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Henneberger v. County of Nassau

December 6, 2006

WALTER HENNEBERGER, WALTER LIPINSKY, GLENDA SMITH, THOMAS TILLEY, AND DOUGLAS WIPPERMAN, PLAINTIFFS,
v.
THE COUNTY OF NASSAU, THOMAS R. SUOZZI, DAVID S. GREENE, DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

Plaintiffs brought the instant action against their employer, the County of Nassau ("the County"), the Nassau County Executive, Thomas R. Suozzi ("Suozzi"), and the Nassau County Director of Labor Relations, David S. Greene ("Greene") (collectively, "defendants"), alleging violations of the United States Constitution under 42 U.S.C. § 1983, the New York State Constitution, and New York State law. Specifically, plaintiffs allege that they were denied compensation due to them because of their political affiliations and age. Defendants move to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. For the reasons that follow, defendants' motion is granted in part and denied in part.

I. BACKGROUND

The following facts are derived from the complaint, documents incorporated by reference therein, and a matter of public record - namely, a labor arbitrator's decision. The facts are taken as true for the purposes of this motion to dismiss.

For all relevant periods, plaintiffs were employees of the County. Plaintiff Walter Henneberger ("Henneberger") began working for the County in 1984, and later attained the position of Assistant to Deputy Commissioner of Public Works for Administration. (Compl. ¶¶ 53, 55.) Plaintiff Walter Lipinsky ("Lipinsky") began working for the County in 1972 and later also attained the position of Assistant to Deputy Commissioner of Public Works for Administration. (Compl. ¶¶ 73, 74.) Plaintiff Glenda Smith ("Smith") began working for the County in 1985 and later attained the position of Community Service Representative. (Compl. ¶¶ 96, 101.) Plaintiff Thomas Tilley ("Tilley") began working for the County in 1977 and later attained the position of Fire Marshall. (Compl. ¶¶ 109, 112.) Plaintiff Douglas Wipperman ("Wipperman") began working for the County in 1991 and later attained the position of Director of Data Processing. (Compl. ¶¶ 135, 139.) All of the plaintiffs are registered members of the Republican Party and/or have held leadership positions in the Republican Party. (Compl. ¶¶ 28 & passim.).

Defendant Suozzi was elected to the position of Nassau County Executive in November 2001 and took office in January 2002. (Compl. ¶¶ 12, 30.) During all relevant periods, defendant Greene was Director of Labor Relations for the County. (Compl. ¶ 13.)

1. The PERB II Decision

In December 2001, pursuant to a decision by the New York State Public Employment Relations Board ("PERB"), the positions held by plaintiffs became part of the Civil Service Employees Association ("CSEA" or "the Union") bargaining unit. (Compl. ¶ 4.) Previously, plaintiffs had been "ordinance employees" - that is, County employees who are not compensated in accordance with the salary provisions set forth in the Collective Bargaining Agreement ("CBA") between the CSEA and the County. (Compl. ¶ 15.) By contrast, under the CBA, employees are generally paid in accordance with one of three pay schedules. (Compl. ¶ 21.) The PERB decision issued in 2001 ("PERB II") relied upon a prior decision issued by the Nassau County PERB in 1998 ("PERB I"). The PERB I decision determined that certain positions previously classified as "ordinance" employee positions, not including the plaintiffs' positions, should be classified as members of the CSEA bargaining unit. (Compl. ¶ 19.) Subsequently, the PERB II decision determined that certain positions previously classified as "ordinance" employee positions, including the plaintiffs' positions, should also be included in the CSEA bargaining unit. (Compl. ¶ 21.) See In the Matter of Petition for Unit Clarification and/or Unit Placement Civil Service Employees Assoc., Inc., Local 1000, AFSCME, AFL-CIO (Local 830) and County of Nassau, No. R-066, 2001 NYPER (LRP) LEXIS 193, at *2 (County of Nassau PERB, April 3, 2001) (hereinafter, "PERB II decision").

2. The Collective Bargaining Agreement

The PERB II decision, however, was silent as to how the plaintiffs were to be compensated under the CBA. (Compl. ¶ 22.) As noted, the CBA provides for employees covered by its provisions to be placed into one of three salary plans. Moreover, under the CBA, employees are entitled to annual wage increases. (Compl. ¶ 16.) However, the PERB II decision did not specify (1) which, if any, of the salary plans should apply to the plaintiffs' positions, or (2) whether plaintiffs were entitled to receive the bargained-for wage increases. (Compl. ¶ 22.)

The County and the CSEA entered into CBAs in 1998 and in 2003. Section 49-6 of the 1998 CBA specifically applies to those employees added to the CSEA bargaining unit by the PERB I decision, stating, in relevant part:

Effective 4/13/99, the previously nonunionized employees who were recently added to the CSEA bargaining unit by Nassau County PERB shall be placed on the salary step which corresponds . . . to their pre-[CSEA bargaining unit] grade and step, and shall receive the benefits of the [CBA]. . . . The union and the County shall continue to discuss/negotiate . . . any additional salary changes sought by the union for this group.

County of Nassau - CSEA Collective Bargaining Agreement, January 1, 1998 - December 31, 2002, Section 49-6 (hereinafter, "1998 CBA"). (See Compl. ¶ 45.) As a result of this provision, those former "ordinance" employees affected by the PERB I decision received pay adjustments in accord with the compensation provisions of the CBA. (Compl. ¶¶ 45, 46.)

By contrast, the 2003 CBA did not specifically address those employees added to the CSEA bargaining unit by the PERB II decision (hereinafter, the "PERB II employees," a group which includes the plaintiffs). See County of Nassau - CSEA Collective Bargaining Agreement, January 1, 2003 - December 31, 2007, Section 49-4 (hereinafter, "2003 CBA"). Accordingly, following the PERB II decision, plaintiffs continued to receive the same amount of compensation that they received prior to their transition from "ordinance" to CSEA employees, and did not receive the negotiated wage increases set forth in the CBA. (Compl. ¶¶ 22-23 & passim.)

3. The Union Grievances

Subsequent to the PERB II Decision, the Union filed a grievance on behalf of the PERB II employees, alleging that the County had violated the 1998 CBA by not treating those employees in a manner identical to those employees brought into the CSEA bargaining unit by the PERB I decision. In the Matter of the Arbitration between County of Nassau and CSEA Local 830, Class Action #241-01, at 3, March 30, 2004 (Scheinman, Arb.) (hereinafter, "the Arbitrator's decision"). Pursuant to the grievance procedures outlined in Section 23 of the CBA, the grievance was heard before an arbitrator. In a decision issued on March 30, 2004, the arbitrator found that Section 49-6 of the 1998 CBA applied only to those employees affected by the PERB I decision. Arbitrator's Decision at 6. Accordingly, the arbitrator found that, in preparing the CBA, the Union "did not negotiate salaries and increments on behalf of [the PERB II employees]. The County, therefore, did not violate the [CBA] by failing to give [the PERB II] employees . . . the contractual increases." Id.

4. Plaintiffs' Claims

Plaintiffs allege that Suozzi and Greene, acting as "high-ranking official[s]" of the County, have denied plaintiffs the compensation set forth in the CBA because of plaintiffs' respective political affiliations with Suozzi's predecessor as County Executive and/or their associations with the Republican Party. (See Compl. ¶¶ 76, 103, 115, 141.)

Plaintiffs also assert that "comments were made" that the plaintiffs, excluding plaintiffs Henneberger and Smith, would not receive the compensation at issue because of their age and/or ability to retire. (Compl. ¶¶ 81, 121, 154.) Plaintiffs do not offer details regarding these comments, such as the speakers or the time of occurrence.

II. DISCUSSION

A. MATERIALS CONSIDERED BY THE COURT

As a threshold matter, the Court addresses its decision to consider certain documents outside the pleadings. Generally, "Rule 12(b) gives district courts two options when matters outside the pleadings are presented in response to a 12(b)(6) motion: the court may exclude the additional material and decide the motion on the complaint alone or it may convert the motion to one for summary judgment." Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir. 1991) (quoting Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1998)) (internal quotation marks omitted). However, under Rule 12(b), the "complaint includes . . . any statements or documents incorporated into it by reference." Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994). Moreover, "[e]ven where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).

Here, the Court finds that the complaint (1) incorporates by reference the PERB II decision, and (2) relies heavily upon the terms and effect of the CBAs between the CSEA and the County from 2001 through 2005. In addition, the Court takes judicial notice of the Arbitrator's decision. Accordingly, for the reasons that follow, the Court will consider these matters in ruling on the instant motion.

First, the complaint makes detailed reference to the PERB II decision and thereby incorporates it by reference into the complaint. Paulemon, 30 F.3d at 308-9. The complaint outlines the procedural history preceding the PERB II decision, summarizes the decision itself, and describes its effect upon plaintiffs. (Compl. ¶¶ 20-26, 41, 47, & passim); see generally Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one [for summary judgment] under Rule 56 is largely dissipated.").

Second, the complaint relies heavily on the CBA and thereby renders that document integral to the complaint. The complaint relies on the CBA in framing plaintiffs' claims by (1) describing generally how employees are compensated pursuant to the CBA, and (2) providing detailed calculations for back-pay allegedly due to plaintiffs based on the salary provisions set forth in the CBA. (Compl. ¶¶ 14, 15, 45, & passim); see Ruff v. Genesis Holding Corp., 728 F. Supp. 225, 226 n.2 (S.D.N.Y. 1990) (considering a document that "was referred to extensively throughout the [c]omplaint, rather than merely quoted from sporadically").

Finally, the Court takes judicial notice of the Arbitrator's decision regarding the application of the wage provisions of the CBA to the PERB II employees. A court may take judicial notice of an opinion issued in a prior proceeding, but "only to establish the existence of the opinion, not for the truth of the facts asserted in the opinion." Global Network Commc'ns, Inc. v. City of N.Y., 458 F.3d 150, 157 (2d Cir. 2006) (finding that district court erred in considering the truth of facts asserted in an opinion by a city agency) (citing Lum v. Bank of America, 361 F.3d 217, 222 n.3 (3d Cir. 2004)) (internal quotation marks omitted); see In re Sterling Foster & Co., Inc., Securities Litigation, 222 F. Supp. 2d 216, 253-54 (E.D.N.Y. 2002) (taking judicial notice of filings by a third-party in an arbitration proceeding against defendant where filing was a "public record"); Seneca Ins. Co. v. Wilcock, No. 01 Civ. 7620 (WHP), 2002 WL 1067828, at *2 (S.D.N.Y. May 28, 2002) (taking judicial notice of "documents . . . that derive from [plaintiff's] New York State arbitration proceedings because they are matters of public record."); see also Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426-27 (3d Cir. 1999) ("[O]n a motion to dismiss, we may take judicial notice of another court's opinion - not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity."). Accordingly, the Court is considering the information contained in the Arbitrator's decision "not for its truth but . . . to establish the fact" of the arbitration proceeding.*fn1 See In re Sterling Foster & Co., Inc., Securities Litigation, 222 F. Supp. 2d at 254.

However, the Court will not consider assertions made by defendants in their moving papers regarding matters that are not referenced in nor integral to the complaint. Specifically, defendants ask the Court to consider, in ruling on the instant motion, the ongoing mediation between the County and the Union regarding the application of the CBA to the PERB II employees.*fn2 See Defs.' Mem. at 15 ("The outcome of the parties' mediation may make plaintiffs whole and give them the requested relief, negating the asserted claims."). Here, the complaint does not make any reference to ongoing mediation between the County and the CSEA; moreover, the complaint does not "rel[y] heavily upon [the] terms and effect" of any document relating to a mediation proceeding. Chambers, 282 F.3d at 153. Accordingly, any ongoing mediation proceeding cannot be considered "integral to the complaint," and must be excluded upon consideration of a Rule 12(b) motion to dismiss.*fn3 See id. ("[A] plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough.") (internal quotation marks omitted).

The Court notes that, while declining to consider assertions regarding the specific course of ongoing mediation between the County and the CSEA, it may consider any references made to mediation in the CBA, a document which plaintiffs have incorporated into the complaint.

B. MOTION TO DISMISS STANDARD

In reviewing a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted, the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). Dismissal is warranted only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 145 (2d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The appropriate inquiry is "not whether a plaintiff will ...


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