United States District Court, N.D. New York
DECISION & ORDER
THOMAS J. McAVOY, Senior District Judge.
Plaintiff JEFFREY MONSOUR ("Plaintiff") commenced this action against THE NEW YORK STATE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES ("OPWDD"), JAMES INTRONE ("Introne"), and CATHY LABARGE ("LaBarge"). Presently before the Court is Defendants OPWDD and LaBarge's motion to dismiss the claims against them. (Motion, dkt. #21).
Plaintiff asserts claims against OPWDD and LaBarge pursuant to 42 U.S.C. § 1983 (First Amendment retaliation and Due Process claims), state law (breach of contract against OPWDD and LaBarge, defamation against LaBarge); the federal False Claims Act, 31 U.S.C. § 3730(h) (against LaBarge); and New York's False Claims Act, N.Y. State Fin. Law § 191 (against LaBarge). OPWDD and LaBarge move to dismiss the claims against them pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Plaintiff opposes the motion, OPWDD and LaBarge have filed a short reply, and Plaintiff has filed what is essentially a sur-reply. The Court has considered each of these in arriving at its conclusions set forth below.
II. STANDARDS OF REVIEW
a. Amended Pleading
Plaintiff filed an Amended Complaint after Defendants filed their motion to dismiss. Inasmuch as the Amended Complaint supersedes the original Complaint, and both parties having addressed their arguments to the allegations in the Amended Complaint, the Court will address the sufficiency of the Amended Complaint.
b. Fed.R.Civ.P. 12(b)(1)
A motion brought pursuant to Fed.R.Civ.P. 12(b)(1) challenges the subject matter of the Court to address a case or certain claims in the case. A case is to be dismissed for lack of subject matter jurisdiction when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. See Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002); see also Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996). When a defendant moves to dismiss claims pursuant to Fed.R.Civ.P. 12(b)(1), "the movant is deemed to be challenging the factual basis for the court's subject matter jurisdiction." Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993). For the purposes of such a motion, "the allegations in the complaint are not controlling... and only uncontroverted factual allegations are accepted as true." Id.
Both the movant and pleader may use affidavits and other pleading materials to support or oppose a motion to dismiss for lack of subject matter jurisdiction. See Makarova, 201 F.3d at 113; Filetech S.A. v. France Telecom, S.A., 157 F.3d 922, 932 (2d Cir. 1998); John Street Leasehold, LLC v. Capital Mgt. Res., L.P., 154 F.Supp. 527, 533 (S.D.N.Y. 2001). Further, "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 DAB, 2007 WL 1032265, at *2 (S.D.N.Y. March 30, 2007) (quoting Shipping Financial Services Corp. v. Drakos, 140 F.3d 129 (2d Cir. 1998)). "Thus, the standard used to evaluate a Rule 12(b)(1) motion is similar to that used for summary judgment under Fed.R.Civ.P. 56." Lopresti v. Merson, 2001 WL 1132051, at *5 (S.D.N.Y. Sept. 21, 2001).
On a motion to dismiss, the Court must accept "all factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor." Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009) (internal quotation marks omitted). This tenet does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
a. Factual Background
Plaintiff has been employed by the New York State Office for People with Developmental Disabilities ("OPWDD") for fourteen years. (Am. Compl. ¶ 3.) During that time, Plaintiff has complained about the treatment of individuals with disabilities in OPWDD's care and become an outspoken advocate for the disabled. ( Id. ¶¶ 3, 10, 43-53, 57, 59, 63-68, 78.)
In 2009, the Capital District Developmental Disabilities Services Office ("DDSO") issued a Notice of Discipline (a "NOD") to Plaintiff regarding an incident involving a coworker that took place in front of a OPWDD consumer. ( Id. ¶¶ 4, 20, 23.) Plaintiff was also temporarily reassigned as a result of the incident. ( Id. ¶ 21.) Plaintiff challenged the charge of misconduct, resulting in arbitration ("NOD Arbitration"). ( Id. ¶¶ 4, 24-25.) Defendant Cathy LaBarge, Director of Labor Relations of OPWDD, participated in the NOD Arbitration on behalf of the DDSO. ( Id. ¶¶ 19, 25.)
On September 30, 2011, the parties settled the NOD Arbitration, resulting in a stipulated Consent Award. ( Id. ¶ 26.) As agreed by the parties, Plaintiff received a letter of reprimand, which indicated that it would remain in his personnel file for eighteen months, together with the Notice of Discipline, the Consent Award and Plaintiff's rebuttal letter. ( Id. ¶ 27.)
Thereafter, Plaintiff requested a copy of his personnel file. In it he found only the NOD with an e-mail attached, dated October 12, 2011, from Defendant LaBarge to certain OPWDD and DDSO employees (the "LaBarge Memo"). According to Plaintiff, the LaBarge Memo contained falsehoods, including claims that Plaintiff was guilty of abuse although he had never been charged with abuse. ( Id. ¶¶ 33-34). Plaintiff contends that as a result of the LaBarge Memo and the failure to have the Consent Award and Plaintiff's rebuttal letter in his personnel file, he has been denied promotions and other positions for which he was the most qualified applicant. ( Id. ¶¶ 40-41, 75, 87, 100, 120, 125).
Plaintiff also asserts that LaBarge "retaliated" against him for "whistleblowing activities" by failing to eliminate hostility at OPWDD, constitutively discharging him, making false allegations against him, and failing to promote him. ( Id. ¶¶ 74, 75, 77, 93, 120, 125.)
B. Procedural Background
On March 25, 2013, Plaintiff commenced this action against Mr. Introne and Ms. LaBarge, in their official capacities, and OPWDD, seeking compensatory and punitive damages and attorney's fees and costs. In his initial complaint, Plaintiff asserted nine claims. All defendants moved to dismiss the initial complaint on July 5, 2013. In lieu of a response to the motions, Plaintiff filed the Amended Complaint on July 25, 2013. In the Amended Complaint, Plaintiff sets forth the following claims against OPWDD and/or LaBarge in her individual and official capacities:
- First Claim: First Amendment retaliation, pursuant to 42 U.S.C. § 1983;
- Third Claim: due process "constructive discharge" under the Fifth Amendment, pursuant to 42 U.S.C. § 1983;
- Fourth Claim: breach of contract claim based upon a failure to comply with a disciplinary settlement agreement;
- Fifth Claim: defamation claim against Ms. LaBarge under New York State common law;
- Sixth Claim: federal False Claims Act against Ms. LaBarge based upon alleged retaliation for whistleblowing activities, under 31 U.S.C. §3730(h);
-Seventh Claim: state False Claims Act against Ms. LaBarge based upon alleged retaliation for whistleblowing activities, ...