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Nicholas Nunez, et al v. andrew Cuomo

August 7, 2012


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:


On July 18, 2011, plaintiffs Nicholas Nunez, Cheryl Ports-Kelly, Evangeline Phillips, Troy Booth, Steven Dorsey, Rameses Rodriguez, Herbert Reed and Jose Sanches ("Plaintiffs"), all African-American, Asian-American or Latino corrections officers employed by the New York State Department of Corrections and Community Supervision ("DOCCS"), proceeding pro se, filed a complaint and a motion for a temporary restraining order ("TRO") against defendant Governor Andrew Cuomo ("Governor Cuomo"), in his individual and official capacities, asking the Court, inter alia, to enjoin Governor Cuomo from closing the Arthur Kill Correctional Facility ("Arthur Kill") on the ground that the closure would violate Plaintiffs' equal protection rights under the Fourteenth Amendment to the United States Constitution. *fn1 Plaintiffs originally filed the complaint and motion for a TRO as a class action. However, by Electronic Order dated July 21, 2011, the Court terminated the TRO, without prejudice, because Plaintiffs had not properly served Governor Cuomo and because pro se plaintiffs could not proceed as class representatives. See, e.g., Iannoccone v. Law, 142 F. 3d 553, 558 (2d Cir. 1998) ("[B]ecause pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause."). Plaintiffs were granted leave to re-file the TRO motion individually. Accordingly, on July 25, 2011, each pro se Plaintiff filed a separate TRO motion.

By July 29, 2011, Plaintiffs still had not served Governor Cuomo properly, but due to the urgency of the circumstances, the Court requested that Governor Cuomo respond to the TRO, without waiving any available defenses by doing so. Counsel representing Mr. Nunez entered her appearance on the evening of August 11, 2011, and, during the August 12, 2011 TRO hearing, she advised the Court, and Plaintiffs confirmed, that she would represent the remaining Plaintiffs. By Memorandum and Order dated August 24, 2011, this Court denied the TRO and granted Plaintiffs leave to file an Amended Complaint. See Nunez v. Cuomo, 2011 WL 3794230 (E.D.N.Y. Aug. 24, 2011).

On September 16, 2011, Plaintiffs filed an Amended Complaint*fn2 against defendants Governor Cuomo, in his individual and official capacity, and the State of New York (the "State," together with Governor Cuomo, "Defendants"), seeking declaratory, injunctive, and monetary relief, alleging that the closure of Arthur Kill, and Defendants' actions related to the closure, violated their rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., ("Title VII"), the Contract Clause of the United States Constitution, the Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. §§ 1981, 1983, and New York State Human Rights Law, N.Y. Executive Law § 296. Before the Court is Defendants' motion to dismiss the Amended Complaint 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.


For purposes of this motion, the following allegations of fact as set forth in the Amended Complaint are taken as true. (See generally,Amended Complaint ("Am. Compl."), Doc. Entry No. 32.) Plaintiffs are all "minority" corrections officers ("COs") employed by DOCCS at Arthur Kill. (Am. Compl. ¶¶ 10-16.) Plaintiffs allege that, before January 1, 2011, New York State Correction Law § 79-a ("Correction Law § 79-a") required one year's notice to be given prior to the closure of a correctional facility. (Id. ¶ 19.) Plaintiffs further allege that, on January 11, 2011, the New York State Legislature ("the Legislature") amended Correction Law § 79-a to increase the required prior notice of closure of a correctional facility to two years. (Id. ¶ 20.) According to Plaintiffs, on April 1, 2011, the Legislature suspended Correction Law § 79-a, at the behest of Governor Cuomo, to reduce the two-year prior notice requirement to sixty days. (Id. ¶ 21.) During this same time period, on February 9, 2011, Governor Cuomo issued an Executive Order that established the Prison Closure Advisory Task Force (the "Task Force") and guidelines for the closure of DOCCS facilities. (Id. ¶ 22.) According to Plaintiffs, Governor Cuomo terminated the Task Force on March 2, 2011, "because he intended to close Arthur Kill and it did not meet his criteria as established by Executive Order." (Id. ¶ 23.)

I.Closure of Arthur Kill

On June 30, 2011, Governor Cuomo announced the closing of seven correctional facilities, five of them located in Upstate New York and two, Fulton Correctional Facility and Arthur Kill, located in the "New York City Hub" region. (Id. ¶ 24.) Arthur Kill was scheduled for closure on December 1, 2011. (Id. ¶ 57.) Plaintiffs allege Arthur Kill is one of the most efficient and cost effective correctional facilities in New York City with, inter alia, "state of the art" physical characteristics and conditions. (Id. ¶¶ 25-30.) According to Plaintiffs, the closure of Arthur Kill will have a devastating impact on all Arthur Kill COs because they will be transferred to facilities at least one hundred miles away from Arthur Kill. (Id. ¶¶ 33, 35.) Moreover, Plaintiffs contend that transfers to other facilities will cause a reduction in pay, as working in these new facilities will not entitle Plaintiffs to "location pay," which is a downstate pay adjustment for eligible employees in New York City. (Id. ¶¶ 36, 49.) In addition, the transfers will create significant relocation costs, as Plaintiffs will not be able to sell their homes and/or relocate their families from New York City, forcing Plaintiffs either to resign or relocate apart from their families and maintain two households. (Id. ¶ 37.) The State did not offer any relocation pay. (Id. ¶ 38.)

Plaintiffs calculate, based on what they purport to be the most recent data released by the New York State Civil Service Commission, that 15.9% of all COs and Sergeants employed by DOCCS throughout the State are "minorities." *fn3 (Id. ¶ 39.) Plaintiffs allege further that 32% of the COs working in the facilities slated for closure are minorities. (Id. ¶ 41.) Thus, the closures of these facilities allegedly disproportionally impact minority COs "in that the impact is twice that of the overall minority officers employed by DOCCS." (Id. ¶ 43.)

Plaintiffs maintain further that the "overwhelming majority" of minority COs work in the New York City Hub and two facilities immediately north of the New York City. (Id. ¶ 44.) There are 357 COs employed at facilities slated for closure in the New York City Hub, 277 of whom are minority. (Id. ¶¶ 46-47.) Of the 357 COs, 302 work at Arthur Kill and 225 of those COs from Arthur Kill are minority. (Id. ¶ 47.) A loss of the 277 minority COs employed from DOCCS would decrease minority representation in the State by 7.5%.*fn4 (Id.)

II.Collective Bargaining Agreement

Plaintiffs, "through their Collective Bargaining Agent" are parties to a collective bargaining agreement ("CBA") with the State, covering the period of April 1, 2007 through March 31, 2011. (Id. ¶ 48.) Section 11.7 of the CBA provides for location pay for employees working in New York City. (Id. ¶ 49.) The CBA "makes no reference" to involuntary transfers from a CO's assigned facility. (Id. ¶¶ 50, 113.) Plaintiffs allege that the closure of Arthur Kill violates the CBA because the closure requires Plaintiffs to transfer involuntarily to facilities that do not qualify for location pay. (Id. ¶¶ 51-52.) Plaintiffs allege they will have no way to offset the loss of location pay they will incur as a result of the prison closure. (Id. ¶ 53.) In addition, the loss of location pay will result in reduced pension benefits for Plaintiffs over the remainder of their lives. (Id. ¶ 54.)

Section 22.1 of the CBA requires employers to "provide for safe working conditions . . . ." (Id. ¶¶ 55, 112.) Plaintiffs allege that, while Arthur Kill was slated for closure on December 1, 2011, the "wholesale" transfer of inmates from Arthur Kill began shortly after Plaintiffs initiated the instant suit. (Id. ¶ 57.) As a result, Arthur Kill purportedly was left in "tremendous turmoil and unrest," which concerned Plaintiffs. (Id.) Plaintiffs further contend such unrest is likely to cause rebellion and serious injury or death. (Id.) As an example, Plaintiffs allege that, on August 28, 2011, thirty inmates protested the closure of Arthur Kill and the inmates were "forcibly restrained," handcuffed, and placed in the Special Housing Unit for their and the COs' safety. (Id. ¶ 58.) While noting this incident did not result in serious injury, Plaintiffs assert that "the prospect of violence is inevitable." (Id.)

The planned closure of the correctional facilities includes a "Reduction in Force Plan" (the "Reduction Plan") that, according to Plaintiffs, anticipates officers will lose their jobs. (Id. ¶ 62.) Based on the Reduction Plan, a CO's transfer request will be given priority once the facility wherein the CO works has been closed. (Id.) Thus, while COs at Arthur Kill will be placed at the head of the transfer list after that facility closes, they will be behind all other officers in facilities closed before Arthur Kill who will have made transfer requests before Plaintiffs. (Id.)

III.Less Burdensome Option and Retaliation by Defendants

Governor Cuomo stated that closing the correctional facilities would save $72 million. (Id. ¶ 63.) According to Plaintiffs, closing Arthur Kill will not result in any savings because the property upon which Arthur Kill is situated has been subject to numerous toxic waste violations, making the property ineligible for an "Adaptive Reuse Plan" as outlined in Correction Law § 79-b.*fn5 (Id. ¶¶ 64-65.) Plaintiffs further allege there are less burdensome methods of cutting costs, including the closure of Hudson Correctional Facility instead of Arthur Kill. (Id. ¶ 66-67.) Plaintiffs additionally assert that white COs working at facilities slated for closure in the Upstate area will not suffer the irreparable harm that Plaintiffs will suffer as a result of the closure of Arthur Kill because there are other facilities near the Upstate facilities slated to be closed to which those COs can be transferred. (Id. ¶¶ 68-72.)

Plaintiffs assert that, before they filed the instant suit on July 18, 2011, no inmates or COs had been transferred from Arthur Kill. (Id. ¶¶ 73-74.) However, in retaliation for filing this suit, Plaintiffs were forced to endure a hurried attempt to close the facility, including the allegedly inappropriate transfer of inmates, and Plaintiffs were subjected to involuntary transfer or reduction in force without being provided the appropriate information and timeframes. (Id. ¶ 75.)

IV.Plaintiffs' Claims

Plaintiffs claim: 1) Defendants' actions impaired Plaintiffs' right to have Defendants comply with their contractual obligations in violation of the Contract Clause of the United States Constitution; 2) Defendants engaged in unlawful employment discrimination in violation of Plaintiffs' Title VII rights; 3) Governor Cuomo violated Plaintiffs' Fourteenth Amendment Rights under 42 U.S.C. §§ 1981 ("Section 1981") and 1983 ("Section 1983"); 4) Defendants retaliated against Plaintiffs for filing the instant suit in violation of Title VII; and 5) Defendants discriminated against Plaintiffs in their employment in violation of the New York State Human Rights Law. (See Am. Compl. ¶¶ 76-114.)


I.Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure states that a defendant may move, in lieu of an answer, for dismissal of a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). To determine whether dismissal is appropriate, "a court must accept as true all [factual] allegations contained in a complaint" but need not accept "legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). For this reason, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to insulate a claim against dismissal. Id. Moreover, "[t]o 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.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint . . . has not shown that the pleader is entitled to relief." Id. at 679. (internal citations and quotation marks omitted).

Generally, consideration of a Rule 12(b)(6) motion to dismiss is limited to the complaint itself. Faulkner v. Beer, 463 F. 3d 130, 134 (2d Cir. 2006). However, "[c]onsideration of materials outside the complaint is not entirely foreclosed." Id. A court may consider statements and documents "incorporated in [the complaint] by reference," Cortec Indus., Inc. v. Sum Holding L.P., 949 F. 2d 42, 47 (2d Cir. 1991) (citations omitted), as well as documents "integral" to the complaint, without converting a motion to dismiss into one for summary judgment. Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F. 3d 69, 72 (2d Cir. 1995); accord Broder v. Cablevision Systems Corp., 418 F. 3d 187, 196 (2d Cir. 2005) (where a complaint relies on the terms of a contract, the court may look to the agreement itself on a motion to dismiss).


A.Contract Clause*fn6

Plaintiffs' sixth claim alleges the closure of Arthur Kill impairs Defendants' obligations under the CBA, in violation of the Contract Clause of the United States Constitution, because: 1) Plaintiffs would be transferred involuntarily from Arthur Kill despite the CBA's silence regarding involuntary transfers; 2) Plaintiffs would lose their location pay and attendant retirement credits, as set forth in the CBA, because of the involuntary transfer; and 3) the closure of Arthur Kill was proceeding in an unsafe manner, in derogation of Defendants' duties under the CBA to provide Plaintiffs with safe working conditions. (See Am. Compl. ΒΆΒΆ 48-62, 104-114; see also Pls.' Mem. of Law in Opp'n to Defs.' Mot. to Dismiss the Am. Compl. ("Pls.' Mem.") at 5-6, Doc. Entry No. 45.) Defendants contend Plaintiffs fail to state a claim under the Contracts Clause because: 1) the CBA does not grant Plaintiffs a right to be free from involuntary transfers and, accordingly, Plaintiffs have no contractual rights that can be impaired by such involuntary transfers; and 2) Plaintiffs' claims regarding location pay and unsafe work conditions do not constitute impairments of contractual obligations but rather only ...

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