Harvey v. Incorporated Village

879 F. Supp. 2d 277, 2012 WL 2921220, 2012 U.S. Dist. LEXIS 99318
CourtDistrict Court, E.D. New York
DecidedJuly 16, 2012
DocketNo. CV 11-5920
StatusPublished

This text of 879 F. Supp. 2d 277 (Harvey v. Incorporated Village) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harvey v. Incorporated Village, 879 F. Supp. 2d 277, 2012 WL 2921220, 2012 U.S. Dist. LEXIS 99318 (E.D.N.Y. 2012).

Opinion

MEMORANDUM AND ORDER

WEXLER, District Judge.

This is an action commenced by Plaintiff, Alan Harvey (“Plaintiff’ or “Harvey’), alleging that the termination of his employment by the Defendant Village of Hempstead (“Defendant” or the “Village”) violated a prior settlement agreement as well as his rights under the Due Process Clause of the United States Constitution. Plaintiff has conceded to dismissal of his state law breach of contract claim, leaving only a claim alleged a claim pursuant to 42 U.S.C. § 1983 (“Section 1983”). That federal claim alleges that the failure to provide Plaintiff with notice and the opportunity to be heard prior to termination violated his rights pursuant to the Fourteenth Amendment to the United States Constitution. Presently before the court is Defendant’s motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the complaint.

BACKGROUND

I. Facts

A. Plaintiffs Employment and the Allegations of the Complaint

Plaintiff began his employment with the Defendant in May of 1989 in the position of Sanitation Helper. Throughout his employment Plaintiff was a member of Local 1000 CSEA, AFL-CIO) the (“Union”).

Plaintiff was absent from work for a seven day period in February of 2010. The complaint explains that Plaintiffs absence was necessitated by the management of family business and the emotional toll that followed a heart attack suffered by his mother. The Village characterized Plaintiffs February 2010 absence from work as “absence without pay.” That absence led to a March 5, 2010 meeting attended by Plaintiff along with the Village Director of Public Works, its Director of Human Resources, and Union representatives. After that meeting, the Village proposed to settle the matter pursuant to a Stipulation of Settlement (the “Settlement”). The Settlement was agreed to by Plaintiff and provided for Plaintiff to accept a 60 day suspension without pay. The Settlement provides further that: (1) if Plaintiff continued to engage in conduct similar to excessive absenteeism or other “improper and/or unprofessional conduct” independently warranting “discipline or corrective action,” Plaintiff would be subject to termination and (2) if Plaintiffs future behavior would warrant termination he would “be provided with written notice of the allegations against him, and would be given the opportunity to be heard before final termination.” Plaintiff alleges that despite the 60 day period of termination provided for in the Settlement, he was not allowed to return to work for a period of 90 days — until June 1, 2010.

On October 19, 2010, Plaintiff failed to report to work. In November of 2010, a meeting was held during which Plaintiffs absenteeism was discussed. Plaintiff was present at that meeting along with the Village representatives who participated in the March 2010 meeting, and a Union representative. Plaintiff alleges that he was not provided with written notice of allega[279]*279tions to be discussed at that meeting. Nonetheless, it is clear that the meeting was held to discuss Plaintiffs failure to report to work on October 19, 2010. At that meeting, Plaintiff explained that he was granted permission for his October absence. Despite this explanation, the Village decided shortly thereafter to terminate Plaintiffs employment.

B. Causes of Action

Plaintiffs complaint pled two separate causes of action — breach of contract and violation of Section 1983. After Defendant moved to dismiss, Plaintiff conceded to dismissal of his breach of contract claim. The sole claim remaining for adjudication is based on the alleged violation of Plaintiffs Constitutionally protected Fourteenth Amendment right to Procedural Due Process. Specifically, Plaintiff alleges that the Constitution was violated because Plaintiff was terminated with neither adequate notice nor a meaningful opportunity to be heard.

II. The Motion to Dismiss

Defendant concedes, for the purpose of this motion, that Plaintiff entitled to due process protection prior to termination. Defendant argues, however, that the Section 1983 claim must be dismissed because Plaintiff has received all of the process that is due. Plaintiff disagrees. After outlining relevant legal principles the court will ton to the merits of the motion.

DISCUSSION

I. Legal Principles

A. Standards on Motions to Dismiss

In considering a motion to dismiss made pursuant to Rule 12(b)(6), the court must accept the factual allegations in the complaints as true, and draw all reasonable inferences in favor of plaintiffs. Bolt Electric, Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court rejected the standard set forth in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that a complaint should not be dismissed, “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” id. at 45-46, 78 S.Ct. 99. The Supreme Court discarded the “no set of facts” language in favor of the requirement that plaintiff plead enough facts “to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). Although heightened factual pleading is not the new standard, Twombly holds that a “formulaic recitation of cause of action’s elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1959. Further, a pleading that does nothing more than recite bare legal conclusions is insufficient to “unlock the doors of discovery.” Iqbal, 129 S.Ct. at 1950.

B. Stating A Due Process Claim Under Section 1988

It is well settled that due process requires some kind of a hearing prior to discharge of an individual with a Constitutionally protected right to continued employment. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Faghri v. University of Connecticut, 621 F.3d 92, 99 (2d Cir.2010). Thus, an employee entitled to due process protection must be afforded “oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Cleveland Bd. of Educ., 470 U.S. at 546, 105 S.Ct. 1487.

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Related

Conley v. Gibson
355 U.S. 41 (Supreme Court, 1957)
Cleveland Board of Education v. Loudermill
470 U.S. 532 (Supreme Court, 1985)
Bell Atlantic Corp. v. Twombly
550 U.S. 544 (Supreme Court, 2007)
Ashcroft v. Iqbal
556 U.S. 662 (Supreme Court, 2009)
Faghri v. University of Connecticut
621 F.3d 92 (Second Circuit, 2010)
Locurto v. Safir
264 F.3d 154 (Second Circuit, 2001)

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Bluebook (online)
879 F. Supp. 2d 277, 2012 WL 2921220, 2012 U.S. Dist. LEXIS 99318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harvey-v-incorporated-village-nyed-2012.