The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action for employment discrimination. Now before the Court is Defendant's motion to dismiss the complaint. (Docket No. [#7]). The application is granted.
The following facts are taken from Matthew Peone's ("Peone") Complaint (Docket No. [#1]) in this action, and from the two union grievance complaints that Peone maintains were "protected speech" under the First Amendment. In that regard, [when] considering a motion under Fed.R.Civ.P. 12(b)(6) to dismiss a complaint for failure to state a claim on which relief can be granted, the district court is normally required to look only to the allegations on the face of the complaint. If, on such a motion, matters outside the pleading are presented to and not excluded by the court, the court should normally treat the motion as one for summary judgment pursuant to Fed.R.Civ.P. 56. In any event, a ruling on a motion for dismissal pursuant to Rule 12(b)(6) is not an occasion for the court to make findings of fact.
In certain circumstances, the court may permissibly consider documents other than the complaint in ruling on a motion under Rule 12(b)(6). Documents that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered. In addition, even if not attached or incorporated by reference, a document upon which the complaint solely relies and which is integral to the complaint may be considered by the court in ruling on such a motion.
Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007) (citations and internal quotation marks omitted). In addition to the Complaint, the Court considers the two aforementioned grievance complaints, since Peone described them in the Complaint, and since they are integral to his First Amendment retaliation claim. See, DeSmith Decl. Ex. 24 (July 14, 2010 grievance) and Thorsness Decl. Ex. 10 (August 23, 2010 grievance). The Court has also considered the transcript of Peone's examination conducted pursuant to New York General Municipal Law § 50-h. In general, the Court would not consider a 50-h hearing transcript on a 12(b)(6) motion.*fn1 However, it is permissible to consider a 50-h hearing transcript where, as here, the Complaint refers to the hearing, the hearing transcript was available to all parties, and all parties relied on portions of the hearing transcript in connection with the subject motion to dismiss.*fn2 See, Dellate v. Great Neck Union Free School Dist., No. CV 09--2567(AKT), 2010 WL 3924863 at *4 (E.D.N.Y. Sep. 30, 2010) ("In light of the fact that, at the time the motions to dismiss were filed, the transcript of the 50--h hearing was available and known to all parties, and that both parties here are relying upon portions of the transcript to support their respective arguments, the transcript may be considered by the Court."), affirmed, 448 Fed.Appx. 164 (2d Cir. Jan. 20, 2012).*fn3
In 1996, Peone was hired by the Ontario County Sheriff as a police officer. During the first few years of his employment, Peone "was given choice assignments and sent to special training schools." Complaint ¶ 13. Peone, who holds a black belt in the martial art Hapkido, worked as a "defensive tactics instructor" at the police academy, and also worked as an evidence technician for the County's Special Weapons and Tactics ("SWAT") team. Id.; see also, 50-h hearing (2/17/11) at p. 27.
In August 1999, in the late evening, Peone was between shifts working as a police officer at the Watkins Glen Race Track when he visited the Ontario County Undersheriff, defendant David Tillman ("Tillman"), at Tillman's campsite adjacent to the race track. Peone and Tillman consumed alcoholic beverages, and Tillman, who was "very intoxicated," taunted Peone for thinking that he was "tough," to which Peone responded by suggesting that they engage in a "slap boxing" match. Instead of boxing, Tillman tackled Peone and pinned his arms. Tillman then ground his "groin" against Peone's leg and asked, "How do you like that?" Peone wrestled himself free and left the campsite a short time later. Peone contends that he thought Tillman's behavior was strange, but he did not initially consider the incident sexual in nature. See, 50-h hearing (2/17/11) at p. 29. Nevertheless, Peone told several persons about the incident, and one or more of them apparently reported Peone's comments back to Tillman. Subsequently, Peone maintains, Tillman disliked him and engaged in harassment against him.
The alleged harassment took various forms, and in that regard, the Complaint sets forth a litany of employment related grievances that accrued over a period of ten years. The following portions of the Complaint serve to illustrate the overall nature of the alleged harassment by Tillman:
18. In December, 2001, Mr. Peone broke his leg while in the line of duty and was out of work for four months. During this time, Mr. Peone collected Worker's Compensation benefits. Also, during this time, defendant Tillman contacted Mr. Peone by telephone asking about the duration of his leave and advised him that he had decided to eliminate his shift (7:00 p.m. to 3:00 a.m.).
19. Upon information and belief, defendant Tillman was aware that Mr. Peone was going through a divorce and that eliminating that shift would greatly impact his ability to parent. When Mr. Peone originally agreed to work this later shift, defendant Tillman had promised this would not happen, knowing that Mr. Peone would have to make arrangements for at-home daycare.
20. Then, sometime in 2002, defendant Tilman advised Mr. Peone of supposed poor reviews he allegedly received from police cadets for his teaching style and berated Mr. Peone for it. Mr. Peone has been denied the right to review the alleged poor reviews and was not utilized as a police instructor after that.
21. In November, 2003, Mr. Peone broke a finger while in the line of duty. Upon information and belief, when Mr. Peone returned to work with a note from his doctor that he needed to avoid activities that may result in re-injuring his finger, defendant Tillman, through a third-party, indicated that the doctor's note was insufficient and that he needed one which eliminated the doctor's language. When Mr. Peone returned to work, defendant Tillman mocked the injury stating, "It was just a finger."
Complaint ¶ ¶ 18-21. Although most of the incidents might appear to be discrete, unrelated occurrences, Peone contends that they were part of a concerted effort by Tillman to retaliate against him, based on his Tillman's dislike for Peone resulting from the 1999 wrestling incident. See, 50-h hearing (2/17/11) at pp. 41-42 ("Q. What do you think is the motivation behind that kind of treatment? . . . A. Because Dave Tilman does not like me. Q. So you think Dave Tillman is directing other people to harass you? A. Yes. Q. Because he doesn't like you? A. Yeah. Q. Why do you think he doesn't like you? . . . A. I can find no other reason other than this incident and because people have joked about it and it has gotten back to him."); see also, id. at pp. 43-44, 81-82, 93, 102, 109, 120, 124-125, 135, 148, 152, 154 (Generally reiterating that Tillman harassed and retaliated against Peone because he did not like Peone following the 1999 incident).
To illustrate Tillman's alleged personal dislike for Peone, the Complaint alleges that, after Peone was elected President of his union bargaining unit, he and Tillman continued to clash, and Tillman suggested that Peone should resign as union President, even though Tillman had "gotten along fine" with the previous union President. See, id. at p. 125 ("He got along just fine with the last union President and the one before him and for some reason he has an awful dislike of me.").
In addition to the instances of alleged harassment described above, Peone contends that he was passed over for several promotions, for which he was more qualified than the candidates who were promoted. See, e.g., Complaint ¶ 27 (Peone alleges that he was passed over for promotion seven times); see also id. at ¶ 32 (Peone alleges that he was "passed over" for five School Resource Officer positions). According to Peone, Tillman told someone at the Sheriff's Office that "a piece of office furniture had a better chance of being promoted than Mr. Peone." Id. at ¶ 28. However, in 2005 Peone was hired as a School Resource Office, and in 2007 he was "promoted as an Investigator." Id. at ¶ ¶ 35, 38. Peone contends, though, that after being promoted, Tillman suggested that he had only received the promotion because Peone had filed an Improper Labor Practice complaint ("ILP"). Id. at ¶ 38.
In 2009, defendant Brad Falkey ("Falkey") was promoted to Lieutenant. Peone alleges that Tillman and Falkey are friends, and that Falkey harassed him in various ways. For example, Peone alleges that Falkey assigned him to drive an "unsafe police vehicle." Complaint ¶ 45. Peone further alleges that Falkey removed him as the Sheriff's liaison with the National Guard on a joint drug enforcement operation, and took over that role for himself. Id. at ¶ ¶ 63-65.
In Peone's role as union President, he filed contract grievances on behalf of himself and other employees. For example, on July 14, 2010, Peone filed a complaint with the Sheriff against Falkey, with the "unanimous approval by the Executive Board of the OCSO [Ontario County Sheriff's Office] Road Patrol Unit." Complaint ¶ 47. The grievance complained that Falkey had lost department equipment, micro-managed the road patrol deputies, and "failed to provide the training, equipment, motivation and direction necessary to run the Criminal Investigations Division." DeSmith Decl. Ex. 24 at pp. 4-5.*fn4 The complaint also alleged that Falkey had used excessive force against an arrestee in July 2010, though Peone did not personally witness the alleged incident.
On August 23, 2010, Peone, again in his capacity as union President, and with the "unanimous approval of the Executive Board of the OCSO [Ontario County Sheriff's Office] Road Patrol Unit," filed another complaint with the Sheriff against Falkey, based on "additional information which had been brought to Mr. Peone's attention after his July 14, 2010 complaint." Id. at ¶ 50 ("[I]t was made against defendant Falkey and again . . . alleged criminal conduct and departmental violations."); see also, Thorness Decl. Ex 10 (The August 23, 2010 complaint). As part of that Complaint, Peone alleged, based on statements related to him by another officer, that, a year earlier, Falkey had used excessive force against a female arrestee, Krystal Laurie ("Laurie") and had committed "other specific departmental violations." Id. at ¶ 48.*fn5
With regard to the allegation of excessive force against Laurie, Peone conducted his own investigation by contacting Laurie on Facebook. Peone states that he conducted such investigation because he was a police officer investigating a possible crime:
Q. Okay. [Referring to a booking photograph of Laurie and quotes from her that Peone later turned over to the FBI and ...