United States District Court, W.D. New York
JOEL W. FREDERICK, Plaintiff,
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.
DECISION AND ORDER
ELIZABETH A. WOLWORD United States District Judge
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.
AND PROCEDURAL BACKGROUND
following facts are drawn from Plaintiffs amended complaint.
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,  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).
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" 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
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." (Id.).
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.).
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." (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
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).
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.
Standard of Review
Lack of Subject Matter Jurisdiction
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).
Failure to State a Claim upon which Relief can be
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
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).
Motion to Dismiss as to Defendant Germain ...