The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge
Plaintiff Frank Dellate commenced this action against Defendants Great Neck Union Free School District (the "School District"), Michael Rufus and Robert Devlin (collectively, "Defendants") pursuant to 42 U.S.C. § 1983 alleging, inter alia, that Defendants violated Plaintiff's substantive and procedural due process rights under the Fifth and Fourteenth Amendments and violated Plaintiff's First Amendment rights in the context of his employment. Plaintiff also claims that Defendants discriminated against him in retaliation for his exercise of his First Amendment and other constitutional rights. Presently before the Court are motions to dismiss brought by (1) Defendant Rufus and (2) Defendants Devlin and the School District, seeking to dismiss the Complaint in its entirety pursuant to Rule 12(b)(6). For the reasons set forth below, both motions are GRANTED.*fn1
A. Factual Background*fn2
Plaintiff Frank Dellate ("Dellate" or "Plaintiff") is employed by Great Neck Union Free School District (the "School District") as a cleaner at Parkville Elementary School. Compl., ¶ 12. At all times relevant to the Complaint, Defendant Robert Devlin ("Devlin") was employed as the Director of Maintenance for the School District. Id., ¶ 8. Defendant Michael Rufus ("Rufus") was the Head Custodian at Parkville Elementary School and Plaintiff's supervisor. Id., ¶¶ 7, 13.
While working under Rufus, Plaintiff complained to the School District about certain actions taken by Rufus, including Rufus's "corruption and alcoholism," "steal[ing] supplies, alter[ing] time cards, steal[ing] overtime and otherwise engag[ing] in theft of services," and that "Rufus becomes very abusive when intoxicated[,]" Id., ¶ 14. Plaintiff alleges that as a result of his "complaints and comments concerning defendant Rufus, plaintiff has been and continues to be subject to harassment and retaliation." Id., ¶ 17. Specifically, on June 13, 2007, Rufus issued an evaluation of Plaintiff's performance which did not contain any rating of "Needs Improvement," and which both Rufus and Plaintiff signed, and a copy of which was given to Plaintiff "and ostensibly placed in [Plaintiff's] personnel file." Id., ¶ 20. In September 2008, Plaintiff learned about the existence of another version of the same evaluation, which had two ratings of "Needs Improvement" and contained comments by Rufus, none of which appeared in the evaluation previously given to Plaintiff. Id., ¶ 21. Plaintiff learned that this second version, which he had never seen, had been placed in his personnel file. Id., ¶ 22.*fn3 On September 11, 2007, Plaintiff reported the placement of the second version of the evaluation. Thereafter, a meeting was held which was attended by Plaintiff, Jennifer Kirby, a Human Resources Assistant for the District, and John T. Powell, the District Assistant Superintendent for Business. Id., ¶ 23. Plaintiff alleges that "Defendants did nothing to rectify the situation." Id.
Plaintiff also alleges that since 2007, he has applied for numerous vacancies as a Security Aide, for which he was not selected, despite being qualified for the position and having the recommendation of Parkville's Principal. Id., ¶ 24. According to the Complaint, Defendants caused complimentary letters of recommendation that Plaintiff had received to be removed from his personnel file. Id., ¶ 25.
In addition, Defendants contacted the Nassau County Civil Service Commission claiming Plaintiff resides outside of Nassau County. According to Plaintiff, other district employees, including Rufus, do not live in Nassau County, but the School District "did nothing in those situations." Id., ¶ 26. Rufus "repeatedly berates plaintiff, talks down to him and falsely criticizes his job performance." Id., ¶ 27. Further, the School District "has continued to acquiesce in, condone and approve the actions complained of" in the Complaint. Id., ¶ 28.
B. Summary Of Plaintiff's Claims
Plaintiff seeks monetary damages and declaratory relief based upon his claims allegations that Defendants, through the actions described above, retaliated against Plaintiff for complaining about his supervisor Rufus. First, Plaintiff contends that Defendants are liable under Section 1983 for violations of his substantive and procedural due process rights and his equal protection rights under the Fifth and Fourteenth Amendments. Id., ¶ 30. Specifically, Plaintiff maintains that "[t]he actions and omissions of the defendants and their agents" -- including forgery of the performance evaluation form, removal of favorable letters of recommendation from Plaintiff's personnel file, declining to hire Plaintiff as a security aide, and reporting Plaintiff's residency to the Civil Service Commission -- "engaged in under color of state law, constitute a violation of plaintiff's rights to substantive and procedural due process and to equal protection of the law guaranteed to him by the Fifth and Fourteenth Amendments to the Constitution of the United States and by New York State law." Compl., ¶ 34. Plaintiff's equal protection claim is based upon the assertion that Defendants contacted the Nassau County Civil Service Commission to report that Plaintiff does not reside in Nassau County, even though they did not do so in regard to other School District employees. Id., ¶¶ 26, 34. According to Plaintiff, the actions described in the Complaint "represent official policy, ordinance and custom and were committed by public officials high enough in the relevant municipal entity so that their actions may be said to represent decisions of the District itself." Id., ¶ 11.
Second, Plaintiff argues that Defendants are liable under Section 1983 for violations of his First Amendment right to free speech. Id., ¶¶ 39-40. Plaintiff maintains that his complaints about Rufus were "non-disruptive, addressed matters of public concern and constituted an exercise of his right to free expression . . . which plaintiff could undertake without fear of reprisal or retaliation." Id., ¶¶ 15-16. However, according to Plaintiff, "as a result of [his] complaints and comments concerning defendant Rufus, [he] has been and continues to be subject to harassment and retaliation." Id, ¶ 17.
Finally, Plaintiff asserts a claim for intentional infliction of emotional distress, alleging that Defendants' conduct was "in bad faith and with the sole intent to harass, annoy and alarm plaintiff" (id., ¶ 18), and resulted in, inter alia, prejudicing Plaintiff's career, destroying his reputation, causing him to be publicly ridiculed and humiliated and to endure extreme emotional upset and anxiety and financial injury, and causing him to suffer emotional distress, pain and suffering, economic loss, and emotional and physical illness. Id., ¶¶ 30, 36-37.
C. Defendants' Motions To Dismiss
All of the Defendants, by separate motions brought pursuant to Rule 12(b)(6), seek to dismiss the Complaint in its entirety. Defendant Rufus moves to dismiss on the grounds that Plaintiff "has no protectable property interest in the security aide position" for which he applied, and therefore cannot establish viable claims under the "Takings" Clause of the Fifth Amendment or the Due Process Clause of the Fifth and Fourteenth Amendments. Rufus's Mem. at 3- 5. Second, Rufus argues that Plaintiff has failed to state a claim under the Equal Protection Clause because (1) he has not alleged that he was treated differently from any other similarly situated individual, and (2) he cannot maintain a "class of one" claim as a public employee. Id. at 6- 9. Next, Rufus asserts that Plaintiff's First Amendment claim should be dismissed because the speech at issue was not protected since it was made in his capacity as an employee and did not involve a matter of public concern. Id. at 10-12.
Defendants Devlin and the School District move to dismiss on substantively similar grounds. See Defs.' Mem. at 6-21. Additionally, they assert that the action should be dismissed as against Devlin because "Plaintiff has not pleaded any allegation in his complaint to provide a reason for naming Robert Devlin . . . as a defendant." Id at 24 (emphasis in original). Defendants note that Devlin's name is mentioned only once in the entire Complaint and that instance is merely the identification of Devlin as the Director of Maintenance for the School District. Significantly, Defendants state that "[n]one of the complained-of conduct has been attributed to Devlin, and therefore the cause of action against him should be dismissed." Id. According to Defendants, Plaintiff has failed to state a claim for intentional infliction of emotional distress because he has not shown (1) "extreme and outrageous conduct" by Defendants; or (2) an intention by Defendants to inflict upon Plaintiff extreme emotional distress; or (3) that Defendants' conduct caused Plaintiff to suffer extreme emotional distress; or (4) that Plaintiff in fact suffered any emotional distress. Id. at 21-23.
In support of the motion, Defendants Devlin and the School District submitted the Declaration of Joseph Carbonaro, counsel for Defendants ("Carbonaro Decl.") [DE 19-1], to which five exhibits are annexed [DE 19-1, Exs. A-E]; the Memorandum of Law in Support of Defendants' Motion to Dismiss ("Dist.'s Mem.") [DE 19-5]; and the Reply Memorandum of Law in Further Support of Defendants' Motion to Dismiss ("Dist.'s Reply Mem.") [DE 21]. Defendant Rufus submitted the Declaration of Maurizio Savoiardo, counsel for Rufus ("Savoiardo Decl.") [DE 21], to which multiple exhibits are attached [DE 33, Ex. A-D]; the Memorandum of Law in Support of Rufus's Motion to Dismiss ("Rufus's Mem.") [DE 37]; and the Reply Memorandum of Law in Further Support of Defendants' Motion to Dismiss ("Rufus's Reply Mem.") [DE 36]. In opposition, Plaintiff submitted the Declaration of Alan E. Wolin, counsel for Plaintiff ("Wolin Decl.") [DE 34], to which two exhibits are annexed [DE 34, Exs. 1- 2], and a Memorandum of Law in Opposition to Defendants' respective Motions to Dismiss ("Pl.'s Mem.") [DE 35]. The Court has carefully considered all of the parties' submissions.
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), 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). The plaintiff must satisfy "a flexible plausibility standard." Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, -- U.S. --, 129 S.Ct. 1937, 173 L.Ed. 2d 868 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed. 2d. 929 (2007). The Court, therefore, does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 570.
The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal, -- U.S. --, 129 S.Ct. 1937, 173 L.Ed. 2d. 868 (2009), setting forth a two-pronged approach for courts deciding a motion to dismiss. District courts are to first "identify pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S.Ct. at 1950. Though "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if a complaint contains "well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that Defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949 (quotingandciting Twombly, 550 U.S. at 556-57) (internal citations omitted).
IV. Additional Materials Submitted By Plaintiff
Both Defendants and Plaintiff have annexed as an exhibit to their respective papers the transcript of Plaintiff's testimony at the hearing held on January 16, 2009 pursuant to New York General Municipal Law § 50-h (the "50-h hearing"). See Carbonaro Decl., Ex. E; Wolin Decl., Ex. 1. Also, all parties cite the transcript in support of their respective arguments. See, e.g., Pl.'s Mem. at 7; Dist.'s Mem. at 5 n.2, 12 n.6, p. 16, n.10, 22-23; Dist.'s Reply Mem. at 13; Rufus's Reply Mem. at 9. Although the transcript was not annexed as an exhibit to the Complaint, Plaintiff asserts that the transcript should be considered here "as part of the pleadings." Wolin Decl., ¶ 8 (citing cases). In the Complaint, Plaintiff asserts that "on October 17, 2008, plaintiff caused a Notice of Claim pursuant to General Municipal Law § 50-e to be served[, and] [m]ore than thirty (30) days have elapsed since plaintiff served the Notice of Claim and the claim remains open and unpaid." Compl., ¶¶ 49-50. Because the hearing had not yet occurred at the time this action was commenced, the hearing transcript could not have been included as an exhibit or incorporated into the Complaint. The Court may nonetheless consider such transcript here, without converting the motions to dismiss into motions for summary judgment, because "the record was available to and clearly known of" by all parties to this action. See Bennett v. Tucker, 95 Civ. 8029, 1996 WL 288202, at *1 n.3 (S.D.N.Y. May 30, 1996) (relying upon record of prison hearing annexed as an exhibit to defendant's papers in support of motion to dismiss, even though transcript had not been included in the complaint, because the "record was 'available to and clearly known by the plaintiff'") (quoting Westwood v. Cohen, 838 F. Supp. 126, 130 (S.D.N.Y. 1993)); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). In light of the fact that, at the time the motions to dismiss were filed, the transcript of the 50-h hearing was available and known to all parties, and that both parties here are relying upon portions of the transcript to support their respective arguments, the transcript may be considered by the Court. Plaintiff also annexes the two versions of his performance evaluation dated May 29, 2007. See Wolin Decl., Ex. 2. In light of Plaintiff's allegations in the Complaint that Rufus issued an evaluation ...