The opinion of the court was delivered by: John G. Koeltl, District Judge:
The plaintiff, Eugene Sokolowski, brought this action against the Metropolitan Transit Authority (the "MTA"), MTA Metro-North Railroad, and MTA Metro-North Commuter Railroad (collectively, the "defendants"), pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. The plaintiff was terminated by the defendants and his termination was upheld by the Special Board of Adjustment No. 1001 (the "Board"). In various claims, the plaintiff seeks to reverse the Board's decision and to obtain an order that the plaintiff be reinstated. Jurisdiction for these claims is alleged pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 45 U.S.C. § 153 (creation of National Railroad Adjustment Board and special adjustment boards, including jurisdiction to review orders of those boards). The plaintiff also claims that he was discriminated against on the basis of his age in violation of the NYSHRL and the NYCHRL. Jurisdiction over these claims is asserted under supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
The defendants move to dismiss the claims under the Railway Labor Act pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. They move to dismiss the claims under the NYSHRL and NYCHRL pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
When presented with motions under both Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction and Rule 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted, the Court must first analyze the Rule 12(b)(1) motion to determine whether the Court has the subject matter jurisdiction necessary to consider the merits of the action. See Rhulen Agency, Inc., v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 2000); McKevitt v. Mueller, 689 F. Supp. 2d 661, 664 (S.D.N.Y. 2010).
In defending a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Id.; Graubart v. Jazz Images, Inc., No. 02 Civ. 4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003); Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). In conducting this analysis, "the Court is guided by that body of decisional law that has developed under Federal Rule of Civil Procedure 56." McKevitt, 689 F. Supp. 2d at 665 (citing Kamen, 791 F.2d at 1011).
The following assertions of fact are assumed to be true for the purpose of this motion to dismiss, unless otherwise noted.
The plaintiff worked for the MTA for approximately twenty two years and maintained an unblemished record during his tenure as an MTA employee, until his termination. (Compl. ¶¶ 7-8.) On September 2, 2010, when the plaintiff was terminated, he was 45 years of age and held the position of Mechanical Foreman responsible for the maintenance and repair of MTA elevators. (Compl. ¶ 7.) While employed by the MTA, the plaintiff was a member of the American Railway and Airway Supervisors' Association Maintenance of Equipment Union ("ARASA"). (Compl. ¶ 12.) A collective bargaining agreement entered into by ARASA and the MTA governed the terms of the plaintiff's employment.
Prior to July 16, 2010, the MTA issued Operating Procedure No. 21-012 and General Safety Instruction 200.8, both of which prohibit employees from appearing at work under the influence of alcohol or drugs and from possessing alcohol or drugs in the workplace. (Compl. ¶¶ 10-11.)
Despite these prohibitions, ARASA negotiated an agreement with the MTA known as the "SAVE Agreement" that allows employees charged with the violation of a substance abuse rule to avoid termination when certain conditions are met. (Compl. ¶ 13.) To qualify under the SAVE Agreement, the alleged substance abuse rule violation must be the employee's first offense and the offense must not involve any other apparent rule violation. (Compl. ¶ 14.) Employees who qualify submit to the Metro-North Employee Assistance Program ("EAP") and accept counseling; they return to work only upon a favorable recommendation, also known as a waiver, from an EAP counselor. (Compl. ¶ 13; Decl. of Brian Gardner ("Gardner Decl.") Ex. B.)
The SAVE Agreement is mandatory on the MTA. Accordingly, any employee who qualifies under the SAVE Agreement must be mailed a waiver letter within 24 hours of removal from service. (Compl. ¶¶ 15-16.) After receiving a waiver letter, an employee must meet the conditions in the SAVE Agreement to be reinstated to employment. (Compl. ¶ 15.)
On July 16, 2010, based on an anonymous tip, an officer from the MTA Police Department, along with New York City police officers and personnel from the MTA Inspector General's office, entered an office in Grand Central Terminal that was occupied by the plaintiff and two other MTA employees. (Compl. ¶ 21; Decl. of Frank Rinaldi ("Rinaldi Decl.") Ex. B., at 4.) Inside the office, the plaintiff and two others were sitting at a desk upon which were a bottle of whiskey, a metal pipe, a disc used to grind marijuana, and two small bags of marijuana. (Compl. ¶ 21; Rinaldi Decl. Ex. B, at 4.) When questioned by the officers, the plaintiff admitted that he had smoked marijuana the weekend before but denied smoking marijuana while on duty. (Compl. ¶ 21.) The plaintiff voluntarily turned over a bag of marijuana when he was asked if he possessed any contraband. (Compl. ¶ 21; Rinaldi Decl. Ex. B, at 4.) The officers issued the plaintiff a criminal summons for the unlawful possession of marijuana. (Rinaldi Decl. Ex. B., at 2.) Later that night, the MTA directed the plaintiff to submit a urine sample, which tested positive for the presence of marijuana. (Compl. ¶ 22.)
As a result of the positive drug test and the July 16 incident, on July 22, 2010, the MTA instituted three charges against the plaintiff. The charges alleged that the plaintiff (1) violated Substance Abuse Policy No. 21-012 and General Safety Instruction 200.8 by submitting a positive urine sample, (2) engaged in conduct unbecoming a Metro-North employee by possessing a controlled substance, drug paraphernalia, and alcohol on Metro-North property, and (3) failed to perform duties by possessing a controlled substance, drug paraphernalia, and alcohol on Metro-North property during his tour of duty. (Compl. ¶ 19.) ...