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Alan v. the County of Nassau

September 7, 2011

ALAN FISHMAN, PLAINTIFF,
v.
THE COUNTY OF NASSAU, NASSAU COUNTY CIVIL SERVICE COMMISSION, THE NASSAU COUNTY LEGISLATURE, WILLIAM MULLER, PETER SCHMITT, AND EDWARD P. MANGANO, DEFENDANTS.



The opinion of the court was delivered by: Denis R. Hurley Senior District Judge

MEMORANDUM & ORDER

OFFICE OF THE NASSAU COUNTY ATTORNEY Attorneys for Defendants John Ciampoli Nassau County Attorney One West Street Mineola, New York 11501 By: Michelle M. Faraci, Esq. HURLEY, Senior District Judge:

Plaintiff Alan Fishman commenced this action seeking recovery based upon defendants' alleged violations of his constitutional rights pursuant to 42 U.S.C. §§ 1983, 1985 and 1988. Plaintiff also alleges that defendants violated the New York State Constitution and New York State Labor Law § 201-d, and asserts state law claims for intentional and negligent infliction of emotional distress.

Presently before the Court is defendants' motion to dismiss the Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, defendants' motion is granted in part and denied in part.

BACKGROUND

The following facts are taken from the Complaint and are presumed true for purposes of this motion.

Plaintiff Alan Fishman is a resident of Nassau County, New York, and was employed by defendants County of Nassau (the "County") and County of Nassau Legislature (the "Legislature"). (Compl. ¶¶ 4, 7.) At all relevant times, plaintiff was also a member of the Nassau County Democratic Party and Nassau County Democratic Committee. (Id.) The County is a municipal corporation existing under the laws of the State of New York, with offices in Mineola, New York. (Id. ¶ 5.) The Legislature is also a municipal corporation existing under New York State law with offices in Mineola, New York. (Id. ¶ 7.) Defendant Nassau County Civil Service Commission (the "Commission") is a municipal corporation subject to the laws of the state of New York, with an office located in Hempstead, New York. (Id. ¶ 6)

Defendant Edward P. Mangano ("Mangano") is a member of the Nassau County Republican Committee ("Republican Committee") and was a Nassau County legislator until he became the Nassau County Executive on January 1, 2010. (Id. ¶ 10.) Defendant William Muller ("Muller") is also a member of the Nassau County Republican Committee and was appointed to the position of Clerk of the Nassau County Legislature by Mangano. (Id. ¶ 8.) Defendant Peter Schmitt ("Schmitt") is also a member of the Nassau County Republican Committee and is alleged to have been appointed by Mangano to the position of Presiding Officer of the Nassau County Legislature.*fn1 (Id. ¶ 9.) Finally, Joseph Mondello ("Mondello") is the head of the Republican Committee of Nassau County. (Id. ¶ 11.)*fn2

I. Plaintiff's Employment with the Legislature

Plaintiff began his employment with the Legislature in December 2006 in the position of "Records Clerk," and he worked in that capacity until April 2008. (Id. ¶ 16.) Plaintiff's duties as Records Clerk were "clerical and administrative," and included "making copies, scanning documents, fixing audio-visual equipment, data entry . . . filling water pitchers, delivering office supplies, and acting as an aid to all nineteen Nassau County legislators and staff regardless of party affiliation." (Id. ¶ 17.) In or about April 2008, plaintiff's title was changed to Special Assistant to the Clerk but plaintiff continued to perform the same tasks that he performed as Records Clerk. (Id. ¶ 18.) The position of Special Assistant to the Clerk of the Legislature is a bi-partisan position for which no party affiliation is required. (Id. ¶ 43.) According to plaintiff, he was a "model employee" at all times during his employment and was never disciplined or reprimanded in any way. (Id. ¶ 34.)

At all times during his employment, plaintiff was active in the Nassau County Democratic Committee (the "Democratic Committee") and became a Democratic Committeeman in 2007. (Id. ¶¶ 19, 22.) As a Democratic Committeeman, plaintiff's duties included, but were not limited to, "actively campaigning for Democratic candidates and participating in fund-raising activities on behalf of the Nassau County Democratic Committee." (Id. ¶ 21.) As a Democratic Committee member, plaintiff associated with Jay Jacobs, the head of the Democratic Committee, Thomas Suozzi, the former Nassau County Executive, and numerous other Democratic Committee members. (Id. ¶¶ 24, 25.)

II. Plaintiff's Employment is Terminated

Plaintiff alleges that when Schmitt was appointed to the position of Presiding Officer of the Legislature, on or about January 4, 2010, he instructed Muller to fire plaintiff based on his status in the Democratic Committee. (Id. ¶ 29.) Muller allegedly followed this instruction and terminated plaintiff's employment on or about February 22, 2010. (Id. ¶ 30.) Plaintiff alleges that Schmitt's "directive ultimately came from Republican party headquarters and Mondello." (Id. at ¶ 27.) Plaintiff further alleges that Mangano and the Commission knew that plaintiff's termination was based on his political affiliation, but allowed it to happen anyway. (Id. ¶ 33.)

Prior to his termination, plaintiff "learned that the head of the Republican Party had ordered that Democratic Committee [members] be terminated." (Id. ¶ 37.) In particular, plaintiff alleges that Ed Ward, "the spokesman for Mr. Schmitt," told plaintiff that, "We don't keep Committee People." (Id. ¶ 38.) Plaintiff's position was filled by a member of the Republican Committee who also is a member of the Republican Club in Lynbrook. (Id. ¶ 41.)

Since plaintiff's termination, the Nassau County Legislative Clerk Central Staff has hired "at least four more individuals, all of whom are affiliated with the Nassau County Republican Committee." (Id. ¶ 42.)

III. Alleged Injuries

Plaintiff seeks payment of his accumulated and unused sick, personal and vacation time, as well as front and back pay. (Id. ¶ 48(e), (f).) In addition, at the time of plaintiff's termination, he had accrued 55 days of sick leave and other entitlements, for which he claims the County has not paid him. (Id. ¶ 39.) Plaintiff also alleges that defendants' actions have caused him "severe emotional distress, mental anguish, physical injury, anxiety, and depression . . . ." (Id. ¶ 44.) Plaintiff claims that defendants' actions have caused him trouble sleeping and socializing, pains in his stomach and chest, and difficulty concentrating. (Id. ¶ 45.) As a result, plaintiff has sought professional medical attention. (Id. ¶ 46.)

DISCUSSION

I. Legal Standard for Motion to Dismiss

Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).

First, in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46) (internal quotation marks omitted). Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 570.

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to 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).

Id. at 555 (citations and internal quotation marks omitted).

More recently, in Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937 (2009), the Supreme Court provided further guidance, setting forth a two-pronged approach for courts deciding a motion to dismiss. First, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 129 S. Ct. at 1940, 1950. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Thus, "[t]he bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555).

Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at ...


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