MEMORANDUM-DECISION AND ORDER*fn1
In April, 2004, two employees of the City of Rome V.I.P. Municipal Transportation Department ("V.I.P.") approached Defendant Frank Tallarino ("Tallarino"), Department of Public Works Commissioner, regarding fellow employees' practices of improperly recording time on payroll time sheets. Tallarino Supporting Dep. (Dkt. No. 12, Ex. H). These employees named four individuals, one of whom was Plaintiff Carol Hall ("Plaintiff"). Id. Tallarino, together with Defendant Mayor James Brown ("Brown"), approached the City of Rome Police Department ("R.P.D.") to discuss the allegations. Id. Defendant Detective Richard Ferrucci ("Ferrucci") was subsequently tasked to investigate the allegations. Ferrucci Aff. (Dkt. No. 3, Attach. 2) at ¶ 2.
Over the next several weeks, Ferrucci conducted surveillance of the implicated employees, including Plaintiff. Id. at ¶ 3-4. According to Defendants, Ferrucci's investigation and Plaintiff's time sheets during the surveillance period revealed several instances in which Plaintiff had indicated on her time sheets that she was at work at a time when Ferrucci had observed her to not be at work. Id. at ¶ 5. Ultimately, Ferrucci concluded that "[Plaintiff's] abuse of time is blatant and she is consistently beating the system for 1-2 hours a day." Confidential Administrative Report (Dkt. No. 3, Attach. 2, Ex. A). Based on this conclusion and conversations with the Rome District Attorney's Office, Ferrucci, on June 9, 2004, approached Plaintiff and requested that she accompany him to the R.P.D. station for questioning, which she did. Ferrucci Aff. (Dkt. No. 3, Attach. 2) at ¶ 6; Criminal Trial Transcript (Dkt. No. 3, Attach. 2, Ex. D) at 167. There is dispute as to whether, at that time, Plaintiff voluntarily accompanied Defendant Ferrucci or was arrested by him. While at the R.P.D. station, Plaintiff was questioned, with counsel present, concerning the results of Ferrucci's investigation. Ferrucci Aff. (Dkt. No. 3, Attach. 2) at ¶ 6. Following the conclusion of this questioning, Plaintiff signed a statement indicating, among other things, that she had reported hours on her time sheets that she had not worked and had collected paychecks for those hours. Ferrucci Aff. (Dkt. No. 3, Attach. 2) at ¶ 6; Hall Criminal Statement (Dkt. No. 3, Attach. 2, Ex. B).
Plaintiff was then immediately suspended, with pay, from her position with the Defendant City of Rome on June 9, 2004. Complaint (Dkt. No. 1) at ¶ 20. Subsequently, she was suspended without pay on July 1, 2004, pending the outcome of a due process hearing. Notice of Suspension Without Pay (Dkt. No. 3, Attach. 4, Ex. A) at 1. Plaintiff, together with a union representative, appeared at a due process hearing on July 13, 2004, during which Plaintiff offered several defenses, but the hearing panel found that she failed to present any supportive evidence. Notice of Termination (Dkt. No. 3, Attach. 4, Ex. A).
On July 15, 2004, Ferrucci filed two felony complaints against Plaintiff, charging her with two counts of Falsifying Business Records in the First Degree in violation of New York Penal Law §175.10. Criminal Complaints (Dkt. No. 3, Attach. 2, Ex. B). As a result of the filing of these criminal complaints, together with the results of Ferrucci's investigation, Plaintiff's statement, and the outcome of her due process hearings, Defendant City of Rome determined that Plaintiff "failed to perform [her] duties and fraudulently received compensation from the City." Notice of Termination (Dkt. No. 3, Attach. 4, Ex. A). This resulted in the termination of Plaintiff's employment, effective August 11, 2004. Id.
Following her termination, Plaintiff applied for and was denied unemployment benefits from the New York State Department of Labor. Notice of Unemployment Decision (Dkt. No. 3, Attach. 4, Ex. C) at 1. In response to this initial denial of benefits, Plaintiff requested and received a hearing before Department of Labor Administrative Law Judge Linda C. Lavery. Id. The sole focus of this hearing was whether or not Plaintiff had falsified her time sheets. Unemployment Hearing Transcript (Dkt. No. 3, Attach. 4, Ex. B) at 88. The Administrative Law Judge, in a March 31, 2005 decision, sustained the initial denial of unemployment benefits, finding that "claimant's time records submitted on May 14 and 25, 2004 were false" and that "submission of these records [for payment rose] to the level of misconduct," which disqualified Plaintiff from receiving unemployment benefits. Notice of Unemployment Decision (Dkt. No. 3, Attach.4, Ex. C) at 2.
In December, 2004, the charges filed against Plaintiff by Ferrucci came before the Oneida County Grand Jury, and a six-count indictment issued against Plaintiff on December 14, 2004. Ferrucci Aff. (Dkt. No. 3, Attach. 2, Ex. C). A trial before the Oneida County Court, on July 18 and 19, 2005, resulted in the dismissal of all charges against Plaintiff. Deft's Mem. of Law (Dkt. No. 3, Attach. 5) at 6; Complaint (Dkt. No. 1) at ¶ 21.
In connection with the investigation conducted by the R.F.D. at the behest of Tallarino and Brown, Defendant City of Rome suspended, terminated, and pursued criminal charges against three additional V.I.P. employees, all of whom were male. Tallarino Supporting Dep. (Dkt. No. 12, Ex. H); Benedict Aff. (Dkt. No. 12) at ¶ 20. Two of these employees, Raymond Tebo, Sr. and Raymond Tebo, Jr., were also charged with, and ultimately convicted of, criminal falsification of business records. Certificates of Conviction (Dkt. No. 12, Ex. I).
Defendants move to dismiss Plaintiff's Complaint for failure to state claims upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Rule 12(b) provides that "[i]f, on [such a motion to dismiss], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." FED. R. CIV. P. 12(b). Thus, as a threshold matter, it must be determined whether Defendant's Motion is to be assessed under the standard applicable to a Rule 12(b)(6) motion to dismiss or a Rule 56 motion for summary judgment.
Defendants annexed several affidavits and exhibits to their Motion, which referred to matters beyond those addressed in Plaintiff's Complaint. The Court has considered these materials; therefore, pursuant to Rule 12(b), the Motion to dismiss may be converted to a Rule 56 motion for summary judgment. This does not, however, end the inquiry.
Rule 12(b)(6) further requires that "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Id. In assessing whether the parties have been afforded sufficient opportunity, [t]he essential inquiry is whether the [parties] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or [were] taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings. Resolution of this issue will necessarily depend largely on the facts and circumstances of each case. . . . Even where only the party moving to dismiss has submitted extrinsic material such as depositions or affidavits, the opposing party may be deemed to have had adequate notice that the motion to dismiss would be converted.
In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985).
Here, in addition to Defendants' submission of extrinsic materials in its Motion, Plaintiff's response itself contained additional extrinsic material. Indeed, Plaintiff invites the Court to convert Defendants' Motion in her counsel's affidavit, which asks the Court to "permit extrinsic matter from the pleadings to reach a question of summary ...