Laface v. E. Suffolk Boces, 2:18-cv-01314 (ADS)(AKT)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Citation349 F.Supp.3d 126
Docket Number2:18-cv-01314 (ADS)(AKT)
Parties John LAFACE, Plaintiff, v. EASTERN SUFFOLK BOCES; Board of Trustees, Eastern Suffolk Boces; Dr. Julie Davis Lutz, in Her Official Capacity as COO, Eastern Suffolk Boces, and Individually; Dr. R. Terry McSweeney, in Her Official Capacity as Assistant Superintendent for Human Resources, Eastern Suffolk Boces, and Individually; Jill Diamond, in Her Official Capacity as School Personnel Officer, Eastern Suffolk Boces, and Individually; Keith Anderson, in His Official Capacity as Supervisor, Eastern Suffolk Boces, and Individually; Thomas Bilka, in His Official capacity as Supervisor, Eastern Suffolk Boces, and Individually, Defendants.
Decision Date15 November 2018

Harriet A. Gilliam, Esq., Counsel for the Plaintiff, 21 West Second Street, Riverhead, NY 11901

Sokoloff Stern LLP, Counsel for the Defendants, 179 Westbury Avenue, Carle Place, NY 11514, By: Adam I. Kleinberg, Esq., Chelsea Weisbord, Esq., Of Counsel


SPATT, District Judge:

On March 1, 2018, John Laface ("Laface" or the "Plaintiff") commenced this action against Eastern Suffolk BOCES ("BOCES"), the Eastern Suffolk BOCES Board of Trustees (the "Board"), Dr. Julie Davis Lutz ("Lutz"), Dr. R. Terry McSweeney ("McSweeney"), Jill Diamond ("Diamond"), Keith Anderson ("Anderson") and Thomas Bilka ("Bilka") (together, the "Defendants"), in response to his involuntary transfer in October of 2016. The Plaintiff alleges numerous federal and state causes of action, namely violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. ; the Rehabilitation Act, 29 U.S.C. § 794 et seq. ; the Age Discrimination in Employment Act ("ADEA"), 29 US.C. § 621 et seq. ; Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq. ; the First Amendment; the Due Process Clause of the Fourteenth Amendment; and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 296 et seq .

Presently before the Court is a motion by the Defendants, pursuant to Federal Rule of Civil Procedure (" FED. R. CIV. P ." or "Rule") 12(b)(6), seeking to dismiss the complaint for failure to state a claim upon which relief may be granted.

For the following reasons, the Defendants' motion to dismiss is granted in part.


Unless otherwise noted, the following facts are drawn from the Plaintiff's complaint, and for the purposes of the instant motion, are construed in favor of the Plaintiff.

Laface is currently employed by BOCES as a Custodial Worker I. For the last 30 years, he has been assigned to the Gary D. Bixhorn Technical Center ("BTC") at 350 Matra Avenue in Bellport, New York. During his tenure at BTC, Laface worked from 7:00 a.m. to 3:00 p.m. during the workweek and was supervised by Anderson and Bilka. The Plaintiff belongs to the United Public Services Employees Union (the "Union") and his employment is governed by a collective bargaining agreement (the "CBA"). At an unknown time, the Plaintiff developed a condition that causes stress and anxiety and prevents him from travelling further than ten miles from his home. Laface had previously informed Anderson as well as BOCES' Human Resources Department of his travelling restriction prior to the events detailed below.

While the Plaintiff's complaint makes it clear that the Plaintiff was involved in a series of complaints and grievances, the nature and timeline of the specific complaints is ambiguous. According to the Union, the Plaintiff has actively advocated for himself and the Union for over 25 years and filed 15 separate grievances since 2014. These were filed in connection with "change in shift hours, non-bargaining unit members performing bargaining unit work, allowing district employees and/or students into the building without a custodian present ... and other ... matters." See Docket Entry ("DE") 10-9.

Relevant to the instant action, beginning in 2015, the Plaintiff began making complaints to Lutz, the Chief Operating Officer of BOCES, and the Board regarding alleged improper and wasteful expenditures of public funds, misuse of public funds, and contracting practices. The Plaintiff also alleges that he was involved in a grievance filed by the Union regarding harassment and discrimination that he purportedly faced on July 7, 2014. The letter from Laface's union depicts an issue with Anderson that alleges bullying, intimidation and the threat of retaliation. See DE 10-8 at 1-2. The Plaintiff also filed a grievance with the Public Employment Retaliations Board ("PERB") on July 16, 2015 regarding the use of contractors without custodial employees present. The Plaintiff was scheduled to testify at the related arbitration hearing scheduled for November 2, 2016. This arbitration involved the use of exterior contractors without custodians present. See DE 10-9. Separately, the Plaintiff seemed to have filed an internal complaint with BOCES regarding his treatment in the workplace, alleging harassment and discrimination regarding the Plaintiff's stated disability. There is no timeline provided for this factual assertion and it is unclear if this complaint is separate from the Union's grievance that resulted from the July 7, 2014 incident.

On or about October 17, 2016, Anderson and Bilka notified the Plaintiff by letter that he was reassigned to the H.B. Ward Campus ("HBW") in Riverhead, New York, effective on October 28, 2016. The letter did not provide an explanation as to why BOCES was transferring Laface. HBW is located more than ten miles from the Plaintiff's residence. The CBA permits involuntary transfers with one-week's prior notice. See CBA, DE 10-2 at 27-28. In pertinent part, it states: "Except for emergencies and temporary assignments, a permanent unit member may not be transferred to another shift or from one building to another until prior notice to and discussion with the unit member has taken place. A one week notice for permanent transfers is required." Id. The Plaintiff was provided nine days notice of the transfer to HBW.

Laface's impending transfer caused him enormous anxiety and prevented him from being able to continue to work. Unable to drive to HBW without his condition flaring up, the Plaintiff began a period of sick leave beginning on October 28, 2016. On or about November 22, 2016, the Plaintiff received a letter from Diamond, the School Personnel Officer, which directed him to report to BOCES Human Resources Department for a meeting on November 28, 2016. Laface's last day of documented sick leave was November 27, 2016, the day before the meeting. He reported to the November 28, 2016 meeting with Diamond and requested that she "make a reasonable accommodation for his documented disability." She "refused to engage in the required interactive process ... to identify a reasonable accommodation for Plaintiff's travel/driving restrictions and stated to Plaintiff that [BOCES] was not going to accommodate him." Diamond instructed the Plaintiff to have his physician complete a number of forms regarding his disability. Laface presented the forms to his physician who completed them and returned them to Diamond. After the November 28, 2016 meeting, the Plaintiff received correspondence from Marysue Dileva informing him of his rights and responsibilities under the Family Medical Leave Act ("FMLA").

Diamond again met with the Plaintiff on December 23, 2016, along with his union representative. At that meeting, Diamond purportedly accused Laface of being uncooperative in refusing to answer her questions and informed him that he was to report to HBW using public transportation rather than remain at BTC. Following the December 23, 2016 meeting, the Plaintiff was placed on paid administrative leave. Both the Plaintiff and his union representative reached out to Diamond to discuss his administrative leave. Ultimately, the Plaintiff never reported to his assignment at HBW. On December 21, 2016, the Union filed a complaint with PERB contending that the Plaintiff's transfer was in retaliation for the Union's July 16, 2015 grievance involving exterior work on the building. See DE 9.

On or about January 19, 2017, the Plaintiff received a letter from Diamond ordering him to report to Jefferson Academic Center ("JAC") for a temporary work assignment beginning on February 1, 2017. The letter further informed the Plaintiff that he was assigned to work from 10:00 a.m. to 6:00 p.m. at JAC during the regular workweek and indicated that JAC is less than ten miles from the Plaintiff's residence. See DE 10-7, at 2. The Plaintiff began working at JAC as instructed and continues to report to this temporary work assignment, which he contends involves different work and added responsibilities, including additional manual labor.

Throughout this time there were vacant custodial positions at BTC, including the Plaintiff's original position.


In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the Plaintiff. See, e.g., Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016) ; Walker v. Schult , 717 F.3d 119, 124 (2d Cir. 2013) ; Cleveland v. Caplaw Enters. , 448 F.3d 518, 521 (2d Cir. 2006) ; Bolt Elec., Inc. v. City of New York , 53 F.3d 465, 469 (2d Cir. 1995) ; Reed v. Garden City Union Free Sch. Dist. , 987 F.Supp.2d 260, 263 (E.D.N.Y. 2013).

Under the Twombly standard, the Court may only dismiss a complaint if it does not contain enough allegations of fact to state a claim for relief that is "plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Second Circuit has expounded that, after Twombly, the Court's inquiry under Rule 12(b)(6) is guided by two principles:

First, although a court must accept as true all of the

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