Deputy County Executive for the County of Suffolk. Defendant Appolaro is the Assistant Deputy County Executive for the County of Suffolk. Each of the individual defendants is being sued in his individual and official capcity.

In September 1995, Plaintiff was employed by Defendant SCCC as Vice President for Marketing and Public Affairs. Plaintiff's duties included acting as a liaison between Defendant SCCC and the Suffolk County Legislature and designing marketing programs. Plaintiff reported directly to the President of Defendant SCCC, who, during much of the relevant time, was Salvatore J. LaLima ("LaLima").

The President of Defendant SCCC, "pursuant to statute, regulation, rule, procedure, and custom" (Compl. ¶ 24), is charged with the responsibility of formulating and presenting to Defendant Board recommendations on matters including, inter alia, "organizational structure, personnel appointments, promotions, retention, and retrenchment." (Id.) At all times relevant to the Complaint, Defendant Hollander was the chairman of Defendant Board.

Defendant Board appoints personnel, adopts salary schedules, approves the organizational pattern of Defendant SCCC, establishes policies, and delegates to the professional staff responsibility for personnel policies, conditions of employment, and the creation of divisions, departments, and appropriate administrative and academic positions.

From his hiring, Plaintiff received regular continuing appointments. He also carried academic rank. Upon the commencement of his employment at Defendant SCCC as Vice President for Marketing and Public Affairs, Plaintiff was also given the title of Assistant Professor of Communications and regularly taught one course each semester in his field.

During his tenure Plaintiff alleges that he was "critical of and opposed certain practices and opinions undertaken and expressed by the Office of the Suffolk County Executive, certain members of the Suffolk County Legislature, including Defendants Foley and Fisher, Defendant Hollander, and other members of Defendant Board as it related to College affairs." (Id. ¶ 29.) Plaintiff alludes to a numbers of occasions when he "voiced his objections" to the advertising plans of Defendant SCCC, but he does not provide any specifics about the context of these objections or when they occurred. Plaintiff similarly alleges that "during the time that he was employed as Vice President, [he] also expressed and publicly criticized other practices of Defendant Hollander, including usurping authority . . . functioning in a way that was outside his authority as a member of Defendant Board, and . . . engaging in unethical and illegal actions." (Id. ¶ 32.) Again, Plaintiff provides no further details.

Plaintiff then alleges that "[i]n direct response to [his] exercise of his protected rights, Defendants, their agents, servants and employees, under color of law and the cloak of their official positions, undertook a persistent pattern of harassing and undermining Plaintiff's position." (Id. ¶ 35.) In May 2003, Defendant Board abolished Plaintiff's position effective June 1, and created a new position that absorbed many of Plaintiff's duties. Plaintiff was not offered the position. Plaintiff alleges that the abolishment of his position occurred "days after [he] wrote a letter to President LaLima complaining about Defendant Hollander's conduct." (Id. ¶ 40.)

Consequently, Plaintiff lost his position, which he alleges was contrary to the procedures outlined in the "Managerial-Confidential Employees of Suffolk County Community College -- Status and Benefits Handbook" ("Handbook"). (See Compl. ¶ 28.) The Handbook, drafted in November 1982, is divided into three parts: Part I--Administrative Academic Status; Part II--Benefits; and Part III--Duties and Load. Specific to Plaintiff's claims is Part I, Paragraph 6, which reads, "Upon request made on or before January 1, an Administrative Officer will be granted an assignment the following academic year as a classroom instructor, counselor, librarian, or technical assistant provided that a vacancy exists or arises in his/her discipline." Part I, Paragraph 7, entitled "Seniority Rights," qualifies Paragraph 6. Part I, Paragraph 7(c), which applies to Plaintiff, directs that "[a]ll other Administrative Officers are not covered by nor enjoy the rights and accumulations of seniority. Part I, Paragraph 9 then states that "Administrative Officers entering their sixth year of employment with the College shall be granted continuing employment. Prior to being given continuing appointment, employees shall be considered on probationary status."

Plaintiff alleges that the termination of his employment directly contravened the Handbook and was done in retaliation for his criticisms of the Board and its members. Based upon these alleged violations of his constitutional rights to free speech, due process, and equal protection, Plaintiff filed the present complaint.


Defendants now move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(1) and Rule 12(b)(6). In considering a motion to dismiss, a district court must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint. See Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999).*fn1 The court must accept the factual allegations contained in the complaint as true, and view the pleadings in the light most favorable to the non-moving party, drawing all reasonable inferences in his favor. See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Dismissal is appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts entitling him to relief in support of his claim. See Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 79 (2d Cir. 2003). The issue is not how likely the plaintiff is to ultimately prevail, but whether he is entitled to even offer evidence to support his claims. "Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely, but that is not the test." Weisman v. LeLandais, 532 F.2d 308, 311 (2d Cir. 1976) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). These standards apply with particular strictness where, as here, the complaint alleges civil rights violations. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995). However, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (internal quotation omitted).


Defendants have moved to dismiss the complaint. Though Defendant Hollander filed separately from the County Defendants, his arguments in support of dismissal are the same as the County Defendants' arguments. Therefore, the Court analyzes Defendants' arguments in support of dismissal together.

Defendants move to dismiss on a number of theories. Defendants argue: (1) that the Complaint fails to state a claim under § 1983; (2) that the Complaint fails to state a claim under § 1985; (3) that the claims against the individual defendants are barred by qualified immunity; and (4) that the Complaint fails to state a common law contract claim. Plaintiff's counter-arguments are difficult to parse because they do not directly address Defendants' arguments, ...

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