Alaimo v. N.Y. State Nurses Ass'n

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2024 NY Slip Op 31206(U)

TERRY ALAIMO Plaintiff, v. NEW YORK STATE NURSES ASSOCIATION, Defendant.

Index No. 150879/2021, Motion Seq. No. 001

Supreme Court, New York County

April 9, 2024

Unpublished Opinion

Motion Date 01/27/2022

PRESENT: HON. SHLOMO S. HAGLER, Justice

DECISION + ORDER ON MOTION

HON SHLOMO S. HAGLER, JUSTICE

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 plaintiffs 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 plaintiffs complaint (NYSCEF Doc No. 2) except as otherwise indicated.

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. ¶ 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 improper $15,000 loan from NYSNA and also had been receiving a full-time salary, in violation of the NYSNA by-laws (id. ¶ 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. ¶ 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. ¶¶ 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. ¶¶ 106, 137). Thereafter, on May 14, 2020, NYSNA terminated plaintiffs 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 U.S. 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 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 plaintiff[ ] 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 N.Y.2d 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 N.Y.3d 1,11 [2017], rearg denied 30 N.Y.3d 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 N.Y.3d 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 U.S. 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 the ultimate touchstone" (Wyeth v Levine, 555 U.S. 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 U.S. 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 F.3d 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 U.S. 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, 1 st Sess 7-8, reprinted in 1959 U.S. 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 F.3d 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. political speech primarily addressed to other union members, rather than free speech at large" (Sampson v District Council of N.Y.C. & Vicinity of United Bhd. of Carpenters & Joiners of Am., 2012 WL 4471535 at *3, 2012 U.S. 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' Inti. Assn, v Lynn, 488 U.S. 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, defe...