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Valerie V. Leary v. Civil Service Employees Association

May 9, 2012

VALERIE V. LEARY, PLAINTIFF,
v.
CIVIL SERVICE EMPLOYEES ASSOCIATION, COUNTY OF WESTCHESTER, ROCCO POZZI, LOUIS CONTE, JOHANNA CONNORS, JAMES M. ROSE, KAREN PECORA, BARBARA DESIMONE, STEVEN SLEDZIK, JUSTIN PRUYNE, DEFENDANTS.



The opinion of the court was delivered by: Seibel, J.

OPINION AND ORDER

Before this Court are the Motions to Dismiss of Defendants Westchester County Department of Probation, Westchester County Department of Law, Rocco Pozzi, Louis Conte, Johanna Connors, Justin Pruyne, and Steven Sledzik (collectively, the "County Defendants")*fn1 pursuant to Federal Rule of Civil Procedure 12(b)(6), (Doc. 39); Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO ("CSEA"), Karen Pecora, and Barbara DeSimone (collectively, the "CSEA Defendants") pursuant to Rules 12(b)(1), (6), (Doc. 35); and James M. Rose, pursuant to Rules 12(b)(1), (6), (Doc. 59).*fn2 For the following reasons, Defendants' Motions are GRANTED.

I.Background

All of Plaintiff's factual allegations are accepted as true for the purposes of these Motions and construed in the light most favorable to Plaintiff.

A. Plaintiff's Employment with the Westchester County Department of Probation Plaintiff is an African-American woman. (SAC 2.)*fn3 She was employed by Westchester County for nineteen years as a probation officer. (Id. at 1; see Beaty Decl. Ex. C ¶ 9.*fn4 ) She completed a one-year probationary term as a probation officer in or around June 1991 and thereafter served as a probation officer with permanent status until her termination in 2009. (SAC 1.) At all relevant times she was a member of CSEA. (Id.; CSEA Mem. 4.*fn5

B. Charges Against Plaintiff

The record indicates that on or around September 29, 2008, Plaintiff's employer served her with a Notice of Charges and Notice of Hearing, both dated September 25, 2008. (Beaty Decl. Ex. C ¶ 1 (Hearing Officer's Report and Recommendation); Idahosa Aff. Ex. A (Notice of Charges).*fn6 ) The charges were amended three times, and the Third Amended Notice charged Plaintiff with sixty-eight specifications of "misconduct and/or incompetence" over an approximately eighteen-month period, based on "fail[ure] to follow directives to log, update or provide supervisors with information properly concerning her assigned cases, fail[ure] to follow directives to file timely violations of probation, fail[ure] to follow directions and policies regarding closing cases and fail[ure] to follow a direction to attend a mandatory DNA collection session." (Beaty Decl. Ex. C ¶ 3.) All charges concerned behavior that occurred between March 2007 and October 2008. (Id. ¶¶ 10, 13--58; SAC 1.) Plaintiff sought a hearing pursuant to New York Civil Service Law Section 75*fn7 in connection with the charges. By letter dated September 25, 2008, Rocco Pozzi, Commissioner of the Westchester County Department of Probation (the "Probation Department"), designated Steven T. Sledzik as the Administrative Hearing Officer ("AHO") pursuant to Section 75, and directed Sledzik to submit his findings and recommendations to him. (Beaty Decl. Ex. C ¶ 4; SAC 2.) A hearing was held on March 11, 2009 and March 20, 2009. (Beaty Decl. Ex. C ¶ 5; SAC 2.) Defendant Pruyne, Assistant County Attorney at the Westchester County Department of Law, represented the Probation Department, and Defendant Rose represented Plaintiff. (Id.) The Probation Department offered the testimony of three witnesses, whom Plaintiff's counsel cross-examined, and Plaintiff testified on her own behalf. (Beaty Decl. Ex. C ¶ 6.)

The AHO found Plaintiff guilty of nearly all of the charges, stating that over an "eighteen month time period, [Plaintiff] failed to act timely on more than forty probationers' files,"*fn8 and that "her failures and omissions are fairly egregious and of a long-term, almost chronic duration, and seemingly intentional." (Id. ¶¶ 54--56.) The AHO ultimately recommended that Plaintiff be terminated. (Id. ¶ 62.) By letter dated June 23, 2009, Commissioner Pozzi adopted the findings and recommendation of the AHO and terminated Plaintiff, effective immediately. (Id. Ex. D.)

A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing. The hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose. In case a deputy or other person is so designated, he shall, for the purpose of such hearing, be vested with all the powers of such officer or body and shall make a record of such hearing which shall, with his recommendations, be referred to such officer or body for review and decision. The person or persons holding such hearing shall, upon the request of the person against whom charges are preferred, permit him to be represented by counsel, or by a representative of a recognized or certified employee organization, and shall allow him to summon witnesses in his behalf. The burden of proving incompetency or misconduct shall be upon the person alleging the same.

C. Procedural History

Plaintiff commenced this lawsuit by filing a complaint on January 31, 2011, alleging that Defendants discriminated against her in violation of Title VII of the Civil Rights Act of 1964. (Doc. 2.) Plaintiff amended her complaint twice, and her Second Amended Complaint-the operative complaint-alleges due process and equal protection violations under the Fifth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983. (SAC Section II.)

II. Documents the Court Will Consider

When deciding a motion to dismiss, the court is entitled to consider:

(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents 'integral' to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in [a] defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.

Weiss v. Inc. Vill. of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011) (internal quotation marks omitted); cf. Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint[,] the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.").

Each group of Defendants has submitted attachments to its Motion. The County Defendants have attached the following: Plaintiff's SAC, the Second Amended Notice of Charges against Plaintiff,*fn9 the AHO's Report and Recommendation, the letter from Commissioner Pozzi to Plaintiff notifying her of his adoption of the AHO's findings and of her termination, and Plaintiff's correspondence with the Equal Employment Opportunity Commission ("EEOC"). (See Beaty Decl. Exs. A--E.) I will consider each of these documents, except for the EEOC correspondence, because they are integral to the SAC and Plaintiff has knowledge or possession of these materials and relied on them in framing the SAC. Indeed, the entire SAC is based on grievances relating to the charges lodged against Plaintiff, the hearing process, the findings by the AHO, and the Commissioner's decision to terminate Plaintiff. As such, the charges themselves, the AHO Report, and the letter memorializing the Commissioner's adoption of the findings are all integral to the SAC. It does not appear, however, that Plaintiff relied on the EEOC correspondence in framing the SAC, or that the correspondence is relevant to the SAC because, as discussed below, Plaintiff appears to have abandoned her Title VII claim.

The CSEA Defendants have attached to their Motion the original Complaint, including Plaintiff's attachments thereto, (Doc. 2); the SAC; the AHO's Report and Recommendation; and the letter from Commissioner Pozzi notifying Plaintiff of his adoption of the AHO's findings and of her termination. (See Hilburger Aff. Exs. A--D.)*fn10 I need not consider the original Complaint and its attachments, as I find them to be irrelevant and/or cumulative, but will consider the CSEA Defendants' other submissions because, as stated above, they are integral to the SAC and Plaintiff has knowledge or possession of these materials and relied on them in framing the SAC.

Defendant Rose has submitted the original and First and Second Amended Notices of Charges served on Plaintiff, the AHO's Report and Recommendation, the letter from Commissioner Pozzi notifying Plaintiff of his adoption of the AHO's findings and of her termination, and Plaintiff's correspondence with the EEOC. (See Idahosa Aff. Exs. A--F.) As stated above, I will consider all of these documents except for the EEOC correspondence because they are integral to the SAC and Plaintiff has knowledge or possession of these materials and relied on them in framing the SAC.

Plaintiff attached several documents to her opposition to Defendants' Motions: (1) a March 13, 2001 memorandum from Plaintiff to her Supervising Probation Officer, Defendant Connors, containing questions regarding Connors's instruction to Plaintiff to submit a daily Violation of Probation Supervision Report; (2) a form dated March 18, 2008, provided to Plaintiff by Defendant Conte and signed by Plaintiff, concerning her desire to have a representative of her employee organization present during questioning in connection with her disciplinary action; (3) a notice of temporary reassignment provided by Defendant Pozzi to Plaintiff dated January 22, 2009; (4) a memorandum from Plaintiff to Defendant Pozzi dated January 30, 2009 regarding her inability to access the Probation Department's CTAG computer system; (5) an April 10, 2009 memorandum from Defendant Pozzi to all Probation Department employees regarding the Probation Department's policy on discussions with elected officials or administrative staff of agencies; (6) the AHO's Report and Recommendation; and (7) a July 17, 2009 letter from Plaintiff to Defendant DeSimone notifying her that Plaintiff wished to "rescind any application to appeal [her] termination of employment[] to the CSEA committee" and that she "elect[s] to appeal [her] case using private counsel." (See Attachments to P's Mem.)*fn11 As stated above, I will consider the AHO's Report and Recommendation. I will not, however, consider the other documents submitted by Plaintiff because none of them appears to be incorporated into or integral to the SAC; indeed, none of the information provided in these attachments is ever referred to or made use of in the SAC or in Plaintiff's Memorandum.

III. Discussion

A. Legal Standards

1. Motion to Dismiss "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "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." Twombly, 550 U.S. at 555 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678--79.

In considering whether a complaint states a claim upon which relief can be granted, the court "begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. at 679. Deciding whether a complaint states a plausible claim for relief is ...


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