Appellate Division notes errors in lower court's decision involving employee's appeal of his dismissal from his employment following a Civil Service Law Section 75 disciplinary action

Plaintiff had been formerly employed by the Town's Highway Department as a laborer.  He alleged the Town, the Town's Highway Department and certain named individuals [hereinafter "Defendants"] had retaliated against him by terminating his employment for reporting incidents of alleged corruption within the Highway Department to federal and local authorities. 

The Plaintiff appealed a Supreme Court order in which Supreme Court had granted Defendants motion to dismiss certain allegations set out in Plaintiff's petition while the Defendant appealed the Supreme Court's ruling which denied its motion to dismiss certain branches of Plaintiff's complaint.

The Appellate Division opined that:

1. "On a motion to dismiss a [complaint] pursuant to CPLR 3211(a)(1) the movant has the burden of providing documentary evidence that utterly refutes the [plaintiff's] factual allegations, conclusively establishing a defense as a matter of law".

2. "On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory".

3. "Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), and such proof is considered but the motion has not been converted to one for summary judgment, 'the criterion is whether the proponent of the pleading has a cause of action, not whether [the proponent] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate'" [citations omitted.]

Acknowledging Supreme Court had properly directed dismissal of so much of the Plaintiff's sixth cause of action as alleged retaliation in violation of the First Amendment pursuant to 42 USC §1983 insofar as asserted against one named defendant, the Appellate Division noted that Supreme Court erred in granting that branch of the Defendants' motion which was pursuant to CPLR 3211(a) to dismiss the first cause of action, alleging a violation of Civil Service Law §75-b against the Town and the Town Highway Department. 

In the words of the Appellate Division, "Civil Service Law §75-b(2)(a)(ii) provides that adverse employment action may not be taken against a public employee based upon his or her disclosure of information 'which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action'". Further, alleged "Improper governmental action" means "any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his [or her] employment, and which is in violation of any federal, state or local law, rule or regulation" (Civil Service Law § 75-b[2][a]). 

Accepting the facts as alleged in the second amended complaint in the instant action as true, and granting Plaintiff the benefit of every possible favorable inference, the Appellate Division viewed the first cause of action adequately having stated a cause of action alleging a violation of Civil Service Law §75-b. 

In contrast, the Court noted that the documentary evidence submitted by the Town defendants did not utterly refute Plaintiff's "allegation that [Plaintiff's] employment was terminated in retaliation for his disclosure of alleged corruption to authorities in violation of Civil Service Law §75-b or show that he does not have a cause of action on this basis."

In addition, the Appellate Division opined that Supreme Court "also erred in granting that branch of the Town defendants' motion which was pursuant to CPLR 3211(a) to dismiss the third cause of action which alleged a breach of a contract against the Town and the Highway Department". The Court pointed out that in his third cause of action Plaintiff alleged that the Town and the Highway Department terminated the Plaintiff's employment in violation of the terms of a stipulation of settlement entered into between the Plaintiff and the Town in 2017. 

The Appellate Division said the stipulation at issue, among other things, provided that the Town would "not be arbitrary and capricious in administering discipline to [the Plaintiff]" as the Town defendants' evidentiary submissions but:

1. Failed to utterly refute the Plaintiff's allegations that the Town and the Highway Department acted arbitrarily and capriciously in terminating his employment, in violation of the stipulation of settlement; and

2. Failed to demonstrate that the [Plaintiff's] allegation that the Town and the Highway Department breached the stipulation of settlement was not a fact at all and that no significant dispute exists regarding it; and

Finally, the Appellate Division said that Supreme Court erred in granting that branch of the Town defendants' motion which was pursuant to CPLR 3211(a) to dismiss so much of Plaintiff's sixth cause of action in which Plaintiff alleged retaliation in violation of the First Amendment pursuant to 42 USC §1983 insofar as asserted against the Town defendants [other than a particular named individual]. 

The Court explained that "To maintain a [42 USC] §1983 action, a plaintiff must establish two elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct complained of deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States" and the "First Amendment protects a public employee from retaliation by his or her employer for the employee's speech only if the employee sp[eaks] [1] as a citizen [2] on a matter of public concern". 

Contrary to the Town defendants' contention, the Appellate Division found that Defendants had failed to establish at this stage of this action that the Town defendants, other than the one particular named defendant referred to hereinabove, are entitled to qualified immunity.

Click HERE to access the Appellate Division's decision posted on the Internet.

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