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Lefebvre v. Morgan

United States District Court, S.D. New York

February 10, 2017

GENE A. LEFEBVRE, Plaintiff,
v.
JONATHAN P. MORGAN, et al., Defendants.

          Gene A. Lefebvre Wappinger Falls, NY Pro Se Plaintiff

          Felicia Gross, Esq. Office of the Attorney General of the State of New York New York, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS, District Judge

         Pro se Plaintiff Gene A. Lefebvre (“Plaintiff”) filed the instant Second Amended Complaint (“SAC”) against Jonathan P. Morgan, Robert E. Levin, Robert K. Palmer, James Barron, Karim Adeen-Hasan, and Daniel J. Cunningham (collectively, “Defendants”), bringing claims under 42 U.S.C. § 1983 for violations of plaintiff's constitutional rights to due process, privacy, and free speech. Before the Court is Defendants' Motion To Dismiss plaintiff's Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). (Dkt. No. 36.) For the following reasons, Defendants' Motion is granted.

         I. Background

         A. Factual Background

         The following facts are drawn from plaintiff's SAC and are taken as true for the purpose of resolving the instant Motion. The SAC is largely identical to the Amended Complaint except as identified below. Therefore, what follows is an abbreviated account of the facts giving rise to this Action.[1]

         1. The Parties

         Plaintiff has worked for the New York State Office of General Services (“OGS”) as an assistant building construction engineer from November 4, 1993 to the present. (Second Am. Compl. (“SAC”) ¶ 2 (Dkt. No. 25).) plaintiff's role covered two types of state construction work: (1) “Capital Projects, ” which involve work “designed and bid by OGS in Albany, ” and then “handed down to the site of construction . . . where Plaintiff was, and is, employed, ” (id. ¶ 9), and (2) “Emergency Projects, ” such as “flooding, fire, a broken water main, or a short circuit in an electrical transformer, ” (id.). With respect to the latter work, “Plaintiff would receive a call from Albany, or from a local supervisor, and . . . travel to the problem location.” (Id. ¶ 10.) He would then “determine the scope of the repair, formulate a contractor response, and solicit contractors to bid. Once a low bidder was determined, Plaintiff would direct the contractor to do the work until the emergency condition no longer existed.” (Id.)

         Defendants are various supervisors, directors, and officers at OGS. Specifically, Defendant Jonathan P. Morgan (“Morgan”) is, and at all relevant times was, “Area Supervisor”; Defendant Robert E. Levin (“Levin”) is, and at all relevant times was, “Regional Supervisor”; Defendant Robert K. Palmer (“Palmer”) is, and at all relevant times was, “Director of the Division of Construction”; Defendant James Barron (“Barron”) is, and at all relevant times was, “Director of Labor Relations”; Defendant Karim Adeen-Hasan (“Adeen-Hasan”) is, and at all relevant times was, “Chief Diversity Officer”; and Defendant Daniel J. Cunningham (“Cunningham”) is, and at all relevant times was, “Director of Human Resources Management.” (Id. ¶¶ 3-8.)

         2. plaintiff's Employment at OGS

         The SAC describes plaintiff's participation in two specific projects for OGS: repairs to the “State Emergency Management Office Building/Bunker” in the aftermath of hurricane Irene, (id. ¶¶ 11-16), and roof removal and installation at “DOT Region 8 Maintenance Headquarters, ” (id. ¶¶ 17-19). The SAC's descriptions of these projects are identical to those in the Amended Complaint, with the exception of plaintiff's additional allegation that he “had two responsibilities; one, to accurately describe the contract specifications and emergency requirements, and two, to spearhead discussions to prevent potential pitfalls that the Plaintiff has no direct control over.” (Id. ¶ 20.) Plaintiff asserts that as to the second responsibility, he “spoke as a matter of [p]ublic concern” and made requests that were “not . . . a job duty of a construction inspector.” (Id.)

         In relation to plaintiff's “[d]aily [w]ork, ” the SAC asserts instances of threats and harassment by Defendants, particularly between December 27, 2010 and March 25, 2011 and again between October 6, 2011 and December 7, 2011. (See generally Id. ¶¶ 21-77.) For example:

• Morgan frequently “made . . . false accusations that Plaintiff had been AWOL, ” including on December 27, 2010 and throughout the month of January 2011. (Id. ¶¶ 21-22.)
• Morgan “verbally assault[ed] Plaintiff throughout the month of January 2011, ” including on or about January 27, 2011, when Morgan “verbally terrorize[d] Plaintiff, ” threatened Plaintiff with being AWOL for seeking medical attention without asking for use of leave, and said to him, “You don't have long now, ” and “I am going to break you, ” which led Plaintiff to leave the office due to cardiac difficulties. (Id. ¶¶ 23-26, 28.)
• Morgan continued to “verbally terrorize” Plaintiff in early February 2011, and Plaintiff again had to leave the office due to cardiac difficulties, spending the night of February 2, 2011 in the emergency room. (Id. ¶ 29.)
• On February 8, 2011, Morgan, with Levin's authority, falsely accused Plaintiff of “unspecified tardiness and unspecified absence without authorization.” (Id. ¶ 30.)
• On February 9, 2011, Morgan “requested that Albany Human Resources revoke plaintiff's submission of his previous year's timesheets.” (Id. ¶ 33.) He made the same request the following week, which amounted to “falsely accus[ing] Plaintiff of misappropriating state time-a serious charge.” (Id. ¶ 38.)
• Also on February 9, 2011, Morgan falsely accused Plaintiff of forging Sloan Kettering forms that confirmed Plaintiff donated blood on certain days. (Id. ¶ 34.)
• On February 15, 2011, Levin “requested that Albany Human Resources revoke plaintiff's submission of six month and eleven month old timesheets.” (Id. ¶ 36.)
• On February 16, 2011, Morgan threatened to deny plaintiff's request for time off to go to the doctor, (id. ¶ 37), and on February 22 and February 25, 2011, he denied such requests, (id. ¶¶ 42, 46).
• On February 17, 2011, Plaintiff requested Palmer “intercede and investigate the unhealthy and potentially life-threatening abuse” that Morgan and Levin “were continually inflicting on Plaintiff.” (Id. ¶ 41.)
• On February 23, 2011, Levin backdated plaintiff's most recent Performance Evaluation, to allow Morgan to give Plaintiff a six-month review in May 2011. (Id. ¶ 44.)
• On February 25, 2011, Morgan falsely accused Plaintiff of improper work procedures, verbally abused and yelled at Plaintiff, falsely accused him of being AWOL, and wrote him up for being AWOL. (Id. ¶¶ 45, 47.)
• On or about March 3, 2011, Morgan “revoked plaintiff's sworn . . . Leave and Accrual Tracking System . . . document.” (Id. ¶ 48.)
• On or about October 6, 2011, Morgan falsely accused Plaintiff of being AWOL the previous day, and supported the accusation by wrongfully adjusting times and dates. Plaintiff disputed these times and dates with Morgan but “to no avail.” (Id. ¶¶ 67-68.)
• On or about October 18, 2011, Morgan attempted to provoke Plaintiff by stating to him upon entering the office, “Thanks for leaving so you don't hurt me.” Plaintiff sent an email to Palmer and Adeen-Hasan notifying them of the incident. (Id. ¶¶ 69-70.)
• Plaintiff claims that on or about December 5, 2011, Morgan falsely accused Plaintiff of being AWOL on October 6 and October 12, 2011. (Id. ¶¶ 72-73.) Levin “wrongfully backed . . . Morgan's false accusations.” (Id. ¶ 74.)

         The SAC specifically alleges that Defendants “wrongfully demanded” that Plaintiff disclose certain medical information and that such information “require[d] Plaintiff to publicly air medical issues with superiors” and other employees. (Id. ¶¶ 31, 50.) Plaintiff contends that these demands-which spanned from February to March 2011-“violated [plaintiff's] right to privacy” and were made “solely for the purpose of mining . . . for [P]laintiff's medical information.” (Id. ¶¶ 31-32.) Plaintiff asserts that “Defendant Levin had his secretary scan and e-mail plaintiff's doctor's information, contrary to HIPPA, and plaintiff's constitutional right to privacy, as well as practices of common decency, ” (id. ¶ 52), and that “[u]pon information and belief, Defendant Levin sent plaintiff's personal medical information to other supervisors in [OGS], ” (id.). Plaintiff sought “relief from exposing ...


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