Cassidy v. Scoppetta

• Decision Date: 04 February 2005
• Docket Number: No. 04-CV-0155 (DLI)(VVP).,04-CV-0155 (DLI)(VVP).
• Citation: 365 F.Supp.2d 283
• Parties: Stephen J. CASSIDY, as President of the Uniformed Firefighters Association of Greater New York, et al., Plaintiffs, v. Nicholas SCOPPETTA, Commissioner, New York City Fire Department, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 283

365 F.Supp.2d 283

Stephen J. CASSIDY, as President of the Uniformed Firefighters Association of Greater New York, et al., Plaintiffs, v. Nicholas SCOPPETTA, Commissioner, New York City Fire Department, et al., Defendants.

No. 04-CV-0155 (DLI)(VVP).

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

February 4, 2005.

Steven A. Morelli, Carle Place, NY, for Plaintiffs.

Alan M. Schlesinger, New York City, for Defendants.

OPINION AND ORDER

IRIZARRY, District Judge.

This lawsuit concerns the New York City Fire Department's ("FDNY's") seventeen-month-old practice of "detailing" firefighters to different units based on their use of service connected medical leave. Plaintiffs Stephen J. Cassidy, as President of the Uniformed Firefighters Association ("UFA"), the UFA itself, and certain members of the UFA (collectively "Plaintiffs") commenced this action against the FDNY, FDNY Commissioner Nicholas Scoppetta, FDNY Chief of Department Frank Cruthers, and FDNY Chief of Operations Salvatore Cassano, in their individual and official capacities, (collectively, "Defendants").

In their Amended Complaint, Plaintiffs allege that the FDNY's practice of detailing firefighters based on their use of service connected medical leave¹ violates the firefighters' procedural and substantive due process rights under the Fifth and Fourteenth Amendments, and their equal protection rights under the Fourteenth Amendment. (Plaintiffs' Brief at 4).² Plaintiffs further allege that these practices violate their rights under New York State Executive Law § 290, et. seq., the New York Human Rights Law, and the New York City Administrative Code.³ Defendants have moved, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Amended Complaint in its entirety. Plaintiffs have moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment. For the reasons discussed below, Defendants' motion is granted; Plaintiffs' motion is denied, and the Amended Complaint is dismissed.

FACTS

On August 25, 2003, the FDNY Chief of Operations issued a memorandum which read, in pertinent part:

The following members have a history of service connected medical leaves [sic] that indicates a detail to a less active unit would be in the members [sic] best interests. The following details are being made until further orders effective Tuesday, September 2, 2003.

(Comp. ¶ 31 and Exhibit A).⁴ The memorandum goes on to list the names of twenty firefighters, their current assigned unit, and new detail unit. Id. The Amended Complaint lists a total of 22 firefighters, all of whom have been detailed to less active units based on their use of medical leave.⁵ Pursuant to this policy, some of the firefighters have been detailed to new firehouses, while others have been changed from ladder to engine companies. At least some of the detailed firefighters have already been transferred back to their original units.

In response to this practice of detailing firefighters based on their service connected medical leave, the UFA has taken several steps. First, the UFA filed a grievance which presently is being arbitrated. The grievance alleges that the detailing is disciplinary in nature and violates FDNY regulations. Second, the UFA commenced an Article 78 proceeding challenging the medical leave detailing in New York State Supreme Court, Kings County.⁶ In that proceeding, the UFA moved for a temporary restraining order and a preliminary injunction; both were denied. The UFA then withdrew its Article 78 petition in November 2003 and filed the instant case in January 2004.

DISCUSSION

In reviewing a complaint under Fed.R.Civ.P. 12(b)(6), the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir.1999). The motion to dismiss must be denied "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." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

§ 1983 and Fifth Amendment Claims

Plaintiffs allege that Defendants violated their procedural due process, substantive due process, and equal protection rights under the Fifth and Fourteenth Amendments to the United States Constitution. It is unclear from the Amended Complaint and Plaintiffs' other submissions whether all of these claims are brought via 42 U.S.C. § 1983 or directly under the Constitution. Since such claims cannot be brought directly under the Constitution (see e.g., Pauk v. Bd. of Trustees of City Univ. of New York, 654 F.2d 856, 865 (2d Cir.1981)), the Court will treat all of Plaintiffs' Constitutional claims as if they had been alleged properly pursuant to § 1983.

Insofar as Plaintiffs allege a violation of their Fifth Amendment due process rights, that claim is dismissed. Plaintiffs have not named the United States government or any agency or employee thereof as a defendant in this matter. The Fifth Amendment "governs the conduct of the federal government and federal employees, and does not regulate the activities of state officials or state actors." Dawkins v. City of Utica, 1997 WL 176328, *4 (N.D.N.Y. April 4, 1997) (emphasis in original) (internal citations and quotation marks omitted). The Court will therefore treat all of Plaintiffs' due process claims as if they had been alleged only under the Fourteenth Amendment via § 1983.

Procedural Due Process

The Fourteenth Amendment's requirement of procedural due process compels a two-part inquiry. First, the Court must determine whether the Plaintiffs adequately have alleged the deprivation of a constitutionally cognizable property or liberty interest. Mathews v. Eldridge, 424 U.S. 319, 332-33, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). If this requirement is satisfied, the Court then turns to the question of whether the process accorded the Plaintiffs was sufficient. Id.

"The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Such property entitlements ordinarily derive from state law. Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1351 (2d Cir.1994) (citing Roth, 408 U.S. at 577, 92 S.Ct. 2701). Plaintiffs have taken a scattershot approach to defining the property interests of which they were allegedly deprived. The clearest elucidation of this property interest is that Plaintiffs "have a property right in their continued employment." (Plaintiffs' Brief at 5) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 533, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). Assuming this is correct, Plaintiffs fail to allege how the medical details deprive them of their property right to continued employment. It is undisputed that the challenged policy amounts to nothing more than a transfer of firefighters to (apparently) less desirable units. See Kane v. Krebser, 44 F. Supp 2d 542, 549 (S.D.N.Y.1999) ("[D]enials of `a particular work assignment' concerns `interests that are not entitled to the protections afforded by the Due Process Clause'") (quoting Ezekwo v. New York City Health & Hospitals Corp., 940 F.2d 775, 783 (2d Cir.1991)). Plaintiffs do not allege that they have been terminated as a result of this new policy or that their pay rank, seniority or benefits have been affected adversely in any way.

The Amended Complaint alleges in a conclusory fashion that "plaintiffs have suffered a loss of monetary benefits associated with their employment...." (Comp. ¶¶ 879, 885, 889, 902, 908.) The only support offered for this contention is that the details to less active firehouses will decrease the likelihood that Plaintiffs will be able to earn overtime. Tr. at 43.⁷ Plaintiffs acknowledge that there is no constitutional right to overtime. Id.

Every court in this circuit that has considered the issue of whether there exists a constitutionally protected property interest in overtime pay has answered in the negative, and with good reason. Lynch v. McNamara, 342 F.Supp.2d 59, 66 (D.Conn.2004); Barton v. City of Bristol, 294 F.Supp.2d 184, 197 (D.Conn.2003); Caniello v. City of New York, 2001 WL 11061, *1 (S.D.N.Y. Jan. 4, 2001); Boyd v. Schembri, 1997 WL 466539, *3 (S.D.N.Y. Aug. 13, 1997). In Caniello, the plaintiff, an emergency medical specialist ("EMS"), alleged that the FDNY's placing him on desk duty pending the resolution of criminal charges against him deprived him of his constitutional right to overtime. Caniello, 2001 WL 11061 at *1. The Court dismissed the complaint, reasoning that the FDNY's overtime rules do not require the FDNY to provide overtime work upon demand. Id. As a result, the opportunity to work overtime shifts was "at best an expectation rather than an entitlement." Id. Given the common identity of the defendant in the present matter and the fact that Plaintiffs have similarly failed to articulate a basis for their belief in a constitutionally protected interest in overtime, this Court sees no reason to reach a different result.

Perhaps realizing the inadequacy of their arguments thus far, Plaintiffs go on to state that "[t]hey also had a viable deprivation of their property and liberty thereto, e.g., the omission of notice or opportunity to be heard regarding these punitive transfers." (Plaintiffs' Brief at 6). Plaintiffs appear to allege that the property or liberty interest of which they were deprived was their notice and opportunity for a hearing prior to being detailed to another unit. Plaintiffs' circular logic cannot hold. As Loudermill makes clear, notice and an opportunity to be heard are the vehicles which must be used to protect pre-existing rights: they are not rights in and of themselves. Loudermill, 470 U.S. at 541, 105 S.Ct. 1487 ("The...