Defendants Valley Stream Union Free School District No. 24;

"" HURLEY, Senior District Judge:

Plaintiffs Kevin Chesney (“Plaintiff”) and Lorraine Chesney brought the present suit
against Valley Stream Union Free School District No. 24;

Valley Stream Union Free School District No. 24 Board of Education;
Joseph Conrad; Carole Meaney; Henrietta Carbonaro;

Paul DePace; Anthony Iadevaio; Frank Nuara; Lawrence Trogel; Edward M. Fale; Lisa K. Conte;
Charles Broceaur; Stephen Haramis (hereinafter, collectively, “District Defendants”);

Local 74
Service Employee International Union (“Local 74”); “John Does and Janes Does A through D”;
and the Nassau County Civil Service Commission (“N.C.C.S.C.”) in the Supreme Court of the
State of New York County of Nassau alleging violations of the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601 et seq.;

the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”), 29 U.S.C. § 1166; the Americans with Disabilities Act (“ADA”), 42 U.S.C.A. §
12131 et seq; Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 1983 and
1985; the Equal Protection clause of the Fourteenth Amendment;

the “Eighth Amendment right to confront his accusers”; and six state law claims. District Defendants now move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b) (4), (5), and

(6). Defendant Local 74 moves separately to dismiss the Complaint pursuant to Rule 12(c). Plaintiff opposes both of the motions. For the reasons set forth herein, the Court GRANTS in part and DENIES in part the District Defendants’ motion and GRANTS in full Defendant Local 74’s motion.1

BACKGROUND
The following summary of facts is drawn from the Amended Complaint.

Plaintiff resides in Valley Stream, New York, with his wife, Lorraine Chesney. Valley Stream Union Free School District (“District”) is a municipal corporation for public education that receives state and federal funding and has its administrative offices in Valley Stream, New York. The District’s Board of Education (“Board”) was comprised of Joseph Conrad, President; Carole Meaney, Vice President; Henrietta Carbonaro, Paul DePace, Anthony Iadevaio, Frank Nuara, and Lawrence Trogel at the times relevant to the present dispute.

Joan DeBell was the Disrict Clerk; Andrea DiFusco was the District Treasurer; and Edward M. Fale, Ph.D., was the Superintendent of Schools for the District; Lisa K. Conte was the Principal of District No. 24. Plaintiff also noted, somewhat curiously, that “the motto of the District was and is ‘WE TAKE PRIDE IN OUR SCHOOLS.’” (Am. Compl. ¶ 6.)

Defendant Local 74, with its principle offices in Long Island City, New York, had a
collective bargaining agreement with the District. Chesney was a member of Local 74.

The N.C.C.S.C., located in Hempstead, New York, was “united in interest with the New York State Civil Service Commission.” (Id. ¶ 10.) Such is Plaintiff’s description of the various defendants in this dispute.

Plaintiff worked for the District from “October 3, 2004, to May 17, 2004,”2 as an “ablebodied
man.” (Id. ¶ 13.) On March 18, 2004, the Board approved Plaintiff’s permanent
appointment as a “cleaner” at the Robert W. Carbonaro School, effective April 5, 2004. This
approval conferred upon Plaintiff the designation of a “permanent” civil service employee.

The appointment was the result of the successful completion of Plaintiff’s probationary appointment.

On May 17, 2004, Chesney was “breaking down” the gym, which had been the location
of a school event the night before. While he was performing this task, he felt a “pop” in his back,
and could “barely get out of bed the following day.”

(Id. ¶¶ 22, 23.) “Nevertheless, plaintiff Chesney traveled to the District and duly filed an accident report in accordance with District policy.” (Id. ¶ 24.)

Plaintiff missed several days of work due to the injury, and “learned he had a herniated disc, which was causally related to the accident of May 17, 2004.”

(Id. ¶ 26.) Plaintiff submitted a Worker’s Compensation claim on May 25, 2004, and he did not return to his job “for a period of time.”

(Id. ¶ 29.) At this point, the Amended Complaint is somewhat vague and difficult to follow. It appears that Plaintiff did return to work shortly thereafter, but “[o]n or about June 9, 2004, he left work early and did not return at that time due to his disability.” (Id.

¶31.) On June 11, 2004, Defendant Haramis, “plaintiff’s co-worker and shop steward contacted
Superintendent Fale to ascertain whether or not Plaintiff was driving a cab on June 11, 2004.”

(Id. ¶ 49.) The District and Superintendent Fale instructed Defendant Broceaur, Supervisor of
Maintenance, to “initiate an ‘investigation’ of Chesney’s second job as a taxi driver.”

Upon confirming that Plaintiff was indeed employed and working as a taxi driver, while he was
receiving Worker’s Compensation benefits, Superintendent Fale held a meeting with a union
representative, a co-worker, Principal Conte, and Plaintiff. Superintendent Fale said to Plaintiff:

You were seen driving a cab at about 6:30 p.m. on June 11; you cannot be employed or receive any income while receiving workers’ compensation benefits; that is insurance fraud, working your second job and being out sick while I’m paying for overtime is theft of services.

We are terminating you, but if you resign right now, you will leave with a good recommendation, clean record, and I will allow you to pursue your compensation claim.

(Id. ¶ 58.) Plaintiff was terminated shortly thereafter.

Without filing an EEOC complaint, an action with any corresponding state agency, or a
notice of claim, Plaintiff brought the present lawsuit in New York state court on fourteen causes
of action, and seeking $26,000,000.00 for “pain and suffering, inability to obtain critical surgery,
and damages as yet undetermined.” (Id. ¶ 64.)

The suit was first filed in the Supreme Court of the State of New York County of Nassau on June 12, 2005.

District Defendants subsequently removed the suit to this court on November 1, 2005, on the basis of federal question jurisdiction.

Defendant Local 74 submitted an answer on November 4, 2005.

Plaintiff filed that Amended Complaint with this Court on December 8, 2005. District
Defendants moved to dismiss the Amended Complaint. Defendant Local 74 moved separately to
dismiss the claims against it, but in so doing announced its rejection of the Amended Complaint
as untimely, as it was filed without leave after Defendant Local 74 had filed its answer.

(See Def. Local 74’s Reply Mem. at 5-6.) Nonetheless, all Defendants’ moving papers address the claims against it in the Amended Complaint, and the Court addresses the following opinion to the
Amended Complaint. Plaintiff opposed both motions. ""

Source Of Post
http://www.websupp.org/data/EDNY/2:05-cv-05106-62-EDNY.pdf