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Dawkins v. Biondi Education Center

United States District Court, S.D. New York

January 20, 2017


          Donald Dawkins Middletown, NY Pro Se Plaintiff

          Isaac J. Burker, Esq. Susan M. Corcoran, Esq. Tarek M. Maheran, Esq. Jackson Lewis P.C. White Plains, NY Counsel for Defendants

          Joseph J. DiPalma, Esq. Ingerman Smith, LLP Harrison, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS, District Judge

         Pro se Plaintiff Donald Dawkins (“Plaintiff”) filed the instant Sixth Amended Complaint naming as Defendants the Biondi Education Center (“Biondi”), Leake & Watts Services (“L&W”), and their employees, Allan Mucatel (“Mucatel”), Alphonso Grimes (“Grimes”), Donald Antonecchia (“Antonecchia”), George Cancro (“Cancro”), Jill St. John (“St. John”), and Ralph Causwell (“Causwell, ” and collectively, “Defendants”), alleging violations of his rights under the First, Fifth, and Fourteenth Amendments of the Constitution. (See generally Sixth Am. Compl. (“SAC”) (Dkt. No. 71).) Before the Court is Defendants' Motion To Dismiss Plaintiff's Sixth Amended Complaint (the “Motion”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 75.) In response to Defendants' Motion, Plaintiff further alleges that Defendants violated the New York Labor Law (“NYLL”), the Fair Labor Standards Act (“FLSA”), and engaged in fraudulent behavior, (Pl.'s Sur-Reply in Opp'n to Defs.' Mot. To Dismiss (“Pl.'s Sur-Reply”) (Dkt. No. 82)), and seeks permission from the Court to file a Seventh Amended Complaint. For the reasons explained herein, Defendants' Motion is granted and Plaintiff's request to file a Seventh Amended Complaint is denied.

         I. Background

         A. Factual Background

         The following facts are drawn from Plaintiff's Sixth Amended Complaint and documents attached to Plaintiff's opposition papers, which the Court takes as true for the purpose of resolving the instant Motion.[1]

         Plaintiff worked for L&W from 2001 until 2012. (Pl.'s Opp'n to Defs.' Mot. To Dismiss the Fifth Am. Compl. (“Pl.'s FAC Opp'n”) Ex. D (“Aff. of James Faulkner, Jr.”) at unnumbered 1 (Dkt. No. 60).) During that period, he held a non-teaching position at Biondi. (See SAC at 4; Aff. of James Faulkner, Jr., at unnumbered 1.)[2] “[C]ontrolled and owned by [L&W], ” Biondi, “[f]or all practical purposes, ” is “a public high school with private status” that provides educational services to students with special needs. (SAC at 2, 4, 10.) As such, it is “heavily regulated” by New York State (“NYS”) and receives “almost all of its funds from the State.” (Id. at 4.) In fiscal year 2012, public funds accounted for 91% of Biondi's budget. (Id. at 6.) To receive these funds, Biondi had to “comply with a variety of regulations” promulgated by the NYS Department of Education. (Id.) The regulations cover everything from financial record keeping to personnel matters. (Id.) For example, schools receiving public funds must maintain written job descriptions and a written policy on criteria and procedures for hiring and dismissal. (Id.) Plaintiff alleges that if NYS chooses, it may exercise complete control over Biondi's operations simply by threatening to withdraw financial support if Biondi takes action it considers objectionable. (Id. at 8.) For these reasons, Plaintiff contends that the actions of L&W, Biondi, and the individually named Defendants should be “attributed to the State.” (Id.)

         The events giving rise to Plaintiff's claims trace back to December 2011, when Plaintiff launched “a union organizing campaign” for workers employed by L&W. (Pl.'s FAC Opp'n Ex. A (“Aff. of Julie Berman”) ¶ 3.) He took “a leading role” in these efforts, “trying to overcome the chilling effects of L&W's intense union-busting campaign.” (Id. ¶¶ 11, 13.) As a result, Plaintiff “started having problems with the administration” and “was really being single[d] out.” (Pl.'s FAC Opp'n Ex. E (“Aff. of Perry Kelly”) at unnumbered 1.) He was forced to relocate his office, (see id.), and “was consistently reassigned job duties, ” (Pl.'s FAC Opp'n Ex. I (“Aff. of Windell Whitett”) at unnumbered 1).

         In May 2012, Plaintiff was accused of assaulting a student, and was “suspended immediately.” (SAC 4, 13; see also Pl.'s FAC Opp'n Ex. J (“Aff. of Kenneth M. Stevens”) at unnumbered 1.) Shortly thereafter on May 14, 2012, L&W fired Plaintiff, (Aff. of Julie Berman ¶ 14), without conducting “a full and investigative internal hearing, ” and in violation of its “own policies and regulations, ” (SAC at 4, 14).

         Plaintiff thus contends that Defendants violated his constitutional rights. (See Id. at 1.) Specifically, the Sixth Amended Complaint alleges that Mucatel, Chief Executive Officer of L&W, “ordered his subordinates to undermine any and every effort made by [P]laintiff . . . to organize a union at [Biondi], ” while Biondi Superintendent Antonecchia “conspired with all other [D]efendants to stop [P]laintiff from forming a union.” (Id. at 11.) St. John, an administrative assistant at Biondi, allegedly “issu[ed] confidential information regarding [P]laintiff's background . . . for retaliatory purposes” in response to “[P]laintiff's union forming activities.” (Id. at 12.) The Sixth Amended Complaint further alleges that Support Supervisor Causwell, Assistant Principle Grimes, and Principal Cancro “fail[ed] to give [P]laintiff his Due Process [r]ights” prior to his termination resulting from “the alleged assault incident.” (Id. at 12- 13.)

         B. Procedural Background

         On April 8, 2013, Plaintiff commenced this Action against Mucatel, Antonecchia, St. John, Causwell, Grimes, and Cancro, (Dkt. No. 2), filing an Amended Complaint four days later, (Dkt. No. 4). On September 12, 2013, Plaintiff filed a Second Amended Complaint, adding L&W and Biondi as Defendants. (Dkt. No. 9.) On November 15, 2013, he filed a Third Amended Complaint against all Defendants named in his Second Amended Complaint. (Dkt. No. 11.) Plaintiff then filed a Fourth Amended Complaint on October 7, 2014. (Dkt. No. 45.)

         Plaintiff subsequently filed a Fifth Amended Complaint in January 2015, alleging that Defendants “depriv[ed] [him] of those rights secured under the Constitution and laws of the United States” by “taking adverse employment actions against him in retaliation for his protected speech.” (Fifth Am. Compl. at unnumbered 1 (Dkt. No. 49).) Defendants filed a Motion To Dismiss the Fifth Amended Complaint in March 2015. (Dkt. No. 54.) The Court granted that motion, but allowed Plaintiff 30 days to file a Sixth Amended Complaint remedying the deficiencies identified by the Court. (Opinion & Order (Dkt. No. 69).)

         Plaintiff filed the instant Sixth Amended Complaint on April 4, 2016. (Dkt. No. 71.) Defendants filed their Motion and supporting papers on May 19, 2016. (Dkt. Nos. 75-77.) Plaintiff filed his opposition on June 20, 2016, conceding that he could not state a § 1983 claim and requesting an opportunity to file a Seventh Amended Complaint alleging negligence. (Pl.'s Opp'n to Defs.' Mot. To Dismiss the SAC (“Pl.'s SAC Opp'n”) at unnumbered 2 (Dkt. No 78).) Defendants filed a reply on July 7, 2016, (Dkt. No. 79), and Plaintiff filed a sur-reply on August 4, 2016, (Dkt. No. 82).

         II. ...

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