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Gansas v. City of New York

July 28, 2006

MICHAEL GANSAS, PLAINTIFF,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Glasser, United States Senior District Judge

MEMORANDUM AND ORDER

INTRODUCTION

This action arises out of the termination of Michael Gansas ("Plaintiff" or "Gansas") from his employment with the City of New York ("the City") and the subsequent decision by the Marine Beneficial Association ("MEBA"), the union that represented him, not to pursue arbitration on his behalf. Plaintiff brings 42 U.S.C. § 1983 claims against the City, Michael Bloomberg as Mayor of the City of New York (the "Mayor"), Iris Weinshall as the Commissioner of the City of New York Department of Transportation (the "NYCDOT Commissioner"), and Patrick Ryan ("Ryan"). Against MEBA, Gansas brings a state law claim for breach of the duty of fair representation.*fn1

Before the Court is a motion to dismiss on behalf of the Mayor, the NYCDOT Commissioner, and the City (collectively the "City Defendants") pursuant to Rule 12(b)(6) of the Fed. R. Civ. Proc. MEBA moves to dismiss pursuant to Rules 12(b)(1) and 12(b)(6).

BACKGROUND

The following allegations are drawn from the Complaint and documents incorporated by reference, cast in the light most favorable to the Plaintiff, as required on a motion to dismiss.

On October 15, 2003, Gansas reported to work at the City of New York Department of Transportation ("NYCDOT"), St. Georges Ferry Terminal. Because the assigned captain for the M/V Andrew J. Barbieri (the "Barbieri") was out sick, Gansas was assigned to captain that vessel.

At about 3:00 pm, the Barbieri collided with a maintenance pier at the St. Georges Terminal. Gansas prevented the Barbieri from colliding with other objects, saving the Barbieri's passengers from additional harm, and called emergency services. United States Coast Guard ("USCG"), the New York Police Department, ("NYPD"), the New York Fire Department and Emergency Medical Services responded.

Shortly after these agencies arrived on the scene, and while Gansas was under severe emotional distress, USCG and NYPD personnel interviewed him. During this interview, Gansas was told that numerous people had been killed or injured and that Assistant Pilot Richard Smith had committed suicide. Gansas was interviewed from 4:00 pm until 11:00 pm on that evening, during which time both the NYPD and the USCG took statements from him and he was not offered any food.

After the interview, NYPD transported Gansas to the hospital for observation; he had reported severe tightness in his chest. As a result of these events, Gansas sought medical treatment and was under the care of a doctor for some subsequent months.

Between October 15, 2003 and October 23, 2003, the Mayor, the NYCDOT Commissioner, Ryan and other City of New York employees met to discuss the events of October 15, 2003. During these meetings, they allegedly conspired to release false statements to the press regarding what rules and regulations were in effect for the operation of the Barbieri. For example, Ryan, the NYCDOT's highest ranking employee with daily oversight of the Staten Island Ferry operations, falsely stated that certain rules required Gansas to be in the pilothouse at the time of the collision. Ryan knew his statements were false and made them with the intent of blaming the collision on Gansas. The Mayor, the NYCDOT Commissioner, and Ryan knew these rules had never been implemented. Moreover, the Mayor, without knowing any of the facts and circumstances regarding the operation of the Barbieri, the cause of the collision, or Gansas's duties on October 15, 2003, called Gansas a coward and blamed him for the collision and the resulting deaths.

On October 21, 2003, counsel for the City, NYCDOT, and the National Transportation Safety Board ("NTSB") requested an interview with Gansas. Gansas agreed to speak with representatives from the City, NYCDOT, and the NTSB, but requested a brief adjournment on the advice of his physician.

Gansas received a letter on October 22, 2003, refusing to grant him the adjournment. The letter, delivered by Robert Grotell the Deputy Commissioner of NYCDOT, directed him to appear "at the DOT Command Vehicle at the St. George Ferry Terminal, near the passenger drop-off, on Wednesday, October 22, 2003 to be interviewed by the Firm representing the City and the Department of Transportation in connection with the October 15, 2003 Staten Island ferry accident." (Bennett Decl., Ex. C). The letter further advised Gansas that "[his] failure to comply with this direction will subject [him] to disciplinary charges." On October 22, 2003, NYCDOT suspended Gansas without pay pending the findings of the official investigation.

On October 27, 2003, the City charged Gansas with violating the NYCDOT Code of Conduct. The charges were as follows:

CHARGE I: The Respondent is in violation of Paragraph 1 of the Code by engaging in conduct tending to bring the City of New York, DOT and any other City agency into disrepute Specification 1: On October 20, 2003, the Respondent was given a verbal directive by legal counsel to cooperate with the [NTSB] investigation on Tuesday, October 21, 2003. The Respondent failed to comply with legal counsel's directive and failed to comply with the NTSB investigation on October 21, 2003.

Specification 2: As a result of the Respondent's failure to appear on October 21, 2003, the NTSB subpoenaed the Responded to appear on October 22, 2003. On October 22, 2003, the Respondent received written confirmation from Deputy Commissioner Robert Grotell directing the Respondent to cooperate with the NTSB subpoena. The Respondent failed to comply with Deputy Commissioner Grotell's directive to appear pursuant to the NTSB subpoena on October 22, 2003.

Specification 3: On October 20, 2003, the Respondent was given a verbal directive by legal counsel to be interviewed on Tuesday, October 21, 2003 by the [NYCDOT] in connection with the October 15, 2003 Staten Island Ferry accident. The Respondent failed to comply with legal counsel's directive to be interviewed on October 21, 2003.

Specification 4: As a result of the Respondent's refusal to comply with the verbal directive from legal counsel, the Respondent received written notification from Deputy Commissioner Robert Grotell directing the Respondent to be interviewed on October 22, 2003 by the [NYCDOT] in connection with the October 15, 2003 Staten Island Ferry accident. The Respondent failed to comply with Deputy Commissioner Grotell's directive to be interviewed on October 22, 2003.

CHARGE II: The Respondent is in violation of Paragraph 30 of the Code in that he failed, refused, or neglected to obey any lawful order of a supervisor or superior. Specification 1: On October 22, 2003, the Respondent received written notification from Deputy Commissioner Robert Grotell directing the Respondent to cooperate with the [NTSB] subpoena. On October 22, 2003, the Respondent failed and refused to obey Deputy Commissioner Grotell's lawful order to cooperate with the [NTSB] subpoena.

Specification 2: On October 22, 2003, the Respondent received written notification from Deputy Commissioner Robert Grotell directing the Respondent to be interviewed on Wednesday, October 22, 2003 by the City of New York and the [NYCDOT] in connection with the October 15, 2003 Staten Island Ferry accident. The Respondent failed and refused to obey Deputy Commissioner Grotell's lawful order to appear for the October 22, 2003 interview.

CHARGE III: The Respondent is in violation of Paragraph 59 of the Code in that he failed to cooperate with the Offices of Legal Affairs and Litigation Support in the defense and prosecution of matters in litigation involving DOT and the City of New York.

Specification 1: On October 22, 2003, the Respondent received written notification from Deputy Commissioner Robert Grotell directing the Respondent to cooperate with the NTSB subpoena. The Respondent failed to comply with Deputy Commissioner Grotell's directive to appear pursuant to the NTSB subpoena on October 22, 2003.

Specification 2: On October 22, 2003, the Respondent received written notification from Deputy Commissioner Robert Grotell directing the Respondent to be interviewed by the City of New York and the [NYCDOT] in connection with the October 15, 2003 Staten Island Ferry accident. The Respondent failed to cooperate with the agency's Office of Legal Affairs and Litigation Support in the ...


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