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Lyman v. NYS OASAS

United States District Court, N.D. New York

February 26, 2013

Mark Edward LYMAN, Plaintiff,
NYS OASAS; Arlene Gonzalez-Sanchez; Michael Lawler; and Laurie Felter, Defendants.

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Mark Edward Lyman, Albany, NY, pro se.

Office of the New York, State Attorney General, Charles J. Quackenbush, AAG, of Counsel, Albany, NY, for Defendants.


MAE A. D'AGOSTINO, District Judge.


On March 23, 2012, Plaintiff commenced this action alleging that Defendants violated his rights under Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991. See Dkt. No. 1. On May 22, 2012, Plaintiff amended his complaint. See Dkt. No. 6.

Currently before the Court is Defendants' motion to dismiss the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 9.


Plaintiff is an employee of the New York State Office of Alcoholism Substance Abuse Services (" OASAS" ). See Dkt. No. 6 at ¶ 8. Plaintiff works in the Albany Capital Bureau with the Facilities Evaluation and Inspection Unit (" FEIU" ). See id. at ¶¶ 8, 22. Defendants in this action are OASAS, Arlene Gonzalez-Sanchez (OASAS' Commissioner), Michael Lawler (OASAS' Associate Commissioner), and Laurie Felter (OASAS' Albany Bureau Director). See id. at ¶ 3.

According to the amended complaint, in October of 2010, Plaintiff applied, but was not selected for, a promotion to the position of Facility Planner 2. See id. at ¶ 8. Plaintiff claims that, although agency policy is to hire from within for such positions, Defendants sought candidates from outside the agency, as they had for the past three previous openings. See id. Plaintiff claims that all three of the previous successful applicants had no relevant prior experience and it fell to Plaintiff to provide them with " knowledge and minimal field experience for their position." See id. Plaintiff claims that, despite his qualifications for the position, Defendants denied him the promotion because " of his religion and his creed as well as for public statements against the Roman Catholic Church and their handling of sexual abuse charges involving children and survivors." See id. at ¶¶ 10, 30.[1] Thereafter, in January of 2011, Plaintiff filed an internal discrimination complaint alleging that he had " been repeatedly and consistently prevented from obtaining better wages even though his duties and responsibilities are commensurate with the higher pay grade." See id. at ¶ 11.

On March 17, 2011, Plaintiff asserts that he was directed, by an unidentified supervisor, to submit travel itineraries ten days in advance and for the subsequent two weeks, so that they could be reviewed and approved prior to travel for future inspections. See id. at ¶ 12. Plaintiff claims that Defendant Felter " disapproved many of [the] itineraries causing [P]laintiff to make numerous changes to them." See id.

Thereafter, on April 6, 2011, Plaintiff claims that he " was subjected to harassment

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and public ridicule by ... [Defendant] Felter in front of his co-workers." See id. at ¶ 14. Plaintiff alleges that despite his reporting of this " pattern and repeated practice of abusive supervision and retaliation" to Defendant OASAS' Affirmative Action Manager, no action was taken. See id.

On April 25, 2011, Plaintiff alleges that he was instructed by an unnamed supervisor to call the office during field visits in order to keep his office apprised of his whereabouts. See id. at ¶ 15. Plaintiff discussed this with his immediately supervisor because he felt that it was a violation of his union contract regarding timekeeping requirements and subsequently filed a contract grievance. See id. Plaintiff claims that this policy was " directed at and designed to punish" him. See id. at ¶ 16.

In May of 2011, Plaintiff learned that his estranged wife was maintaining social contact with Defendant Felter. See id. at ¶ 19. Plaintiff claims that Defendant Felter became involved with his marital situation and provided his wife with " fabricated and retaliatory" information which was " improper and served as personal animus and created a hostile work environment." See id.

On June 21, 2011, Plaintiff alleges that Defendant Felter rearranged his workload so that he would not longer be required to travel for work. See id. at ¶ 20. Plaintiff claims that this was done " for punitive purposes," and not for the proffered reason of reducing travel expenses. See id. at ¶¶ 20-21. Then, on June 28, 2011, Plaintiff was informed by Human Resources that he had been targeted for layoff on July 22, 2011. See id. at ¶ 22. Plaintiff claims that he was the only FEIU employee targeted for layoff and that this decision was in retaliation for the discrimination complaint he filed against Defendant OASAS. See id. Although Plaintiff was not let go as expected, he claims that on July 25, 2011, Defendant Felter directed a manager to issue Plaintiff a memorandum to be placed in his file regarding an issue with Plaintiff's leave accruals. See id. at ¶ 23.

In August of 2011, Plaintiff again discovered that his estranged wife was in contact with Defendant Felter. See id. at ¶ 24. Plaintiff claims that he " learned that was why he was reassigned with little travel and reduced travel compensation by Ms. Felter who had breached [his] right to privacy by discussing his personal marital affairs with [his] wife, and by volunteering false and harmful information about [him] to [his] wife." See id. Plaintiff alleges that these communications were in violation of his right to privacy, retaliatory, and created a hostile work environment. See id. at ¶ 25.

On November 15, 2011, Plaintiff filed a discrimination charge with the U.S. Equal Employment Opportunity Commission (" EEOC" ). See id. at ¶ 26. On December 26, 2011, Plaintiff received a Dismissal and Notice of Rights, which found that the " facts alleged in the charge failed to state a claim under any of the statutes enforced by the EEOC." See id.; see also Dkt. No. 9-3.

In his complaint, Plaintiff asserts the following causes of action: (1) discrimination in violation of Title VII of the Civil Rights Act (" Title VII" ); (2) retaliation in violation of Title VII; (3) hostile work environment in violation of Title VII; (4) breach of privacy; (5) violations of his right to free speech; (6) violation of the Equal Pay Act; and (7) deprivation of property without due process. See Dkt. No. 6 at ¶¶ 30-36. [2]

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A. Standard of review

When a party moves to dismiss a claim pursuant to Rule 12(b)(1), " the movant is deemed to be challenging the factual basis for the court's subject matter jurisdiction." Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed.Cir.1993) (citations omitted). For purposes of such a motion, " the allegations in the complaint are not controlling ... and only uncontroverted factual allegations are accepted as true...." Id. (internal citations omitted). Both the movant and the pleader are permitted to use affidavits and other pleading materials to support and oppose the motion to dismiss for lack of subject matter jurisdiction. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (citation omitted). " Furthermore, ‘ jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ " Gunst v. Seaga, No. 05 Civ. 2626, 2007 WL 1032265, *2 (S.D.N.Y. Mar. 30, 2007) (quoting Shipping Financial Services Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998)); see also State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n. 4 (2d Cir.2007) (holding that, in a motion to dismiss for lack of subject matter jurisdiction, a court " may resolve disputed factual issues by reference to evidence outside the pleadings, including affidavits" ).

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir.2007) (citation omitted). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). Although a court's review of a motion to dismiss is generally limited to the facts presented in the pleading, the court may consider documents that are " integral" to that pleading, even if they are neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.2002)).

To survive a motion to dismiss, a party need only plead " a short and plain statement of the claim," see Fed.R.Civ.P. 8(a)(2), with sufficient factual " heft to ‘ sho[w] that the pleader is entitled to relief[,]’ " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quotation omitted). Under this standard, the pleading's " [f]actual allegations must be enough to raise a right of relief above the speculative level," see id. at 555, 127 S.Ct. 1955 (citation omitted), and present claims that are " plausible on [their] face," id. at 570, 127 S.Ct. 1955. " The plausibility standard is not akin to a ‘ probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citation omitted). " Where a complaint pleads facts that are ‘ merely consistent with’ a defendant's liability, it ‘ stops short of the line between possibility and plausibility of " entitlement to relief." ’ " Id. (quoting [ Twombly, 550 U.S.] at 557, 127 S.Ct. 1955). Ultimately, " when the allegations in a complaint, however true, could not raise a claim of entitlement to relief," Twombly, 550 U.S. at 558, 127 S.Ct. 1955, or where a plaintiff has " not nudged [its] claims across the line from conceivable to

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plausible, the[ ] complaint must be dismissed[,]" id. at 570, 127 S.Ct. 1955.

" The Iqbal plausibility standard applies in conjunction with employment discrimination pleading standards." Gillman v. Inner City Broad. Corp., No. 08 Civ. 8909, 2009 WL 3003244, *3 (S.D.N.Y. Sept. 18, 2009). Employment discrimination claims need not contain specific facts establishing a prima facie case of discrimination, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514-15, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); rather, an employment discrimination complaint " must include only a short and plain statement of the claim ... [that] give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests," id. at 512, 122 S.Ct. 992 (quotation marks and citations omitted); see also Patane v. Clark, 508 F.3d 106, 113 (2d Cir.2007) (applying Swierkiewicz to NYSHRL discrimination claims).

Despite this recent tightening of the standard for pleading a claim, complaints by pro se parties continue to be accorded more deference than those filed by attorneys. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). As such, Twombly and Iqbal notwithstanding, this Court must continue to " construe [a complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests." Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir.2002).

B. Plaintiff's Title VII claims against the individual Defendants

Defendants assert that the Court should dismiss the Title VII claims against the individual Defendants because Title VII claims may only be brought against an ...

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