The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Gary Alessi, Jr. ("plaintiff") a Sheriff's Deputy employed by the defendant Monroe County Sheriff's Department ("Sheriff's Department"), brings this action pursuant to 42 U.S.C. § 1983 and the New York State Human Rights Law ("NYSHRL") claiming that the defendants retaliated against him for exercising his right to freedom of speech. Specifically, plaintiff alleges that the defendants retaliated against him for complaining of hostile and dangerous working conditions allegedly created by defendant Robin Brown, a Lieutenant who, at the relevant times, supervised plaintiff. In addition, plaintiff claims violations of the Family Medical Leave Act ("FMLA").
Defendants, Monroe County and the Sheriff's Department*fn1 ("Monroe County defendants") move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(c) on grounds that plaintiff has failed to state a cause of action for the violation of his right to be free from retaliation for exercising his rights under the First Amendment. The Monroe County defendants also claim that the plaintiff has failed to establish that the speech he engaged in was protected by the First Amendment. Moreover, the Monroe County defendants contend that no municipal policy or custom is alleged as to Monroe County. In addition, the County argues that plaintiff has failed to allege sufficient facts to state a claim regarding violations of the FMLA. For the reasons set forth below, I grant the Monroe County defendants' motion for judgment on the pleadings. Accordingly, the Complaint is dismissed as to the Monroe County defendants.*fn2
Unless otherwise noted, the following facts are taken from plaintiff's Complaint, including documents incorporated by reference or upon which plaintiff relied in drafting the Complaint. Plaintiff Alessi is a Deputy in the Monroe County Sheriff's Department. Plaintiff, who has worked for the Sheriff's Department for over 18 years, was, at the time the Complaint in this case was filed, assigned to the Monroe County Jail located in Henrietta, New York. In 2006, defendant Robin Brown, a Sergeant in the Sheriff's Department ("Brown"), was transferred to the Henrietta jail, and became plaintiff's supervisor. In April 2006, Brown called plaintiff into his office and reprimanded, yelled and screamed at him regarding something plaintiff allegedly did a few days earlier when plaintiff became sick at work. The reprimand related to an incident in which plaintiff became sick at work and after informing Brown, he was told to go home because of his "extreme illness."
Plaintiff asserts that several days later on or about April 2006, Brown called plaintiff into his office and said that when plaintiff went home early "'you fucked me,' because plaintiff was supposed to do another relief that night for" another deputy. Further, plaintiff claims that he then spoke to that deputy regarding the incident and that deputy informed him that "it is O.K." Thereafter, plaintiff informed Brown that he spoke to the deputy involved about not relieving him and he was told it was "O.K." Upon hearing this Brown became extremely upset and yelled and screamed at plaintiff. Brown told plaintiff not to go behind his back. Plaintiff claims he felt threatened and so he started to walk out but Brown screamed at him to "get the fuck back in here." Brown then closed the door with plaintiff inside and threatened plaintiff saying "I'm not afraid of you" and "we can settle this right here."
Immediately after the incident, plaintiff contacted the Union, claiming that Brown had created a hostile and abusive working environment. An investigation into the matter was commenced by the Sheriff's Department Internal Affairs Unit ("IAU"), and several months later, plaintiff was informed that the investigation found that Brown had acted in an unprofessional manner with respect to his conduct towards the plaintiff and he was reprimanded for his conduct. The investigation also found that the alleged threats Brown made to plaintiff were unfounded. Plaintiff was not satisfied with the Sheriff's Department's investigation, and contacted a member of the Department's Human Resources office. Plaintiff then met with the Undersheriff in October of 2006, who agreed to reopen the investigation into Brown's conduct. According to the Complaint, Brown continued to engage in harassing and demeaning conduct towards him. Plaintiff claims that in January 2007, Brown had an incident with another deputy in front of the inmates and after such incident Brown was permanently transferred out of Henrietta and back to the Downtown Monroe County Jail.
With respect to plaintiff's FMLA claims, plaintiff alleges that in or about 2005, plaintiff's wife was diagnosed with Multiple Sclerosis, which severely affected her ability to take care of their two children ages 8 and 5. According to the Complaint, plaintiff filed the necessary paperwork for the FMLA qualifying leave and it was granted by the Monroe County Human Resources Department in June 2006. Plaintiff alleges that he took about 25 days of intermittent leave for each of the following one to two years, without incident. In February 2007, seven months after the June 2006 grant of FMLA leave rights to plaintiff, Monroe County sent a letter to plaintiff informing him that a medical re-certification for his FMLA was necessary. Thereafter, the County re-certified plaintiff for FMLA leave. Further, plaintiff claims that six months after he was granted the FMLA leave in June 2006, he started suffering retaliation concerning his FMLA qualifying leave. In January 2007 Capt. Palma allegedly disciplined plaintiff for calling Central Control when he needed to be out sick in December 2006. Capt. Palma issued a counseling memorandum, which plaintiff signed stating that plaintiff failed to comply with call-in requirements for two successive work absences. Plaintiff is still currently employed at the Monroe County Jail.
I. Motion for Judgment on the Pleadings
In deciding a Rule 12(c) motion, courts apply the same standard as that applicable to a motion to dismiss under Rule 12(b)(6). See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999). Accordingly, when considering a motion to dismiss under Rule 12(b)(6), a trial court must "accept as true all factual statements alleged in the Complaint and draw all reasonable inferences in favor of the non-moving party," McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007) (citation omitted), although mere "'conclusions of law or unwarranted deductions'" need not be accepted. See First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir.1994) (quoting 2A Moore, James William & Jo Desha Lucas, Moore's Federal Practice ¶12.08, at 2266-69 (2d ed.1984)). Conclusory allegations "'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) (quoting Gebhardt v. Allspect, Inc., 96 F.Supp.2d 331, 333 (S.D.N.Y.2000)). On a motion to dismiss, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (quotations omitted).
Moreover, under Supreme Court precedent, a district court must determine whether the "[f]actual allegations...raise a right to relief above the speculative level, on the assumption that all the allegations in the Complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Thus, to survive a Rule 12(b)(6) motion to dismiss, the allegations in the Complaint must meet the standard of "plausibility." See id. at 563 n. 8, 564. Twombly does not require that the complaint provide "detailed factual allegations," id. at 555, however, it must "amplify a claim with some factual allegations...to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-158 (2d Cir.2007).
Although, in the Rule 12(b)(6) context, the court is "normally required to look only to the allegations on the face of the complaint," it may also "consider documents...that are attached to the complaint or incorporated in it by reference...." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007). "[E]ven if not attached or incorporated by reference, a document 'upon which the complaint solely relies and which is integral to the complaint' may be considered by the court in ruling on such a motion." Id. (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991)) (emphasis in original). "And whatever documents may properly be considered in connection with the Rule 12(b)(6) motion, the bottom line principle is that 'once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.'" Id. at 510 (quoting Twombly, 550 U.S. at 563.)
Here, the Complaint expressly references the joint complaint attached as exhibit 1 to the Declaration of James L. Gelormini ("Gelormini Decl.") in support of Monroe County's motion to dismiss. In addition, Monroe County attached exhibits 2 and 3 which were communications relied on by plaintiff in ¶¶ 6 and 40 of the Complaint. Further, Monroe County attached exhibits 4 and 5 relating to documents on the re-certification of plaintiff's FMLA benefits, which are integral to the Complaint in this action. Accordingly, in determining the adequacy of plaintiff's claims, the court shall consider the documents/exhibits set forth above, as well as the Complaint itself. See Rothman v. Gregor, 220 F.3d 81, 99-89 (2d Cir.2000) (Court found that the documents attached to the affidavit in support of motion to dismiss were documents relied upon by plaintiff and were "documents that plaintiff either possessed or knew about and upon which they relied in bringing the suit"); ...