Vandermark v. City of New York, 08 Civ. 5332(SAS).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation615 F.Supp.2d 196
Docket NumberNo. 08 Civ. 5332(SAS).,08 Civ. 5332(SAS).
PartiesMarshall VANDERMARK, et al., Plaintiffs, v. CITY OF NEW YORK, Department of Environmental Protection, Water Board for New York City, Michael Bloomberg, Mayor, Emily Lloyd, Commissioner, Edward Welch, Chief, James Golden, President of Local 300, SEIU, and Local 300, SEIU, Defendants.
Decision Date04 May 2009

Richard Merritt, Esq., Law Office of Richard Merritt, Lindenhurst, NY, for Plaintiffs.

Donna Anne Canfield, Esq., New York City Law Department, New York, NY, for City Defendants.

Joel Spivak, Esq., The Law Firm of Joel Spivak, Arthur J. DiBerardino, Esq., Mirkin & Gordon, P.C., Great Neck, NY, for SEIU Defendants.


SHIRA A. SCHEINDLIN, District Judge:


Approximately 130 Environmental Police Officers ("EPOs") employed by the New York City Department of Environmental Protection ("DEP") along with the Law Enforcement Employees Benevolent Association ("LEEBA") assert that the City of New York, city agencies, city employees (collectively "City defendants"), Local 300 of the Service Employees International Union ("Local 300" or "SEIU") and the Local 300's president (collectively "SEIU defendants") engaged in a broad array of unlawful conduct, including failure to provide proper overtime compensation, discrimination, and corrupt business practices. Plaintiffs allege that defendants have violated the Fair Labor Standards Act ("FLSA"),1 Title VII of the Civil Rights Act of 1964 ("Title VII"),2 the Civil Rights Act of 1866 ("Section 1981"),3 the Age Discrimination in Employment Act ("ADEA"),4 Section One of the Civil Rights Act of 1871 ("Section 1983"),5 Section Two of the Civil Rights Act of 1871 ("Section 1985"),6 the Racketeer Influenced and Corrupt Organizations Act ("RICO"),7 the Labor Management Relations Act ("LMRA"),8 the Employee Retirement Income Security Act ("ERISA"),9 the Clean Water Act of 1977 ("CWA"),10 the First and Fourteenth Amendments to the United States Constitution, the New York Human Rights Law,11 the New York Civil Service Law,12 and Article V, Section 6 of the New York Constitution.

Defendants now move to dismiss this action in its entirety. The Court has received separate motions from the City defendants and the SEIU defendants. For the reasons that follow, defendants' motions to dismiss are granted in full.


A. Claims

Plaintiffs filed their initial Complaint on June 11, 2008, an Amended Complaint on October 14, 2008, and the operative Second Amended Complaint on December 8, 2008. Although the Complaint is exceedingly difficult to follow, plaintiffs allege that defendants have harmed them in the following ways:14 (1) by insufficiently compensating them for overtime by applying FLSA guidelines applicable to law enforcement employees,15 (2) by creating a hostile work environment in violation of Title VII through a panoply of objectionable working conditions;16 (3) by discriminating against them plaintiffs in violation of Title VII, the ADEA, Section 1981, the Equal Protection Clause, the New York Human Rights Law, and the New York Civil Service Law;17 (4) by reducing environmental monitoring of New York City's water supply in violation of RICO in order to avoid filtration costs necessitated by compliance with the CWA;18 (5) by failing to provide them with sufficient compensation and benefits in violation of the CWA;19 (6) by failing to provide them with sufficient compensation and benefits in violation of the New York Executive Law and New York State Constitution;20 and (7) by failing to transfer to LEEBA funds held in trust for EPOs in violation of ERISA, the LMRA, and contractual provisions.21 Plaintiffs additionally assert—although not under the heading of a distinct claim—that the SEIU defendants have violated plaintiffs' First Amendment freedom of association rights by failing to transfer funds related to benefits from SEIU Local 300 to LEEBA.22

B. EPO Job Description and Benefits

EPOs are law enforcement officers charged with protecting the upstate watershed that supplies New York City with potable water.23 Pursuant to the New York State Criminal Procedure Law, EPOs are "police officers" with the power to arrest.24 EPOs are also periodically called to provide supplemental support to the New York City Police Department ("NYPD") during manpower shortages such as the 2004 Republican National Convention and the aftermath of the terrorist attacks of September 11, 2001.25 EPOs are subject to the same hiring qualifications as NYPD officers, including graduation from a certified police academy.26

Despite similar initial qualifications, EPOs do not receive the same compensation and benefits as NYPD officers. Specifically, EPOs receive lower pay and reduced benefits, and they are not given full paid sick leave for the duration of line of duty injuries.27 Moreover, the collective bargaining agreement ("CBA") between the City of New York and the EPOs does not provide for retirement after twenty years of service with full benefits, although NYPD officers receive this benefit.28 In addition, DEP does not utilize a merit, fitness, and competitive examination process to promote individual EPOs.29 Finally, although pregnant members of the NYPD may receive paid time off or light duty, light duty assignments are unavailable to pregnant female EPOs "during certain trimesters of pregnancy."30

On the other hand, EPO overtime benefits are calculated using the FLSA rubric applied to law enforcement officers, providing premium compensation only after an EPO has worked more than 171 hours in a twenty-eight day work period.31 In the aftermath of the September 11 terrorist attacks, EPOs were paid overtime for each hour worked beyond their ordinary work schedule, but after the clean-up was complete, DEP returned to the pre-existing overtime compensation system.32

C. DEP Cost Saving Measures

On some unspecified date, DEP contracted with FJC Security, Inc. to use private guards to monitor watershed areas previously patrolled by EPOs.33 These guards lacked the specific training—as well as the enforcement powers—of EPOs.34 Moreover, DEP installed cameras at numerous locations to reduce the need for in-person patrols and grounded observation flights.35 Around this same time, DEP reduced the number of EPOs from 201 to 188.36

D. EPO Union Representation

For approximately twenty-five years, EPOs were represented by SEIU Local 300 for the purpose of negotiating a CBA with the City of New York.37 Local 300 represents a number of clerical workers employed by the City, including Fingerprint Technicians, Mortuary Technicians, Elevator Starters, Window Cleaners, Assistant Purchasing Agents, and Auditors.38 However, the SEIU negotiated a unique CBA for EPOs that has been in effect since March 13, 2000.39

On November 20, 2005, EPOs unanimously voted to certify LEEBA as their new collective bargaining agent.40 Although LEEBA has conducted initial negotiations with the City concerning a new CBA, the parties have not reached a new agreement.41 LEEBA has protested the contract distinctions between EPOs and NYPD officers, as well as the provision of the New York City Code that does not recognize EPOs as "uniform services" given particular bargaining rights.42

LEEBA has additionally requested that the SEIU "account for and transfer to LEEBA the control of welfare, annuity and retirement funds managed by Local 300 for EPO benefit."43 The SEIU has allegedly failed to provide such an accounting or to transfer such funds.44

E. The "Filtration Avoidance Plan"

In order to avoid the multi-billion dollar cost of artificial water filtration, New York City depends on natural filtration of ground and surface water in the neighboring watershed. The City has deemed the effort to utilize natural filtration the "filtration avoidance plan."45 Plaintiffs have alleged that "[t]o be successful, the [filtration avoidance plan] had to reduce the detection of pollution while maintaining the appearance of security for the water supply."46 Specifically, plaintiffs have alleged that defendants reduced the number of EPOs, substituted private security guards, used remote cameras, and reduced other surveillance activities—as well as kept in place a compensation scheme that led to high attrition rates among EPOs—in order to "cover up environmental hazards."47 Moreover, plaintiffs allege that defendants Bloomberg, Lloyd, and Welch knew that numerous wastewater treatment plants were emitting unacceptable levels of pollutants but allowed both ongoing violations and the falsification of discharge reports in order to avoid the cost of artificial filtration.48 Plaintiffs allege that defendants have benefitted from this scheme through the "billions of dollars collected for water supplied" to residents of New York City and the surrounding counties.49


A. Motion to Dismiss

In reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must "`accept as true all of the factual allegations contained in the complaint'"50 and "draw all reasonable inferences in the plaintiffs favor."51 A complaint must provide "the grounds upon which [the plaintiffs] claim rests through factual allegations sufficient `to raise a right to relief above the speculative level'"52 in order to survive a motion to dismiss. Although the complaint need not provide "detailed factual allegations,"53 it must nonetheless "amplify a claim with some factual allegations ... to render the claim plausible."54 "[B]ald assertions and conclusions of law will not suffice."55

Allegations of fraud are subject to a heightened pleading standard. Under Rule 9(b) of the Federal Rules of Civil Procedure, "[i]n alleging fraud ..., a party must state with particularity the circumstances constituting fraud."56 "This pleading constraint serves to provide a...

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