CHARLES J. SIRAGUSA, District Judge.
Shannon Casey ("Plaintiff") commenced this action after she was fired from her job as a "bus attendant" for the Pittsford Central School District. Now before the Court is the Defendants' motion (Docket No. [#5]) to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The application is denied.
The following facts are taken from Plaintiff's Complaint [#1] and are presumed to be true for purposes of this Decision and Order. The events relevant to Plaintiff's action occurred between September 2016 and December 2016. At all relevant times Plaintiff was employed as a bus attendant by the Pittsford Central School District ("the District"). At all relevant times the Board of Education for the Pittsford Central School District ("the Board") was "responsible for prescribing and enforcing rules and regulations at [the District]."
On or about September 13, 2016, Plaintiff began her employment with the District. Herrick and Chantra were Plaintiff's direct supervisors. Plaintiff's job required her to monitor and supervise students as they were being transported to and from school on buses operated by a bus driver also employed by the District. In that capacity, on September 26, 2016, Plaintiff was supervising a student, J.C., who swore at her and kicked her twice in her rib cage. The Complaint does not indicate J.C.'s age or indicate that Plaintiff suffered any actual injury from the kicks.
Subsequently, Plaintiff continued to work on the bus that transported J.C., as well as his siblings I.T. and E.S. During this period the siblings acted violently toward each other, such as by slapping each other's faces, but were not violent toward Plaintiff. On one occasion, J.C. told Plaintiff that his sister, I.T., had slammed his face into a car door and his head into a wall. On September 29, 2016, J.C. violently swung a tree branch at three District employees, though it is unclear whether Plaintiff was one of those employees. The Complaint indicates that Plaintiff documented these incidents in her notebook.
On October 4, 2016, Plaintiff was again assigned to the afternoon bus run that was to transport J.C., I.T. and E.S. from school to their residence. J.C. and E.S. were on the bus, but the bus had to wait for I.T. to arrive. Upon I.T.'s arrival, Plaintiff told her that her tardiness had inconvenienced the others on the bus, which caused I.T. to flare her nostrils and clench her fists in anger. The situation escalated when E.S. announced to I.T. that while they had been waiting for I.T. to board the bus, Plaintiff had been "talking smack and cussing" about I.T., though Plaintiff denies that she did so. In any event, when the bus arrived at the residence of J.C., I.T. and E.S., the students executed an attack on Plaintiff that they had apparently planned out during the bus ride. Specifically, I.T. punched Plaintiff in the face, J.C. repeatedly kicked her and E.S. filmed the incident. (The Complaint also refers to a "surveillance" recording of the incident, which apparently means the bus was equipped with a surveillance camera that captured the incident.) The bus driver blandly told the students to stop attacking Plaintiff but did not leave his seat or otherwise intervene. Plaintiff asked the bus driver to call 911, but he declined to do so.
After the incident, at approximately 3:30 p.m. that day, Plaintiff sent a text message to Chantra stating, "I'm having major issues with [I.T.].
However, two days later, on October 6, 2016, Plaintiff was interviewed by "a local Rochester, NY radio station discussing various topics regarding the October 4, 2016 incident."
Complaint [#1] at ¶ 50.
The day after the interview, October 7, 2016, Plaintiff met with Herrick and Leone. Leone accused Plaintiff of "making false and/or malicious accusations during the radio interview including but not limiting [sic] statements involving one or more of the children involved in the October 4, 2016 incident."
Plaintiff, who had apparently stopped working after the incident on October 4th, continued to remain out of work. On or about November 2, 2016, Herrick contacted Plaintiff and inquired whether her doctor had cleared her to return to work.
On November 3, 2016, Plaintiff met with Leone, Herrick and a union representative. During the meeting Leone questioned Plaintiff for about an hour concerning the radio interview.
On November 9, 2016, Plaintiff attended another meeting with Leone and Herrick. During the meeting, Leone notified Plaintiff that her employment was being terminated, and provided her with a "termination letter" explaining the decision. The actual letter is not before the Court. However, according to the Complaint the termination letter "informed Plaintiff she was terminated because of certain statements she made on the live radio interview."
On November 9, 2017, Plaintiff commenced this action. The Complaint purports to assert the following six causes of action: 1) a claim under 42 U.S.C. § 1983 alleging retaliation in violation of Plaintiff's First Amendment rights against Leone and Herrick; 2) a retaliation claim under the New York State Constitution, Article I, § 8, against all defendants except Chantra; 3) a claim under New York law for breach of the special duty to protect, against all defendants except Leone; 4) a claim under New York law for negligent supervision against all defendants except Leone; 5) a claim under New York law for negligent training against all defendants except Leone; and 6) a claim under New York law for intentional infliction of emotional distress ("IIED") against Leone, Herrick and Chantra. The Complaint demands relief including compensatory and punitive damages.
On January 23, 2018, Defendants filed the subject motion [#5] to dismiss the Complaint pursuant to Rule 12(b)(6). The motion asserts the following arguments: 1) the third, fourth, fifth and sixth causes of action are barred because New York Worker's Compensation Law provides Plaintiff's exclusive remedy for work-related injuries; 2) punitive damages cannot be recovered against the District; 3) the state law claims are barred by the doctrine of Governmental immunity for discretionary acts; and 4) Leone and Herrick are entitled to qualified immunity as to the Section 1983 claim. With regard to the qualified immunity argument, Defendants contend that Plaintiff was fired for making inappropriate comments about students, and it is not clearly established that terminating an employee for that reason would violate the Constitution.
On March 16, 2018, Plaintiff filed a response [#8]. Plaintiff has agreed to voluntarily withdraw the third, fourth and fifth causes of action, but maintains that the sixth cause of action for IIED is not barred by the New York Worker's Compensation Law, apparently on the theory that the District and/or the Board caused or directed Leone, Herrick and Chantra to commit the intentional tort of IIED against Plaintiff. Plaintiff further contends that the second cause of action, alleging retaliation under the New York State Constitution, is not barred by doctrine of governmental immunity for discretionary acts. In that regard, Plaintiff states that the doctrine provides immunity from liability for discretionary acts but not ministerial acts, and that it is not presently clear whether the decision to terminate her employment was a discretionary act or a ministerial act. Additionally, Plaintiff contends that Leone and Herrick are not entitled to qualified immunity as to the § 1983 retaliation claim, since it was clearly established that public employees cannot be fired for speaking on matters of "public concern" such as "school policies" and "safety in the workplace." Finally, Plaintiff contends that she is entitled to pursue punitive damages against the individual defendants.
On April 6, 2018, Defendants filed a reply [#9] in which they essentially reiterate the points raised in their initial memorandum of law.
Based on the foregoing submissions, and Plaintiff's decision to withdraw the third, fourth and fifth causes of action, there appear to be three issues for the Court to resolve: First, whether Leone and Herrick are entitled to dismissal of the § 1983 claim as a matter of law based on the affirmative defense of qualified immunity; second, whether Defendants (except Chantra, who is not named in the claim) are entitled to dismissal of the New York retaliation claim as a matter of law based on the doctrine of governmental immunity for discretionary acts; and third, whether Leone, Herrick and Chantra are entitled to dismissal of the IIED claim as a matter of law based on the New York Worker's Compensation Law's exclusivity provision. There does not appear to be any real dispute over punitive damages, as Defendants assert only that such damages cannot be recovered against the District, and Plaintiff asserts that he is only seeking such damages against the individual defendants.
On November 29, 2018, counsel for the parties appeared before the undersigned for oral argument.
Defendants have moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the legal standards applicable to such a motion are clear:
Progressive Credit Union v. City of New York, 889 F.3d 40, 48 (2d Cir. May 1, 2018).
Heckman v. Town of Hempstead, 568 F. App'x 41, 43 (2d Cir. Jun. 3, 2014) (citations and internal quotation marks omitted).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964B65, 167 L.Ed.2d 929 (2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient `to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted).
When applying this "plausibility standard," the Court is guided by "two working principles":
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations and internal quotation marks omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has allegedCbut it has not shownCthat the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950 (2009) (citation omitted).
"[A]s Iqbal makes clear, a plausible claim must come before discovery, not the other way around." Angiulo v. Cty. of Westchester, No. 11-CV-7823 CS, 2012 WL 5278523, at *3 (S.D.N.Y. Oct. 25, 2012) (citation omitted); see also, McBeth v. Porges, 171 F.Supp.3d 216, 236 (S.D.N.Y. 2016) (Observing that pursuant to Iqbal's pleading standard, "the Federal Rules of Civil Procedure do `not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions or speculation.'") (quoting Iqbal).\
It is clear that when deciding a Rule 12(b)(6) motion the Court must accept the plausible factual allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999), cert. den. 531 U.S. 1052, 121 S.Ct. 657 (2000). It is also clear that an affirmative defense such as qualified immunity may be granted under Rule 12(b)(6) only "if the defense appears on the face of the complaint." Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998) (emphasis added). Because of these principles,
Garcia v. Does, 779 F.3d 84, 96-97 (2d Cir. 2015) (emphasis added, citations omitted); see also, Vincent v. Yelich, 718 F.3d 157, 167 (2d Cir. 2013) ("Where the nonexistence of a constitutional right [or violation] may be discerned from the face of the complaint, an official defendant sued in his individual capacity may be granted a dismissal on the ground of qualified immunity pursuant to Rule 12(b)(6)[.]") (emphasis added).
In sum, Leone and Herrick would only be entitled to dismissal of the § 1983 claim on the basis of qualified immunity if the face of Plaintiff's Complaint established their entitlement to the affirmative defense. However, the Court finds that the Complaint does not plead facts establishing the affirmative defense. In that regard, Leone and Herrick contend that they are entitled to qualified immunity because Plaintiff's employment was terminated due to the fact that she made inappropriate comments about a student, and it was not clearly established that firing her under those circumstances would violate her First Amendment right of free speech.
Defendants next contend that the second cause of action alleging retaliation in violation of the New York State Constitution is barred by the doctrine of governmental immunity for discretionary acts. On this point, Defendants contend that the alleged retaliation was the termination of Plaintiff's employment, which was a discretionary act covered by the doctrine of governmental immunity. Plaintiff agrees that Defendants would be entitled to such immunity if the termination of her employment was a discretionary act but maintains that at this stage of the proceeding it is not clear whether the termination of her employment was a discretionary act or a ministerial act.
New York's doctrine of governmental immunity for discretionary acts "shields public entities from liability for discretionary actions taken during the performance of governmental functions." Santaiti v. Town of Ramapo, 162 A.D.3d 921, 928, 80 N.Y.S.3d 288, 295-96 (2d Dept. 2018) (citation and internal quotation marks omitted). Pursuant to this doctrine,
Santaiti v. Town of Ramapo, 162 A.D.3d at 928, 80 N.Y.S.3d at 296 (citation and internal quotation marks omitted).
Similar to the defense of qualified immunity, New York's doctrine of governmental immunity for discretionary acts is an affirmative defense. See, Santaiti v. Town of Ramapo, 162 A.D.3d at 928, 80 N.Y.S.3d at 295 ("The doctrine of governmental immunity refers to an affirmative defense on which a defendant bears the burden of proof.") (citation and internal quotation marks omitted). Accordingly, a Rule 12(b)(6) motion on this ground may only be granted if the defendant's entitlement to the affirmative defense is clear from the face of the Complaint. However, that is not usually the case.
For example, in the Santaiti decision cited above, the New York State Supreme Court, Appellate Division Second Department, affirmed the trial court's denial of a motion to dismiss based on the doctrine of governmental immunity, stating:
Santaiti v. Town of Ramapo, 162 A.D.3d at 928-29, 80 N.Y.S.3d at 296-97 (citations and internal quotation marks omitted); see also, Guichard v. Town of Brookhaven, 26 F.Supp.3d 219, 229 (E.D.N.Y. 2014) ("The Court finds that Defendants' motion to dismiss on the ground of governmental immunity is premature and better reserved for a motion for summary judgment following discovery, which will shed light on the precise role that Tohill, Incagliato, and other Town employees played in the decision to clean up Plaintiff's property. Moreover, at this stage, the allegations of the Complaint preclude any argument that Defendants' actions were the result of `the exercise of reasoned judgment which could typically produce different acceptable results' because Plaintiff alleges that Defendants used the Town's nuisance abatement ordinance as a pretext to cause damage to Plaintiff's property and to dump garbage on Plaintiff's property and assess Plaintiff a fine for the cleanup.") (footnote omitted).
In the instant action, Defendants have not shown that their entitlement to the defense is evident from the Complaint. Rather, they merely assert as follows:
This conclusory assertion ignores the fact that the Complaint expressly denies that Plaintiff made inappropriate comments during the radio interview and alleges that such reason was a mere pretext. Moreover, it is not clear from either the Complaint or Defendants' motion what role each of the defendants may have played in the decision to terminate Plaintiff's employment or what District policies may have provided the discretion that was exercised. Accordingly, the motion to dismiss based on the doctrine of governmental immunity is denied.
The last issue for consideration is whether Leone, Herrick and Chantra are entitled to dismissal of the IIED claim as a matter of law based on the New York Worker's Compensation Law's exclusivity provision.
Doe v. State, 89 A.D.3d 787, 788, 933 N.Y.S.2d 688, 690 (2d Dept. 2011) (citations omitted).
Initially, Defendants' motion based on the Worker's Compensation Law was specifically directed at the third, fourth, fifth and sixth causes of action, but Plaintiff has now withdrawn all of those except the sixth cause of action, which alleges IIED. Regarding that claim, Defendant's moving memorandum of law states in pertinent part:
Def. Memo of Law [#5-1] at p. 5. Of course, October 4th is the date that Plaintiff was attacked on the school bus by I.T. and J.C., while E.S. filmed the incident. Plaintiff's response to this aspect of Defendant's motion, consisting of a mere three sentences, agrees with Defendants that "workers' compensation exclusivity does not preclude an employee's suit if the employer committed an intentional tort or another person committed such intentional wrong at the employer's direction," but unfortunately does not explain how her IIED claim fits into that exclusion. Indeed, neither the Complaint nor Plaintiff's response to Defendant's motion explains the particular conduct on which the IIED claim is based. Because of that, it is not clear whether Plaintiff is actually attempting to rely on the October 4th incident as a basis for the IIED claim, as Defendants suggest. Because of this lack of clarity, and because Defendant's motion in this regard is based solely on the Worker's Compensation Law exclusivity rule, the Court cannot presently find as a matter of law that Defendants are entitled to dismissal on that basis. Defendants' motion to dismiss the IIED claim is therefore denied.
Defendants' motion to dismiss [#5] is denied. Pursuant to Fed.R.Civ.P. 12(a)(4)(A), Defendants shall file and serve an answer to the Complaint within fourteen days after entry of this Decision and Order.
SO ORDERED.
