The opinion of the court was delivered by: John T. Curtin United States District Judge
Following the filing of plaintiff's second amended complaint (Item 48), defendants filed motions to dismiss (Items 55, 58). Plaintiff is a former Buffalo police officer who was terminated from service on May 8, 2008. She seeks compensatory and other damages from the City of Buffalo for back pay, lost benefits, loss of opportunity, and pain and suffering. For the reasons that follow, the motions to dismiss are granted, and the complaint is dismissed.
Plaintiff commenced this action with the filing of a complaint on November 16, 2007 (Item 1). She filed an amended complaint on February 8, 2008 (Item 12), asserting causes of action pursuant to 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 2000e; 29 U.S.C. § 185; and state law causes of action for breach of contract, breach of duty of fair representation, promissory estoppel, fraud, intentional and negligent infliction of emotional distress, and negligence. On February 28, and March 3, 2008, defendants filed motions to dismiss the amended complaint (Items 13, 14). Following a motion to extend the time in which to respond, plaintiff was directed to respond to the motions to dismiss on or before May 30, 2008 (Item 21). On that date, without leave of court, plaintiff filed a second amended complaint and a motion for a temporary restraining order ("TRO") (Items 22, 23). In an order dated July 7, 2008, the court denied plaintiff's motion for a TRO and instructed her to seek leave to file a second amended complaint (Item 34).
In an order filed December 10, 2008, the court granted plaintiff's motion in part (Item 47). The second amended complaint was filed on December 18, 2008 (Item 48). Answers to the complaint were filed on January 15 and 16, 2009 (Items 50, 51). On March 19, 2009, defendants Buffalo Police Benevolent Association ("BPBA"), Robert P. Meegan, Jr., Law Offices of W. James Schwan, and W. James Schwan (the "Union Defendants") filed a motion to dismiss the complaint (Item 55). On March 25, 2009, defendants Tracy Healy-Barker, Byron Lockwood, the City of Buffalo, and H. McCarthy Gipson (the "City Defendants") filed a motion to dismiss the complaint (Item 58). Plaintiff filed a response to the motions on April 14, 2009 (Item 61), and the City Defendants filed a reply on July 1, 2009 (Items 65, 66). The court determined that oral argument was not necessary.
In her second amended complaint, plaintiff sets out eighteen causes of action. She concedes that causes of action VI through IX, asserting the breach of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, should be dismissed. See Item 61, p. 3. In the remaining fourteen causes of action, plaintiff alleges the violation of Title 42 U.S.C. §§ 1981, 1983, 1985, 1986, 2000e, et seq., breach of contract, breach of the duty of fair representation, fraud, negligent and intentional infliction of emotional distress, negligence, and the violation of New York General Municipal Law § 207(c).
Plaintiff states that she was a member of the Buffalo Police Department since March 1988 (Item 48, ¶ 10). She alleges that in September 1999, "supervisors within [the Buffalo Police Department] created a hostile work environment in retaliation for Plaintiff filing charges against a [Niagara Frontier Transportation Authority] police officer who had assaulted her son." Id., ¶ 20. Her employment was terminated on or about June 12, 2000, but she was ordered to be reinstated following arbitration. Id., ¶ 21. The arbitrator's decision was affirmed by the New York State Supreme Court, Appellate Division, Fourth Department, and plaintiff was reinstated on June 6, 2005. Id., ¶ 22. Plaintiff alleges that during the approximately five years between her termination and reinstatement, she suffered unspecified "severe, permanent and irreparable harm . . . ." Id., ¶ 23.*fn1
Plaintiff further alleges that she was the victim of employment discrimination when she was directed to participate in a refresher training course in November 2005 following her return to the police force (Item 48, ¶ 25). She alleges that the Buffalo Police Department ("BPD") "continued in its hostility" toward her, subjecting her to employment discrimination and retaliation, and attempting to terminate her employment. Id. She was charged with disciplinary infractions as a result of her failure to follow orders directing her to participate in the training. After a departmental hearing, in a decision dated November 6, 2006, the charges against plaintiff were dismissed. Id., ¶¶ 26-27.
On November 1, 2006, plaintiff responded to a radio call for a police officer in need of assistance. Plaintiff went to 707 Walden Avenue in the City of Buffalo and observed another officer holding a civilian in a "choke hold." Plaintiff alleges that she removed the officer's arm from the suspect's throat, was struck in the face by the other officer, and sustained various injuries. Id., ¶¶ 28-31. Following this incident, plaintiff was placed on Injured on Duty ("IOD") status and received salary and benefits pursuant to New York General Municipal Law § 207-c. Id., ¶ 32. However, on September 24, 2007, IOD status was rescinded. Plaintiff alleges that this was done without a required due process hearing and in retaliation for her attempt to have her disciplinary hearing open to the public. Id., ¶ 34. IOD status was reinstated on October 2, 2007. Plaintiff remained on IOD status until February 15, 2008, when it was rescinded, again without a hearing. Plaintiff was then assigned to the Video Surveillance Division. Id., ¶ 35.
Plaintiff was charged with departmental violations as a result of the incident of November 1, 2006 (Item 48, ¶ 44). She alleges that the Union Defendants represented both her and the other officer involved in the incident without counseling her as to a potential conflict of interest. Id., ¶ 46. It is further alleged that on July 16, 2007, the Union Defendants "suddenly and without notice" withdrew their legal representation of plaintiff at the disciplinary hearing. Id., ¶ 49. Plaintiff alleges that the defendants entered her personnel records into the record without her consent. Id., ¶ 50. On May 8, 2008, after having been "made to endure a hostile work environment in which she was continually retaliated against," plaintiff's employment was terminated. Id., ¶ 40. Plaintiff was also advised that her salary and benefits would likewise terminate effective June 1, 2008. Id., ¶ 41.
Plaintiff alleges, without factual elaboration, that defendants "have conspired to adversely impact Plaintiff's contractual rights to compensation, to create a hostile work environment, and to retaliate and discriminate against Plaintiff." Item 48, ¶ 58. She also states that the defendants have "conspired to create a hostile work environment, and adversely impact Plaintiff's right to make and enforce contract [sic] through their refusal to timely process Plaintiff's grievances, in retaliation for Plaintiff's defense of police departmental disciplinary charges filed against Plaintiff." Id., ¶ 61. Plaintiff alleges that the defendants allowed the disciplinary hearing regarding the 2006 incident to go forward without properly designating the hearing officer. Id., ¶ 51. Plaintiff also alleges that the BPD failed to release her personnel records for her New York State disability retirement application. Id., ¶ 40.
In response to the motion, the City Defendants have submitted several state court documents. The first is an order, dated August 21, 2008 and signed by then-Justice Joseph G. Makowski, in which the court denied a motion by plaintiff to renew and dismissed an order to show cause brought by plaintiff pursuant to New York Civil Practice Law and Rules ("CPLR") Article78 (Item 59, Exh. A) (Case No. 2008-2417). The second document is plaintiff's Article 78 petition, filed September 2, 2008 (Case No. 2008-8689), in which she argued that the hearing officer was not properly designated and had no jurisdiction to conduct the disciplinary hearing with regard to the November 2006 incident. Id., Exh. B. Exhibit C is the transcript of an oral decision on the record of then-Justice Makowski, in which he dismissed the Article 78 petition. Id., Exh. C. Exhibit D is an additional Article 78 petition filed by plaintiff on September 8, 2008 (Case No. 2008-10228), in which she sought reinstatement as a police officer. Id., Exh. D. Exhibit E is an order to show cause in the arbitration proceeding regarding plaintiff's wrongful termination in 2000. As a non-party, plaintiff sought compensation for lost wages and benefits. Id., Exh. E.
Attached to a reply declaration (Item 65), the City Defendants have submitted further documents. There is an order dated April 16, 2009 of the Hon. Tracey A. Bannister dismissing plaintiff's Article 78 petition dated September 2, 2008 (Case No. 2008-8689) (Item 65, Exh. A). In another order dated April 16, 2009, Justice Bannister denied a motion to dismiss plaintiff's Article 78 petition of September 8, 2008 (Case No. 2008-10228) and ordered the City of Buffalo to file an answer to the petition. Id., Exh. B. Finally, in a memorandum decision dated May 26, 2009 and an order dated July 10, 2009, the Hon. Donna Siwek found that plaintiff was bound by a settlement agreement executed September 26, 2006 regarding back pay as a result of her wrongful 2000 termination.
Justice Siwek directed the City of Buffalo to pay plaintiff $165,055.22 plus the cash value of any accrued ...