Scroxton v. Town of Southold et al

Filing 59

MEMORANDUM AND ORDER granting 35 Motion to Dismiss; granting 37 Motion to Dismiss; granting 51 Motion to Dismiss. For the foregoing reasons, Defendants' motions are GRANTED. The Amended Complaint is dismissed, with prejudice. The Clerk of the Court is directed to terminate all motions and mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 3/24/2010. (Valle, Christine)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------x EDWARD J. SCROXTON, Plaintiff, - against TOWN OF SOUTHOLD, TOWN BOARD OF THE TOWN OF SOUTHOLD, PETER HARRIS, as Superintendent of Highways of the Town of Southold, CSEA LOCAL 1000 AFSCIIB AFL-CIO, and NICHOLAS J. LaMORTE, President of CSEA Local 1000 AFSCME AFL-CIO, MEMORANDUM & ORDER 08-CV-4491(JS)(AKT)

Defendants. ----------------------------------x APPEARANCES: For Plaintiff: Rita A. Pelt, Esq. 50 Charles Lindbergh Boulevard Uniondale, NY 11553 For Defendants: Town of Southold, Town Board of Southold, and Peter Harris CSEA Local 1000 AFSCME AFL-CIO Sharon N. Berlin, Esq. Lauren Robin Schnitzer, Esq. Lamb & Barnosky, LLP 534 Broadhollow Road, Suite 210 Melville, NY 11747-2300 Daren J. Rylewicz, Esq. Civil Service Employees Association 143 Washington Avenue, Box 7125 Capitol Station Albany, NY 12210 Timothy Connick, Esq. CSEA Legal Department 143 Washington Avenue Albany, NY 12210 President Nicholas J. LaMorte No appearance

SEYBERT, District Judge: Plaintiff commenced this action alleging employment

discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 1112 et seq., as amended ("ADA"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., as amended ("ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII"), 42 U.S.C. § 1983, and New York Executive Law § 296. Additionally, Plaintiff

alleges claims for intentional infliction of emotional distress, tortuous interference with contract, common-law breach of

fiduciary duty, and violations of New York State Labor Law § 740. After the dismissals remain Board as of of several other Town parties, of the

following ("Town")

parties and Town

Defendants: Southold

Southold "Town

(collectively,

Defendants"), Peter Harris ("Harris"), CSEA Local 1000 AFSCME AFL-CIO ("CSEA" or "Union"), and President Nicholas J. LaMorte ("LaMorte"). Pending before the Court are Defendants' three For the reasons that follow, the motions

motions to dismiss. are GRANTED.

BACKGROUND1 Plaintiff was employed by the Town in its Highway

Department as an Auto Equipment Operator.

Despite his title,

Plaintiff alleges that he was assigned and performed the duties
1

The facts, as stated herein, are taken from the Amended Complaint, and for purposes of deciding these motions, are regarded as true.

2

of

Labor

Crew

Leader.

(Am.

Compl.

¶¶

16,

27.)

In

1993,

Plaintiff alleges, the Town began a policy of retaliation and reprimands against him because of his protected speech about "his dissatisfaction with the Town's violations and disregard for environmental laws and public safety" (Id. ¶¶ 29-30.) In sclerosis. depression. 2001, Plaintiff was diagnosed with multiple

(Id. ¶ 31.) (Id. ¶ 34).

In 2003, Plaintiff began treatment for In early 2004, the Town arbitrarily

altered the procedure for him to take sick and vacation leave in order to harass and hinder him and refused to grant him medical leave without pay, even though the Town was aware of his

impairments and needs.

(Id. ¶¶ 35-37.)

Additionally, at some

unspecified time in 2004, Plaintiff was demoted to the position of Laborer (Id. ¶ 39.) Between February and April 2004, Plaintiff filed

several complaints against his supervisor regarding verbal abuse and harassment; but Plaintiff does not specify the bases for these actions in the Amended Complaint. 2004, the Town attorneys notified (Id. ¶ 38.) that In April would

Plaintiff

they

investigate his complaints. On June 23,

(Id. ¶ 40.) the Town Controller ordered

2004,

Plaintiff to return to duty without the required clearance from the Employees Assistance Program (EAP) or the return to duty test. (Id. ¶ 42.) Approximately two weeks later, on July 6, 3

2004,

Plaintiff

was

injured

while

at

work

and

suffered The next

complications to both arms and elbows.

(Id. ¶ 43.)

morning, Plaintiff went to the Town's shop to request a form to report the workers' compensation injury and a leave slip for reporting sick that day due to his July 6th injury. While completing the report, Plaintiff was given (Id. ¶ 45.) a "closed

document" and a ferry reservation card without explanation. (Id. ¶ 46.) When Plaintiff opened and read the document, he realized

that the ferry had left, and he could not report to Groton, Connecticut to sit for the return to duty test that morning. (Id. ¶ 47.) The following week, Plaintiff received the Town (Id. ¶ 52.) an appeal By letter of he that never

Attorney's report finding no harassment. dated July 26, 2004, (id. ¶ Plaintiff 53.),

requested

determination,

but,

Plaintiff (Id. ¶ 54.)

claims,

received a response to his appeal.

Plaintiff was served with notice for a Civil Service hearing on or about July 29, 2004. decision rendered on August 30, A hearing was held and a 2004 on the basis of

insubordination and/or misconduct.

The determination did not

address the issues of disability discrimination, retaliation or accommodations. terminated unspecified (Id. ¶ 55.) On September 7, 2004, the Town (Id. ¶ 56.) At the some Civil

Plaintiff's time

employment.

thereafter,

Plaintiff

appealed

Service determination and served a notice of claim upon the 4

Town.

(Id. a

¶

57.)

On

or

about Law

March §

14, 50-h

2005,

the

Town of

conducted Plaintiff. the Town

General

Municipal

examination

(Am. Compl. ¶ 59.) notified Plaintiff

By letter dated July 26, 2005, that it would not engage in

settlement negotiations at that time. 31, 2006, Plaintiff of Human filed a charge

(Id. ¶ 61.) with the New

On August York State

Division

Rights

("NYSDHR") (Id. ¶ 20.)

alleging

disability

discrimination and retaliation.

On or about June 23, 2008, the NYSDHR mailed Plaintiff a Determination and Order After Investigation, in which it

stated: "the State Division has determined that there is NO PROBABLE CAUSE to believe that the respondents have engaged in or are engaging of[.]" in (Id. the ¶ unlawful 21.) discriminatory findings practice that

complained

The

stated

Plaintiff's employment was terminated because (1) he did not follow through with the EAP program, (2) tested positive for marijuana, (3) violated the Town's sick leave policy, and (4) violated the terms of an agreement by refusing to submit to a drug and alcohol test. Additionally, the NYSDHR found

any claims regarding actions that took place prior to August 31, 2005, for the purposes of the Human Rights Law, and prior to November 4, 2005 for the purposes of Title VII and the ADA, are untimely. All of the alleged discrimination and harassment that the Complainant claims to have suffered, with the exception of his claim regarding his retirement benefits . . . occurred prior 5

to, and culminated in, [the] Town's termination of the Complainant's employment on September 7, 2004. Consequently, all of the Complainant's claims regarding events which occurred during his employment with the Town are time-barred by the applicable statutes of limitation, and must be dismissed. (Id. ¶¶ 21-22.) The NYSDHR's The complaint was therefore dismissed. advised that Plaintiff could (Id.) its

notice

appeal

Determination to the New York State Supreme Court within 60 days after service of the Determination. (Id.) Plaintiff did not

appeal that Determination, but requested a review of the NYSDHR determination ("EEOC"). by the Equal Employment Opportunity Commission

On August 11, 2008, the EEOC issued a "Dismissal and (Id. ¶¶ 23-24.) The EEOC adopted the

Notice of Rights" letter. NYSDHR's findings in full.

On November 6, 2008, Plaintiff initiated this case. On April 17, for 2009, this to Court issued a notice action of impending 2009

dismissal

failure

prosecute

the

("April

Order"), which stated in relevant part: The above-captioned case was filed on Nov. 6, 2008. There has been no affidavit of service filed, nor any other submissions by plaintiff, in the five months since. IT IS HEREBY ORDERED that, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, this case will be dismissed, without prejudice, for lack of prosecution if, within fifteen (15) days from the date of this order, no further explanation for the lack of proceedings has been FILED AND APPROVED by this Court. 6

The plaintiff must show good cause for failure to serve the summons and complaint within the 120 days pennitted, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (Apr. 2009 Order 1.) On May 5, 2009, Plaintiff's counsel filed

an affirmation of good cause requesting that the Court excuse the failure to timely serve the Summons and Complaint. 8, 2009, more than two months after the On May of

expiration

Plaintiff's time for serving the Summons and Complaint, the Town Defendants were served with the Summons and Complaint. Then, on

July 31, 2009, Plaintiff filed an Amended Complaint and properly effectuated service. CSEA and the Town Defendants filed their

motions to dismiss on August 10, 2009, and on December 24, 2009, Harris filed his motion, arguing that Plaintiff has failed to state a claim for a variety of reasons, including that

Plaintiff's claims are time-barred.

In an attempt to circumvent

the statute of limitations, Plaintiff points out that it timely appealed the determination of the NYSDHR, but does not address his initial failure to submit a complaint to NYSDHR in a timely manner. DISCUSSION I. Applicable Standard Of Review Under Rule 12(b)(6) On a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must satisfy a flexible plausibility standard, which obliges a pleader to amplify 7 a claim with some factual

allegations in those contexts where such amplification is needed to render the claim plausible. 157-58 (2d Cir. 2007). Iqbal v. Hasty, 490 F.3d 143,

The complaint must be enough to raise a Bell Atl. Corp. v.

right to relief above the speculative level.

Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 1965 (2007). This standard does not require heightened fact pleading

of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 1974. In applying this

standard, the district court must accept the factual allegations set forth in in the complaint of as true and See draw all reasonable v. v. Caplaw Oxford 2005).

inferences Enter., Health 448

favor

plaintiff. 521 421 (2d F.3d Cir. 96,

Cleveland Nechis (2d

F.3d

518,

2006); 100

Plans,

Inc.,

Cir.

Additionally, the Court is confined to the allegations contained within the four corners of the complaint. Pani v. Empire Blue However, the to [the

Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998.) Court may examine any written instrument

attached

complaint] or any statements or documents incorporated in it by reference as well as any document on which the complaint relies heavily. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 Of course, it may also consider matters of notice may be taken under FED. R. EVID. 201.

(2d Cir. 2002). which judicial

Kramer v. Time Warner, Inc., 837 F.2d 767,773 (2d Cir. 1991).

8

II.

Filing Periods and Statutes Of Limitations A. Title VII, ADEA, And ADA Under Title VII, the ADEA, and the ADA, a plaintiff

must file a charge of discrimination with the EEOC within 180 days after the claim accrued, or within 300 days after the claim accrued if he has filed a charge with a state agency that has authority to investigate such claims. See 42 U.S.C. § 2000e5(e)(1); 29 U.S.C. §§ 626(d)(1), 633(b); 29 U.S.C. § 626(d); 42 U.S.C. § 12117(a), incorporating the timeliness requirements of Title VII, as codified in 42 U.S.C. § 2000e-5(e)(1) (2004); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2nd Cir. 1998); Butts v. City of N.Y. Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993); Sundaram v. Brookhaven Nat'l Labs., 424 F. Supp. 2d 545, 559 (E.D.N.Y. 2006). These

statutory filing periods are "analogous to [ ] statute[s] of limitations," Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996), and, failure to timely file a charge acts as a bar to a plaintiff's action. See Hill v. Citibank Corp., 312

F. Supp. 2d 464, 472 (S.D.N.Y. 2004). In this case, the Town terminated Plaintiff's

employment on September 7, 2004. with the NYSDHR on August 31, 2006.

Plaintiff filed his charge This filing date is well In an effort to

beyond the 300-day statutory filing periods.

save his claims from being barred, Plaintiff argues that the 9

continuing violation doctrine preserves the claims that accrued before September 7, 2004. The continuing violation doctrine

"extends the limitations period for all claims of discriminatory acts committed under an ongoing policy of discrimination."

Sundaram, 424 F. Supp. 2d at 560 (citing Kulkarni v. City Univ. of New York, No. 01-CV-3019, 2001 WL 1415200, at * 3 (S.D.N.Y. Nov. 13, 2001) (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998))). Under the continuing violation exception, if a

plaintiff has filed a charge of discrimination "that is timely as to any incident of of discrimination all in furtherance of of an of

ongoing

policy

discrimination,

claims

acts

discrimination under that policy will be timely even if they would be untimely standing alone." Lambert v. Genesee Hosp., 10

F.3d 46, 53 (2d Cir. 1993), cert. denied, 511 U.S. 1052, 114 S. Ct. 1612, 128 L. Ed. 2d 339 (1994). continuing violation exception, To take advantage of the a plaintiff must

however,

clearly assert that theory of timeliness both in his EEOC charge and in his complaint. See Fitzgerald v. Henderson, 251 F.3d

345, 360 (2d Cir. 2001); Miller v. Int'l Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir.), cert. denied, 474 U.S. 851, 106 S. Ct. 148, 88 L. Ed. 2d 122 (1985). Generally, courts of this circuit look unfavorably

upon the continuing violation exception. 10

Brown v. Time, Inc.,

No. 95-CV-10081, 1997 WL 231143, at * 3 (S.D.N.Y. May 7, 1997) (citing Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1415 (S.D.N.Y. 1989)). The exception usually applies only in those

cases involving specific discriminatory policies or mechanisms, such as discriminatory seniority lists or employment tests.

See, e.g., Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1992); does Kulkarni, not apply 2001 to WL 1415200, at * 3. The

exception

discrete,

completed

employment

actions such as transfers, failures to promote, demotions, or inadequate wages. See, e.g., Griffin v. New York City Off-Track

Betting Corp., No. 98-CV-5278, 2002 WL 252758, at * 2 (S.D.N.Y. Feb. 20, 2002) (citing Lightfoot, 110 F.3d at 907; Crosland v. City of New York, 140 F. Supp. 2d 300, 308 (S.D.N.Y. 2001)); Malarkey v. Texaco, 559 F. Supp. 117, 121 (S.D.N.Y. 1982),

aff'd, 704 F.2d 674 (2d Cir. 1983) (per curiam). exception underlying expedition in the majority of the filing of time and cases, limit, "would which

To apply the subvert is to the

purpose in the

ensure of

handling

of

claims

discrimination[.]"

Govia v. Century 21, Inc., 140 F. Supp. 2d

323, 325 (S.D.N.Y. 2001). In this case, the Court finds that Plaintiff has

failed to establish that application of the continuing violation doctrine is proper; thus, all of Plaintiff's claims based on Title VII, the ADEA, or the ADA, any claims regarding actions 11

that took place prior to November 4, 2005, are untimely other than those relating to the calculation of his retirement

benefits, and are DISMISSED as time-barred. B. 42 U.S.C. § 1983 To determine the applicable statute of limitations for a Section 1983 claim, a federal court must look "to the law of the state in which the cause of action arose." Wallace v. Kato,

549 U.S. 384, 387, 127 S. Ct. 1091, 1094, 166 L. Ed. 2d 973 (2007). The time at which accrual begins, however, "is a

question of federal law that is not resolved by reference to state law." correctly Id. at 388. that, in In the present action, the parties New York, the general statute of See

agree

limitations for personal injury claims is three years. N.Y.C.P.L.R. ' 214(5). accrual began.

Thus, the only issue presented is when

When state law is not directly on point, Section 1983 actions "are governed by federal rules conforming in general to common-law tort principles." Wallace, 549 U.S. at 388. Thus,

utilizing this standard, a claim's statute of limitations begins to accrue "when the plaintiff has `a complete and present cause of action.'" Id. (citing Bay Area Laundry and Dry Cleaning

Pension Trust Fund v. Ferber Corp. of Cal., 522 U.S. 192, 201, 118 S. Ct. 542, 139 L. Ed. 2d 553 (1941)).

12

C.

Breach Of Duty Of Fair Representation To the extent that Plaintiff has attempted to allege

breach of contract and breach of fiduciary claims, the Court recognizes that such claims are more appropriately characterized as a claim for breach of duty of fair representation. As CSEA

correctly points out, New York courts have repeatedly refused to characterize claims for breach of duty of fair representation as claims for breaches of contract, breach of fiduciary duty, or negligence. A.D.2d 142, See Roman v. City Employees Union Local 237, 300 753 N.Y.S.2d of 48 (App. claim Div. 2002) (refusing Dolce to v.

recognize

breach

contract

against

union);

Bayport-Blue UFSD, 286 A.D.2d 316, 728 N.Y.S.2d 772 (App. Div. 2001) (same); McClary v. CSEA, 133 A.D.2d 522, 520 N.Y.S.2d 88 (App. Div. 1987) (refusing to recognize negligence); Clissuras v. City of New York, 131 A.D.2d 717, 517 N.Y.S.2d 39 (App. Div. 1987) (no fraud, conspiracy, breach of contract, breach of

fiduciary duty and negligence claims against union); Herington v. CSEA, 130 A.D.2d 961, 516 N.Y.S.2d 377 (App. Div. 1987) (no cause of action for breach of contract or negligence against union). Section 217(2)(a) of the CPLR provides that an action against a labor union to recover damages for breach of the duty of fair representation must be commenced within four months of 13

the date the employee knew or should have known that the breach occurred, or suffered actual harm, whichever is later.

N.Y.C.P.L.R. § 217(2)(a); see Williams v. New York City Transit Auth., 458 F.3d 67, 69 (2d Cir. 2006) (citing N.Y.C.P.L.R. § 217(2)(a)); Schermerhorn v. Metro. Transp. Auth., 156 F.3d 351, 353 (2d Cir. 1998); Jiminez v. UFT, 239 A.D.2d 265, 657 N.Y.S.2d 672 (App. Div. 1996); Bitterman v. Herrick Teachers Ass'n, 220 A.D.2d 473, 632 N.Y.S.2d 173 (App. Div. 1995). Plaintiff statute of commenced this action out well in beyond In this case, the four-month thus, these

limitations

set

section

217;

claims must be DISMISSED. Even if the Court was to interpret Plaintiff's claim as a claim for breach of fiduciary duty, that claim would be time-barred. New York law does not provide a single statute of

limitations for breach of fiduciary duty claims; rather, the choice of the applicable limitations period depends on the

substantive remedy the plaintiff seeks.

See Loengard v. Sante

Fe Indus., 70 N.Y.2d 262, 266, 514 N.E.2d 113, 519 N.Y.S.2d 801 (1987). six-year Where the relief sought is equitable in nature, the limitations period applies. However, under CPLR §

214(3), when a party claims breach of fiduciary duty based on non-fraudulent tortious conduct and seeks only money damages, a three-year statute of limitations applies. Lefkowitz v. Bank of

New York, No. 01-CV-6252, 2009 WL 5033951, at *19 (S.D.N.Y. Dec. 14

22, 2009) (citing, inter alia, Kaufman v. Cohen, 760 N.Y.S.2d 157 (App. Div. 2003)); see Klein v. Gutman, 784 N.Y.S.2d 581, 584 (App. Div. 2004). Accordingly, the Court construes Plaintiff's claims

for breach of fiduciary duty and breach of contract as claims for breach of duty of fair representation; those claims are time-barred, and DISMISSED. D. Intentional Infliction Of Emotional Distress And Tortious Interference With Contract Under New York Law, the statute of limitations for a claim of intentional infliction of emotional distress is one year. N.Y.C.P.L.R. 215[3]; Dinerman v. City of New York Admin. Here,

for Children's Servs., 857 N.Y.S.2d 221 (App. Div. 2008).

Plaintiff commenced this case well beyond the one year statute of limitations. This claim is time-barred, and DISMISSED.

A claim for tortious interference with contract, on the other hand, is governed by a three-year statute of

limitations.

N.Y.C.P.L.R. 214[4]; Spinap Corp. v. Cafagno, 756 Tortious interference is not

N.Y.S.2d 86, 86 (App. Div. 2003). a continuing tort. Id.

The claim accrues when the injury is N.Y.C.P.L.R. 214[4]; Am. Fed. Group

sustained, not discovered.

v. Edelman, 722 N.Y.S.2d 870, 870 (App. Div. 2001). In this case, the alleged injuries must have accrued prior to Plaintiff's termination date. At the latest, these

15

injuries would have accrued over three years before Plaintiff commenced this action; thus, those claims are DISMISSED.2 III. New York State Executive Law And The Election Of Remedies Doctrine New York's Executive Law provides: Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such person had filed a complaint hereunder or with any local commission on human rights . . . provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division. N.Y. EXEC. LAW § 297(9). three exceptions, the "`Thus, absent application of one of the statute divests courts of jurisdiction

over human rights claims which have been presented to the DHR.'" Jeter v. New York City Dept. of Educ., 549 F. Supp. 2d 295, 302 (E.D.N.Y. 2008) (quoting Hamilton v. Niagara Frontier Transp. Auth., No. 00-CV-0300, 2007 WL 2241794, at *10-11 (W.D.N.Y. July 31, 2007); see York v. Assoc. of the Bar of the City of N.Y., 286 F.3d 122, 127 (2d Cir. 2002); Moodie v. Federal Reserve Bank of N.Y., 58 F.3d 879, 882 (2d Cir. 1995) ("[A] state law

depriving its courts of jurisdiction over a state law claim also
2

Even if Plaintiff's claims for tortious interference were timely, Plaintiff fails to meet his burden pursuant to Rule 12(b)(6). In any case, the Court is required to dismiss Plaintiff's claim.

16

operates to divest a federal court of jurisdiction to decide the claim.")). In this case, Plaintiff raised all of the same claims in his NYSDHR complaint as he does here, including his claims relating to retaliation under the Executive Law. In an ill-

conceived attempt to misrepresent the findings of the NYSDHR, Plaintiff cites to only those portions of the complaint in which NYSHR raises the timeliness grounds. Nevertheless, it is

apparent that Plaintiff's claims were dismissed on the merits and because they are time-barred. Thus, this Court lacks

jurisdiction over Plaintiff's claims under N.Y. EXEC. LAW § 296, and those claims are DISMISSED. IV. Section 1983 Conspiracy And Monell Claim "To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Newton v. City of

New York, 640 F. Supp. 2d 426, 440 (S.D.N.Y. 2009) (quoting Pangburn Plaintiff v. Culbertson, not, 200 F.3d allege 65, 72 (2d Cir. 1999). was

need

however,

that

the

conspiracy

motivated by some degree of racial animus.

See Carson v. Lewis,

35 F. Supp. 2d 250, 270 (E.D.N.Y. 1999); Blankman v. County of Nassau, 819 F. Supp. 198, 205 (E.D.N.Y. 1993). 17

As CSEA properly points out, the Second Circuit Court of Appeals has held that CSEA is not a "person" under § 1983 and therefore, cannot be sued under this statute. State Lottery, 53 Fed. Appx. 176, 177 Rivas v. New York (2002) (citing,

Fitzpatrick v. Wert, 432 F. Supp. 601, 602 (W.D.N.Y. 1977) and Monell v. Dept. of Social Servs., 532 F.2d 259, 262-63 (2d Cir. 1976)). Moreover, even if CSEA could properly be held liable

under such a claim, Plaintiff's allegations cannot satisfy the requirements of Rule 12(b)(6). To prevail against a municipality in a Section 1983 action, a plaintiff must plead and prove three elements: (1) an official policy or custom that (2) caused the plaintiff to be subjected to (3) a denial of a constitutional right. See

Hartline v. Gallo, 546 F.3d 95, 103 (2d Cir. 2008); Zahra v. Southold, 48 F.3d 674, 685 (2d Cir. 1995); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983); see also Monell v. Dep=t of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1977). constitutional even though "Local governing bodies . . . may be sued for deprivations a custom pursuant has not to governmental formal `custom' approval Monell,

such

received

through the body's official decisionmaking channels." 436 U.S. at 690-91 (citations omitted).

A plaintiff also has

the burden of showing "a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." 18

City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203, 103 L. Ed. 2d 412 (1989). "It is only when the `execution

of the government's policy or custom . . . inflicts the injury' that the municipality may be held liable under ' 1983."

Springfield v. Kibbe, 480 U.S. 257, 267, 107 S. Ct. 1114, 1119, 94 L. Ed. 2d 293 (1987) (O'Connor, J., dissenting). Here, Plaintiff has failed to provide sufficient

detail, beyond speculation, to demonstrate an official policy or custom rights. that resulted in a deprivation of his constitutional

Therefore, Plaintiff's Section 1983 claims against the

Town Defendants are DISMISSED. V. New York State Labor Law 740 Section 740 of N.Y. Labor Law creates a cause of

action in favor of an employee against whom an employer has retaliated for disclosing to a supervisor or to a public body, a violation of law on the part of the employer, which "creates and presents a substantial and specific danger to the public, health or safety[.]" See N.Y. Labor Law § 740(2)(a). However, section

740 does not apply to public employers; rather, public employers are covered by New York Civil Service Law § 75-b. DiBiase v.

Barber, No. 06-CV-5355, 2008 WL 4455601, at *5 (E.D.N.Y. Sept. 30, 2008); see Tamayo v. City of New York, No. 02-CV-8030, 2004 WL 137198, at *7 (S.D.N.Y. Jan 27, 2004).

19

Here, therefore,

the

Town 740

is is

clearly

a

public

employer;

section

inapplicable.

Accordingly,

Plaintiff's claim is DISMISSED. VI. Plaintiff's First Amendment Claim Pursuant To 42 U.S.C. § 1983 To establish a First Amendment retaliation claim, a plaintiff must show that "(1) his conduct was protected by the First Amendment, and (2) such conduct prompted or substantially caused defendant's action." Ferran v. Town of Nassau, 471 F.3d

363, 368 (2d Cir. 2006) (internal quotation marks and citations omitted). plaintiffs exercise Some courts have added a third element, requiring to show that First the defendant's free actions speech chilled the See

of

their

Amendment

rights.

Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). Compare Morrison v. Johnson, 429 F.3d 48, 50 (2d Cir. 2005) ("Having concluded that the defendants had probable cause for Curley's arrest . . . we stated that in order for Curley to prevail on this free speech claim, he was required to show, inter alia, that his First Amendment marks rights were actually omitted,

chilled.")

(internal

quotation

and

citations

first alteration in original). Assuming protected sufficient by the arguendo, First to that Plaintiff's Plaintiff his conduct to was

Amendment, show that

fails

allege or

facts

conduct

prompted

20

substantially caused Defendants to terminate his employment or miscalculate his retirement benefits. 368. See Ferran, 471 F.3d at

Moreover, Plaintiff has also failed to plead sufficient

facts to demonstrate that the exercise of his First Amendment rights was chilled by the Defendants' actions. Therefore,

Plaintiff's First Amendment claims are DISMISSED. VII. Plaintiff's Remaining Constitutional Claims According to the Amended Complaint, in addition to the aforementioned claims, Plaintiff seeks to recover pursuant to the "Fourth, Fifth, Ninth, and [F]ourteenth Amendments to the Constitution." None of remaining allegations in the Amended

Complaint provide any basis for recovery under these amendments. Thus, Plaintiff's remaining claims are DISMISSED. CONCLUSION For GRANTED. the foregoing reasons, Defendants' motions are

The Amended Complaint is dismissed, with prejudice.

The Clerk of the Court is directed to terminate all motions and mark this matter CLOSED. SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: March 24 , 2010 Central Islip, New York

21