MARK EDWARD LYMAN, Albany, New York, Plaintiff, pro se.
CHARLES J. QUACKENBUSH, AAG., OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Albany, New York, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
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. In response to the amended complaint, Defendants filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 9. The Court granted Defendants' motion to dismiss the amended complaint and ordered that, with the exception of Plaintiff's First Amendment retaliation claim, all of the claims in the amended complaint be dismissed with prejudice. See Dkt. No. 14.
On March 18, 2013, Plaintiff again amended his complaint as to his First Amendment retaliation claim. See Dkt. No. 18. Currently before the Court is Defendants' motion for judgement on the pleadings seeking dismissal of the second amended complaint with prejudice. See Dkt. No. 28.
Plaintiff is an employee of the New York State Office of Alcoholism and Substance Abuse Services ("OASAS"). See Dkt. No. 6 at ¶ 8. Plaintiff works in the Albany County Capital Bureau with the Facilities Evaluation and Inspection Unit ("FEIU"). See id. at ¶¶ 8, 12.
For eight years Plaintiff has been the Upstate Coordinator for the Survivors Network of those Abused by Priests ("SNAP"). See Dkt. No. 18 at ¶ 13. Plaintiff has organized support meetings through SNAP to assist victims of predatory priests and has spoken out publicly on over 100 occasions. See id. at ¶¶ 9, 13. According to Plaintiff, his speech advocating against predatory priests has caused Defendant OASAS and the above-named Defendants to harass him because of their religious and business connections with the Roman Catholic Church. See id. ¶ 57(b). Specifically, on June 25, 2010, Plaintiff protested in Buffalo, New York demanding the diocese remove an alleged pedophile priest. See Dkt. No. 18-1 at 16. Plaintiff made comments to the WIVB news station regarding the protest and the goals of SNAP. See id. Thereafter, Plaintiff alleges that, in August and September of 2010, he was audited and then questioned about his travel practices for work. See Dkt. No. 18 at ¶¶ 20, 21, 27. Defendant OASAS issued a Formal Counseling Letter (memorandum) to Plaintiff regarding his travel and mandated that he seek prior approval of his travel itinerary. See id. at ¶¶ 24, 27. According to Plaintiff, this was not the standard practice of review by the agency. See id. at ¶ 28.
Further, in November 2010, Plaintiff interviewed for an open position in OASAS, but he learned on January 15, 2011 that he did not receive it. See id. at ¶¶ 30, 32. Plaintiff's speech on June 25, 2010 in Buffalo, New York was the only alleged protected activity in relatively close temporal proximity to the interview (five months before interviewing for the new position and seven months before learning he did not receive this position). See Dkt. No. 18-1 at 16.
On March 22, 2011, Plaintiff spoke to the Albany Times Union newspaper about predatory priests in Albany, New York. See Dkt. No. 18-1 at 26. On April 25, 2011, he was instructed "to call the office from the last place of business when in the field to verify work location and to notify the office of Plaintiff's whereabouts." Id. at ¶ 34. He states this policy did not apply to all bureau or agency employees, and thus violated the PEF contract. See id. Further, on June 21, 2011, three months after Plaintiff's speech to the Albany Times Union, Defendant Laurie Felter rearranged Plaintiff's workload and re-assigned him to local travel only. See Dkt. No. 18 at ¶ 39. Plaintiff claims that he was told that this was "done to reduce travel expenses[, ] however the re-assigned workload is now allocated to employees within the same office who will have to travel to perform these inspections." Id. Thereafter, on July 25, 2011, Defendant Felter directed Steve Mantor to issue Plaintiff a memorandum on Leave Accruals and Attendance that was placed in Plaintiff's file. See id. at ¶¶ 41, 42.
Following these incidents, Plaintiff claims that in October 2012 he was removed from the overtime roster. See id. at ¶ 48. In November 2012, Plaintiff filed an "Out of Title" work grievance for receiving compensation that was allegedly not commensurate with his co-workers. See id. at ¶ 49. In March 2013, Plaintiff filed a grievance alleging that improper additional review of his travel expenses was being conducted, which caused undue delays in the processing of his travel reimbursements. See id. at ¶ 52. Lastly, in March 2013, he was allegedly confronted by Defendant Felter in an aggressive manner and as a result filed a workplace violence complaint. See id. at ¶¶ 53, 54.
A. Standard of ...