Monsour v. New York State Office for People with Developmental Disabilities et al

Filing 36

DECISION AND ORDER granting 22 Motion to Dismiss for Lack of Subject Matter Jurisdiction; granting 22 Motion to Dismiss for Failure to State a Claim, and all claims against Introne are DISMISSED WITH PREJUDICE. Signed by Senior Judge Thomas J. McAvoy on 3/12/14. (tab)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------JEFFREY MONSOUR,
Plaintiff,
-against-

1:13-CV-0336 (TJM)(CFH)

THE NEW YORK STATE OFFICE FOR
PEOPLE WITH DEVELOPMENTAL
DISABILITIES, JAMES INTRONE, and
CATHY LABARGE,
Defendants.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge

DECISION & ORDER
I. INTRODUCTION
Plaintiff JEFFREY MONSOUR (“Plaintiff”) commenced this action against THE
NEW YORK STATE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES
(“OPWDD”), JAMES INTRONE (“Introne”), and CATHY LABARGE (“LaBarge”). Presently
before the Court is Defendant Introne’s motion to dismiss the claims against him. (Motion,
dkt. # 22).
Plaintiff asserts claims against Introne pursuant to 42 U.S.C. § 1983 (First
Amendment retaliation), state law (breach of contract); the federal False Claims Act, 31
U.S.C. § 3730(h); and New York's False Claims Act, N.Y. State Fin. Law § 191. Introne
moves to dismiss these claims pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Plaintiff
opposes the motion, and Introne has filed a Reply. The Court has considered each of
these in arriving at its conclusions set forth below.

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II.

STANDARDS OF REVIEW
a.

Amended Pleading

Plaintiff filed an Amended Complaint after Defendant filed his motion to dismiss.
Inasmuch as the Amended Complaint supersedes the original Complaint, and both parties
having addressed their arguments to the allegations in the Amended Complaint, the Court
will address the sufficiency of the Amended Complaint.
b.

Fed. R. Civ. P. 12(b)(1)

A motion brought pursuant to FED. R. CIV. P. 12(b)(1) challenges the subject matter
of the Court to address a case or certain claims in the case. A case is to be dismissed for
lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1) when the district
court lacks the statutory or constitutional power to adjudicate it. Makarova v. United
States, 201 F. 3d 110, 113 (2d Cir. 2000). A plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence that it exists. See Luckett v.
Bure, 290 F.3d 493, 497 (2d Cir. 2002); see also Malik v. Meissner, 82 F.3d 560, 562 (2d
Cir. 1996). When a defendant moves to dismiss claims pursuant to Fed. R. Civ. P.
12(b)(1), "the movant is deemed to be challenging the factual basis for the court's subject
matter jurisdiction." Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir.
1993). For the purposes of such a motion, “the allegations in the complaint are not
controlling . . . and only uncontroverted factual allegations are accepted as true.” Id.
Both the movant and pleader may use affidavits and other pleading materials to
support or oppose a motion to dismiss for lack of subject matter jurisdiction. See
Makarova, 201 F.3d at 113; Filetech S.A. v. France Telecom, S.A., 157 F.3d 922, 932 (2d

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Cir. 1998); John Street Leasehold, LLC v. Capital Mgt. Res., L.P., 154 F. Supp. 527, 533
(S.D.N.Y. 2001). Further, “jurisdiction must be shown affirmatively, and that showing is
not made by drawing from the pleadings inferences favorable to the party asserting it.”
Gunst v. Seaga, No. 05 Civ 2626 DAB, 2007 WL 1032265, at *2 (S.D.N.Y. March 30,
2007) (quoting Shipping Financial Services Corp. v. Drakos, 140 F.3d 129 (2d Cir. 1998)).
“Thus, the standard used to evaluate a Rule 12(b)(1) motion is similar to that used for
summary judgment under Fed. R. Civ. P. 56.” Lopresti v. Merson, 2001 WL 1132051, at *5
(S.D.N.Y. Sept. 21, 2001).
c.

12(b)(6)

On a motion to dismiss, the Court must accept “all factual allegations in the
complaint as true, and draw[] all reasonable inferences in the plaintiff's favor." Holmes v.
Grubman, 568 F.3d 329, 335 (2d Cir. 2009) (internal quotation marks omitted). This tenet
does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
"Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id. at 678. "To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face." Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
III.

BACKGROUND1
a.

Factual Background

Plaintiff has been employed by the New York State Office for People with
Developmental Disabilities (“OPWDD”) for fourteen years. (Am. Compl. ¶ 3.) During
1
For purposes of this motion, the Court accepts as true the well-pleaded allegations of the Amended
Complaint.

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that time, Plaintiff has complained about the treatment of individuals with disabilities in
OPWDD’s care and become an outspoken advocate for the disabled. (Id. ¶¶ 3, 10, 43-53,
57, 59, 63-68, 78.)
In 2009, Capital District Developmental Disabilities Services Office (“DDSO”) issued
a Notice of Discipline to Plaintiff regarding an incident involving a co-worker and a
OPWDD consumer. (Id. ¶¶ 4, 20, 23.) Plaintiff was also temporarily reassigned as a result
of the incident. (Id. ¶ 21.) Plaintiff challenged the charge of misconduct, resulting in
arbitration (“NOD Arbitration”). (Id. ¶¶ 4, 24-25.) Defendant Cathy LaBarge, Director of
Labor Relations of OPWDD, participated in the NOD Arbitration on behalf of the DDSO.
(Id. ¶¶ 19, 25.)
On September 30, 2011, the parties settled the NOD Arbitration, resulting in a
stipulated Consent Award. (Id. ¶ 26.) As agreed by the parties, Plaintiff received a letter of
reprimand, which indicated that it would remain in his personnel file for eighteen months,
together with the Notice of Discipline, the Consent Award and Plaintiff’s rebuttal letter. (Id.
¶ 27.)
Thereafter, Plaintiff requested a copy of his personnel file. In it he found the Notice
of Discipline with an e-mail attached, dated October 12, 2011, from Defendant LaBarge to
certain OPWDD and DDSO employees (the “LaBarge Memo”). According to Plaintiff, the
LaBarge Memo contained falsehoods that may have resulted in him being denied “two
opportunities for promotion, even though he was the most qualified applicant.” (Id. ¶ 75;
see id. ¶¶ 5, 32, 40.)
On May 7, 2012, Governor Cuomo and Mr. Introne, the former Deputy Secretary for

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Health and Director of Healthcare Redesign,2 met with Michael Carey, whose autistic son
died while in the care of OPWDD and has since become an outspoken advocate for
disabled children and adults. (Id. ¶ 61.) During that meeting, Mr. Carey requested that
Governor Cuomo ensure Plaintiff was transferred away from OPWDD’s hostile work
environment. (Id. ¶¶ 7, 61.) Governor Cuomo, in turn, asked Mr. Introne to oversee the
transfer. (Id. ¶¶ 7, 61.) Plaintiff met with Mr. Introne in November 2012. According to
Plaintiff, Mr. Introne indicated that he would find a “suitable position” for Plaintiff. (Id. ¶ 62.)
The following month, however, Mr. Introne advised Mr. Carey, in writing, that Plaintiff
“ha[d] decided to continue in his present position . . . .” (Id. ¶ 70.)
By letter dated February 12, 2013 to Governor Cuomo, Mr. Carey again raised
concerns about Plaintiff’s work environment, as well as his mental state, and denied the
accuracy of Mr. Introne’s prior suggestion that Plaintiff wanted to continue in his present
position. (Id. ¶ 72.) Plaintiff alleges that, to date, he has not received a “reasonable
employment offer from the state.” (Id. ¶ 62.) Plaintiff also asserts, in conclusory fashion,
that Mr. Introne “retaliated” against him for “whistleblowing activities” by failing to: (1)
provide another employment opportunity; and (2) eliminate hostility at OPWDD. (Id. ¶¶ 74,
75, 77, 93, 120, 125.)
B.

Procedural Background

On March 25, 2013, Plaintiff commenced this action against Mr. Introne and Ms.
LaBarge, in their official capacities, and OPWDD, seeking compensatory and punitive
damages and attorney’s fees and costs. In his initial complaint, Plaintiff asserted nine

2

Mr. Introne has retired from these positions.

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claims, seven of which were asserted against Mr. Introne in his official capacity, including
claims for violation of 42 U.S.C. § 1983 (First Amendment retaliation, violation of equal
protection, and wrongful discharge in violation of the Fifth Amendment), breach of
contract, violation of New York Civil Service Law § 75-b, and violations of the federal and
New York State false claims acts.
All defendants moved to dismiss the initial complaint on July 5, 2013. In lieu of a
response to the motions, Plaintiff filed the Amended Complaint on July 25, 2013. In the
Amended Complaint, Plaintiff sets forth seven claims, the following four of which are
asserted against Introne in both his individual and official capacities:
-First Claim: First Amendment retaliation, pursuant to 42 U.S.C. § 1983;
-Second Claim: Breach of Oral Contract;
-Sixth Claim: Violation of anti-retaliation provision of the federal False Claims
Act, 31 U.S.C. § 3730(h); and
-Seventh Claim: Violation of anti-retaliation provision of New York’s False
Claims Act, N.Y. State Fin. Law § 191.
Plaintiff seeks compensatory damages; punitive damages; attorneys fees and
costs; an order “referring the underlying civil rights allegations to the United States
attorney for investigation/prosecution;” and an order “removing [plaintiff] from the hostile
work environment, and placing him in a comparable replacement position.” Am. Compl.
pp. 32-33.
By Order dated July 31, 2013, the Court granted defendants leave to file
memoranda of law in support of their motions in light of the filing of the Amended
Complaint. Introne contends that the Court should dismiss the Amended Complaint in its
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entirety and with prejudice as to him. Plaintiff has opposed this motion, and Introne has
replied.
IV.

DISCUSSION
a.

Sovereign Immunity

Introne moves to dismiss the claims against him based upon Eleventh Amendment
immunity. The Eleventh Amendment serves as a jurisdictional bar to suits against a state
agency regardless of the nature of the relief sought, including suits in equity. Pennhurst
State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984); Green v. Mansour, 474
U.S. 64, 72-73 (1985); see also Komlosi v. New York State Office of Mental Retardation
and Developmental Disabilities, 64 F.3d 810 (2d Cir. 1995)(OMRDD is an arm of the state
and is immune under the Eleventh Amendment). “To the extent a state official is sued for
damages in his or her official capacity, such a suit is deemed to be a suit against the state,
and the official is entitled to invoke the Eleventh Amendment immunity belonging to the
state.” Rourke v. N.Y.S. Dep’t of Corr. Servs. 915 F. Supp. 525, 539 (N.D.N.Y. 1995)
(McAvoy, J.) (citing Berman Enters., Inc. v. Jorling, 3 F.3d 602, 606 (2d Cir. 1993), cert.
denied, 510 U.S. 1073 (1994); Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d
Cir. 1993)).
A narrow exception to this immunity allows a federal court to issue an injunction
against a state official in his or her official capacity who is acting contrary to federal law.
Ex Parte Young, 209 U.S. 123 (1908); see Pennhurst, 465 U.S. at 102; New York Health
and Hospitals Corporation et al. v. Perales, 50 F.3d 129 (2d Cir. 1995). This exception is a
limited one, utilized only “when there is a specific conflict between the federal mandate

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and the state plan or practice that a federal right is implicated,” Doe v. Pfrommer, 148 F.
3d 73, 80-81 (2d Cir. 1998), and is authorized to "vindicate the supremacy of [federal]
law." Ward v. Thomas, 207 F.3d 114, 119 (2d Cir. 2000). 3
To the extent the claims against Introne in his official capacity seek monetary
damages, they must be dismissed under the Eleventh Amendment. Moreover, despite
that Plaintiff seeks what could be construed as prospective injunctive relief, there is no
dispute that Introne has retried and is no longer a state official. Thus , he no longer has
any “official capacity” and any suit seeking prospective relief against him is not cognizable.
See Roniger v. McCall, 22 F. Supp. 2d 156, 161 (S.D.N.Y. 1998) (dismissing claim against
former state official sued in “official capacity”). Moreover, Plaintiff does not allege – nor
can he allege – that Mr. Introne has the authority to transfer Plaintiff from his current
position to a “comparable replacement position” with the State. Thus, all claims against
Introne in his official capacity must be dismissed.
To the extent the parties argue whether the Eleventh Amendment applies to the
claims brought against Introne in his individual capacity, the arguments are academic
because, as discussed below, each claim lacks substantive merit.
b.

Section 1983 - First Amendment Retaliation

To state a claim under 42 U.S.C. § 1983, a plaintiff must show that: (1) the
defendant official acted under “color of state law”; and (2) his or her conduct or actions

3

The Supreme Court has held that “[i]n determining whether the doctrine of Ex Parte Young avoids an
Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’"
Verizon Maryland Inc. v. Public Serv. Comm. Of Maryland, 122 S. Ct. 1753, 1760 (2002)(quoting Idaho v.
Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)(O'Connor, J., joined by Scalia and Thomas, JJ.,
concurring in part and concurring in judgment). The inquiry “does not include an analysis of the merits of the
claim.” Id. at 1761.

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deprived plaintiff of a right, privilege, or immunity guaranteed by the Constitution or laws of
the United States. Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). The Supreme Court
has made clear that “[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a
plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676 (“Government
officials may not be held liable for the unconstitutional conduct of their subordinates under
a theory of respondeat superior.”); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.
1977) (“[P]ersonal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.”) (citing cases). It is well-established
that a high-ranking official, such as Introne, may not be held liable for damages for
constitutional violations merely because he once held a high position of authority. Black v.
Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
Plaintiff has expressly disclaimed any reliance on a supervisor theory of liability,
(Pl’s Br. at 13), and thus is required to show that Introne directly participated in the
violation of Plaintiff’s constitutional rights. See Provost v. City of Newburgh, 262 F.3d 146,
155 (2d Cir. 2001). To state a prima facie case of First Amendment retaliation under §
1983, a plaintiff must allege facts plausibly suggesting that: (1) the speech at issue was
constitutionally protected; (2) the defendant took adverse employment action against the
plaintiff; and (3) there was a causal connection between the speech and the adverse
employment action so that it can be said that the speech was a motivating factor in the
determination. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977); Washington v. Cnty. of Rockland, 373 F.3d 310, 320 (2d Cir. 2004). Adverse

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employment actions may include both harsh and less severe sanctions, including
discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand.
See Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002). But only retaliatory conduct
sufficient to “deter a similarly situated individual of ordinary firmness from exercising his or
her constitutional rights” constitutes adverse action taken. Zelnik v. Fashion Inst. of Tech.,
464 F.3d 217, 225 (2d Cir. 2006) (internal quotation marks omitted).
Plaintiff fails to plead a plead a plausible First Amended retaliation claim against
Introne. First, Introne had no power or authority to “remedy” Plaintiff’s working
environment at OPWDD. Introne did not work in or for OPWDD, which is an “autonomous
agency” headed by its commissioner. N.Y. Mental Hyg. Law §§ 13.01 (establishing
OPWDD as “a new autonomous agency”), 13.03(2) (defining the commissioner as “the
head of the office for people with developmental disabilities”). It is the commissioner that
is statutorily vested with “the professional jurisdiction, supervision, and control of
[OPWDD],” id. § 13.11(a), as well as the legal authority to “appoint and remove . . .
[OPWDD’s] . . . officers and employees . . . ,” id. § 13.19. By contrast, no law, rule or
regulation conferred on Mr. Introne legal authority to exercise supervisory authority or
make personnel decisions at OPWDD. See generally, N.Y. Civ. Serv. Law § 2(9) (defining
“appointing authority” or “appointing officer” for purposes of N.Y. Civ. Serv. Law to mean
an “officer, commission or body having the power of appointment to subordinate
positions”); 19 N.Y.C.R.R. §935.1(b) (defining “appointing authority” for purposes of New
York State Ethics Law to “mean that individual or body that has the authority by law, rule
or regulation to appoint a person to a position, or that individual or body to whom such

10

authority may be properly delegated by law, rule or regulation”).
Second, Plaintiff alleges merely that Introne did not find him “suitable” employment
before retiring, but this falls short of establishing that Introne took any actionable adverse
employment action that would “deter a similarly situated individual of ordinary firmness
from exercising his or her constitutional rights.” Zelnik v. Fashion Inst. of Tech., 464 F.3d
217, 225 (2d Cir. 2006) (internal quotation marks omitted). While Plaintiff has remained in
his current position, the Amended Complaint fails to allege any adverse consequences
resulting from this continued employment or that Introne took any action that have
prevented Plaintiff from himself finding another position into which he could have
transferred. Nor does the Amended Complaint provide factual support for Plaintiff’s
conclusory assertions of working in a “hostile work environment.”
Third, conclusory labels aside (Pl’s Br. at 15 (citing Amend. Compl. ¶¶ 74, 77, 79,
92)), the Amended Complaint is devoid of facts showing that Introne acted with
discriminatory animus toward Plaintiff on account of Plaintiff’s speech. See Iqbal, 556 U.S.
at 681 (holding allegations were insufficient to state § 1983 claim where Plaintiff’s
allegations were merely consistent with discriminatory intent, but did “not plausibly
establish this purpose”); id. at 686 (holding conclusory allegations of motivation are
insufficient).
Thus, because Plaintiff has failed to “nudge” his First Amendment retaliation claim
against Introne “across the line from conceivable to plausible,” the claim must be
dismissed. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Inasmuch as Plaintiff
cannot establish that Introne had the authority to transfer Plaintiff, and has failed to allege,

11

despite filing an amended complaint after Defendants’4 motions to dismiss, facts plausibly
indicating that Introne took action to prevent Plaintiff’s transfer or was motivated in his
alleged omission by Plaintiff’s speech, the dismissal is with prejudice.
c.

Breach of Contract

Plaintiff claims in the Amended Complaint that an enforceable oral contract was
formed when Governor Cuomo, at the request of Michael Carey, asked Introne to find
Plaintiff another job. Plaintiff further alleges that Introne violated this oral contract when he
later stated that Plaintiff did not want to transfer jobs, and when Introne failed to find
Plaintiff a suitable alternative position.
Under New York law,5 to establish a triable breach of contract claim Plaintiff must
set forth evidence of: 1) the existence of a contract between the parties; 2) adequate
performance of that contract by Plaintiff; 3) breach of the contract by Defendant; and 4)
damages. Eternity Global Master Fund Ltd. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168,
177 (2d Cir. 2004). A breach of contract “claim that fails to allege facts sufficient to show
that an enforceable contract existed between the parties is subject to dismissal.” Berman
v. Sugo LLC, 580 F. Supp. 2d 191, 202 (S.D.N.Y. 2008) (internal citations and citation
omitted).
Proof of the existence of a contract requires proof of an "offer, acceptance,
consideration, mutual assent and intent to be bound" by the parties. Leibowitz v. Cornell

4

The others defendants also filed a motion to dismiss before Plaintiff filed his Amended Complaint.

5

Because both parties have relied on New York law in their memoranda of law, they have implicitly
consented to the application of New York law. This "‘implied consent ... is sufficient to establish choice of
law.'" Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 138 (2d Cir. 2000) (quoting Tehran–Berkeley Civil &
Envtl. Eng'rs v. Tippetts–Abbett–McCarthy–Stratton, 888 F.2d 239, 242 (2d Cir.1989)).

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Univ., 584 F.3d 487, 507 (2d Cir. 2009). Plaintiff has alleged no facts that would support
these elements.
“An offer is a ‘manifestation of willingness to enter into a bargain, so made as to
justify another person in understanding that his assent to that bargain is invited and will
conclude it.’” Cacchillo v. Insmed, Inc., No. 1:10-cv-1199, 2013 WL 622220, at *14 n.41
(N.D.N.Y. Feb. 19, 2013)(McAvoy, S.J.)(quoting Restatement (Second) of Contracts § 24
(1981)), aff’d --- Fed. Appx. ----, 2014 WL 43891 (2d Cir. Jan. 07, 2014); accord Concilla
v. May, 214 A.D.2d 848, 849 (3d Dep’t 1995). Introne’s statement that he “would find a
suitable position for Mr. Monsour,” is, at best, a gratuitous statement of future intention,
and not a binding offer. Introne’s statement lacks the definiteness and certainty of a
legally enforceable offer. Under New York law, to be enforceable, a promise “must be
sufficiently certain and specific so that what was promised can be ascertained.” Martin v.
Schumacher, 52 N.Y.2d 105, 109 (1981); see also Cobble Hill Nursing Home, Inc. v.
Henry & Warren Corp., 74 N.Y.2d 475, 482 (1989) (“Few principles are better settled in
the law of contracts than the requirement of definiteness. If an agreement is not
reasonably certain in its material terms, there can be no legally enforceable contract.”).
Here, the alleged promise is not reasonably certain in its material terms, including, for
example, the type of position that might be “suitable” for Plaintiff, and the time for Introne’s
performance and Plaintiff’s acceptance. Similarly, Plaintiff has failed to allege his own
acceptance, in word or deed, of the purported offer.
Plaintiff has also failed to identify or otherwise allege any consideration in exchange
for Introne’s purported promise. See Weiner v. McGraw–Hill, Inc., 57 N.Y.2d 458, 464

13

(1982)(All contracts must be supported by consideration, consisting of “a benefit to the
promisor or a detriment to the promisee.”) (citing Holt v. Feigenbaum, 52 N.Y.2d 291, 299
(1981)). Plaintiff has alleged no benefit to Introne in making a “promise” to find Plaintiff
another job. To the contrary, Plaintiff alleges that Introne was directed to find him a new
job by Governor Cuomo. (Am. Compl. ¶¶ 61, 74.)
Nor has Plaintiff alleged that anything was “promised, done, forborne or suffered”
by him as consideration for the promise purportedly made to him. Weiner, 57 N.Y.2d at
464 (interior quotation marks and citation omitted). Plaintiff has not alleged that he has
refrained from doing that which he had a legal right to do, or that he performed any act
that he was otherwise not legally required to perform. Accordingly, the putative oral
promise is unsupported by consideration and unenforceable.
Moreover, Plaintiff has alleged no facts suggesting there was mutual assent or
intent to be bound by either party to the alleged oral contract. See Express Indus. &
Terminal Corp. v. N.Y.S. Dep’t of Transp., 693 N.Y.S.2d 857, 860 (1999)(In order for a
contract to be enforceable, there must be a “manifestation of mutual assent sufficiently
definite to assure that the parties are truly in agreement with respect to all material
terms.”). “The unilateral understandings of one party, no matter how subjectively
reasonable, are insufficient to form the basis of a contractual promise.” See Suthers v.
Amgen Inc., 372 F. Supp. 2d 416, 424 (S.D.N.Y. 2005) (citing Di Giulio v. City of
Buffalo, 237 A.D.2d 938, 939 (4th Dep’t 1997)); see also I.G. Second Gen. Partners, L.P.
v. Duane Reade, 17 A.D.3d 206, 208 (1st Dep’t 2005) (holding that there must be a
meeting of the minds to have a valid, enforceable contractual obligation). Here, Plaintiff

14

has alleged no facts suggesting that he or Introne agreed or intended to be bound by
contract.
In addition, Plaintiff has failed to allege causation and damages stemming from the
purported breach. Nowhere in the Amended Complaint does Plaintiff identify any out-ofpocket losses. There is no allegation that he was promised a higher paying job, only that
he was promised “another well-paying job.” (Am. Compl. ¶ 61.) While Plaintiff alleges that
he has suffered psychological damages and emotional distress generally, (id. ¶ 87), he
fails to tie these purported injuries to the alleged breach of oral contract. But even if he
did, the general rule in New York is that no right of recovery exists for mental distress
resulting from a breach of contract. Wehringer v. Standard Sec. Life Ins. Co., 57 N.Y.2d
757, 759 (1982).
Finally, the Amended Complaint establishes that Introne was acting on
behalf of a disclosed principal, and therefore he is not liable to Plaintiff based on a
purported contract to obtain a “reasonable employment offer from the state.” (Am. Compl.
¶¶ 61-62.) It is well settled that when an agent acts on behalf of a disclosed principal, the
agent will not be personally liable for a breach of the contract, unless there is clear and
explicit evidence of the agent’s intention to be bound. See Savoy Record Co. v. Cardinal
Exp. Corp., 15 N.Y.2d 1, 4 (1964); Lerner v. Amalgamated Clothing & Textile Workers
Union, 938 F.2d 2, 5 (2d Cir. 1991)(applying New York law). The Amended Complaint
states only that Introne made his statement as a result of being directed by his supervisor
“to find Mr. Monsour another job out of OPWDD.” (Am. Compl. ¶ 61.) There are no
allegations suggesting that Introne was acting on his own behalf or that he intended to be

15

bound to any contract with Plaintiff. Moreover, even assuming the putative agreement
was enforceable, Introne is not liable for its breach. See EQT Infrastructure Ltd. v. Smith,
861 F. Supp. 2d 220, 232 (S.D.N.Y. 2012) (dismissing contract claim against agent of
disclosed principal where plaintiff failed to allege that the agent intended to be bound by
agreement in his individual capacity). Thus, Plaintiff fails to allege a plausible breach of
contract claim in the Amended Complaint.
However, Plaintiff argues in his opposition memorandum of law that despite “the
name he gave the cause of action,” he has alleged a viable claim for promissory estoppel.
But, it is well settled that “[a] party may not defeat a motion to dismiss a contract claim . . .
by recasting the claim as one for promissory estoppel.” Cohen v. Avanade, Inc., 874 F.
Supp. 2d 315, 322 (S.D.N.Y. 2012); see, e.g., Butvin v. DoubleClick, Inc., No. 99-cv-4727,
2000 WL 827673, at *13 (S.D.N.Y. June 26, 2000) (dismissing plaintiff's promissory
estoppel claim where, as here, it was first raised in his brief filed in opposition to the
defendant’s motion to dismiss); R.C. Congel v. Crownline Boats, Inc., No. 00-cv-0149,
2000 WL 1610781, at *4 (N.D.N.Y. Oct. 10, 2000) (rejecting assertion of promissory
estoppel claim raised in brief because such a claim, “like any other claim, . . . must be
pleaded according to the Federal Rules of Civil Procedure”). Simply stated, Plaintiff
cannot replead claims in his memorandum of law.
Nevertheless, even if Plaintiff were permitted to amend the Amended Complaint to
assert a claim for promissory estoppel, the claim would fail. “To make out a claim for
promissory estoppel, a plaintiff must prove (1) a clear and unambiguous promise; (2)
reasonable and foreseeable reliance by the promisee; and (3) an unconscionable injury to

16

the relying party as a result of the reliance.” Readco, Inc. v. Marine Midland Bank, 81 F.3d
295, 301 (2d Cir. 1996) (applying New York law).
The “promise” alleged by Plaintiff is merely Introne’s statement that “he would
find a suitable position for Mr. Monsour.” (Amend. Compl. ¶ 62.) Plaintiff does not allege
that there was any discussion of the term “suitable” or the time frame in which Introne
would find such a position. Such a vague, indefinite statement is insufficient as a matter
of law. See, e.g., Ogindo v. DeFleur, No. 07-cv-1322, 2008 WL 5105153, at *8 (N.D.N.Y.
Oct. 16, 2008) (McAvoy, J.) (dismissing promissory estoppel claim where complaint failed
to identify any clear and unambiguous promises upon which plaintiff reasonably could
rely); Keough v. Texaco, Inc., No. 97-cv-5981, 1999 WL 61836 *9-10 (S.D.N.Y. 1999)
(holding promises that employment would be “long-standing” and that plaintiff was “in-line
to be the next chief executive officer” were too indefinite as to time to be enforceable
under a promissory estoppel theory).
Further, even if Introne had identified a suitable position, Plaintiff would still
have to apply and qualify for it.6 Thus, any reliance by Plaintiff on Mr. Introne’s
statement as a promise or guarantee of finding a “suitable” new position was
unreasonable. See Ogindo, 2008 WL 5105153, at *8 (holding reliance on statement that
plaintiff “could defend his dissertation in December 2005” not reasonable where plaintiff
knew or should have known that his ability to defend would depend on factors outside
defendant’s control). In any event, the Amended Complaint is devoid of any allegations
showing that Plaintiff did, in fact, rely on Mr. Introne’s statement. Plaintiff alleges no

6
Plaintiff acknowledges this point in the Amended Complaint, alleging that he has applied for two
positions but, for reasons unrelated to Mr. Introne, was not hired to fill them. (Amend. Compl. ¶ 75.)

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forbearance or any affirmative action on his part at all. Plaintiff’s allegations that he
remains in his current position, he “repeatedly asked” to be transferred, and his current
work environment is somehow “dangerous” and getting worse, (Pl’s Br. at 16 (citing
Amend. Compl. ¶¶ 8, 71, 72)), do not establish reliance.
Also, the Amended Complaint lacks allegations suggesting that Plaintiff’s purported
reliance “resulted in some prejudicial change in his position.” Tierney v. Capricorn
Investors, L.P., 189 A.D.2d 629, 632 (1st Dep’t 1993) (internal quotations and citation
omitted). While Plaintiff alleges that his work environment is getting worse, that he has
been placed on administrative leave, and he has suffered economic and psychological
harm, (Pl’s Br. at 16 (citing Amend. Compl. ¶¶ 72, 77, 82, 87)), none of these alleged
injuries stem from Plaintiff’s reliance on anything done or said by Introne. Rather, they are
the result of the independent actions of others.
Accordingly, Plaintiff’s Second Claim is insufficient as a matter of law and must be
dismissed. Because Plaintiff has failed to put forth a plausible breach of contract or
equitable estoppel claim despite having formally amending his complaint once and, by
argument, a second time, it is clear that he cannot allege sufficient facts to present a
plausible claim in this regard. Accordingly, the Second Claims against Introne is
dismissed with prejudice.
d.

Retaliation under the Federal and New York State False Claims Acts

Plaintiff brings retaliation claims under the so-called “whistleblower” provisions of
the federal False Claims Act (“FCA”), 31 U.S.C. § 3730(h), and the New York False
Claims Act (“NYFCA”), N.Y. State Finance Law § 191. However, an individual may not be

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sued under § 3730(h) or Section 191,7 either in an individual or official capacity; liability
may only be imposed on employers. See Fisch v. New Heights Academy Charter Sch.,
No. 12-cv-2033, 2012 WL 4049959, at *4 (S.D.N.Y. Sep. 13, 2012); (“Section 3730(h)
imposes liability only on employers.”); Aryai v. Forfeiture Support Assocs., LLC, No. 1:10cv-08952, 2012 U.S. Dist. LEXIS 125227, at *12-13 (S.D.N.Y. Aug. 27, 2012) (“section
3730(h) does not apply to individuals”); U.S. ex rel. Sarafoglou v. Weill Med. Coll. of
Cornell Univ., 451 F. Supp. 2d 613, 624-25 (S.D.N.Y. 2006) (holding that “only employers
can incur liability under § 3730(h)”); N.Y. State Fin. Law § 191(1).8
Plaintiff’s reliance on a 2009 amendment to § 3730(h) that deleted the word
“employer” from the statute for the proposition that individual liability now exists is
misplaced. Courts in this Circuit have recognized that this amendment did not evidence
Congress’s intent to add individual liability for a violation of the retaliation provisions of the
FCA. See, e.g., Aryai v. Forfeiture Support Assoc., LLC, No. 1:10-cv-8952, 2012 U.S. Dist.
LEXIS 125227, at *19–27 (S.D.N.Y. Aug. 27, 2012) (discussing the change in statutory
language and finding that when Congress deleted “employer” from the FCA it did not

7

Section 191 “is essentially identical in language and substance to its federal counterpart,” Forkell v.
Lott Assisted Living Corp., No. 10-cv-5765, 2012 WL 1901199, at *14 (S.D.N.Y. May 21, 2012), and “courts
interpret [the former] by closely tracking judicial interpretation of [the latter].” Landfield v. Tamaeres Real
Estate Holdings, Inc., No. 11-cv-105149, 2012 WL 3135052, at *6 (N.Y. Sup. Ct. Jul. 23, 2012).
8

The relevant provision of the NYFCA provides as follows:

Any current or former employee, contractor, or agent of any private or public employer who is
discharged, demoted, suspended, threatened, harassed or in any other manner
discriminated against in the terms and conditions of employment, or otherwise harmed or
penalized by an employer, or a prospective employer, because of lawful acts done by the
employee, contractor, agent, or associated others in furtherance of an action brought under
this article or other efforts to stop one or more violations of this article, shall be entitled to all
relief necessary to make the employee, contractor or agent whole. . . .
N.Y. State Fin. Law § 191(1) (emphasis added).

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mean to add individual liability for a violation of the retaliation provision). The only contrary
decision in this Circuit, U.S. ex rel. Moore v. Cmty. Health Servs., Inc., No. 3:09- cv-1127,
2012 WL 1069474, at *9 (D. Conn. Mar. 29, 2012), contains a “one sentence analysis” that
has been rejected both within and outside this Circuit. See, e.g., Fisch v. New Heights
Acad. Charter Sch., No. 12-cv-2033, 2012 WL 4049959, at *4 (S.D.N.Y. Sept. 13, 2012)
(noting existence of Moore, but holding nonetheless that “Section 3730(h) imposes liability
only on employers”); Elkharwily v. Mayo Holding Co., No. 12-cv-3062, 2013 WL 3338731,
at *4 (D. Minn. Jul. 2, 2013) (declining to follow Moore, noting that it had “conclude[ed]—in
one single sentence analysis—that omission of the word “employer” created individual
liability”). This Court likewise finds that the 2009 amendment did not evidence Congress’s
intent to expand § 3730(h) beyond employers. Accordingly, Introne is not subject to suit
under this provision. Moreover, Section 191(1) of the NYFCA includes the word
“employer” and, as such, unambiguously precludes liability attaching to individual
defendants.
Plaintiff’s Sixth and Seventh Claims against Introne must be dismissed. Because
better pleading could not cure the deficiencies with these claims, the claims are dismissed
with prejudice.
V.

CONCLUSION
For the reasons discussed above, Defendant Introne’s motion to dismiss (dkt. # 22)

is GRANTED, and all claims against Introne are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Dated: March 12, 2014

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