United States District Court, N.D. New York
JANE A. TAYLOR, Plaintiff,
THE NEW YORK STATE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, CATHY TURCK, in her official capacity and individually, and CATHY LABARGE, in her official capacity and individually, Defendants.
SADOWSKI FISCHER, P.L.L.C. Robert W. Sadowski, Esq. New York, New York, Counsel for Plaintiff.
ERIC T. SCHNEIDERMAN Michael G. McMartin, Esq. Attorney General of the State of New York Assistant Attorney General Albany, New York, Counsel for Defendants.
MEMORANDUM DECISION AND ORDER
NORMAN A. MORDUE, District Judge.
This is a civil action brought by plaintiff Jane A. Taylor against defendants the New York State Office for People with Developmental Disabilities ("OPWDD"), Cathy Turck, Treatment Team Leader, in her official capacity and individually ("Turck"), and Director of Labor Relations Capital District Cathy LaBarge, in her official capacity and individually ("LaBarge") under 42 U.S.C. § 1983, for violation of plaintiff's First, Fifth and Fourteenth Amendment Rights under the United States Constitution, as well as for breach of contract, retaliation, and for defamation. Presently is a motion by defendants to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff opposes defendants' motion.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts, according to the complaint, are these: Plaintiff has worked for OPWDD since 1987. Until November, 2008, she was a developmental aide. At all times relevant to this complaint she was employed by OPWDD in the Capital District on a permanent tenured civil service basis, initially as a "Developmental Aide." She has never received a bad evaluation, and after receiving her bachelor's degree in 2004, she was eventually promoted to "Residential Habitation Specialist, " Grade 14, a clinical position, in 2008. As such, she has a vested property interest in her continued employment with respect to which she cannot lawfully suffer a deprivation without first being accorded a pre-deprivation hearing consistent with due process. During her 27 years at OPWDD, she has been vocal in reporting incidents of abuse, and incidents in which other employees have not conformed to OPWDD's policies and procedures. As a result, she has been chastised, formally counseled, and has received notices of discipline - all for reporting inappropriate actions on behalf of her co-workers, either towards clients, or towards each other. Moreover, when reporting inappropriate behavior on the part of other OPWDD employees, she has received multiple notices of discipline for "false allegations, " with no indication as to how it was determined that plaintiff's version of events, was, in fact false, and the other party's was true.
Retaliation against plaintiff has escalated since she was quoted in a New York Times article regarding the failure of OPWDD to keep reports to the ombudsman confidential, when it became clear that three incidents of abusive behavior by fellow employees, which she had reported confidentially to the ombudsman, had been shared with OPWDD management. Ironically, after engaging a law firm to represent her regarding the retaliation, the actions taken against plaintiff by the OPWDD became even more outrageous, including receiving a reprimand for moving a chair from a hallway into a classroom.
Defendant OPWDD is responsible for coordinating services for more than 126, 000 New Yorkers with developmental disabilities, including intellectual disabilities, cerebral palsy, Downs's syndrome, autism spectrum disorders, and other disabilities. It provides services directly to such individuals and through a network of approximately 700 nonprofit service providing agencies, with about 80 percent of services provided by the private not-for-profits and 20 percent provided by state-run services. Beneficiaries of OPWDD services are typically Medicaid eligible. OPWDD, formerly known as the Office of Mental Retardation and Development Disabilities ("OMRDD"), was authorized by the New York Mental Hygiene Law to provide services to individuals with disabilities and to adopt governing regulations. OPWDD adopted regulations concerning the provision of services to individuals with developmental disabilities and requirements for providers who receive Federal, New York State, and Medicaid funding. OPWDD facilities receive state and federal funding. New York State regulations also require that developmental disability programs must provide adequate, appropriate and supervised services to disabled individuals, including by implementing an individualized plan of service, and properly evaluating the appropriateness and effectiveness of the services as well as the residents' satisfaction with them.
Defendant Cathy LaBarge is the Director of Labor Relations of OPWDD for the Capital District Developmental Disabilities Services Office ("DDSO"). She works at the Office of Human Resources, in Schenectady, New York. Defendant Cathy Turck is an employee of OPWDD, and is a Treatment Team Leader. Turck was plaintiff's supervisor. Plaintiff asserts upon information and belief that defendants LaBarge and Ms. Turck are close friends.
In 2011, plaintiff reported to the ombudsman three separate incidents regarding the inappropriate behavior of her co-workers. In one incident, plaintiff stated that she witnessed a fellow employee cursing at a client. In another incident, plaintiff stated that she witnessed a fellow employee taking sick clients outside to sit in a van on a very hot day. In a third incident, plaintiff received an email from the group home psychologist stating that one of the clients was joining the circus."
After making these reports to the ombudsman, plaintiff received a "Formal Counseling" from her supervisor, defendant Turck, the Treatment Team Leader. Defendant Turck accused plaintiff of not following the appropriate chain of command and not following appropriate protocol when reporting these incidents. Plaintiff also received a "Formal Counseling" for ordering a fish tank for a client. After a meeting with the team of employees, the consensus of the team was that they should order a salt water fish tank for one of the clients. Plaintiff was given the task of ordering the fish tank. In an absurd turn of events, plaintiff later received a "Formal Counseling" from defendant for ordering the fish tank without authority.
Some months after reporting the allegations, and many months after the alleged incident took place, plaintiff received a formal "Notice of Discipline" accusing her of making a "false claim" that a co-worker swore at her during a telephone conversation (the "2011 NOD"). Plaintiff's supervisor, rather than being concerned that a colleague, known among the staff for being rude, defiant, and for cursing, had sworn at plaintiff, issued the Notice of Discipline to plaintiff. The Notice of Discipline referred to a prior finding of "guilt" in 2004, also for "falsely" reporting that another employee had used profanity. However, in 2004, when plaintiff was disciplined for this "false accusation, '' OPWDD and plaintiff settled the matter. The terms of the settlement included reducing the Notice of Discipline (the "2004 NOD'') to a formal counseling, and mandated removal from plaintiff's file after two years (the "2004 Settlement"). Contrary to the terms of the 2004 Settlement, however; and unbeknownst to plaintiff, the 2004 NOD remained in plaintiff's file, and was still there in 2011 when the 2011 NOD was issued. Upon receiving the 2011 NOD, which referred to the 2004 NOD, plaintiff insisted that it be removed from her personnel file. Eventually, defendant LaBarge removed it from plaintiff's file, and removed the information regarding it from the 2011 NOD, but the damage was done. The damaging information had been in her personnel file for 7 years, during which time plaintiff was perceived as a liar by those who had access to her personnel file. Indeed, during this time period, plaintiff had posted for another position within OPWDD for which she was qualified, and was never even offered an interview, much less the position. Plaintiff was told she didn't follow proper procedure. Plaintiff filed a grievance regarding the 2011 NOD, which is in the process of being resolved.
About six months after receiving the string of formal counseling memos and the Notice of Discipline, the New York Times quoted plaintiff in an article regarding the fact that confidential reports of abuse made to the ombudsman were being shared with her supervisors and that she was, as a result, being retaliated against. Despite the New York Times article, the retaliation continued, and, in fact, escalated. Defendant Turck constantly asks other employees about plaintiff's whereabouts, and frequently requests that plaintiff report to her at the office at the end of a day's work at a residential facility. Plaintiff contends upon information and belief, that defendant Turck does not keep tabs on the "coming and goings" of other OPWDD employees who work in the various residential homes, nor does she request that they report to the office after a day in the field.
More recently, plaintiff received a Notice of Discipline (the "2013 NOD) regarding her complaint that a psychologist had inappropriately touched a client on the shoulder in a meeting. The 2013 NOD states that plaintiff made "false accusations of inappropriate contact between a co-worker and [a client]." Upon receiving the 2013 NOD, plaintiff filed a grievance and hired counsel to represent her with regard to the harassment and retaliation she has suffered, and continues to suffer, at the hands of defendants. Plaintiff contends that as soon as she informed OPWDD that her present counsel would be representing her, the retaliation escalated even more, "with even more absurd results." Indeed, plaintiff asserts that she "was promptly put on paid administrative leave."
Plaintiff initiated a complaint of discrimination with the New York State Division of Human Rights ("DHR") on or about September 6, 2011, against both OPWDD and defendant Turck. Following an investigation, on February 29, 2012, the DHR concluded that there was no probable cause to believe that defendants had engaged in or are engaging in unlawful discriminatory conduct. Thereafter, plaintiff commenced the instant action asserting that defendants have violated her Fifth and Fourteenth Amendment Rights under the United States Constitution. Plaintiff also alleges that defendants violated the 2004 settlement agreement, unlawfully retaliated against her and defamed her.
A. Standards of ...