Dushane v. Leeds Hose Co. 1

6 F. Supp. 3d 204, 2014 U.S. Dist. LEXIS 31075, 2014 WL 949942
CourtDistrict Court, N.D. New York
DecidedMarch 11, 2014
DocketNo. 1:13-CV-0677 (LEK/CFH)
StatusPublished
Cited by8 cases

This text of 6 F. Supp. 3d 204 (Dushane v. Leeds Hose Co. 1) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dushane v. Leeds Hose Co. 1, 6 F. Supp. 3d 204, 2014 U.S. Dist. LEXIS 31075, 2014 WL 949942 (N.D.N.Y. 2014).

Opinion

MEMORANDUM-DECISION and ORDER

LAWRENCE E. KAHN, District Judge.

I. INTRODUCTION

In this action arising out of Plaintiff Stanley Dushane, Jr.’s (“Plaintiff’) removal from his position as a volunteer firefighter with Defendant Leeds Hose Company # 1 Inc. (“Leeds”), Defendants have moved to dismiss the Complaint for failure to state a claim upon which relief may be granted. See Dkt. Nos. 1 (“Complaint”); 6 (“Motion”). For the following reasons, the Motion is denied.

II. BACKGROUND1

Leeds is a corporation performing fire protection services for the Town of Catskill (“Catskffl”). Compl. ¶ 2. Plaintiff began serving as a volunteer firefighter and member of Leeds in 2008. Id. ¶ 13. In January 2013, he ran against the incumbent Leeds Chief, Defendant Thomas McCullough, III (“McCullough”), for election to that position. Id. ¶¶ 14-15. Thirty-eight Leeds members voted; both Plaintiff and McCullough received nineteen votes. Id. ¶ 16. Leeds members agreed that, pending the provision of an opinion from the Leeds attorney as to how to resolve the deadlock, McCullough would retain his position. Id. ¶ 16. McCullough proceeded to remove Plaintiff from the position of Chief Foreman and remove a supporter of Plaintiffs from the position of Foreman. Id. ¶ 17. McCullough then in[208]*208formed Plaintiff that Plaintiff faced “a long road full of shit and issues.” Id. ¶ 18. At a late-February 2013 Leeds meeting, Defendant John Elliot (“Elliot”), Leeds’s President, informed attendees that, following an attorney recommendation that the Leeds Board of Directors (“Board”) select the Leeds Chief, the Board has selected McCullough. Id. ¶ 20. The following month, Plaintiff was told, both orally and in writing, that he was suspended based on an internal complaint alleging that he had made a “derogatory sexual reference to a female member under the age of eighteen,” an action that had “an adverse impact on the ability of this firefighter to comfortably perform her duties.” Id. ¶¶ 22-30; Dkt. No. 1-1 (“Suspension Notice”). A Board meeting was held in late March 2013, at which the Board received various exculpatory evidence. Id. ¶ 31. Nevertheless, on March 26, 2013, the Board terminated Plaintiff “due to multiple counts of insubordination.” Id. ¶¶ 32-33; Dkt. No. 1-2 (“Termination Notice”).

Plaintiff then filed the Complaint. He alleges that he was suspended and terminated without due process and in retaliation for his “First Amendment protected speech and political activity.” Id. ¶¶ 37-JO. Defendants filed the Motion and a supporting Memorandum arguing that: (1) Defendants are not state actors; (2) Plaintiffs failure to challenge his dismissal under N.Y. C.P.L.R. § 7801 et seq. (“Article 78”) precludes him from raising a due process claim; (3) Plaintiff did not engage in activity protected under the First Amendment; and (4) Plaintiff cannot demonstrate that the harassing-comment explanation for his termination was pretextual. See generally Dkt. No. 7 (“Memorandum”). Plaintiff responded and Defendants replied. Dkt. Nos. 10 (“Response”); 11 (“Reply”).

III. LEGAL STANDARD

To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell All. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Fed. R. Civ. P. 12(b)(6). Plausibility requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct].” Twombly, 550 U.S. at 556, 127 S.Ct. 1955. “[U]nadorned, the-defendant-unlawfully-harmed-me accusation[s]” do not suffice. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Thus, although a court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of a plaintiff, see Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir.2006), an action is subject to dismissal where the court is unable to infer more than the “sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

IV. DISCUSSION

A. State Action

Plaintiff brings claims under the First and Fourteenth Amendment of the United States Constitution. “Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir.2005) (quotation marks omitted). To determine whether the conduct of a nominally private [209]*209entity such as Leeds may be considered state action, the Second Circuit uses three main tests:

(1) when the entity acts pursuant to the coercive power of the state or is controlled by the state (“the compulsion test”); (2) when the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the state, or the entity’s functions are entwined with state policies (“the joint action test” or “close nexus test”); or (3) when the entity has been delegated a public function by the state (“the public function test”).

Fabrikant v. French, 691 F.3d 193, 207 (2d Cir.2012) (brackets omitted). Each inquiry focuses on “the specific conduct of which the plaintiff complains, rather than the general characteristics of the entity.” Id.

Plaintiff implicitly argues that Leeds is a state actor pursuant to the public function test. See Compl. ¶ 2 (alleging that Leeds “is a corporation performing traditional governmental fire protection services”); Resp. at 1-3. Under this test, there is state action “where an activity that traditionally has been the exclusive, or near exclusive, function of the State has been contracted out to a private entity.” Horvath v. Westport Library Ass’n, 362 F.3d 147, 151 (2d Cir.2004); see also Janusaitis v. Middlebury Volunteer Fire Dep’t, 607 F.2d 17, 23 (2d Cir.1979) (“If the function is one which is traditionally within the exclusive province of the government, the entity performing the function may be considered to be an instrumentality of the government”). The Second Circuit has held that firefighting constitutes such a public function. See Janusaitis, 607 F.2d at 22 (“[F]ire protection is a function so traditionally associated with sovereignty that its performance, even by an otherwise ‘private’ entity, constitutes state action.”); see also Gibson v. Hurleyville Fire Co. No.

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Bluebook (online)
6 F. Supp. 3d 204, 2014 U.S. Dist. LEXIS 31075, 2014 WL 949942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dushane-v-leeds-hose-co-1-nynd-2014.