Eisenberg v. Cnty. of Nassau

ALYSSA EISENBERG, Plaintiff, v. THE COUNTY OF NASSAU, EDWARD MANGANO,CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 830,AFSCME, JERRY LARICCHIUTA, and RONALD GURRIERI Defendants.

18-cv-1742 (JMA)(SIL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 30, 2019

MEMORANDUM AND ORDER

STEVEN I. LOCKE, United States Magistrate Judge:

By way of Complaint filed on March 21, 2018, Plaintiff Alyssa Eisenberg ("Plaintiff" or "Eisenberg") commenced this action against the County of Nassau (the "County"), Edward Mangano ("Mangano" and together with the County, the "County Defendants"), the Civil Service Employees Association, Inc., Local 830, AFSCME (the "CSEA"), Jerry Laricchiuta ("Laricchiuta") and Ronald Gurrieri ("Gurrieri") (the CSEA, Laricchiuta and Gurrieri collectively, the "CSEA Defendants" and together with the County Defendants, the "Defendants") for violations of various federal and state laws arising out of Plaintiff's employment as a crossing guard for the County. See Complaint ("Compl."), Docket Entry ("DE") [1]. On November 9, 2018, Eisenberg filed an Amended Complaint. See Amended Complaint ("Amend. Compl."), DE [33]. Presently before the Court, pursuant to 28 U.S.C. § 636(c), see DE [60], are Defendants' motions to dismiss Plaintiff's Amended Complaint. See DEs [35], [44]. For the reasons set forth below, the Court grants Defendants' motions to dismiss.¹

I. BACKGROUND

Unless otherwise indicated, the facts set forth herein are taken from the Amended Complaint and are accepted as true for purposes of the instant motions. Eisenberg was employed by the County as a crossing guard from April 2001 to September 2017.² See Amend. Compl. ¶¶ 16, 40. In addition to serving as a crossing guard, Plaintiff also performed at least ten hours per week of "clerical work" at the police precinct. See id. at ¶¶ 18-19. In her capacity as a County employee, Eisenberg was a member of the CSEA, and consequently, the terms of her employment were subject to the collective bargaining agreement ("CBA") negotiated by the CSEA Defendants and the County Defendants. See id. at ¶ 17.

In June 2016, the County Defendants "drastically" changed the duties of crossing guards by changing the classification of "clerical work" to "Out of Title Work."³ See id. at ¶ 20. Although she does not explain how, Plaintiff alleges that this change in the duties of crossing guards, along with her medical problems arising from breast cancer and complications related to treatment rendered her unable tocontinue her job as a crossing guard. See id. at ¶¶ 21-22. Had the County Defendants provided Eisenberg with "reasonable accommodation[s]," she could have continued working despite her medical condition. See id. at ¶¶ 33-36. However, the County Defendants did not provide such accommodations, and accordingly, Plaintiff "was forced to resign." See id. at ¶¶ 26-27.⁴ Subsequently, Eisenberg contacted the CSEA Defendants to represent her in connection with her disability discrimination claim against the County Defendants. See id. at ¶ 37. The CSEA Defendants, however, "failed to adequately represent" her. See id. at ¶ 38.

As a result of these events, Plaintiff commenced this action on March 21, 2018, alleging: (i) violation of the Americans with Disabilities Act, 42 U.S.C § 12112, et seq. (the "ADA") against the County Defendants; (ii) breach of the CBA against the County Defendants; (iii) violation of the New York State Human Rights Law, N.Y. Exec. Law § 296, et seq. ("NYSHRL") against the County Defendants; (iv) violation of Section 8 of the National Labor Relations Act, 29 U.S.C. § 158, et seq. (the "NLRA") against the CSEA Defendants; and (v) breach of contract against the CSEA Defendants. See Compl. ¶¶ 34-68. Eisenberg then filed an Amended Complaint, with leave of the court, on November 9, 2018. See DE [33].⁵ The County Defendants move to dismiss the Amended Complaint on the grounds that it fails to state a claim upon which relief can be granted. See Memorandum of Law in Support of County Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) ("County Memo"), DE [37], 4-12. TheCSEA Defendants separately move to dismiss on the grounds that this Court lacks subject matter jurisdiction over the claims asserted against them and, in the alternative, that the claims are time-barred under the applicable statute of limitations and otherwise fail to state a claim for relief. See Memorandum of Law in Support of the CSEA Defendants' Motion to Dismiss ("CSEA Memo"), DE [46], 4-6.

II. LEGAL STANDARDS

A. Fed. R. Civ. P. 12(b)(1)

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), a federal court must dismiss a claim when it lacks jurisdiction over the subject matter of the action. See Fed. R. Civ. P. 12(b)(1); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) ("A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.") (citation omitted). The party asserting subject matter jurisdiction has the burden to prove the court's jurisdiction by a preponderance of the evidence. See Vailette v. Lindsay, No. 11-cv-3610, 2014 WL 4101513, at *3 (E.D.N.Y. Aug. 18, 2014) (citation omitted).

In deciding a motion to dismiss for lack of subject matter jurisdiction, the court must assume that all factual allegations in the complaint are true and draw all reasonable inferences in favor of the non-moving party. C.K. v. Bd. of Educ. of the Westhampton Beach Sch. Dist., 185 F. Supp. 3d 317, 324 (E.D.N.Y. 2016) (citation omitted). Further, the court may refer to evidence outside the pleadings, such asaffidavits, to resolve the jurisdictional issue. Forbes v. State Univ. of New York at Stony Brook, 259 F. Supp. 2d 227, 231-32 (E.D.N.Y. 2003) (citations omitted).

B. Fed. R. Civ. P. 12(b)(6)

To survive a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), 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, 678, 129 S. Ct. 1937, 1940 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1975 (2007)). A claim is considered plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 (citation omitted).

In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), as in deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(1), the court must accept as true all allegations in the complaint and draw all inferences in the non-moving party's favor. U.S. ex rel. Siegel v. Roche Diagnostics Corp., 988 F. Supp. 2d 341, 343 (E.D.N.Y. 2013) (quoting LaFaro v. N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir. 2009)). Nevertheless, "threadbare recitals of the elements of a cause of action" that are supported by "conclusory" statements and mere speculation are inadequate and subject to dismissal. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks and citation omitted); see Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."). The court may consider only thefactual allegations in the complaint, documents incorporated by reference into the complaint, matters of which judicial notice may be taken and documents that are integral to the complaint and upon which the complaint relies heavily. See Lockwood v. Town of Hempstead, No. 16-cv-3756, 2017 WL 3769253, at *2 (E.D.N.Y. Aug. 28, 2017) (internal quotation marks and citation omitted).

III. DISCUSSION

A. Defendants' Motions to Dismiss Plaintiff's Federal Law Claims

The Amended Complaint alleges against the County Defendants a federal law claim for violation of the ADA and two state law claims for breach of the CBA and violations of the NYSHRL. See Amend. Compl. ¶¶ 42-68. Plaintiff also asserts claims against the CSEA Defendants for violation of the duty of fair representation under the NLRA and for breach of contract. See id. at ¶¶ 69-76. The Court first addresses Plaintiff's federal law claims for violations of the ADA and the duty of fair representation under the NLRA.

i. The County Defendants' Motion to Dismiss

The County Defendants move to dismiss the ADA claim pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that Eisenberg has failed to sufficiently plead a claim upon which relief can be granted. See County Memo, 6-7. The ADA prohibits an employer from discriminating against a "qualified individual on the basis of disability[,]" 42 U.S.C.A. § 12112(a), and refusing to provide otherwise qualified disabled employees with reasonable accommodations. See id. at § 12112(b)(5). Plaintiff alleges that the County Defendants violated the ADA by failing to provideher with reasonable accommodations that would have allowed her to continue working as a crossing guard despite her medical condition. See Amend. Compl. ¶¶ 33-36. To plead a failure-to-accommodate claim under the ADA, a plaintiff must allege that: "(1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of her disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations." Dooley v. JetBlue Airways Corp., 636 F. App'x 16, 18 (2d Cir. 2015) (internal quotation marks, citation and alterations omitted).

Plaintiff fails to sufficiently plead the first and fourth prongs of a failure-to-accommodate claim. As to the first prong, Eisenberg alleges that from July 2012 to July 2017, she underwent four surgeries due to breast cancer, see Amend. Compl. ¶¶ 29-32, but fails to...