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Weslowski v. Zugibe

United States District Court, S.D. New York

March 31, 2014


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John Louis Weslowski, Esq., Plaintiff, Pro se, Schenectady, NY.

For Defendants: Robert Benjamin Weissman, Saretsky Katz Dranoff & Glass LLP, New York, NY.


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Plaintiff John L. Weslowski (" Plaintiff" ) brought this Action against defendants Patricia Zugibe (" Zugibe" ) and Jeffrey J. Fortunato (" Fortunato" ) in their individual and official capacities, and against the County of Rockland (the " County" ) (collectively, " Defendants" ), seeking relief under federal and state law for claims arising out of Plaintiff's allegedly wrongful termination in the fall of 2009. Before the Court is Defendants' Motion To Dismiss the Complaint on all counts. ( See Notice of Mot. (" Mot." ) (Dkt. No. 18).) For the reasons stated below, the Court grants the Motion in full without prejudice to Plaintiff to amend.

I. Background

A. Factual History

The following facts are drawn from Plaintiff's Complaint and are taken as true for the purposes of resolving the instant Motion.

In June 2003, Plaintiff began employment for the County as a full-time Assistant County Attorney. ( See Compl. ¶ 9 (Dkt. No. 1).) Approximately six months later, Plaintiff was promoted to Senior Assistant County Attorney, a position he held until the events giving rise to this Action. ( See id. ¶ ¶ 11-12.) In that position, Plaintiff worked under the supervision of Zugibe, County Attorney, and Fortunato, Deputy County Attorney. ( See id. ¶ ¶ 3-4.) At some point before 2009, Zugibe and Fortunato came to know that Plaintiff is gay. ( See id. ¶ 25(a).) Later, in May 2009, Zugibe and Fortunato " reprimanded" Plaintiff for March 2009 conduct in violation of County internet-usage policies--namely, Plaintiff's use of County computers and internet services to view " perfectly legal gay male sexual content." ( Id. ¶ ¶ 29(d), 29(d)(1).)

In mid-2009, Plaintiff was assigned to review an application to receive County funds pursuant to a program funded by the federal government. ( See id. ¶ ¶ 23(a)-(e).) During his review of the proposed contract, Plaintiff determined, inter alia, that " the proposed contractor was itself neither an incorporated entity, nor any other legal entity under New York law, nor was the 'President' [of the entity] authorized to act on behalf of anyone but himself." ( Id. ¶ 23(f).) Plaintiff thereafter informed his superiors and the proposed contractor that he would refuse to approve the proposed contract on these grounds, and he made known his general intention otherwise to prevent the County from agreeing to the proposed contract. ( See id. ¶ 23(i).)

In response, the " President" of the proposed contractor, " frustrated by [an] unexpected administrative obstacle," " made clear to [Defendants] the political clout that he and his highly visible unincorporated association could wield during . . . a fiercely and closely contested [local] election." ( Id. ¶ 24.) Subsequently, in August 2009, Zugibe and Fortunato decided to terminate Plaintiff and " deliberately and maliciously" took steps to gather evidence sufficient to establish cause for the termination--including emails, work documents, and evidence of his March 2009 internet-policy violations--while " conceal[ing] those steps from [Plaintiff]." ( See id. ¶ ¶ 29(b), 29(c).) Additionally, on October 16, 2009, Zugibe instructed Plaintiff to transfer the proposed-contract assignment to a colleague,

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who revised the contract and took steps to have it executed. ( See id. ¶ ¶ 26(a), 26(b)(1).) The County ultimately signed and fully executed the contract on October 27, 2009. ( See id. ¶ 28.)

On November 24, 2009, Defendants Zugibe and Fortunato " summoned [Plaintiff] into Zugibe's office," " told [Plaintiff] that he would not be invited to be 'part of the team,'" and informed him " that the only question was whether [Zugibe] would dismiss [Plaintiff] for cause at that time or . . . allow [Plaintiff] to voluntarily resign." ( Id. ¶ ¶ 30, 30(a).) In the meeting, Zugibe specifically referenced Plaintiff's recent refusal to approve the proposed contract, his March 2009 violations of the internet-usage policy, and several other examples of allegedly sub-par performance. ( See id. ¶ ¶ 30(b).) Furthermore, to induce Plaintiff to resign voluntarily, Fortunato informed Plaintiff that he would forfeit his right to thousands of dollars in accumulated, unused vacation and longevity leave if he were terminated for cause. ( See id. ¶ 30(c).) Plaintiff further alleges that Defendants " promised [him] that he would not lose that unused accumulated leave, but rather that he would be paid that leave in full," if he voluntarily resigned. ( Id. ¶ 38(a).) In reliance on that promise, Plaintiff agreed to resign voluntarily on November 24, and " by the end of the day [he] delivered his signed resignation letter to Fortunato," even though " it was not [his] intention to voluntarily resign." ( Id. ¶ ¶ 30(e), 38(b).)

With Zugibe's consent, and per the terms of his resignation letter, Plaintiff's resignation did not take effect until December 4, 2009. ( See id. ¶ 30(d); Decl. of Robert B. Weissman (" Decl." ) (Dkt. No. 19), Ex. C (resignation letter).)[1] At some time on or after his last day, " County paid [Plaintiff] for . . . 440.00" unused leave hours. ( See Compl. ¶ 31(b)(3).) But according to Plaintiff, he had accumulated at least 663.50 hours.[2] ( See id.) Thus, at Plaintiff's hourly wage of $43.527, Defendants refused to pay Plaintiff $9,728.28 of the money that they promised to pay him on November 24, 2009, when he agreed to resign voluntarily in reliance on that promise. ( See id.)

B. Procedural History

Plaintiff filed this Complaint on December 3, 2012. ( See id. at 47.) The Complaint includes five causes of action arising under federal law, including three causes of action under 42 U.S.C. § 1983, alleging that Defendants' secretive plan to terminate him, and the decision to terminate him based, in part, on his use of the Internet to view " gay male sexual content," ( id. ¶ 29(d)(1)), violated his First Amendment right to free speech, ( see id. ¶ 35), his Fourteenth Amendment right to equal protection, ( see id. ¶ ¶ 32-33), and his Fourteenth Amendment right to procedural due process, ( see id. ¶ 36); one cause of action under 42 U.S.C. § 1985(3), alleging that Defendants conspired to deprive him of

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those rights, ( see id. ¶ 37); and one cause of action under the False Claims Act--specifically, 31 U.S.C. § 3730(h)--alleging that Defendants' decision to terminate him constituted unlawful retaliation in response to his attempt to stop a False Claims Act violation, ( see id. ¶ ¶ 21-30). The Complaint also includes four causes of action arising under state law, including one cause of action alleging that Defendants' decision to terminate him based on his sexual orientation violated N.Y. Executive Law § 296(1)(a), ( see id. ¶ 34); one cause of action alleging that the termination and the refusal to reimburse him for all of his unused vacation and longevity leave breached his employment contract, ( see id. ¶ 31); one cause of action alleging that Defendants' refusal to reimburse him for all of his unused vacation and longevity leave breached an enforceable promise under the theory of promissory estoppel, ( see id. ¶ 38); and one cause of action similarly alleging that the refusal to reimburse Plaintiff for his unused vacation and longevity leave as well as his unused sick leave constituted unjust enrichment, ( see id. ¶ ¶ 39-40).

The Court held a premotion Conference on April 12, 2013, and set a briefing schedule for Defendants' Motion To Dismiss. ( See Dkt. No. 15.) Pursuant to that schedule, Defendants filed the instant Motion on May 17, 2013, ( see Mot.); Plaintiff filed an Opposition Memorandum on June 28, 2013, ( see Mem. of Law in Opp. to Defs.' Mot. To Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (" Opp." ) (Dkt. No. 22)); and Defendants filed a Reply Memorandum on July 12, 2013, ( see Reply Mem. of Law in Supp. of Defs.' Mot. To Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt. No. 26)).

II. Discussion

A. Standard of Review

The Supreme Court has held that although a complaint " does not need detailed factual allegations" to survive a motion to dismiss, " a plaintiff's obligation to provide the 'grounds' of his [or her] 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (second alteration in original) (citations omitted). Instead, the Court has emphasized that " [f]actual allegations must be enough to raise a right to relief above the speculative level," id., and that " once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563. A plaintiff must allege " only enough facts to state a claim to relief that is plausible on its face." Id. at 570. But if a plaintiff has " not nudged [his or her] claims across the line from conceivable to plausible, the[] complaint must be dismissed." Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (" Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" (alteration in original) (citation omitted) (quoting Fed.R.Civ.P. 8(a)(2))).

In considering Defendants' Motion To Dismiss, the Court is required to consider as true the factual allegations contained in the Complaint. See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (" We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable

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inferences in the plaintiff's favor." (internal quotation marks omitted)); Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y. 2008) (same). Moreover, " [i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted).

The Court notes that Plaintiff is proceeding pro se. In general, this would require the court to construe his pleadings liberally and " interpret them to raise the strongest arguments that they suggest." Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 347 (S.D.N.Y. 2009) (internal quotation marks omitted); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006). However, because Plaintiff is a licensed attorney, the liberal-construction rule does not necessarily apply to his pleadings. See Larsen v. JBC Legal Grp., P.C., 533 F.Supp.2d 290, 295 n.2 (E.D.N.Y. 2008) (declining to apply " the liberality normally accorded pro se litigants" and holding the pro se plaintiff " to the same standards as other attorneys appearing before the court" (internal quotation marks omitted)); see also Sembler v. Attention Funding Trust, No. 07-CV-2493, 2009 WL 2883049, at *1 (E.D.N.Y. Sept. 3, 2009) (because " [p]laintiff [was] an admitted attorney, . . . . the Court [did] not construe plaintiff's pleadings liberally to raise the strongest arguments they suggest" (internal quotation marks omitted)).

B. Analysis

1. False Claims Act Claim

Plaintiff first claims that Defendants " 'discharged'" him " 'because of lawful acts done . . . to stop [one] or more violations of [the False Claims Act (" FCA" )].'" (Compl. ¶ 21 (quoting 31 U.S.C. § 3730(h)(1)).) Plaintiff's claim arises from his denial of an application for County funds wherein, Plaintiff alleges, the applicant made false claims to procure funds provided to the County by the federal government. ( See id. ¶ ¶ 23, 23(b), 23(f), 23(i).) Plaintiff alleges that, subsequent to his denial of the application, Defendants took " a series of active, systematic steps . . . to retaliate against [Plaintiff], . . . to conceal those steps from [him]," and ultimately to terminate him. ( See id. ¶ ¶ 29(a)-(b), 30.) Plaintiff's claim thus arises under the provision of the FCA providing " relief from retaliatory actions" taken in response to his lawful efforts to expose a false claim. See 31 U.S.C. § 3730(h) (alterations omitted).

Defendants argue that this claim is untimely because Plaintiff brought it outside of the three-year limitations period applicable to FCA claims. To resolve Defendants' argument, the Court must decide (a) whether to apply the limitations period specified in the FCA to Plaintiff's claim, or whether to borrow the statute of limitations from state law; (b) whether Plaintiff's claim was timely under that limitations period; if not, (c) whether to apply equitable tolling to make Plaintiff's claim timely; and, if not, (d) whether the limitations period was otherwise tolled so as to make Plaintiff's claim timely.

a. Applicable Limitations Period

The Complaint alleges that the conduct giving rise to Plaintiff's FCA claim occurred in late 2009. ( See Compl. ¶ 30.) At that time, the FCA did not specify the time within which a plaintiff could bring a claim for retaliation under § 3730(h). See 31 U.S.C. § 3730(h) (2006). In this context, the Supreme Court previously had

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held that " [t]he most closely analogous state statute of limitations . . . applie[d]" to claims brought under § 3730(h). See Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 422 (2005). Accordingly, courts in this District previously applied to § 3730(h) claims a three-year limitations period borrowed from New York's residuary statute of limitations for personal-injury claims. See, e.g., U.S. ex rel. Smith v. N.Y. Presbyterian Hosp., No. 06-CV-4056, 2007 WL 2142312, at *12 (S.D.N.Y. July 18, 2007); McKenna on Behalf of U.S. v. Senior Life Mgmt., Inc., 429 F.Supp.2d 695, 700 (S.D.N.Y. 2006).

In July 2010, after the events giving rise to Plaintiff's claim but before Plaintiff filed his Complaint, Congress amended § 3730(h) and thereby added an explicit three-year limitations period to § 3730(h) claims. See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 1079A, 124 Stat. 1376, 2079 (2010) (codified as amended at 31 U.S.C. § 3730(h)(3)). Therefore, at the time Plaintiff filed his Complaint, the statute provided that " [a] civil action under [§ ...

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