The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court in this employment civil rights action, filed by James D. Bachus and Barbara Bachus ("Plaintiffs") against the Schenectady City School District (hereinafter "SCSD"), Michael San Angelo, Michael Stricos, and Stephen Raucci (hereinafter "Defendants"), are the following two motions: (1) Defendant SCSD's motion to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 22); and (2) Defendant San Angelo's motion to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 28). For the reasons set forth below, Defendant SCSD's motion is denied; and Defendant San Angelo's motion is granted.
Generally, liberally construed, Plaintiffs' Complaint alleges as follows. (See generally, Dkt. No. 1.)
Plaintiff Barbara Bachus (hereinafter "Mrs. Bachus") has been employed as a teacher for SCSD for twenty-one years. Plaintiff James D. Bachus (hereinafter "Mr. Bachus") has been employed as a utility worker for Defendant SCSD for twenty-nine years. As a utility worker, Mr. Bachus was tasked with performing ordinary and routine maintenance work throughout SCSD's buildings and physical property. Mr. Bachus was supervised in his position by Defendant Raucci, who held the de facto title of Director of Facilities. In that capacity, Mr. Bachus witnessed Defendant Raucci engage in a multitude of inappropriate behavior, including implicit and explicit threats to physically injure his subordinates who disagreed with his management style, or alternatively, his professed absolute control of CSEA Local 847, Schenectady City School District Unit (hereinafter "CSEA").
Defendant Raucci often ostracized individuals who complained or voiced any concern outside of the Operations & Maintenance Department at SCSD by changing their hours, denying or manipulating time records to reduce accruals, changing their job description, summarily disciplining the complaining employee, or otherwise orchestrating the employee's removal from the Operations and Maintenance Department in a retaliatory manner. After witnessing countless examples of this conduct over a period of years, Mr. Bachus decided to oppose Defendant Raucci in the upcoming CSEA elections. In an effort to obtain information concerning the election process, Mr. Bachus called the CSEA local office on or about January 21, 2009.
On January 22, 2009, Defendant Raucci summoned Mr. Bachus into his office and indicated that a CSEA local official had contacted him and informed him of Mr. Bachus's intentions to run for CSEA Presidency. Later that day, Mr. Bachus was told by the acting labor foreman that he was to report to the high school to function as a cleaner. Such work was outside the traditional scope of Mr. Bachus's employment, but was a method utilized by Defendant Raucci to punish, and retaliate against, those who questioned his authority. Minutes after Mr. Bachus was told to report to the high school to function as a cleaner, Defendant Raucci called all of the employees together and publicly announced in a mocking tone that Mr. Bachus intended to oppose him for the CSEA Presidency. Defendant Raucci then physically threatened Mr. Bachus, at which time Mr. Bachus reminded Raucci that he was physically threatening him in a room full of witnesses. Raucci continued by stating, in mocking and exaggerated terms, that there were no witnesses who would support Mr. Bachus and that Raucci could say what he wanted because there was nothing anyone could do about it. The other employees who had gathered remained obediently silent during the interaction. Raucci continued by stating that he would settle the matter "off the clock." After the group dispersed, Raucci threatened to torment Mrs. Bachus and Plaintiffs' fifteen year-old son.
The following day, as an immediate result of the incidents that occurred on January 22, 2009, Mr. Bachus was forced to seek medical assistance for a rapid heart beat and stress. Accordingly, Mr. Bachus did not attend work. Upon information and belief, Raucci instructed all employees to write a statement outlining the conduct they observed the preceding day, promising them that their statements would be kept confidential. Upon information and belief, later in the afternoon, each statement was publicly read aloud to all employees in SCSD's Carpenter's Shop. Those individuals who accurately reported what had occurred the previous day were threatened and told only to repeat the version of events that Raucci approved.
On January 26, 2009, Plaintiffs met with Human Resources Director Michael Stricos (hereinafter "Defendant Stricos") and Assistant Superintendent Michael San Angelo (hereinafter "Defendant San Angelo"), to whom they reported the incidents that occurred on January 22, 2009, as well as other incidents, and described the overall dangerous and hostile employment atmosphere within the Operations & Maintenance Department. Both Defendant Stricos and Defendant San Angelo took extensive notes during the meetings. On or around this day, Mr. Bachus took medical leave as a result of suffering an emotional and physical breakdown directly attributable to the incidents of January 22, 2009. While on medical leave, Mrs. Bachus suffered retaliation at the hands of Raucci, who refused to supply her classroom with heat.
Between January 29, 2009 and February 9, 2009, Defendant Stricos contacted Defendant Raucci, who provided selected individuals for Defendant Stricos to interview concerning the incidents of January 22, 2009. On February 2, 2009, Mrs. Bachus's Union representative approached Superintendent Eric Ely to report the direct physical threat to its member, Mrs. Bachus. On February 9, 2009, Mr. Bachus was advised that he would be disciplined for purported insubordination.
On February 12, 2009, Mr. Bachus returned to work. On the same day, Mr. Bachus was instructed by Raucci to report to the high school to perform menial tasks, which he had performed only once before the incidents of January 22, 2009. As a result of the emotional trauma and humiliation caused by Raucci, Mr. Bachus was forced to take additional medical leave between February 12, 2009, and March 6, 2009.
On February 19, 2009, despite his position as CSEA President in which he was tasked with representing union member interests, Raucci made a request to Superintendent Ely that Mr. Bachus be suspended for a period of ninety days. Upon information and belief, this suspension would have prevented Mr. Bachus from appealing the determination rendered by Defendant Stricos that Mr. Bachus be punished for insubordination. On February 20, 2009, Raucci was arrested. Following Raucci's arrest, Mr. Bachus presented Defendant Stricos with a medical excuse justifying his absence. Defendant Stricos responded by laughing in Mr. Bachus's face, which caused him additional humiliation.
Mr. Bachus returned to work on March 6, 2009. At some point later in time, Mr. Bachus was interviewed by an investigator hired by SCSD. During the interview, Mr. Bachus told the investigator about the incidents with Raucci that occurred on January 22, 2009, as well as other incidents he witnessed during the course of his employment. No corrective action was ever undertaken to address Raucci's conduct toward Mr. Bachus, nor was any corrective action taken to cure the unfounded determination of insubordination rendered by Defendants Stricos and San Angelo.
Based on these allegations, Mr. Bachus asserts the following three claims: (1) a claim of retaliation under the First Amendment against all Defendants, based on his exercise of his right to freedom of speech; (2) a claim of retaliation under the First Amendment against all Defendants, based on his exercise of his right to freedom of association; and (3) a claim of intentional infliction of emotional distress under New York State law against Defendants San Angelo, Stricos, and Raucci. (Dkt. No. 1.) In addition, Mrs. Bachus asserts a claim of retaliation under the First Amendment against all Defendnats, based on her intimate association with her husband. (Id.)
Familiarity with the remaining factual allegations supporting these claims in Plaintiffs' Complaint is assumed in this Decision and Order, which is intended primarily for the review of the parties. (Id.)
B. Defendant SCSD and Defendant San Angelo's Motions
Generally, in support of its motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), Defendant SCSD argues as follows: (1) Plaintiffs' retaliation claim must be dismissed because they have failed to allege facts plausibly suggesting a custom or policy of retaliation; (2) Mr. Bachus's first retaliation claim must be dismissed because (a) the speech that forms the basis of this claim does not involve a matter of public concern, and (b) the Complaint fails to allege facts plausibly suggesting that the speech was a motivating factor in any alleged adverse employment action taken by SCSD; (3) Mr. Bachus's second retaliation claim must be dismissed because (a) association with CSEA does not involve a matter of public concern, and (b) the Complaint fails to allege facts plausibly suggesting that Mr. Bachus's association with CSEA was a substantial motivating factor in any alleged retaliatory conduct; (4) Mr. Bachus's intentional infliction of emotional distress claim must be dismissed because (a) Plaintiffs failed to comply with the requirements of N.Y. Educ. Law § 3813 and Gen. Mun. Law § 50-e, (b) the Complaint fails to allege facts plausibly suggesting a claim for intentional infliction of emotional distress, and (c) it is barred by the exclusivity provision of N.Y. Workers' Comp. Law § 29(6); (5) Mrs. Bachus's retaliation claim must be dismissed because the Complaint fails to allege facts plausibly suggesting that SCSD violated any constitutionally protected right of intimate association that Mrs. Bachus has with her husband; and (6) Plaintiffs' claims for compensatory damages in their First, Second, and Fourth Causes of Action must be dismissed because Plaintiffs have failed to allege facts that plausibly suggest that they suffered an actual injury. (See generally Dkt. No. 22.)
Generally, in support of his motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), in addition to advancing all of the arguments raised by Defendant SCSD, Defendant San Angelo argues that, because Plaintiffs' retaliation claims fail to allege facts plausibly suggesting that Defendant San Angelo participated in any alleged wrongdoing, these claims against him should be dismissed. (See generally Dkt. No. 29.)
In Plaintiffs' response to the motions filed by Defendants SCSD and
San Angelo, they argue as follows: (1) there are no heightened
pleading requirements imposed by 42 U.S.C. § 1983; (2) the Complaint
alleges facts plausibly suggesting municipal liability by alleging
that (a) Defendant Raucci was Mr. Bachus's supervisor, whose conduct
may be imputed to SCSD, and
(b) Defendants Stricos and San Angelo, as supervisory officials,
failed to address retaliatory actions taken by Defendant Raucci; (3)
Mr. Bachus's first retaliation claim should not be dismissed because
(a) speech related to Mr. Bachus's announcement of his intention to
run for CSEA President, as well as a complaint about Defendant
Raucci's conduct on and before January 22, 2009, involve matters of
public concern, and (b) the Complaint alleges facts plausibly
suggesting that Mr. Bachus suffered adverse employment action as a
result of his engagement in this speech; (4) Mr. Bachus's second
retaliation claim should not be dismissed because (a) association with
CSEA involves a matter of public concern, and (b) the Complaint
alleges facts plausibly suggesting that Mr. Bachus's association with
CSEA was a substantial motivating factor in the retaliatory conduct he
experienced; (5) the Complaint alleges facts plausibly suggesting that
Mrs. Bachus was retaliated against based upon her intimate association
with her husband; and (6) the argument that Plaintiffs may not recover
for failure to allege "actual injury" is misplaced.*fn1
(See generally Dkt. No. 32 [Plf.'s Response Memo. of Law].)
In his reply, Defendant San Angelo reiterates previously advanced arguments with added force. (See generally Dkt. No. 33 [Def. San Angelo's Reply Memo. of Law].) In its reply, in addition to reiterating previously advanced arguments, Defendant SCSD argues that Plaintiffs claims against SCSD must be dismissed because Plaintiffs have failed to allege facts plausibly suggesting that any individual Defendant was vested with final decision-making authority to bind SCSD. (See generally Dkt. No. 35 [Def. SCSD's Reply Memo. of Law].)
II. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM
"A motion to dismiss on the basis that an action is barred by the statute of limitations is analyzed under Federal Rule of Civil Procedure 12(b)(6), not 12(b)(1)." Garner v. DII Indus., LLC, 08-CV-6191, 2010 WL 456801, at *1 (W.D.N.Y. Feb. 4, 2010) (citing ...