Lopez v. Falco

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WILLIAM LOPEZ, Plaintiff, v. SHERIFF LOUIS FALCO, and COUNTY OF ROCKLAND, Defendants.

No. 23-CV-10420 (KMK)

United States District Court, S.D. New York

September 19, 2024

Michael H. Sussman, Esq. Sussman & Watkins Goshen, NY Counsel for Plaintiff

Robert B. Weissman, Esq. Matthew R. Hughes, Esq. Saretsky Katz &amp Dranoff, LLP Elmsford, NY Counsel for Defendants

OPINION & ORDER

KENNETH M. KARAS UNITED STATES DISTRICT JUDGE

Plaintiff William Lopez (“Plaintiff”) brings this Action against Sheriff Louis Falco (“Falco”) and the County of Rockland (the “County,” and together with Falco, “Defendants”) pursuant to 42 U.S.C § 1983, alleging that Defendants retaliated against him in violation of his rights under the First Amendment when, among other things, they declared him absent-without-leave from his job and suspended him without pay. (See Compl. ¶¶ 30-31 (Dkt. No. 1).)^[1]Before the Court is Defendants' Motion To Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). (See Not. of Mot. (Dkt. No. 15).) For the reasons that follow, the Court grants Defendants' Motion.

I. Background

A. Materials Considered

As a threshold matter, the Court must decide what documents it may consider in deciding the instant Motion. Defendants argue that the Court may take into consideration several documents that Plaintiff referenced or otherwise relied upon in filing his Complaint in this Action. (Defs' Mem. of Law in Supp. of Mot. To Dismiss (“Defs' Mem.”) 10-11 & n.4 (Dkt. No. 18); see also Decl. of Matthew R. Hughes, Esq. (“Hughes Decl.”) (Dkt. No. 16).) The Court notes that Plaintiff does not object to its consideration of these materials. (See generally Mem. of Law in Opp'n to Mot. To Dismiss (“Pl's Opp'n”) (Dkt. No. 19).)

Generally, “[w]hen considering a motion to dismiss, the Court's review is confined to the pleadings themselves” because “[t]o go beyond the allegations in the Complaint would convert the Rule 12(b)(6) motion into one for summary judgment pursuant to [Rule] 56.” Thomas v. Westchester Cnty. Health Care Corp., 232 F.Supp.2d 273, 275 (S.D.N.Y. 2002); accord Doe v. County of Rockland, No. 21-CV-6751, 2023 WL 6199735, at *1 (S.D.N.Y. Sept. 22, 2023). “Nevertheless, the Court's consideration of documents attached to, or incorporated by reference in the Complaint, and matters of which judicial notice may be taken, would not convert the motion to dismiss into one for summary judgment.” Thomas, 232 F.Supp.2d at 275; see also Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021) (explaining that “when ruling on Rule 12(b)(6) motions to dismiss,” courts may “consider the complaint in its entirety . . ., documents incorporated into the complaint by reference, and matters of which a court may take judicial notice” (quotation marks omitted)); Hu v. City of New York, 927 F.3d 81, 88 (2d Cir. 2019) (“In deciding a Rule 12(b)(6) motion, the court may consider ‘only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings, and matters of which judicial notice may be taken.'” (alteration adopted) (quoting Samuels v. Air Transp. Loc. 504, 992 F.2d 12, 15 (2d Cir. 1993))).

Defendants have submitted the following documents in support of their Motion: (1) a Rockland County Correction Officers Benevolent Association Grievance Form dated October 29, 2019, (see Hughes Decl. Ex. B (“Oct. 29, 2019 Grievance”) (Dkt. No. 16-2)); (2) a Rockland County Correction Officers Benevolent Association Grievance Form dated March 2, 2020, (see id. Ex. C (“Mar. 2, 2020 Grievance”) (Dkt. No. 16-3)); (3) a Rockland County Correction Officers Benevolent Association Grievance Form dated October 5, 2020, (see id. Ex. D (“Oct. 5, 2020 Grievance”) (Dkt. No. 16-4)); and (4) an Arbitration Opinion and Award dated July 27, 2020, (see id. Ex. E (“July 27, 2020 Arbitration Op.”) (Dkt. No. 16-5)).^[2]

Consistent with the decisions of other courts in this District, the Court concludes that it may consider the three Grievance Forms, the authenticity of which is undisputed. See, e.g., Rennalls v. Alfredo, No. 12-CV-5300, 2015 WL 5730332, at *10 (S.D.N.Y. Sept. 30, 2015) (“[S]everal courts have considered grievances relevant to a plaintiff's claims where, as here, the plaintiff incorporated the grievances by reference into the complaint.”); see also Ellison v. Evans, No. 13-CV-885, 2013 WL 5863545, at *1 n.5 (S.D.N.Y. Oct. 31, 2013) (considering grievances that the defendants submitted “[b]ecause the [] documents [were] either explicitly referred to or incorporated by reference in [the] plaintiffs' complaint”), aff'd sub nom., Fuller v. Evans, 586 Fed.Appx. 825 (2d Cir. 2014) (summary order), cert. denied, 135 S.Ct. 2807 (2015); Sanchez v. Velez, No. 08-CV-1519, 2009 WL 2252319, at *1 n.1 (S.D.N.Y. July 24, 2009) (explaining that “[b]ecause [the] plaintiff's grievances [were] referenced in the complaint, the grievance documents [were] incorporated by reference and properly considered on a motion to dismiss”).

Turning to the Arbitration Opinion and Award, a court may-pursuant to the Federal Rules of Evidence-take judicial notice of a fact outside of the pleadings provided that the fact “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Under to this Rule, “courts have regularly taken judicial notice of arbitration awards . . . in considering a motion to dismiss ....” Cox v. Perfect Bldg. Maint. Corp., No. 16-CV-7474, 2017 WL 3049547, at *3 (S.D.N.Y. July 18, 2017) (collecting cases); see also Dr.'s Assocs., Inc. v. Patel, No. 18-CV-2386, 2019 WL 3916421, at *2 n.5 (S.D.N.Y. July 19, 2019) (same). Because Plaintiff does not dispute the authenticity of the Arbitration Opinion and Award, the Court is permitted to take judicial notice of the award at this early juncture. See Purjes v. Plausteiner, No. 15-CV-2515, 2016 WL 552959, at *4 (S.D.N.Y. Feb. 10, 2016) (collecting cases in which courts have taken judicial notice of arbitration awards); see also Caldarera v. Int'l Longshoremen's Ass'n, Local 1, 765 Fed.Appx. 483, 485 n.2 (2d Cir. 2019) (summary order) (finding no error in a district court's decision to take judicial notice of an arbitration award). “However, ‘[w]hile the Court is permitted to take judicial notice of the existence of [an] [a]rbitration [d]ecision on a motion to dismiss, it cannot do so to establish the truth of the facts asserted therein.” Brown v. N.Y.C. Transit Auth., No. 22-CV-2949, 2024 WL 1347283, at *5 (S.D.N.Y. Mar. 29, 2024) (quoting Beaton v. Metro. Transp. Auth. N.Y.C. Transit, No. 15-CV-8056, 2016 WL 3387301, at *4 (S.D.N.Y. June 15, 2016)).

B. Factual Background

Unless otherwise stated, the following facts are drawn from the Complaint and the abovereferenced Exhibits that Defendants submitted in connection with their Motion. The facts alleged in the Complaint are assumed true for the purpose of resolving the instant Motions. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam).

1. The Parties

Plaintiff is a former corrections officer, who had been employed by the County. (Compl. ¶ 1.) During all times relevant to this Action, Falco was the County's duly-elected Sheriff. (Id. ¶ 2.)

2. Plaintiff's Union Activity

From 2016 to 2017, and again from 2019 to 2020, Plaintiff served as an officer for the “Correction Officers' Association/Union” (the “Union”). (Id. ¶ 5.) As alleged, Plaintiff is “widely regarded as one of the [Union's] chief strategists and spokes[people;] [he is] highly knowledgeable about the collective bargaining agreement [(‘CBA'),] and a source of guidance and advice to officers aggrieved by [] Falco and his immediate subordinates.” (Id. ¶ 6.) Falco was “fully aware of [Plaintiff's] union activism, including his support in 2015 of Richard Vasquez” who had run against Falco. (Id. ¶ 7.)

While he served as a Union officer from 2019 to 2020, Plaintiff worked closely with the Union's president, David Bates (“Bates”). (Id. ¶ 8.) In particular, Plaintiff and Bates initiated grievances and demands for arbitration that allegedly “infuriated [Falco,] but were squarely within their duties and responsibilities as” officers in the Union. (Id.)

The record at this early stage reflects that Plaintiff filed three grievances from 2019 to 2020. (See Oct. 29, 2019 Grievance; Mar. 2, 2020 Grievance; Oct. 5, 2020 Grievance.) Turning to the first grievance, shortly after October 29, 2019, Plaintiff submitted a Grievance Form, stating that “[n]o where in [the] current agreement between the County . . . and the [Union] does it say an officer who calls in/has a pre-approved sick day (doctor appointment) can't work a switch on the following shift on that day.” (Oct. 29, 2019 Grievance 2.) As a remedy, Plaintiff sought the return of “6 ½ hours of vacation time” and the removal of “[a] letter [reprimanding him] from his file.” (Id.) Ultimately, this grievance was brought before an arbitrator. (See generally July 27, 2020 Arbitration Opinion.) In her decision, the arbitrator ruled in Plaintiff's favor, holding that Falco violated the CBA when he denied Plaintiff the opportunity to switch shifts and cover a shift on same day he had used sick leave, and ordering that Plaintiff's vacation time be returned and the letter reprimanding him be removed from his file. (See id. at 19; see also Compl. ¶¶ 9-10.)

Next on or around March 2, 2020, Plaintiff submitted another Grievance Form, alleging that he “ha[d] unlimited sick time due to his 911 illness, that has been certified by the [S]tate and [C]ounty. [Plaintiff] shouldn't be penalized on his evaluation for using sick time that is related to his 911 illness. [Pla...