Kall v. Peekskill City Sch. Dist.

ROSEMARIE KALL, Plaintiff, v. PEEKSKILL CITY SCHOOL DISTRICT, ET AL, Defendants.

18-cv-10199 (NSR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 19, 2020

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge:

Plaintiff Rosemarie Kall ("Plaintiff") commenced this retaliation action against the Peekskill City School District, Andrew Weisman, Robin Zimmerman (together, the "District Defendants"), Whitsons Food Corp., Rick Emery (together, the "Whitsons Defendants"), Shaquana Encarnacion, Lynn Holliman, and Eric Kaplan on November 7, 2018. (See ECF Nos. 4-5.) Plaintiff alleges claims under the False Claims Act, 31 U.S.C. § 3730(h)(1), the New York False Claims Act, § 191, and the Free Speech clause of the First Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983 ("Section 1983"), as well as common law claims for defamation, intentional infliction of emotional distress, and tortious interference. (See Amended Complaint ("Am. Compl."), ECF No. 22, ¶ 2.)

Pursuant to Federal Rule of Civil Procedure 12(b)(6), the District Defendants, Whitsons Defendants, and Eric Kaplan (the "Moving Defendants") have each moved to dismiss the Complaint.¹ (See ECF Nos. 40, 43, and 49.) For the following reasons, these motions to dismissare GRANTED in part and DENIED in part.

BACKGROUND

I. Factual Allegations

The following facts are derived from the Amended Complaint or matters of which the Court may take judicial notice and are taken as true and constructed in the light most favorable to Plaintiff for the purposes of this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016).

a. Extrinsic Materials

As a preliminary matter, the Court must address which documents the Court may properly consider in resolving the instant motions. On a motion to dismiss, a court "may review only a narrow universe of materials" without converting the motion into one for summary judgment. See Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). This generally includes "any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference, . . . and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit." ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).

For a document to be incorporated by reference, the complaint must make a "clear, definite, and substantial reference" to it. N.Y. Dist. Council of Carpenters Pension Fund v. Forde, 939 F. Supp. 2d 268, 276 (S.D.N.Y. 2013). "Mere discussion or limited quotation of a document in a complaint" does not qualify as incorporation. DeMasi v. Benefico, 567 F. Supp. 2d 449, 453 (S.D.N.Y. 2008) (internal quotations omitted). But even where a document is not incorporated by reference, a court "may nevertheless consider it where the complaint 'relies heavily upon its termsand effect,' which renders the document 'integral' to the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)). This requires a party to establish that the plaintiff had "actual notice" of the documents and relied upon them in setting forth his or her claim. Id.; see also Vaher v. Town of Orangetown, N.Y., 916 F. Supp. 2d 404, 423 n.16 (S.D.N.Y. 2013) ("In order for the contents of a document to be deemed integral to the complaint, they must be deemed necessary to the plaintiff's statement of a claim under Rule 8.").

The District Defendants rely upon Plaintiff's testimony from an August 17, 2018 50-h examination in their briefing. Though this testimony was given prior to the filing of this action, the District has not argued that it was incorporated by reference, or that Plaintiff otherwise relied upon it in setting forth her claim. Accordingly, consideration of this document, which is extrinsic to the pleadings, is improper at this time. See, e.g, Rosado v. Vill. of Goshen, No. 17-CV-00360 (NSR), 2019 WL 1382975, at *8 (S.D.N.Y. Mar. 27, 2019) ("While . . . Plaintiff's affidavit contradicts the allegations in the Amended Complaint, use of the affidavit for the purpose of deciding the instant motion is impermissible.")

b. Instructions Regarding Free School Lunches

Plaintiff is a former cafeteria employee at the Defendant Peekskill City School District (the "District"), a school district within Westchester County, New York. (Am. Compl. ¶¶ 7, 16-17.) Plaintiff was initially employed by the District, and subsequently came to be employed by Whitsons Food Corp. ("Whitsons") in or about 2006. (Id. ¶¶ 10, 18.) As a cafeteria employee, Plaintiff's duties included making and serving lunch to students of the District during the schoolday. (Id. ¶ 31.)²

On or about May 15, 2018, Plaintiff's supervisor—the Food Service Director for the District, Defendant Andrew Weisman ("Weisman")—told Plaintiff to give the school children a second free lunch. (Id. ¶¶ 43-44.) Weisman further told Plaintiff to record the second free lunch as a lunch for an "open student," rather than what Plaintiff understood to be the normal procedure of recording the identity of the students receiving the second lunch. (Id. ¶¶ 45, 47-48.) Plaintiff believed that accurate recording of the lunches being provided was a requirement of the state and/or federal lunch programs. (Id. ¶ 51.)

Plaintiff objected to Weisman's instruction that she record free lunches without identifying the students, as she believed this was the unlawful stealing of public funding, fraud, public corruption, and/or misuse of public funds. (Id. ¶ 54-55.) Plaintiff notified another Food Service Director employed by Whitsons, Eric Kaplan ("Kaplan"), of Weisman's order. (Id. ¶ 58-61.) In response, Kaplan, who was also Plaintiff's supervisor, told Plaintiff that she had to follow Weisman's orders, and that such actions would benefit Whitsons. (Id. ¶ 59, 65-66.)

c. Events Following Plaintiff's Objections

Within a few days of Plaintiff objecting to Weisman's orders, Weisman transferred Plaintiff to the high school, where Plaintiff was tasked with cutting fruit instead of her normal job duties of Head Cook. (Id. ¶ 70.) Plaintiff alleges that shortly thereafter, Weisman told Plaintiff that the transfer was due to her objections to his instructions. (Id. ¶ 71.) Plaintiff further alleges that Weisman stated, "it's not a felony what I asked you to do. And the only thing that's going to happen is we'll have to pay the money back." (Id. ¶ 72.)

A few days later, the District and Whitsons suspended Plaintiff's employment. (Id. ¶ 74.) A few days after that, the District Manager for Whitsons, Rick Emery ("Emery"), informed Plaintiff that she was terminated "based on allegations being made against her." (Id. ¶ 75.) Plaintiff explained to Emery that she had objected to Weisman's orders to provide second lunches and record them inaccurately. (Id. ¶ 76.)

On or about May 25, 2018, Robin Zimmerman ("Zimmerman"), the Assistant Superintendent for Business for Peekskill, sent an email to Emery and Weisman stating that Plaintiff's "behavior and interaction with students and staff at the Woodside Elementary School is unacceptable, inappropriate, and unconducive . . ." (Id. ¶ ¶ 22, 77.) Zimmerman continued, "there has been several instances of her mean spirited behavior." (Id. ¶ 79.) Zimmerman instructed Emery to "move [Plaintiff] to another district as her time with the Peekskill City School District has come to an end." (Id. ¶ 81.)

On May 29, 2018, Emery and/or Kaplan drafted a memorandum,³ which included a statement that Defendant Shaquana Encarnacion made to Emerge and Weisman regarding Plaintiff's conduct. (Id. ¶ 82.) According to the memo, Incarnation witnessed Plaintiff being "very rude to students, yelling at them and calling them thieves . . . and run[ning] after them into the cafeteria and tak[ing] back food that they took . . ." (Id.) The memorandum also stated that Encarnacion stated that Plaintiff "would feed certain teachers for free, and make others pay for their meal." (Id. ¶ 85.)

The May 29, 2018 memorandum also included that Defendant Lynn Holliman stated that Plaintiff was "very rude to students and favors certain teachers." (Id. ¶ 88.) Holliman also statedthat Plaintiff "would take it [food] back from them [students]." (Id. ¶ 91.) The memo summarized that both Encarnacion and Holliman "expressed that [Plaintiff] treats the kids very poorly and that many are afraid of her." (Id. ¶ 94.) Plaintiff alleges that this memorandum was circulated to third parties at Whitsons and the District. (Id. ¶ 98.) Plaintiff also alleges that at some point between May 4, 2018 and May 29, 2018, Weisman told third parties, including employees of Whitsons and the District, that Plaintiff mistreated children. (Id. ¶ 102.)

d. Plaintiff's Termination

Whitsons terminated Plaintiff by letter dated June 7, 2018. (Id. ¶ 20.) Whitsons stated that Plaintiff's employment was terminated due to "complaints from our client for rude and improper behavior to students and faculty." (Id. ¶ 99.) Plaintiff alleges that this termination was based on the statements made by Zimmerman, Holliman, Encarnacion, Weisman, Emery, and/or Kaplan. (Id. ¶ 100.)

LEGAL STANDARD

I. 12(b)(6)

To survive a 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). Factual allegations must "nudge [a plaintiff's] claim from conceivable to plausible." Twombly, 550 U.S. at 570. A claim is plausible when the plaintiff pleads facts which allow the court to draw a reasonable inference the defendant is liable. Iqbal, 556 U.S. at 678. To assess the sufficiency of a complaint, the court is "not required to credit conclusory allegations or legal conclusions couched as...