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Dushane v. Leeds Hose Company #1, Inc.

United States District Court, N.D. New York

March 11, 2014

LEEDS HOSE COMPANY #1 INC.; et al., Defendants

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[Copyrighted Material Omitted]

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For Stanley Dushane, Jr., Plaintiff: Robert N. Isseks, LEAD ATTORNEY, Office of Robert N. Isseks, Middletown, NY.

For Leeds Hose Company #1 Inc., John Elliott, Thomas McCullough, III, Robert Nappa, William Rinaldi, William Rinaldi, Warren Sheridan, George Holsapple, Defendant: Terence S. Hannigan, Hannigan Law Firm PLLC, Albany, NY.


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Lawrence E. Kahn, U.S. District Judge.


In this action arising out of Plaintiff Stanley Dushane, Jr.'s (" Plaintiff" ) removal from his position as a volunteer firefighter with Defendant Leeds Hose Company #1 Inc. (" Leeds" ), Defendants have moved to dismiss the Complaint for failure to state a claim upon which relief may be granted. See Dkt. Nos. 1 (" Complaint" ); 6 (" Motion" ). For the following reasons, the Motion is denied.


Leeds is a corporation performing fire protection services for the Town of Catskill (" Catskill" ). Compl. ¶ 2. Plaintiff began serving as a volunteer firefighter and member of Leeds in 2008. Id. ¶ 13. In January 2013, he ran against the incumbent Leeds Chief, Defendant Thomas McCullough, III (" McCullough" ), for election to that position. Id. ¶ ¶ 14-15. Thirty-eight Leeds members voted; both Plaintiff and McCullough received nineteen votes. Id. ¶ 16. Leeds members agreed that, pending the provision of an opinion from the Leeds attorney as to how to resolve the deadlock, McCullough would retain his position. Id. ¶ 16. McCullough proceeded to remove Plaintiff from the position of Chief Foreman and remove a supporter of Plaintiff's from the position of Foreman. Id. ¶ 17. McCullough then informed

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Plaintiff that Plaintiff faced " a long road full of shit and issues." Id. ¶ 18. At a late-February 2013 Leeds meeting, Defendant John Elliot (" Elliot" ), Leeds's President, informed attendees that, following an attorney recommendation that the Leeds Board of Directors (" Board" ) select the Leeds Chief, the Board has selected McCullough. Id. ¶ 20. The following month, Plaintiff was told, both orally and in writing, that he was suspended based on an internal complaint alleging that he had made a " derogatory sexual reference to a female member under the age of eighteen," an action that had " an adverse impact on the ability of this firefighter to comfortably perform her duties." Id. ¶ ¶ 22-30; Dkt. No. 1-1 (" Suspension Notice" ). A Board meeting was held in late March 2013, at which the Board received various exculpatory evidence. Id. ¶ 31. Nevertheless, on March 26, 2013, the Board terminated Plaintiff " due to multiple counts of insubordination." Id. ¶ ¶ 32-33; Dkt. No. 1-2 (" Termination Notice" ).

Plaintiff then filed the Complaint. He alleges that he was suspended and terminated without due process and in retaliation for his " First Amendment protected speech and political activity." Id. ¶ ¶ 37-40. Defendants filed the Motion and a supporting Memorandum arguing that: (1) Defendants are not state actors; (2) Plaintiff's failure to challenge his dismissal under N.Y. C.P.L.R. § 7801 et seq. (" Article 78" ) precludes him from raising a due process claim; (3) Plaintiff did not engage in activity protected under the First Amendment; and (4) Plaintiff cannot demonstrate that the harassing-comment explanation for his termination was pretextual. See generally Dkt. No. 7 (" Memorandum" ). Plaintiff responded and Defendants replied. Dkt. Nos. 10 (" Response" ); 11 (" Reply" ).


To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a " complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Fed.R.Civ.P. 12(b)(6). Plausibility requires " enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Twombly, 550 U.S. at 556. " [U]nadorned, the-defendant-unlawfully-harmed-me accusation[s]" do not suffice. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, although a court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of a plaintiff, see Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006), an action is subject to dismissal where the court is unable to infer more than the " sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).


A. State Action

Plaintiff brings claims under the First and Fourteenth Amendment of the United States Constitution. " Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action." Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 186 (2d ...

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