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Morey v. Somers Central School Dist.

March 21, 2007

NORMAN MOREY, PLAINTIFF,
v.
SOMERS CENTRAL SCHOOL DISTRICT, JOANNE MARIEN, SUPERINTENDENT OF THE SCHOOLS, AND KENNETH CROWLEY, ASSISTANT SUPERINTENDENT FOR BUSINESS, SUED IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Conner, Sr. D.J.

OPINION AND ORDER

Plaintiff Norman Morey brings the instant action pursuant to 42 U.S.C. § 1983 against defendants Somers Central School District (the "School District"), Joanne Marien and Kenneth Crowley (collectively, "defendants"). At all relevant times, defendant Marien was the Superintendent of Schools, and defendant Crowley was the Assistant Superintendent for Business. Plaintiff alleges that defendants terminated his employment as Head Custodian of the School District in retaliation for his past union activities and other protected speech in violation of the First and Fourteenth Amendments to the United States Constitution.*fn1 Defendants contend that plaintiff's claims are barred by the doctrine of collateral estoppel, as plaintiff previously litigated whether his termination was for cause at a state disciplinary hearing and in an Article 78 proceeding. Defendants further contend that plaintiff has failed to sufficiently plead that his alleged speech is protected under the First Amendment, and that a causal connection exists between any protected speech and the adverse employment action. Accordingly, defendants move to dismiss the Complaint in its entirety pursuant to FED. R. CIV. P. 12(b)(6). For the reasons that follow, defendants' motion is denied.

BACKGROUND

On a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all of the well-pleaded facts as true and consider those facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984); Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993); In re AES Corp. Sec. Litig., 825 F. Supp. 578, 583 (S.D.N.Y. 1993) (Conner, J.). Accordingly, the following discussion of the facts is based on the allegations in plaintiff's Complaint.

In 1984, plaintiff began working as a custodian for the School District. (See Complt. ¶ 7.) In 1996, plaintiff was promoted to Head Custodian, and he held that position until his termination in January 2004. (See id.) From 1988 to July 2002, with the exception of a three-year hiatus, plaintiff served as Union President of the Somers School Related Personnel, which represented the School District's custodial, maintenance and para-professional staff. (See Complt. ¶ 8.) As Union President, he "negotiated contracts on behalf of the union and otherwise vigorously advocated on behalf of the union membership with the School District's administration, often to the displeasure of the administration." (See id.)

In May 2003, while on duty as Head Custodian, plaintiff noticed loose asbestos on the High School gymnasium floor, which had apparently dislodged from ceiling pipes. (See Complt. ¶ 9.) Plaintiff first soaked the dislodged material to prevent any fragments from becoming airborne. (See id.) He then notified his supervisor, John Ness, of the situation and advised him that the gymnasium should be evacuated to begin proper testing of the area. (See id.) Ness stated that "he had not yet finished eating his lunch and not to do anything other than clean up the loose material until he could get to the gym." (See id.) When Ness finally arrived, plaintiff reiterated that the gym should be evacuated and closed, as "the situation posed serious health and safety risks to students and staff." (See id.) Plaintiff informed Ness that the School District was required to remove the dislodged asbestos and repair or encapsulate the piping, as required by the Asbestos Hazard Emergency Response Act. (See id.) Despite plaintiff's concerns, Ness did not take any steps to remedy the problem and instructed plaintiff not to make the situation into a "big deal." (See id.) Ness assured plaintiff that he would inform Crowley of the situation, and, "[s]hortly thereafter, Crowley informed plaintiff that he was aware of the problem and 'thanked' plaintiff for not making a bigger issue out of it." (See id.)

Over the next three months, plaintiff continuously reiterated his concerns to Ness regarding the asbestos in the gymnasium and "the serious health and safety hazard it posed to students and staff." (See Complt. ¶ 10.) Ness informed plaintiff that the administration was aware of the problem and intended to remedy it. (See id.) Plaintiff alleges, however, that the administration failed to take any remedial action, as "[s]uch measures would have been costly and necessitated alerting parents to the problem, which would likely have caused a public uproar over the threat to student, staff and public health and safety[, as well as] the administration's lack of earlier notice about the problem." (See id.)

In September 2003, approximately four months after plaintiff's initial complaint regarding the asbestos in the gymnasium, Marien served plaintiff with disciplinary charges which alleged misconduct and incompetence and called for plaintiff's termination. (See Complt. ¶ 11.) Because the charges were not presented to the School District's Board of Education (the "Board") for approval as required under the New York Education Law, the District was forced to rescind them. (See id.) However, in early October 2003, after receiving the Board's approval, Marien served plaintiff with virtually the same disciplinary charges. (See id.)

The charges included allegations dating back to April 2002, including "(1) allegations of various instances of 'misconduct' by plaintiff toward certain subordinate custodial staff; and (2) allegations that plaintiff had either not performed, or not performed properly, certain 'building checks' for which he had been paid overtime." (See Complt. ¶ 12.) Plaintiff alleges that "[t]he 'subordinate-based' charges were based on specifications which distorted the underlying true events and purposely excluded important contextual information, reflecting the District's bad faith in bringing the charges."*fn2 (See Complt. ¶ 13.) Regarding the "building check specifications," plaintiff alleges that they were purportedly based on "'alarm activity' reports, which showed that plaintiff had not activated the building alarm on certain dates for which he had claimed to have performed building checks." (See Complt. ¶ 14.) However, defendants and Ness had been aware that plaintiff did not always activate the alarm when he performed building checks, and defendants and Ness did not advise plaintiff that he should always activate the alarm when conducting the checks. (See id.)

After the School District served plaintiff with the disciplinary charges, counsel for the School District threatened to report plaintiff to the district attorney's office for theft of services if he did not agree to resign. (See Complt. ¶ 15.) Plaintiff refused to resign and elected to have a hearing pursuant to § 75 of the New York Civil Service Law.*fn3 (See Complt. ¶ 16.) The Board referred the matter to a hearing officer on October 8, 2003. (See Silverman Decl., Ex. A., p. 1.)

The hearing was held over the course of five days at the School District's administrative offices, and both the School District and plaintiff were represented by counsel.*fn4 (See id.) Both parties also called several witnesses, all of whom were subject to cross-examination. (See generally Silverman Decl., Ex. A.) Plaintiff alleges that during the administrative hearing, no participant, including himself, addressed whether the School District's decision to charge plaintiff was motived by a desire to retaliate against him based on his union activity or his complaints regarding the asbestos in the gymnasium. (See Complt. ¶ 18.)

Applying a "substantial evidence" standard, the hearing officer found plaintiff guilty of several of the School District's charges and recommended his termination to defendant Marien, who in turn recommended plaintiff's termination to the Board. (See Complt. ¶ 16.) Plaintiff alleges that at this time, defendant Marien stated to the Board that "there were things about plaintiff the Board did not know which also justified his termination." (See id.) On January 8, 2004, the School District terminated plaintiff. (See id.) Plaintiff alleges that after his termination, defendants "maliciously" destroyed his personal belongings, including photographs, gifts from his children and an autographed hat collection, which defendants had previously agreed to securely maintain. (See Complt. ¶ 17.)

Plaintiff filed an Article 78 appeal seeking review of the School District's decision to terminate him. (See Complt. ¶ 16.) The Appellate Division, Second Department upheld the hearing officer's findings that plaintiff committed acts of misconduct and incompetence, concluding that they were supported by substantial evidence. See Morey v. Somers Cent. Sch. Dist., 24 A.D.3d 558, 559 (2nd Dep't 2005). The court also held that "[g]iven the numerous instances of misconduct and incompetence that were established, the penalty of termination must be sustained as it is not shocking to one's sense of fairness." Id. (citations omitted). Plaintiff now brings this action alleging that defendants terminated him in retaliation for his union activities and his statements concerning asbestos.

DISCUSSION

I. Standard of Review

As previously stated, when ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all of the well-pleaded facts as true and consider those facts in the light most favorable to the plaintiff. See Scheuer, 416 U.S. at 236; see also Hertz Corp., 1 F.3d at 125; In re AES Corp., 825 F. Supp. at 583. On such a motion, the issue is "whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236. A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Padavan v. United States, 82 F.3d 23, 26 (2d Cir.1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10 (1980)). However, allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains, are insufficient as a matter of law. See Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).

In assessing the legal sufficiency of a claim, the Court may consider those facts alleged in documents that are "integral" to plaintiff's claims, even if not explicitly incorporated by reference. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 46-48 (2d Cir. 1991); Smart v. Goord, 441 F. Supp. 2d 631, 637 (S.D.N.Y. 2006) ("'[W]hile courts generally do not consider matters outside the pleadings, they may consider documents attached to the pleadings, documents referenced in the pleadings, or documents that are integral to the pleadings in order to determine if a complaint should survive a 12(b)(6) motion.'") (quoting Garcia v. Lewis, No. 05 Civ. 1153, 2005 WL 1423253, at *3 (S.D.N.Y. June 16, 2005); U.S. Fid. & Guar. Co. v. Petroleo Brasileiro S.A.-Petrobras, No. 98 Civ. 3099, 2001 WL 300735, at *2 (S.D.N.Y. Mar. 27, 2001) ("[T]he Court can consider documents referenced in the complaint and documents that are in the plaintiffs' possession or that the plaintiffs knew of and relied on in bringing suit."). We may, therefore, consider the records of state administrative proceedings, see Smart, 441 F. Supp. 2d at 637, and any prior related court decisions. See Hason v. ...


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