United States District Court, E.D. New York
ROBERT S. BUCKLEY, Plaintiff,
STATE OF NEW YORK, STATE UNIVERSITY OF NEW YORK AT STONY BROOK, SAMUEL L. STANLEY, JR., MARK MURPHY, SAMANTHA THOMAS, JAMES O'CONNOR, TERRENCE HARRIGAN, BARBARA CHERNOW, and LYNN M. JOHNSON, Defendants
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Plaintiff: Joseph C. Stroble, Esq., Sayville, NY.
For Defendants: Assistant Attorney General Ralph Pernick, New York State Attorney General, Nassau Regional Office, Mineola, NY.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
On November 14, 2011, the Plaintiff Robert S. Buckley (the " Plaintiff" ), a former bus driver for the Defendant State University of New York (" SUNY" ) from the beginning of 2004 until his termination in June 2010, commenced this action against SUNY and related parties for violations of several federal laws. In addition, the Plaintiff brought several New York State law causes of action, including breach of contract, quasi-contract, gross negligence, and intentional and negligent infliction of emotional distress.
In its original Memorandum of Decision and Order dated September 29, 2012 (the " Order" ), the Court dismissed some of the Plaintiff's federal discrimination and retaliation claims, including the Plaintiff's state law causes of action with prejudice. The Court allowed the Plaintiff to amend his Complaint as to the causes of action that were dismissed without prejudice.
Presently before the Court is the Defendant's motion to dismiss the Plaintiff's Amended Complaint pursuant to Federal Rules of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted. For the following reasons, the Court grants the Defendants' motion to dismiss.
The Court assumes that the parties are familiar with the background of this case and the Order dismissing the original Complaint. (Mem. of Decision and Order 1-36). Accordingly, the Court will only repeat those facts and portions of the Order relevant to the present motion to dismiss.
A. Facts in the Original Complaint
The Plaintiff, a 62 year old male, was employed by SUNY as a bus driver " on or about 2004." The individual Defendants are all employees of SUNY and according to the original Complaint, each of them supervised the Plaintiff. Each individual Defendant therefore had the power to make personnel decisions regarding the Plaintiff's employment. (Mem. of Decision and Order, at 2).
In July 2006, the Plaintiff was passed over for promotion to a " Transportation Supervisor." On November 29, 2006, the Plaintiff received his annual performance evaluation, in which he received a satisfactory performance rating from the Defendant James O'Connor (" O'Connor" ), the Director of Transportation and Parking Services at SUNY. However, approximately a year later, on November 13, 2007, the Plaintiff received notice that he was not selected as a full time bus driver. (Mem. of Decision and Order, at 2).
In October 2008, the Plaintiff was appointed as Shop Steward of the Civil Service Employees Association, Inc. (" CSEA" ) Local 614. (Id). During his employment at SUNY, the Plaintiff was a member of the CSEA union, which is covered under a contract between the Executive Branch of the State of New York (" the State" ) and the CSEA. (Complaint, at ¶ 23). As Shop Steward, the Plaintiff was responsible for dealing with " issues relating to the safe operation and transport of individuals both on and off the Campus of Stony Brook University in addition to monitoring compliance with the Agreement between CSEA and the State of New York." Defendants' Notice of Motion to Dismiss, at A6. The Plaintiff also was called upon to " file grievances aimed at safeguarding the health and safety of not only the employees who operate the busses but the thousands of students who are daily passengers of the University's Transit System."
In a letter dated August 9, 2010 from the Plaintiff to CSEA President Daniel Danohue, Long Island President Nick Lamonte, and Local 614 CSEA President Carlos Speight, the Plaintiff lists several issues that he was called upon as Shop Steward " to address." Id. However, in the letter itself, the Plaintiff fails to explicitly state that he filed any grievances on behalf of his co-workers.
The Plaintiff contends that " [the Defendant Samantha Thomas] misused counseling memoranda to intimidate employees and silence discussion on contractual and safety issues." Id. at A8. To support his contention, the Plaintiff describes several incidents that occurred between the Plaintiff's co-workers and Thomas. Id. at A6. The Plaintiff states that, in May 2009, Mr. Carlos Speight filed a class action grievance alleging that the Defendant Samantha Thomas (" Thomas" ) and O'Connor failed to " provide the employees with the requisite instruction and equipment necessary to safely use [the], 'new soap.'" Id. at A7. The employees used this potentially
toxic " new soap" to clean the buses. Id. However, the Plaintiff admits that, shortly after the grievance was filed, the use of the " new soap" was stopped. Id. at A8.
Furthermore, in March 2009, a grievance was filed for or by SUNY employee Yvonne Caraftis to Thomas. Id. at A9. On a similar matter, in September 2009, a grievance was filed for or by SUNY employee Joe Mammina to Thomas. Id. In both instances, a counseling memorandum was issued to Yvonne Caraftis and Joe Mammina in order to resolve and help settle the matter. Id.
The Plaintiff asserts that, prior to his appointment to Shop Steward, he never received any disciplinary or counseling memoranda. (Mem. of Decision and Order, at 2). The Plaintiff alleges that, after accepting the appointment, the Defendants subjected him to ongoing harassment and retaliation with malice. (Mem. of Decision and Order, at 2).
However, on November 10, 2008, after his appointment as shop steward, the Plaintiff received a satisfactory annual performance evaluation from Thomas. (Mem. of Decision and Order, at 3). On November 30, 2009, the Plaintiff again received a satisfactory annual performance evaluation from Thomas. (Mem. of Decision and Order, at 3).
A few months later, on February 16, 2010, James Guarino (" Guarino" ), a non-party Transportation Supervisor for SUNY, issued to the Plaintiff his first counseling memorandum. The memorandum describes an incident in which the Plaintiff allegedly backed his bus into a skid steer loader and cracked a taillight.
On February 23, 2010, Guarino issued a second counseling memorandum to the Plaintiff, in connection with allegations that the Plaintiff allowed passengers to stand in his bus. (Mem. of Decision and Order, at 3).
On April 27, 2010, the Plaintiff submitted an internal discrimination complaint to SUNY, alleging age and gender discrimination by O'Connor and Thomas. (Mem. of Decision and Order, at 3). In the complaint, the Plaintiff notes that he was denied a fair grade, training, equal treatment, and a promotion because " of [his] Shop Steward duties." (Defendants' Notice of Motion to Dismiss, at A26). He further states that this discrimination manifested itself through " petty write-ups from James O'Connor to form a paper trail."
On June 15, 2010, Guarino issued the Plaintiff's third counseling memorandum with regard to the Plaintiff's alleged improper actions during a vehicle breakdown. (Mem. of Decision and Order, at 3). In response, on June 21, 2010, in an unaddressed memorandum, the Plaintiff stated that he did not understand why he was being reprimanded for trying to fix the situation as best as possible. The Plaintiff repeated that " I feel that [the counseling memoranda are] being done so that management can get a paper trail on me to fire me because I am a CSEA union shop steward." Defendants' Notice of Motion to Dismiss, at A34.
The next day, on June 22, 2010, the Plaintiff was issued a termination notice signed by the Defendant Lynn M. Johnson (" Johnson" ), Director of Human Resource Services for SUNY, which stated that his employment would be terminated effective July 7, 2010. (Mem. of Decision and Order, at 3).
B. Procedural History as to the Original Complaint
On July 10, 2010, the Plaintiff filed a complaint with the New York State Division of Human Rights (" NYSDHR" ). On September 28, 2011, the NYSDHR issued a Determination and Order stating that it
had found no probable cause, and dismissed the complaint.
On November 14, 2011, the Plaintiff Buckley commenced the present lawsuit against the State of New York, SUNY, Samuel L. Stanley Jr., Mark Murphy, Samantha Thomas, James O'Connor, Terrence Harrigan, Barbara Chernow, and Lynn M. Johnson. The Plaintiff alleged what the Defendants characterize as a " kitchen sink" approach, asserting twenty causes of action:
(1)-(8) Retaliation due to the Plaintiff's speech in violation of 42 U.S.C. § 1983, the First and Fourteenth Amendments to the United States Constitution, and " State Civil Rights Law" against all the Defendants.
(9) Wrongful termination in breach of contract against all the Defendants
(10) The Plaintiff's tenth cause of action is primarily a list of laws allegedly violated by all the Defendants. The laws listed are:
(a) 42 U.S.C. § 1981;
(b) Title VII of the Civil Rights Act of 1964 (" Title VII" );
(c) Age Discrimination in Employment Act of 1967 (" ADEA" );
(d) § 115 of the Civil Rights Act of 1991;
(e) New York State Human Rights Law, New York Executive Law § § 291(1);
(f) Americans with Disabilities Act of 1990 (" ADA" );
(g) First Amendment to the United States Constitution;
(h) Fourteenth Amendment to the United States Constitution;
(i) New York Constitution Art I § § 8 & 11;
(j) New York State Plan for Public Employee Safety and Health (" PESH" ); (k) New York State Law Labor § § 27-a, 215 & 740;
(l) 49 U.S.C. § § 31105(a)(1)(A) & 31101;
(m) New York State Civil Service § 64;
(n) " Federal OSHA statutes and regulations" ;
(11) Tortious interference with contract against all the Defendants;
(12) Hostile work environment and retaliation against all ...