Tolbert v. Rochester City Sch. Dist.

RICKEY L. TOLBERT, Plaintiff, v. ROCHESTER CITY SCHOOL DISTRICT, RICHARD SMITH,DELE AKINNIY, and GERALD CUTAIA, Defendants.

No. 6:19-cv-06433-FPG

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 26, 2020

DECISION AND ORDER

INTRODUCTION

Rickey L. Tolbert ("Tolbert" or "Plaintiff") instituted this action pursuant to 42 U.S.C. § 1983 against the Rochester City School District ("the District"), Richard Smith ("Smith"), Dele Akinniy ("Akinniy"), and Gerald Cutaia ("Cutaia") (collectively, "Defendants"). Tolbert's Complaint (ECF No. 1) alleges two causes of action: a First Amendment retaliation claim pursuant to 42 U.S.C. § 1983 and a breach of contract claim pursuant to New York state law. Defendants have filed a Motion to Dismiss (ECF No. 3) pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). Tolbert did not oppose the motion. For the reasons set forth below, Defendants' Motion to Dismiss is granted in its entirety, and the Complaint is dismissed.

BACKGROUND

The facts are drawn from the Complaint ("Compl.") (ECF No. 1), unless otherwise noted. Tolbert is a 60-year-old professionally trained chef who, at all times relevant to the Complaint, and since August 29, 2006, was employed by the RCSD as a teacher of Culinary Arts in the Home and Careers Instruction Department at John Marshall High School ("Marshall"). Compl. ¶¶ 8-9.

After Tolbert's original supervisor left the RCSD, Smith assumed the role of principal at Marshall and "dismantled the Culinary Arts program." When Tolbert complained, Smith retaliated against him. Tolbert consequently filed a lawsuit in the Western District of New York in 2009. See Tolbert v. Smith, et al., No. 6:09-cv-06579-CJS-JWF (2009) ("Tolbert I"). Compl. ¶¶ 11-13.

In 2016, Tolbert I settled pursuant to a Confidential Settlement Agreement and Release ("Settlement Agreement") which bound the parties to refrain from publicly disclosing the terms of the Agreement and required the RCSD to establish a position of Executive Chef and employ Tolbert in such capacity. The Settlement Agreement did not state that Tolbert's employment in that position was contingent upon taking and passing a Civil Service examination. Compl. ¶¶ 14-18.

In 2016, Tolbert commenced the Executive Chef position in the RCSD's Food Services Division. Cutaia, the RCSD Assistant Director for Human Capital, told management and staff at the Food Services Division that Tolbert had previously sued the RCSD and had received a monetary settlement. He also disclosed that Tolbert was earning a salary of $75,000 per year. Cutaia's disclosures caused Tolbert to be disliked and resented by his co-workers, who refused to co-operate with him. See Compl. ¶¶ 18, 21-24.

On unspecified dates, the RCSD retaliated against Tolbert by refusing to provide him the tools and equipment necessary for him to properly perform his job, such as a work cell phone, business cards and a mailbox, all of which were given to other supervisors after the 2016 settlement. Compl. ¶ 26. In addition, Akinniy, Tolbert's supervisor, denied him tools such as a baker's chair, which meant he had to sit on "blue bins." He was subjected to criticism for sitting on blue bins, although other employees sat on blue bins and were not criticized. Id. ¶ 33. Akinniy also removed duties from the list of "duties and responsibilities" listed in the Executive Chef jobdescription and allowed several of Tolbert's recipes to be changed without consulting him. Id. ¶ 36.

On January 1, 2018, Tolbert discovered that his office had been taken away and his desk moved to a storage location. Id. ¶ 37.

On an unspecified date, Tolbert reported to Akinniy that there was a "sexual harassment problem in the Central Kitchen." Id. ¶ 38. Akinniy retaliated against Tolbert by refusing to permit Tolbert to attend "state-wide food events, such as the food show, nutrition seminar or Food Conference in Syracuse." Id. ¶¶ 39-40.

In January of 2018, Cutaia advised Tolbert he would have to take and pass the Civil Service examination in order to remain employed in the Executive Chef position, despite the fact that the Settlement Agreement did not contain such a condition on Tolbert's employment. Tolbert agreed to take the exam but was prevented from taking the examination due to illness. See id. ¶¶ 41-43.

On unspecified dates, Cutaia told Tolbert that the Civil Service Commission would not provide a makeup exam since "the list is already out" and that only a military excuse would be accepted as a reason for not taking the examination. Id. ¶¶ 45, 50.

On January 26, 2018, Tolbert was informed that RCSD was terminating his employment from its Food Services Division. Id. ¶ 51.

On March 9, 2018, Tolbert was advised by Civil Service that he could take a make-up test on another date if he provided a doctor's note stating that he was ill on the day of the examination. Tolbert obtained a doctor's note and mailed it to Civil Service, which later notified him that it hadnot received the letter. Tolbert gave the letter¹ to Cutaia to have it transmitted to Civil Service. See Compl. ¶¶ 46-49.

Tolbert filed this lawsuit on June 13, 2019. In lieu of answering the Complaint, Defendants moved to dismiss pursuant to Rule 12(b)(6). Tolbert sought and was granted four extensions of time to file opposition papers. ECF Nos. 4-7. The most recent deadline for his response was March 23, 2020. However, he did not file anything by that date. The Motion to Dismiss was submitted without oral argument on March 24, 2020. ECF No. 7.

RULE 12(b)(6) STANDARD

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court evaluates the sufficiency of the complaint under the "two-pronged approach" announced by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). First, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitled to the presumption of truth and are thus not sufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id. at 679. A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

A court's review under Rule 12(b)(6) "is generally limited to the facts and allegations that are contained in the complaint and in any documents that are either incorporated into the complaint by reference or attached to the complaint as exhibits." Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (citations omitted). When determining whether materials "were integral to [a plaintiff]'s complaint, a necessary prerequisite for that exception is that the 'plaintiff[ ] rel[y] on the terms and effect of [the] document in drafting the complaint . . . ; mere notice or possession is not enough.'" Glob. Network Commc'ns, Inc. v. City of N.Y., 458 F.3d 150, 156 (2d Cir. 2006) (quoting Chambers, 282 F.3d at 153; first alteration added; emphasis and ellipsis in original). "In most instances where this exception is recognized, the incorporated material is a contract or other legal document containing obligations upon which the plaintiff's complaint stands or falls, but which for some reason—usually because the document, read in its entirety, would undermine the legitimacy of the plaintiff's claim—was not attached to the complaint." Id. at 157 (citation omitted); see also Nicosia v. Amazon.com, Inc., 834 F.3d 220, 231 (2d Cir. 2016). "The exception thus prevents plaintiffs from generating complaints invulnerable to Rule 12(b)(6) simply by clever drafting." Id. (citation omitted). If material is "not integral to or otherwise incorporated in the complaint, it may not be considered unless the motion to dismiss is converted to a motion for summary judgment and all parties are 'given a reasonable opportunity to present all the material that is pertinent to the motion.'" Nicosia, 834 F.3d at 231 (quoting Fed. R. Civ. P. 12(d)).

The Court "may also look to public records, including complaints filed in state court, in deciding a motion to dismiss." Blue Tree Hotels Inv. (Canada), Ltd., 369 F.3d at 217 (citation omitted). "A court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation andrelated filings." Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998); accord Global Network Commc'ns, Inc., 458 F.3d at 157.

In support of their Motion to Dismiss, Defendants have submitted several documents extraneous to the Complaint, docketed at ECF Nos. 3-2 to 3-4.

• ECF No. 3-2 consists of (i) excerpts from RCSD Board Meetings dated January 28, 2016; March 20, 2018; June 20, 2019; (ii) a letter from Cutaia to Tolbert dated March 8, 2018, indicating that the Monroe County Civil Service requested he be removed from the Executive Chef position due to his name not appearing on the most recent Civil Service list and offering him a position of employment as a Cook; the letter was signed and dated by Tolbert on March 14, 2018; (iii) e-mails among Cutaia and other RCSD employee's regarding Tolbert's failure to appear for the Executive Chef Civil Service examination in October 2017; (iv) a New Hire Form dated October 30, 2015, indicating that Tolbert's Executive Chef appointment, effective January 29, 2016, was full-time, competitive, and provisional; and (v) a Civil Service examination application signed and dated

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