Borum v. Village of Hempstead

• Decision Date: 22 December 2008
• Docket Number: No. CV 08-1488.,CV 08-1488.
• Citation: 590 F.Supp.2d 376
• Parties: Dawn BORUM, Plaintiff, v. The VILLAGE OF HEMPSTEAD and Chief Joseph Wing in his official and individual capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

590 F.Supp.2d 376

Dawn BORUM, Plaintiff, v. The VILLAGE OF HEMPSTEAD and Chief Joseph Wing in his official and individual capacity, Defendants.

No. CV 08-1488.

United States District Court, E.D. New York.

December 22, 2008.

Law Office of Michael G. O'Neill, by Kosta Kollef, Esq., New York, NY, for Plaintiff.

Bond, Schoenek & King, PLLC, by Howard M. Miller, Esq., Garden City, NY, for Defendants.

MEMORANDUM AND ORDER

WEXLER, District Judge:

In this action Plaintiff Dawn Borum ("Borum" or "Plaintiff"), a detective with the Police Department for the Village of Hempstead, alleges employment discrimination in violation of 42 U.S.C. § 1983 ("Section 1983"), and Title VII of the Civil Rights Law, 42 U.S.C. § 2000e-2 ("Title VII"). Plaintiff also claims employment discrimination in violation of Section 296 of the New York State Executive Law (the "State Human Rights Law"). Named as Defendants are the Village of Hempstead (the "Village") and Joseph Wing, the Village Chief of Police ("Chief Wing") (collectively "Defendants"). Presently before the court is the motion of Defendants, pursuant to Rule 12 of the Federal Rules of Civil Procedure, to dismiss. For the reasons set forth below, the motion is granted in part and denied in part.

BACKGROUND

I. The Allegations of the Complaint

In light of the fact that this case is presented, at this juncture, as a motion to dismiss, the court accepts as true the facts set forth in Plaintiffs' complaint.

Plaintiff is an African American female who is employed as a detective in the Village police department. On or about April of 2006, Plaintiff became disabled, as a result of an on the job injury. Pursuant to the Village sick leave policy Plaintiff is entitled to remain on sick leave until she has recuperated sufficiently to resume her police duties.

It is the specific terms of the Village sick leave policy (the "Leave Policy") that form the factual basis of Plaintiff's Complaint. According to Plaintiff, the Leave Policy requirement that she remain confined to her residence for the majority of time deprives her of her right to leave home to attend religious services. Plaintiff characterizes the interference with her ability to practice her faith as a deprivation of her First Amendment right to free exercise of her religion, in violation of Section 1983. Plaintiff also alleges that the Leave Policy is enforced in a discriminatory manner with respect to African American females, and those who are disabled. These allegations of disparate treatment are alleged in support of the notion that the Leave Policy is applied to discriminate on the basis of gender and race in violation of Title VII, and on the basis of gender, race and disability in violation of the State Human Rights Law.

II. Prior State Court Proceedings

A. The Article 78 Proceeding

In September of 2007, the legality of the Leave Policy was the subject of a proceeding commenced pursuant to Article 78 of the New York Civil Practice Law and Rules (the "Article 7 Proceeding"). Plaintiff was named as a petitioner in the Article 78 Proceeding, along with Sergeant Frank Mylett, a fellow police officer, John Murphy, the president of the Hempstead Police Department Benevolent Association (the "Union"), and the Union (collectively "Petitioners"). Named as respondents in the Article 78 Proceeding were Chief Wing, the Mayor of the Village, the Village Police Department, and the Village (collectively "Respondents")

The Article 78 Proceeding challenged the validity of the Leave Policy, alleging that decisions made pursuant to the policy are arbitrary, capricious and an abuse of discretion. The Article 78 Proceeding also alleged that the Leave Policy was "facially violative of Petitioners' constitutional rights, privileges and immunities." The relief sought in the context of the Article 78 Proceeding included, inter alia: (1) a declaration that the Leave Policy was null and void; (2) injunctive relief against enforcement of the Leave Policy and (3) an order compelling respondents to "promulgate rules and regulations to ensure nonarbitrary application of sick leave requirements which are rationally connected to the Police Departments' monitoring of its sick and injured members."

Petitioners in the Article 78 Proceeding set forth three causes of action. The first cause of action alleged that the Leave Policy was instituted in violation of lawful procedure, was arbitrary and capricious, and an abuse of discretion. The second cause of action alleged that the Leave Policy violates the Constitutions of both the United States and New York State. Finally, Petitioners' third cause of action sought attorneys fees in connection with the alleged Constitutional violations.

In support of their legal theories, Petitioners argued that the Leave Policy, which, in effect, required twenty-four hour home confinement, deprived police officers on leave of the rights to travel, free access, free association, privacy, liberty and religious worship. It was also argued that the Leave Policy deprived officers of their rights to freedom from "bodily restraint to compulsion and freedom to treat their injuries, freedom to participate in union activities, freedom to walk, stroll or loaf, as well as equal protection under the laws of both the United States and the State of New York." With respect to Plaintiff Borum, in particular, the Article 78 petition alleged that the Leave Policy prevented her from attending her house of worship, from taking her children outside of her home and "from any activity that requires her to leave her residence."

Respondents moved to dismiss the Article 78 Proceeding as moot. In support of the motion, Respondents argued that the issuance of "General Order # 27" cured any possible Constitutional defect of the Leave Policy. In an opinion dated March 11, 2008, Justice Spinosa, of the Supreme Court for the County of Nassau County, agreed and granted the motion.

In his opinion dismissing the Article 78 Proceeding, Justice Spinosa analyzed Petitioner's Federal Constitutional claims. He relied upon and cited to Federal cases analyzing similar Constitutionally based claims challenging sick leave policies under a rational basis standard. For example, Justice Spinosa cited to the decision of the Court of Appeals for the Eighth Circuit in Crain v. Board of Police Comm'rs of Metro. Police Dep't of City of St. Louis, 920 F.2d 1402, 1406-07 (8th Cir.1991), as well as this court's decision in Voorhees v. Shull, 686 F.Supp. 389, 394-95 (E.D.N.Y. 1987). Applying Constitutional principles, Justice Spinosa held Petitioners' Constitutional claims were mooted by the Respondents' newly instituted policy, which passed Constitutional muster. Thus, Justice Spinosa dismissed any claim that the Leave Policy violated the Constitution. The State Court justice made no finding whatever as to whether the leave Policy violated any state law provision under an arbitrary and capricious standard.

B. Proceeding Before The New York State Commission on Human Rights

On August 6, 2007, approximately one month prior to the filing of the Article 78 Proceeding, Plaintiff filed a complaint of an unlawful discriminatory practice with the New York State Division of Human Rights (the "Agency"). The Agency complaint, which arose out of the same circumstances as the Article 78 Proceeding, and this action, alleged discrimination on the basis of creed. In a letter dated September 13, 2007, Plaintiff notified the Agency of her decision to withdraw her complaint. Accordingly, on September 20, 2007, the Agency ordered the complaint withdrawn and closed its file in the matter.

III. The Motion to Dismiss

Defendants argue that Plaintiff's Section 1983 claim is barred by collateral estoppel. The basis for this argument is that Plaintiff has fully and fairly litigated, and lost on this issue in the context of the Article 78 Proceeding. Any claim alleging disparate treatment based upon race, gender or disability pursuant to either Title VII, or the State Human Rights Law is alleged to be barred by Plaintiffs inability to point to any particular case of disparate treatment. The State Human Rights Law claim is also sought to be dismissed on the ground that Plaintiffs voluntary withdrawal of her claim before the Agency deprives this court of subject matter jurisdiction over that claim. Finally, the claim against Chief Wing is alleged to be barred by the doctrine of qualified immunity.

Plaintiff asserts that the Article 78 Proceeding is no bar to this proceeding because the earlier proceeding was dismissed as moot, and such a proceeding could not afford Plaintiff the full measure of relief sought. She argues that the procedural posture of the case makes dismissal of her claims of disparate treatment premature. As to the claim that withdrawal of her state administrative complaint bars her state law cause of action, Plaintiff argues that because she never raised the issues of gender and disability discrimination before the Agency, those claims are not barred by her decision to withdraw her claim. Finally, Plaintiff claims that Chief Wing's actions preclude his reliance on a qualified immunity defense.

After outlining relevant legal principles, the court will turn to the merits of the motion.

DISCUSSION

I. Standard for Motions to Dismiss Pursuant to Rule 12(b) (6)

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court rejected the "oft quoted" standard set forth in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that a complaint should not be dismissed, "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46, 78 S.Ct. 99. The court discarded the "no set of facts" language in favor of the requirement that plaintiff plead enough facts "to state a claim of relief that is plausible on its face." Bell Atlantic Corp., 127...