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Frederick v. State

United States District Court, W.D. New York

February 3, 2017

STATE OF NEW YORK, OFFICE OF MENTAL HEALTH, ROCHESTER PSYCHIATRIC CENTER, COLOMBA MISSERITTI, Director of Human Resource Management, JOSEPH COFFEY, Director of Facility Administration, DOUG LEE, Associate Personnel Administrator, JOHN BURROWS, Bureau of Employee Relations Representative, PHILLIP GRIFFIN, Executive Director, DR. GUTTMACHER, Clinical Director, SGT. DAVID REED, Safety Department Representative, TIM COLES, Maintenance Supervisor II, RON GERMAIN, Defendants.


          ELIZABETH A. WOLWORD United States District Judge


         Plaintiff Joel W. Frederick ("Plaintiff) filed this action on August 13, 2016, pursuant to: § 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794, for discriminatory treatment due to a perceived disability and unlawful retaliation for engaging in the protected activity of opposing discrimination based on a perceived disability; New York Labor Law § 740; 42 U.S.C. § 1983 for First Amendment retaliation and abuse of process; and New York common law for the tort of assault. (Dkt. 1 at 2). Plaintiff filed an amended complaint on August 13, 2016, adding a claim under § 1983 for false arrest/false imprisonment. (Dkt. 2 at 2). John Burrows and Ron Germain ("Defendants") move to partially dismiss the amended complaint. (Dkt. 19). For the following reasons, the motion is granted.


         The following facts are drawn from Plaintiffs amended complaint. (Dkt. 2).

         Plaintiff began working for the Rochester Psychiatric Center ("RPC") in 2011 and is a civil service employee under New York State Civil Service Laws. (Dkt. 2 at 4). On August 15, 2015, Plaintiff, Defendant Germain, [1] and two others were working on "a new matrix for control RM Keyboard." (Id.). When Plaintiff indicated to Defendant Germain that the new matrix was incorrect, Defendant Germain allegedly "told Plaintiff to 'shut up' and threatened to throw [Plaintiff] out a window." (Id.). Almost six months later, Plaintiff filed a written complaint about the incident with the Occupational Safety and Health Administration ("OSHA") on February 3, 2016, and filed a Workplace Violence Reporting Form with an unspecified person or entity on February 8, 2016. (Id. at 5).

         Separately, in September 2015, Plaintiff was involved in a domestic incident in which his then-girlfriend contacted the police, who removed Plaintiffs lawfully possessed guns. (Id.). From September 2015 through March 2016, there were alleged "innocent conversations" with six co-workers about "the situation"[2] at Plaintiffs workplace. (Id.). Plaintiff alleges that he made "no insinuations to his co-workers that he was a threat to the public, [his] co-workers or himself." (Id.). In February 2016, Plaintiff alleges that defendant Coles falsely informed defendant Coffey of comments that Plaintiff had allegedly made to his co-workers, such as: "I don't need guns; I can use my bow and arrow." (Id.).

         The amended complaint then alleges that, on March 1, 2016, Plaintiff filed written complaints to the "Office of Mental Health ("OMH"), Internal Affairs and [OMH], Audit Department" accusing RPC's management of "falsely including and/or excluding information in its Statements of Conditions reports submitted to the joint commission regarding hospital's safety conditions including fire codes; conditions of buildings; conditions of doors as well as bid rigging."[3] (Id.).

         The following day, on March 2, 2016, defendant Lee allegedly falsely reported to the local police Plaintiffs statements, including the reference to a bow and arrow, as quoted above, and, through the alleged decisions of defendants Griffin, Coffey, Misseritti, Lee, Guttmacher, and Reed, Plaintiff underwent a mental hygiene arrest. (Id. at 5-6). Plaintiff underwent a medical evaluation at Strong Memorial Hospital ("SMH") on March 2, 2016, which allegedly led to "RPC pereceiv[ing] or regard[ing] Plaintiff as disabled." (Id. at 6). Also on March 2, 2016, after his evaluation, Plaintiff was deemed fit to return to work; however, he was placed on administrative leave by RPC, defendant Misseritti, and Defendant Burrows, effective March 3, 2016. (Id.).

         In response, Plaintiff filed a complaint with the New York State Division of Human Rights against RPC on March 28, 2016, alleging unlawful discrimination based on a disability. (Id. at 7). RPC and defendant Misseritti then allegedly placed Plaintiff on involuntary leave of absence on April 1, 2016. (Id.). This required Plaintiff to undergo a second medical examination before he could return to work. (Id.). Plaintiff alleges, "[t]he reasons set forth by RPC were that Plaintiffs continued presence on the job present[ed] a potential danger to patients, co-workers or self."[4] (Id.). Plaintiff further alleges that on April 6, 2016, RPC and defendant Misseritti made "numerous false statements to Employee Health Services regarding the reasons for Plaintiffs referral" and that they directed Plaintiff to undergo a "psychology examination" conducted by Employee Health Services, held on April 18, 2016. (Id.). On April 27, 2016, Employee Health Services deemed Plaintiff "fit to perform the essential functions of a General Mechanic." (Id.).

         Plaintiff returned to work in May 2016. (Id.). On May 17, 2016, Plaintiff filed a retaliation complaint with OSHA, and on May 27, 2016, he filed a written discrimination complaint to defendants Misseritti and Coles "based on a perceived or regarded as disability [sic] due to the mental hygiene arrest and the mental health evaluation." (Id.). Plaintiff alleges a list of retaliatory behavior that he has suffered since his return to work "for engaging in protected activity, " including being removed from the calling list for locksmith overtime, being stripped of a master key for the facilities, which requires him to spend additional time on his tasks, being stripped of a key to storage facilities where tools essential to his job are located, ostracization, lost wages, and lost promotional opportunity. (See Id. at 8).

         Plaintiff filed his first and amended complaints on August 13, 2016 (Dkt. 1; Dkt. 2). Defendants moved to dismiss on October 27, 2016 (Dkt. 19), and Plaintiff responded on November 17, 2016 (Dkt. 22). Oral argument was held before the undersigned on January 26, 2017, at which time the Court reserved decision.


         I. Standard of Review

         A. Lack of Subject Matter Jurisdiction

         "A motion questioning the Court's subject matter jurisdiction must be considered before other challenges since the Court must have jurisdiction before it can properly determine the merits of a claim." Djordjevic v. Postmaster Gen., U.S.P.S., 911 F.Supp. 72, 74 (E.D.N.Y. 1995). "When considering a motion to dismiss for lack of subject matter jurisdiction or for failure to state a cause of action, a court must accept as true all material factual allegations in the complaint." Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). "[T]he district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002). "Indeed, a challenge to the jurisdictional elements of a plaintiffs claim allows the Court 'to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" Celestine v. Mt. Vernon Neighborhood Health Ctr., 289 F.Supp.2d 392, 399 (S.D.N.Y. 2003), aff'd, 403 F.3d 76 (citation omitted). "The court may consider affidavits and other materials beyond the pleadings but cannot 'rely on conclusory or hearsay statements contained in the affidavits.'" Young v. United States, No. 12-CV-2342 (ARR)(SG), 2014 WL 1153911, at *6 (E.D.N.Y. Mar. 20, 2014) (citation omitted).

         B. Failure to State a Claim upon which Relief can be Granted

         "A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the party's claim for relief." Zucco v. Auto Zone, Inc., 800 F.Supp.2d 473, 475 (W.D.N.Y. 2011). A court should consider the motion "accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiffs favor." Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008) (citation omitted). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (citations omitted). Thus, "at a bare minimum, the operative standard requires the 'plaintiff to provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" Goldstein v. Pataki, 516 F.3d 50, 56-57 (2d Cir. 2008) (citations omitted).

         II. Motion to Dismiss as to Defendant Germain ...

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