Jeune v. Crew

JEAN JEUNE, Plaintiff, v. RUDOLPH F. CREW, JERALD POSMAN, DONOVAN ALLENand BRIAN CLARKE, Defendants.

CORY WRIGHT, Plaintiff, v. RUDOLPH F. CREW, JERALD POSMAN and ESTHER HUNDLEY, Defendants.

WILLIAM FULCHER, Plaintiff, v. RUDOLPH F. CREW, GARY JOHNSON, SYLVIA KINARD, TANYA E. ISAACS,JERALD POSMAN, DONOVAN ALLEN, BRIAN CLARKE and ESTHER HUNDLEY, Defendants.

16-CV-1107 (MKB)

16-CV-1108 (MKB)

16-CV-2437 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 29, 2017

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

On March 5, 2016, Plaintiffs Jean Jeune and Cory Wright commenced the above-captioned actions with almost identical allegations against Defendants Rudolph F. Crew, Jerald Posman and Brian Clarke (the "Jeune Defendants") and Defendants Crew, Posman and Esther Hundley (the "Wright Defendants"), respectively. (Jeune Compl., Docket Entry No. 1; Wright Compl., Docket Entry No. 1.) Several months later, on May 12, 2016, Plaintiff William Fulcher commenced a similar action against Defendants Crew, Posman, Allen, Clarke, Hundley, Gary Johnson, Sylvia Kinard and Tanya E. Isaacs (the "Fulcher Defendants"). (Fulcher Compl., Docket Entry No. 1.)¹ Plaintiffs, current and former employees of the City University of New York ("CUNY"), bring their respective actions pursuant to 42 U.S.C. § 1983, alleging that Defendants, employees of CUNY during the relevant period, retaliated against Plaintiffs for exercising their First Amendment rights when they complained about defects in the construction of a building on CUNY's Medgar Evers College campus. (See generally Jeune Compl., Wright Compl, Fulcher Compl.) On March 20, 2016, Plaintiffs Jeune and Wright filed Amended Complaints. (Jeune Am. Compl., Docket Entry No. 5; Wright Am. Compl., Docket Entry No. 5.) After a pre-motion conference on June 17, 2016, Plaintiffs Jeune and Wright each filed a Second Amended Complaint ("SAC") and Plaintiff Fulcher filed an Amended Complaint. (Min. Entry dated June 17, 2016; Fulcher Am. Compl., Docket Entry No. 17; Jeune SAC, Docket Entry No. 18; Wright SAC, Docket Entry No. 16.)

Defendants move to dismiss² the Jeune SAC with prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and move to dismiss the Wright SAC and the Fulcher Amended Complaint with prejudice pursuant to Rules 12(b)(2), 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure.³ For the reasons discussed below, the Court: (1) grants the motion to dismiss the Jeune SAC with prejudice, (2) grants the motion to dismiss the Wright SAC with prejudice, and (3) grants the motion to dismiss the Fulcher Amended Complaint without prejudice as described further below.

I. Background

The facts alleged in the Jeune SAC, Wright SAC and Fulcher Amended Complaint are assumed to be true for the purpose of deciding these motions, and, to the extent the facts between the complaints overlap, the Court cites to the Jeune SAC for ease of reference.

a. Construction of the Administrative Building at Medgar Evers

In or around 2007, CUNY and the Dormitory Authority of the State of New York ("DASNY") began construction on a 190,000 square foot, five-story administrative building on Medgar Evers campus in Brooklyn, New York (the "Administrative Building").⁴ (Jeune SAC ¶ 14.) CUNY financed the construction with City and State funds, at a final cost of approximately $247 million. (Id. ¶ 17.) In or around the spring of 2009, CUNY and DASNY hired Hudson Meridian ("Meridian"), a professional construction management firm, at a cost of more than one million dollars "to oversee the construction and turnover certification" of the Administrative Building. (Id. ¶¶ 18-19.)⁵ The Administrative Building was completed and "fully commissioned" sometime in the fall of 2010. (Wright SAC ¶ 37.)

According to Plaintiffs, Meridian:

intentionally covered up fraud, corruption and waste of taxpayers' monies creating dangerous conditions within the life safety systems and other systems of the Administrative Building compromising the physical safety of employees, students and other stakeholders of the community . . . to increase profit for themselves and agents' of CUNY and DASNY.

(Jeune SAC ¶¶ 19-20.) Defendant Hundley, a Public Safety Officer at Medgar Evers, was assigned to oversee Meridian, and, according to Plaintiffs, was "fully aware of the fraud, corruption and waste of taxpayers' monies and the serious safety deficiencies" within the Administrative Building. (Jeune SAC ¶ 18; Wright SAC ¶ 36; Fulcher Am. Compl. ¶ 23.) Plaintiffs allege that the Administrative Building is constructed in an "unsafe manner" and thatDASNY and CUNY must "shut it down for immediate repairs to its life safety systems and other systems." (Jeune SAC ¶ 21.)

Plaintiffs made "complaints" and "reports" to some unknown person or entity that "CUNY and DASNY, their agents and [their] vendor partners intentionally covered up fraud, corruption and waste of taxpayers' monies," which resulted in "dangerous conditions within the life safety system and other systems" of the Administrative Building.⁶ (Jeune SAC ¶¶ 1, 13; Wright SAC ¶¶ 1, 13; Fulcher Am. Compl. ¶¶ 1, 13, 35.)

b. Plaintiffs' job descriptions

From 2009 until 2015, Wright served as Chief Administrative Superintendent in the Facilities Management Department at Medgar Evers. (Wright SAC ¶¶ 1, 22, 112-13.) Wright's responsibilities included "overall management" of the personnel assigned to buildings and grounds as well as the maintenance of all Medgar Evers facilities. (Id. ¶ 23.)

Jeune was a Senior Stationary Engineer⁷ in the Facilities Management Department at Medgar Evers until he was demoted in or around late 2015. (Jeune SAC ¶¶ 1, 11, 51-52.) Theresponsibilities of a Senior Stationary Engineer include operating, maintaining, testing and repairing "all utilities in public buildings . . . , plant equipment such as . . . electrical equipment, heating and ventilating equipment, . . . mechanical, electrical, and plumbing equipment in University buildings;" as well as participating "in the review of DASNY plans for new and/or rehabilitation construction projects [by] providing comments and recommendations," training staff as to "the operation, maintenance and use of equipment and systems," and ensuring "compliance with all jurisdictional codes."⁸

Apart from the one-month period between March and April of 2015 when Fulcher held the position of Senior Stationary Engineer, Fulcher worked as a Stationary Engineer until CUNY terminated his employment on January 21, 2016. (Fulcher Am. Compl. ¶¶ 1, 11, 37-38, 58.) The responsibilities of a Stationary Engineer include operating, maintaining, adjusting, testingand repairing "fire protection systems, electro-mechanical building equipment and related auxiliary systems in public buildings," performing "periodic inspections of equipment and repairs of such equipment" and overseeing "preventive maintenance."⁹

c. Wright's complaints and his termination

Prior to 2010, while the Administrative Building was under construction, Wright requested and was granted permission to access the Administrative Building. (Wright SAC ¶¶ 23, 37.) While inspecting the construction, "based on his training, education and experience," Wright noted "serious deficiencies within the mechanical, electrical, and plumbing systems that [could] only be explained as fraud, corruption and waste of taxpayers' monies," which deficiencies included missing air dampers, duct work, dedicated electrical services lines and dissimilar metal throughout the building. (Id. ¶¶ 24-25.) Wright "immediately forwarded these serious deficiencies" to the Medgar Evers Campus Planning Director at the time, Frank Tumminello, and Tumminello notified both CUNY and DASNY agents. (Id. ¶¶ 28-29.) After Wright shared the deficiencies with Tumminello, he was no longer allowed access to the construction site. (Id. ¶ 30.)

Separately, at an unidentified time, Wright became aware of "constant backups in the Franklin Avenue cellar ladies restroom" and "significant overflow problems." (Id. ¶¶ 76, 80.) He purchased a pipe camera and discovered a breach. (Id. ¶ 79.) Wright alleges the breach resulted from Richards Plumbing, the vendor partner hired by CUNY and DASNY, improperly connecting pipes "as a cost saving measure." (Id. ¶ 80.) Wright "raised" concerns regarding theoverflow of water to CUNY and DASNY agents, and explained that "the flow of water will eventually erode the gas vapor barrier and cause gas to enter [the Administrative Building] compromising the health and safety of the occupants and other stakeholders." (Id. ¶ 81.)

On or about February 10, 2015, Wright went to the office of Defendant Crew, President of Medgar Evers, to "request a personal meeting with him to report fraud, corruption and waste of taxpayers' monies." (Id. ¶ 112.) Wright does not allege that he met with Crew or made any statements to Crew. "[S]hortly thereafter," Defendant Posman, the Senior Vice President and Chief Operating Officer, terminated Wright and told him that it was the "President's decision."¹⁰ (Id. ¶¶ 12, 113.)

d. Jeune's and Fulcher's complaints and the subsequent employment actions against them

i. Complaints

1. Jeune's and Fulcher's gas valve and carbon monoxide detector complaints

Jeune and Fulcher allege that the Administrative Building contained an "unsafe and volatile condition of leaking undetectable natural gas and carbon monoxide" because the "vendor partners intentionally installed defective gas valves within the laboratories" as well as "expired and defective gas sensors to increase . . . profits." (Jeune SAC ¶¶ 25, 34; Fulcher Am. Compl. ¶¶ 27, 41.) On May 1, 2015, CUNY hired an outside contractor from "R&D Group," who found that "numerous laboratory research and classrooms were equipped with expired and defective gas sensors." (Jeune SAC ¶ 33; Fulcher Am. Compl. ¶ 40.)

On or around June of 2015, Jeune and Fulcher informed Defendant Allen, the Assistant Vice President...