Alaimo v. New York State Nurses Assn.

2024 NY Slip Op 31206(U)

• Court: New York Supreme Court, New York County
• Decided: April 9, 2024
• Status: Unpublished

Opinion

Alaimo v New York State Nurses Assn. 2024 NY Slip Op 31206(U) April 9, 2024 Supreme Court, New York County Docket Number: Index No. 150879/2021 Judge: Shlomo S. Hagler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 150879/2021 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 04/09/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SHLOMO S. HAGLER PART 17 Justice -------------------X INDEX NO. 150879/2021 TERRY ALAIMO MOTION DATE 01/27/2022 Plaintiff, MOTION SEQ. NO. 001 -v- NEWYORK STATE NURSES ASSOCIATION, DECISION + ORDER ON MOTION Defendant.

-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18,21,22,25,26,27, 28,29,30, 31,32,33,34,38,46 were read on this motion to/for DISMISS

In this whistleblower protection and defamation action, plaintiff, Terry Alaimo, alleges

that she was defamed and wrongfully terminated after she filed a formal whistleblower

complaint regarding improper conduct and financial malfeasance of New York State Nurses

Association's ("NYSNA") officers. Defendant moved to dismiss, pursuant to CPLR 3211 (a)

(7), for failure to state a cause of action.

On October 21, 2022, this court dismissed four counts of defamation after submission of

papers and oral arguments, holding that plaintiff's claims failed to survive the rigorous standards

for pleading defamation by implication per se and defamation by implication. The only

remaining claim is one for retaliatory discharge in violation of New York's Not-For-Profit

Corporation Law Section 715-b (NPCL 715-b).

BACKGROUND The facts are taken from plaintiff's complaint (NYSCEF Doc No. 2) except as otherwise

indicated.

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Plaintiff Terry Alaimo is a former NYSNA employee. From 2015 to 2019, Plaintiff was

the Area Director for the Mt. Sinai hospital system. In this position, plaintiff participated in the

negotiation and enforcement of collective bargaining agreements with Mt. Sinai and supervised a

staff of six NYSNA employees.

NYSNA is a labor organization representing registered nurses in the State of New York,

including registered nurses at the Mt. Sinai hospital system. NYSNA is a non-profit corporation.

Plaintiff was hired in 2013 by then-Executive Director Jill Furillo. By 2015 she was

promoted by Furillo to the position of Area Director for the Mt. Sinai hospital system, the

position she held at the time of her discharge. In 2018, plaintiff and NYSNA President Judy

Sheridan-Gonzalez disagreed over the ratification of bargaining agreements being negotiated

between the hospital systems.

In 2019, plaintiff learned that formal charges were filed against Sheridan-Gonzalez and

then-Treasurer, Pat Kane, by 15 members of the union. Plaintiff was not a signatory to the

complaint because she was not a member of NYSNA. However, plaintiff states that she

participated in the "reform faction" that emerged after the formal charges were filed, by helping

to draft revisions to the NYSNA by-laws (id ,r 49). Ultimately, the reform faction was

unsuccessful in their effort to revise the by-laws, and both Sheridan-Gonzalez and Kane retained

their respective positions.

In December 2019, plaintiff filed a formal whistleblower report with the NYSNA Chief

of Staff and NYSNA Director of Human Resources against Sheridan-Gonzalez and Kane. She

alleged that Kane, while she was Treasurer, committed "gross campaign finance violations,"

including receiving a salary without working, and that Sheridan-Gonzalez had received an

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improper $15,000 loan from NYSNA and also had been receiving a full-time salary, in violation

of the NYSNA by-laws (id. ,r 65).

Also in December 2019, Ms. Kane was installed as the new Executive Director after the

resignation of Ms. Furillo. A month later, in January 2020, plaintiff was issued a final written

warning regarding performance issues.

In March 2020, at the beginning of the COVID-19 pandemic, plaintiff repeatedly clashed

with Diana Torres, a Mt. Sinai nurse, NYSNA member, and former member of the Mt. Sinai

Executive Committee, concerning NYSNA's efforts to obtain personal protective equipment

("PPE") for its members. Plaintiff states that Torres "continually bombarded" her and her staff

with "complaints about the lack of adequate PPE" (id. ,i 83).

On March 18, 2020 plaintiff wrote a profanity-laden email to Sheridan-Gonzalez, Kane,

and NYSNA Field Director Eric Smith, stating that Torres was "full of shit" and that she should

"shut the [] up" (id. ,i,i 129, 132, 133). On April 6, 2020, NYSNA sent plaintiff a letter stating

that the March 18 email violated NYSNA's Code of Conduct and that further disciplinary action

would be forthcoming (id. ,i,i 106, 137). Thereafter, on May 14, 2020, NYSNA terminated

plaintiff's employment.

ARGUMENTS

Defendant argues that the whistleblower retaliation claim against NYSNA must be

dismissed because NPCL 715-b is preempted by Labor Management Reporting and Disclosure

Act ("LMRDA") (29 USC§ 401 et seq., as added by Pub L 86-257, 73 US Stat 519). NYSNA

contends that the state law, created to protect non-profit employees from retaliation for filing

whistleblower reports, conflicts with the federal law, enacted to protect and promote union

democracy, and that as such, the state law must give way to the federal, pursuant to the

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Supremacy Clause of the U.S. Constitution. In addition, defendant argues that NPCL 715-b does

not create a private cause of action.

Plaintiff in opposition argues that there is no binding authority that requires a finding of

LMRDA preemption, that the cases cited by defendant are distinguishable, especially in that they

were decided after discovery was completed on summary judgment, and that there is a private

cause of action pursuant to NPCL 715-b.

DISCUSSION A. Standard On a motion brought under CPLR 3211 (a) (7), the court must "accept the facts as alleged

in the complaint as true, accord plaintiff1 ] the benefit of every possible favorable inference, and

determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v

Martinez, 84 NY2d 83, 87-88 [1994]). The court need not extend such consideration to bare

legal conclusions or claims that are contradicted by documentary evidence (Myers v

Schneiderman, 30 NY3d 1, 11 [2017], rearg denied 30 NY3d 1009 [2017]). Dismissal is

warranted where "the plaintiff fails to assert facts in support of an element of the claim, or if the

factual allegations and inferences to be drawn from them do not allow for an enforceable right of

recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]).

I. Federal Preemption of State Law The Supremacy Clause of the United States Constitution provides that federal law "shall

be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the Contrary notwithstanding" (US Const, art

VI, cl 2). Thus, it follows that "Congress has the power to preempt state law" (Arizona v United

States, 567 US 387, 399 [2012]). In every preemption case, accordingly, we ask whether

Congress intended to exercise this important and sensitive power: "the purpose of Congress is

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the ultimate touchstone" (Wyeth v Levine, 555 US 555, 565 [2009] [internal quotation marks and

citation omitted]).

As the Supreme Court has instructed, "in all pre-emption cases ... we start with the

assumption that the historic police powers of the States were not to be superseded by the Federal

Act unless that was the clear and manifest purpose of Congress" (id. [internal quotation marks

and citation omitted). Thus, the party asserting that federal law preempts state law bears the

burden of establishing preemption (see id. at 569; Silkwood v Kerr-McGee Corp., 464 US 238,

255 [1984]).

The burden of establishing preemption is heavy: "[t]he mere fact of 'tension' between

federal and state law is generally not enough to establish an obstacle supporting preemption,

particularly when the state law involves the exercise of traditional police power" (Madeira v

Affordable Haus. Found., Inc., 469 F3d 219,241 [2d Cir 2006]). Federal law does not preempt

state law under the preemption analysis unless "the repugnance or conflict is so direct and

positive that the two acts cannot be reconciled or consistently stand together" (id. [internal

quotation marks omitted]). However, "with regard to labor disputes, federal preemption of state

law is the rule, not the exception" (Bill Johnson's Restaurants, Inc. v N.L.R.B., 461 US 731, 753

[1983] [J. Brennan, concurring]).

A. Labor-Management Reporting and Disclosure Act In 1959, Congress enacted the LMRDA in order to address the problems of racketeering,

crime, and corruption in the labor movement (29 USC§§ 401-531; see S Rep 187, 86th Cong,

1st Sess 7-8, reprinted in 1959 US Code Cong & Admin News at 2318, 2323). The purpose of

the LMRDA is twofold: "to encourage democratic self-governance in unions ... ," (Kazolias v

IBEWLU 363, 806 F3d 45, 51 [2d Cir 2015] [citation and quotation marks omitted]) and via Title

I of the LMRDA, "to protect[] speech in the context of the union democratic process, i.e. 150879/2021 ALAIMO, TERRY vs. NEW YORK STATE NURSES Page 5 of 11 Motion No. 001

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political speech primarily addressed to other union members, rather than free speech at large"

(Sampson v District Council ofN. Y. C. & Vicinity of United Bhd of Carpenters & Joiners ofAm.,

2012 WL 4471535 at *3, 2012 US Dist LEXIS 141822, *10 [SD NY Sept 27, 2012, No. 10 CV

8120 LAP] [citation and quotation marks omitted]). In addition, the Supreme Court has held that

the basic objective of the LMRDA is to ensure "that unions are democratically governed and

responsive to the will of the membership, which must be free to discuss union policies and

criticize the leadership without fear of reprisal" (Sheet Metal Workers' Intl. Assn. v Lynn, 488 US

347,348 [1989]).

Defendant argues that LMRDA's purpose includes protecting the right of elected union

officials to hire and fire union staff. In support of this contention, defendants cite to Finnegan v

Leu (456 US 431, 431 [1982]), and its progeny. While Finnegan was not a preemption case, it is

often cited to articulate the rationale that status as a union employee or appointed officer is not a

membership right within a union and is not protected by the LMRDA, and therefore those

employees or appointed officers cannot maintain an action for violation of their right to freedom

of speech as guaranteed by Title I ofLMRDA. In Finnegan, a union's appointed business agents

were discharged by the newly elected union president, following his election over the candidate

supported by the business agents. The Court held that in passing the LMRDA, Congress could

not have meant to "restrict the freedom of an elected union leader to choose a staff whose views

are compatible with his own," (id. at 441) and expressed doubt that the LMRDA's protections of

membership rights extended beyond "rank-and-file union members" to appointed union officers

or union employees (id. at 436-437). In particular, the Finnegan court stated:

"No doubt this poses a dilemma for some union employees; if they refuse to campaign for the incumbent they risk his displeasure, and by supporting him risk the displeasure of his successor. However, in enacting Title I of the Act, Congress simply was not concerned with perpetuating appointed union employees in

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office at the expense of an elected president's freedom to choose his own staff. Rather, its concerns were with promoting union democracy, and protecting the rights of union members from arbitrary action by the union or its officers" (id. at 442 [emphasis added] cf Sheet Metal Workers' Intl. Assn., 488 US at 352-356, [Finnegan

rationale does not apply to LMRDA Title I claims of elected union officials]). The Court left

open the question of whether "a different result might obtain in a case involving

nonpolicymaking and nonconfidential employees" thus limiting its holding to policymaking and

confidential positions (id. at 441, n 11 ).

Following Finnegan, the California Court of Appeal, in Tyra v Kearney (153 Cal App 3d

921, 925-927 [Ct App, 4 Dist, Div 3 1984]), expressly relied upon Finnegan in finding that the

LMRDA preempted a state law wrongful discharge suit of an appointed union business agent,

who had been fired by an elected union official that the business agent had challenged in a union

election. The Tyra court noted the "paradox in denying a wrongful termination cause of action

to [a union employee,] yet allowing it for private sector employers," but felt "compelled to

follow the dictates of the Supreme Court" (id. at 926 n 6).

In 1989, the Supreme Court revisited its Finnegan holding in Sheet Metal Workers' Intl.

Assn. (488 US at 354-355), and confirmed that

"the basis for the Finnegan holding was the recognition that the newly elected president's victory might be rendered meaningless if a disloyal staff were able to thwart the implementation of his programs. While such patronage-related discharges had some chilling effect on the free speech rights of the business agents, we found this concern outweighed by the need to vindicate the democratic choice made by the union electorate."

Shortly thereafter, the California Supreme Court extended Tyra in Screen Extras Guild,

Inc. v Superior Court (51 Cal 3d 1017, 1029 [1990]), ruling that the LMRDA preempted all

wrongful termination actions by policymaking employees. It reasoned that Finnegan, Tyra and

Sheet Metal Workers all stood for "'the realization that policymaking and confidential staff are in

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a position to thwart the implementation of policies and programs advanced by elected union

officials and thus frustrate the ability of the elected officials to carry out the mandate of their

election" (id.) This, in tum, would frustrate "the goal of union democracy embodied by the

LMRDA, in contravention of the supremacy clause" (id. at 1030).

Screen Extras Guild is the most factually analogous case to the one at bar. The plaintiff

was not a member of the union and was considered a "management employee" with various

duties, including settling wage claims and grievances and granting waivers of certain terms of

the collective bargaining agreement between members and motion picture studios. Here, too,

plaintiff was an appointed, non-union member employee, who was terminated by a newly elected

Executive Director, Kane. Plaintiff describes her job duties in her complaint as follows:

11. As Area Director for the Mt. Sinai hospital system, Ms. Alaimo was responsible for negotiating, or supervising negotiations for, NYSNA's collective bargaining agreements with five hospitals and two long-term care facilities.

12. Ms. Alaimo supervised a staff of six NYSNA employees and supported thousands of nurses within six bargaining units throughout the Mt. Sinai hospital system and three outside facilities

(NYSCEF Doc No. 2). Alaimo's duties required her to negotiate collective bargaining

agreements on behalf of the union, supervise six other union employees and hold meetings with

bargaining committee members, all of which placed her "in a position to thwart the

implementation of policies and programs advanced by elected union officials [like Kane] and

thus frustrate the ability of the elected officials to carry out the mandate of their election" (Screen

Extras Guild, Inc, 51 Cal 3d at 1029; Thunderburkv United Food & Commercial Workers'

Union, 92 Cal App 4th 1332, 1343 [Ct App, 4 Dist, Div 2 2001] [secretary was confidential

employee within meaning of Finnegan where she "had access to confidential union information,

which, if disclosed, could have thwarted union policies and objectives"]; Brewer v General

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Drivers, Warehousemen & Helpers Local Union 89, 190 F Supp 2d 966,972 [WD Ky 2002]

[holding that even if a policymaking limitation existed, plaintiff, a business agent whose

"responsibilities include handling grievances and negotiating collective bargaining agreements"

would not fall within it]; cf Lyons v Teamsters Loe. Union No. 961,903 P2d 1214, 1220 [Colo

App 1995] [A purely clerical employee [ ... ] is not the type of employee to whom preemption

applies]).

Defendant contends that the Second Circuit does not "recognize a policymaking

limitation in LMRDA jurisprudence," citing to a string of cases beginning with Franza v

International Bhd o/Teamsters, Local 671 (869 F2d 41, 48 [2d Cir 1989]). In Franza, the

plaintiff brought suit against the union, of which he was also a member, alleging that he had been

discharged from his position as field auditor of the union's health insurance plan in retaliation for

supporting the losing candidate in the recent union election. In holding that the plaintiff could

not maintain a claim under Title I, the court concluded that the test of whether a claim by a

discharged union employee is cognizable under Title I "is not whether the employee is or is not

in a policymaking position, rather the question is whether membership rights in the union were

directly infringed by action taken with respect to a union member's employment status" (id at

48). However, this assumes that the employee bringing the action is also a member of the union,

whose rights could be infringed.

Therefore, if a policymaking limitation existed, plaintiff would not qualify, since even

she herself describes her position as managerial in nature, with responsibilities that fall within

the realm of policymaking and confidential duties.

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While plaintiff in her opposition relies on several cases wherein LMRDA did not preempt

state law when it came to termination of an appointed business agent, they are also clearly

distinguishable.

For example, plaintiffs in Clarke v Service Empl. Intl. Union (137 Nev 460,469 [2021])

andArdingo v Local 951, United Food And Commercial Workers Union (333 F Appx 929,934

[6th Cir 2009]) sued for wrongful discharge in violation of employment contracts that required

for-cause or just-cause termination. In fact, the Clarke court distinguished in a footnote that

"We do not require the trustee, or an elected union president, to continue a union employee's employment. Instead, we merely hold that, if a trustee or union employer terminates a union employee who has afor cause employment contract, that employee's wrongful termination action is not preempted by the LMRDA" (137 Nev at 465 n 4 [emphasis added]). Enforcement of an employment contract is not at issue

here.

In Bloom v General Truck Drivers, Office, Food & Warehouse Union, Local 952 (783

F2d 1356 [9th Cir 1986]) and Montoya v Local Union Ill of the Intl. Bhd ofElec. Workers (755

P2d 1221 (Colo Ct App [1988]), the respective courts held that state law causes of actions are not

preempted by LMRDA when the terminations are based on an employee's refusal to participate

in or cover up criminal activity. "The kind of discharge alleged, retaliation for refusal to commit

a crime and breach a trust, is not the kind sanctioned by the [LMRDA]" (Bloom, 783 F2d at

1362). Here, the complaint and whistleblower complaint are devoid of any allegations of

criminal law violations or that plaintiff was terminated because she refused to participate in

criminal activity.

Plaintiff's opposition fails to cite to any analogous cases or articulate a theory under

which the LMRDA does not preempt her claim. The LMRDA simply does not protect an

individual's right to union employment (see, e.g., Franza, 869 F2d at 47; Eames v Dennis, 2007

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WL 965336, at *8, 2007 US Dist LEXIS 23775, *25 [WD NY Mar. 30, 2007 No. 04 CV 894S]

["[D]ismissal is appropriate because the LMRDA does not protect union employment"]) and

permitting an elected union president to pick a staff whose views are consistent with his or her

own is consistent with the objective of the LMRDA (see Sheet Metal Worker's Intl. Assn., 488

US at 354-355).

Accordingly, plaintiff's claim for retaliatory discharge in violation of New York's Not-

For-Profit Corporation Law Section 715-b is preempted by the LMRDA and her complaint is

dismissed.

CONCLUSION

Based upon the foregoing, it is

ORDERED that the motion to dismiss of defendant NYSNA is granted and the complaint

is dismissed against it; and it is further

ORDERED that the Clerk of the Court shall enter judgment in favor of defendant, together

with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of

costs.

SHLOMO S. HAGLER, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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