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Robert Young, Steven Schein v. County of Nassau

September 21, 2011

ROBERT YOUNG, STEVEN SCHEIN, MICHAEL O'LEARY, RICHARD FOGELSON, GARY FERRUCCI, AND JOHN BIRBIGLIA, ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED,
PLAINTIFFS,
v.
COUNTY OF NASSAU, PATROLMENS' BENEVOLENT ASSOCIATION, SUPERIOR OFFICERS' ASSOCIATION, AND DETECTIVES' ASSOCIATION, INC., DEFENDANTS



The opinion of the court was delivered by: Hurley, Senior District Judge:

MEMORANDUM & ORDER

Plaintiffs, on behalf of themselves and others similarly situated, commenced this action alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, et seq., and for breach of fiduciary duty against the Patrolmens' Benevolent Association ("PBA"), the Superior Officers' Association ("SOA"), the Detectives' Association, Inc. ("DAI") (collectively "Union Defendants"), and the County of Nassau ("the County"). Presently before the Court are defendants' motions to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons set forth below, the motions are granted and the amended complaint is dismissed without prejudice to replead within 30 days.

BACKGROUND

The following factual allegations are presumed true for the purposes of this motion.

I.TERMINATION PAY

"For decades" the Nassau County Police Department ("NCPD") had a termination pay accrual policy whereby employees were paid a lump sum for earned, accrued, and unused work leave upon retirement. (Amended Complaint ("Am. Compl.") ¶ ¶ 18, 22.) Under the accrual policy, employees could bank a certain number of days each year in a number of different categories, including sick leave, vacation, and personal days, among others. (Am. Compl. ¶¶ 19-21.) According to plaintiffs, although employees were "technically free" to use these days as they wished, employees were actively discouraged from taking the time off. (Am. Compl. ¶ 23.) Thus, employees would work through illnesses and forego time with their families in order to bank this time. (Am. Compl. ¶¶ 24-25.) "Employees of the NCPD could ultimately bank hundreds of days over their career and significantly supplement their retirement benefits by this lump sum payment permitted by the accrual policy." (Am. Compl. ¶ 27.)

II.THE CAP ON TERMINATION PAY

Recently, the termination pay policy was revised, owing to "economic hardships." (Am. Compl. ¶ 31.) Under the amended policy (the "policy"), the lump sum was capped at no more that two times an employee's final salary, effective July 1, 2009.*fn1 (Am. Compl. ¶¶ 32, 34-35.) According to the amended complaint, if employees chose to retire before July 1, 2009, then the new cap did not apply and they were entitled to their full termination pay as before. (Am. Compl. ¶ 49.) If they did not choose to retire before that date, however, the cap took effect and they forfeited any termination pay greater than the equivalent of two times their salary at the time of retirement. (Am. Compl. ¶ 49.) Plaintiffs claim that defendants "further" impacted plaintiffs' "financial losses" by making an unspecified reduction to the "salary calculation" of those who did not retire before the policy's effective date. (Am. Compl. ¶ 38.) Plaintiffs also allege that the new policy "affects no employee under the age of 41 years old." (Am. Compl. ¶ 33.)

Plaintiffs bring allegations of both disparate treatment and disparate impact pursuant to the ADEA and the NYSHRL. In addition, plaintiffs allege that the Union Defendants acted adversely to plaintiffs' interests by agreeing to the new policy, effectively trading the "earned monies from older employee for additional raises for younger employees," and thereby breaching their fiduciary duty to plaintiffs. (Am. Compl. ¶¶ 39-40.)

III.THE CAPTIONED PLAINTIFFS

The captioned plaintiffs, each of whom is alleged to be over the age of 40 (Am. Compl. ¶¶ 8-13), can be divided into two groups: those who retired before the cap took effect on July 1, 2009, viz. O'Leary, Fogelson, and Schein, and those who did not, viz. Young, Ferrucci, and Birbiglia. Those in the first group maintain that they had no intention of retiring and would have remained on the job for a number of years if it did not mean forfeiting between $73,000 and $100,000 worth of termination pay each. Those in the second group claim that they have lost between $41,000 and $100,000 each by forgoing retirement before July 1, 2009.

DISCUSSION

I.STANDARD OF REVIEW

a.Motion To Dismiss Pursuant To 12(b)(6)

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 Atl. Corp. 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." 550 U.S. at 562. 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 ...


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