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Weslowski v. Zugibe

United States District Court, S.D. New York

March 31, 2015


Page 309

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

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

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Plaintiff John L. Weslowski (" Plaintiff" ) brings 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 Amended Complaint. (Dkt. No. 40.) For the reasons stated below, the Court grants Defendants' Motion.

I. Background

A. Factual History

The Court assumes familiarity with its March 31, 2014 Opinion and the allegations described therein. See Weslowski v. Zugibe, 14 F.Supp.3d 295 (S.D.N.Y. 2014). The following allegations are derived from Plaintiff's Amended Complaint, and are treated as true for purposes of resolving the instant Motion.

In June 2003, Plaintiff began working for the County as a full-time Assistant County Attorney. ( See Am. Compl.¶ 9 (Dkt. No. 35).) 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, the County Attorney, and Fortunato, the 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 his March 2009 violations of the County's computer-usage policies (the " Computer Use Policy" )--namely, Plaintiff's " use of the computer and Internet access provided by the County" to view what Plaintiff describes as " perfectly legal gay male sexual content." ( Id. ¶ ¶ 29(d), 29(d)(1).)

In mid-2009, Plaintiff was assigned to review an application for the disbursement of County funds pursuant to a federal-government-funded program. ( See id. ¶ ¶ 23(a)--(e).) During his review of the proposed contract, Plaintiff determined, among other things, 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 to prevent the County

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from agreeing to the proposed contract. ( See id. ¶ 23(i).)[1]

In response, the " President" of the proposed contractor, " frustrated by the 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 Computer Use Policy violations--while " conceal[ing] those steps from [Plaintiff]." ( See id. ¶ ¶ 29(b)--(c).) Additionally, on October 16, 2009, Zugibe instructed Plaintiff to transfer the proposed-contract assignment to a colleague, who revised the contract and took steps to have it executed. ( See id. ¶ ¶ 26(a), 26(b)(1).) The " President" of the proposed contractor signed the contract on October 26, 2009, and the County signed it on the following day. ( See id. ¶ 28.)

On November 24, 2009, 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).) At the meeting, Zugibe specifically referenced Plaintiff's refusal to approve the proposed contract, his March 2009 violations of the Computer Use Policy, and other examples of his 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, and " emphasiz[ed]" that proceedings concerning a termination for cause " would be embarrassing for [Plaintiff]." ( See id. ¶ 30(c).) Plaintiff 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, and " by the end of the day" on November 24, 2009, he " delivered his signed resignation letter to Fortunato," even though " it was not [his] intention to voluntarily resign." ( Id. ¶ 30(e); Decl. of Robert B. Weissman (" Weissman Decl." ) Ex. B (" Resignation Letter" ) (Dkt. No. 41).)[2]

With Zugibe's consent, and per the terms of his resignation letter, Plaintiff's resignation did not take effect until December

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4, 2009. ( See Am. Compl.¶ 30(d); Resignation Letter).) At some time on or after his last day, the " County paid [Plaintiff] for . . . 440.00" unused leave hours. ( See Am. Compl.¶ 31(b)(3).) But, according to Plaintiff, he had accumulated at least 663.50 hours.[3] ( See id. ) Thus, at Plaintiff's wage of $43.527 per hour, Plaintiff alleges that Defendants refused to pay him $9,728.28 of the money promised to him on November 24, 2009, when Plaintiff agreed to resign in reliance on that promise. ( See id. )

B. Plaintiff's First Complaint

Plaintiff filed his first Complaint on December 3, 2012. ( See Compl. (Dkt. No. 1).) The Complaint included 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 Plaintiff, and the decision to terminate him based, in part, on his using County computer and Internet access to view " gay male sexual content," ( id. ¶ 29(d)(1)), violated his First Amendment rights to " freedom of speech, freedom of expression, and freedom of association," ( 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 Plaintiff of those rights, ( see id. ¶ 37); and one cause of action under 31 U.S.C. § 3730(h) of the False Claims Act (" FCA" ), alleging that Defendants' decision to terminate Plaintiff constituted unlawful retaliation in response to his attempt to prevent an FCA violation, ( see id. ¶ ¶ 21--30). The Complaint also included four causes of action arising under state law, namely one cause of action alleging that Defendants' decision to terminate Plaintiff based on his sexual orientation violated N.Y. Executive Law § 296(1)(a), ( see id. ¶ 34); one cause of action alleging that Plaintiff's 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 Plaintiff 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).

C. Amended Complaint

On March 31, 2014, the Court granted Defendants' Motion To Dismiss in its entirety, and gave Plaintiff 30 days to file an amended complaint. See Weslowski, 14 F.Supp.3d at 322. Plaintiff filed his Amended Complaint on April 30, 2014. (Dkt. No. 35.) The Amended Complaint contains the same allegations and claims as those in Plaintiff's first Complaint, as well as additional allegations and arguments that Plaintiff marked as " ADDITIONS TO THE ORIGINAL COMPLAINT." ( See Am. Compl. 1.)

At the beginning of his Amended Complaint, Plaintiff added a section labeled " BASIC GUIDELINES FOR CONSTRUING THIS FIRST AMENDED COMPLAINT." ( Id. at 2 .)[4] The section

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consists, in primary part, of repackaged arguments that Plaintiff previously made in response to Defendants' first Motion To Dismiss. Within it, Plaintiff makes the following points: First, Plaintiff makes clear that he intends that every one of his allegations be " incorporated by reference" into every one of his claims, and that he reasserts every claim that he made in his first Complaint. ( Id. at 2--3.) Second, Plaintiff claims that his statute-of-limitations-related arguments--namely (a) the contention that his claims should be tolled because of Congress's amendment of the FCA and by operation of the Wartime Suspension Limitations Act, and (b) an argument that Zugibe and Fortunato " possessed no authority" to terminate Plaintiff's employment on November 24, 2009, meaning the statute of limitations could not have been triggered on that date--render his claims timely. ( Id. at 3--4.) Third, Plaintiff argues that Defendants' withholding of his accumulated leave constitutes retaliation because it is sufficiently related to his employment. ( Id. ) Fourth, Plaintiff contends that he acted to prevent an " actual fraud," as opposed to what " Plaintiff merely reasonably or in good faith merely believed to be fraud," under the FCA. ( Id. at 4--5.) Fifth, Plaintiff notes that he is alleging a " 'Lawrence v. Texas'" cause of action, as discussed below, claiming that Defendants violated his " decisional ...

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