MARGO K. BRODIE, District Judge.
Plaintiff Christopher Fotopolous commenced this action against the Board of
Plaintiff was employed as a dispatcher for the District, a municipal fire district organized under the laws of the State of New York, (Def. 56.1 ¶¶ 3-4; Pl. 56.1 ¶¶ 3-4), for approximately 4 1/2 years, (see Fotopolous Aff. ¶ 1; Aff. of Maria Massucci ("Def. Aff.") 2). Plaintiff also served as a volunteer firefighter with the Department from 2001 until January 2011. (Fotopolous Aff. ¶ 3; Def. Aff. 3). The District had either two or three companies. (Oral Arg. Tr. 47:23-48:6.) Plaintiff was a Lieutenant, and later Captain, of Floodlight Heavy Rescue Company 8 ("Company 8"). (Fotopolous Aff. ¶¶ 8, 13.)
According to Plaintiff, in August of 2009, Anthony Lentini, one of the members of Company 8, was assaulted and knocked unconscious in the Chief's office, which resulted in Plaintiff being called to the fire station. (Id. ¶¶ 5-6.) Plaintiff was told that there had been underage drinking in the Chief's room and a fight broke out, causing Lentini to be knocked unconscious. (Id. ¶ 6.) Plaintiff took Lentini to Nassau County Medical Center. (Id.) The next day, "the [C]hiefs," i.e., Commissioner Robert Lang, then Chief of the Department, and Chief Edward Korona, then First Assistant Chief, questioned members who were present at the time of the incident, including Plaintiff. (Id.)
Lentini filed assault charges with the police against Daniel Wicks and Brian Hirtzel who were members of a different company. (Id. ¶ 7.) According to Plaintiff, Wicks and Hirtzel were "very close" with Lang and Korona and were "part of their faction within the Fire District." (Id.) Wicks was a "good friend" of Lang's and Hirtzel is Korona's brother-in-law. (Id. ¶ 9.) When Lang and Korona found out that Lentini reported the fight incident to the police, "they became outraged and suspended every Company 8 member that was present in the room when Lentini was assaulted." (Id. ¶ 8.) The only individuals
After this incident, Plaintiff was "very persistent with the Chiefs[,] demanding that [his] members be reinstated as firefighters and also demanding Wicks and Hirtzel be expelled from the Fire Department." (Id. ¶ 10.) Lang refused to answer Plaintiff's letters regarding Company 8 members being reinstated to duty. (Id.) Lang and Korona "suddenly began denying training classes and other requests" from Plaintiff. (Id.) They also "made up their own rules about how the hearing process would work[,] disregarding all District and Department by[-]laws." (Id.)
In December 2009, Lang was a candidate in the election for fire commissioner to commence at the conclusion of his term as Chief of the Department.
According to Plaintiff, Lang "used his political influence and power within the Fire District to punish [Plaintiff] and anyone in [Plaintiff's] company who did not support [Lang], his faction or his actions." (Id.) Throughout 2010, Lang and Korona "took numerous actions against" Plaintiff in his employment as a dispatcher and his role as a volunteer firefighter, including "isolating [Plaintiff] from the other Companies and Volunteer Firefighters by enforcing new policies that no Volunteer firefighters were to enter [Plaintiff's] work station during [his] shifts as a dispatcher." (Id. ¶ 16.) For example, prior to December 2009, during Plaintiff's work hours from 7:00 p.m. to 7:00 a.m. on Tuesday nights, members of Company 8 would conduct trainings or familiarize themselves with the equipment, and would have dinner with Plaintiff at the firehouse. (Id. ¶ 17.) After Lang became the Commissioner, he prohibited them from doing so. (Id.) Plaintiff claims that the door to the dispatcher's office had always been kept open, but Lang and Korona required that Plaintiff keep the door closed at all times and not allow visitors into the office. (Id.)
In his volunteer firefighter capacity, Plaintiff received letters stating that he could "no longer open the bay doors unless there was an alarm." (Id. ¶ 19.) In addition, members were not allowed to eat meals on the truck room floor, and the work bench where Company 8 worked on their tools and equipment had to be moved to a different, inconvenient location in the firehouse. (Id.) Company 8 was told that they could no longer "go on mutual aid calls to neighboring departments when called for." (Id.) Plaintiff claims that the policies only applied to members of Company 8, i.e., "those not associated with [Lang] and [Korona]." (Id.) He asserts that "[a]ll things that Company 8 [had] been doing for years now were being taken away or changed to spite Plaintiff and those who did not support Korona and Commissioner Lang," and "none of these changes were implemented in other companies who were associated with and supported Chief Korona's and Commissioner Lang's faction." (Id.) Plaintiff questioned Lang and Korona's actions during meetings and was told that "they were in charge and they had a right to unilaterally make any changes they wanted." (Id.)
In December 2010, elections were held for Company 8 Officers. (Id. ¶ 20.) According to Plaintiff, a week before the election, Company 8 received a letter from Korona stating that four members of Company 8 could not vote in the upcoming election because they were on "percentage probation." (Id. ¶ 21; Fotopolous Ex. B.) These individuals were either present or witnessed the 2009 incident involving the assault of Lentini. (Fotopolous Aff. ¶ 21.) Plaintiff and Company 8 members reviewed the by-laws and concluded that their exclusion from voting violated the by-laws. (Id.) Company 8 members voted overwhelmingly in favor of disregarding Korona's letter and following the by-laws. (Id.) In the election, Flahavan was challenged for her First Lieutenant position by William Tolley, and Tolley won the First Lieutenant election with a majority of the votes. (Id.)
Plaintiff claims that on January 3, 2011, he was called into a meeting in Korona's office with Korona, Flahavan, First Assistant Chief Christopher Moskos, Second Assistant Chief Frank McGeough and Third Assistant Chief Richard Diaz. (Id. ¶ 22.) Plaintiff was told that he "would be terminated if [he] refused to hold another Company election." (Id.) Plaintiff "did not hold another election and ... stood by the results of the elections which were dutifully held." (Id.) Plaintiff was then "suspended for allegedly refusing to follow ... direct orders and hold another election." (Id.) A January 3, 2011 letter from Moskos to Plaintiff, titled "Re: Disciplinary Action and Charges," informed Plaintiff that as of January 3, 2011, he was relieved of his duties as a volunteer firefighter for violation of Department by-laws. (Fotopolous Ex. C.) The letter advises that a hearing date would be scheduled and formal charges delivered by mail. (Id.) The letter makes no reference to Plaintiff's paid position as a dispatcher for the District. (Id.)
According to Plaintiff, on January 4, 2011, "the Chiefs" called a "special By-Law
Plaintiff claims that, on January 12, 2011 at 7:00 a.m., after working a night shift, he was called to a meeting in the board room with District Superintendent Thomas Sullivan. (Fotopolous Aff. ¶ 24.) Sullivan informed Plaintiff that the Board wanted him to resign from his paid dispatcher position and his volunteer firefighter position because he was "signing [his] friends in for fire calls."
An hour after Plaintiff signed the resignation letters he returned to the firehouse "because [he] realized how preposterous it sounded that [he] would be arrested for performing [his] duties." (Id. ¶ 28.) Plaintiff told Sullivan that he wished to
According to Defendants, Plaintiff resigned his position when he was confronted with evidence of misconduct. (Def. Mem. 8.) As an employee of the District, Plaintiff signed weekly time sheets or logs recording the hours he worked as a dispatcher and was paid for the hours represented on the time sheets. (Def. Aff. 2 (citing Def. Ex. D ("Time Logs")).) As a volunteer firefighter, Plaintiff was qualified to potentially receive Length of Service Award Programs ("LOSAP") benefits upon earning the required points. (Id. at 3; note 2 supra.) Defendants claim that Plaintiff entered himself as a volunteer responder on several emergency calls at the same time that he was working as a dispatcher for the District. (Def. Aff. 3 (citing Time Logs and Emergency Call Sheets).) By doing so, Plaintiff violated General Municipal Law § 217(f) and § 219-s, and his actions are punishable under the Penal Code § 175.05 or § 175.10 for falsifying business records, § 175.20 or § 175.25 for tampering with public records, and § 176.05 for insurance fraud. (Id. at 3-4.) According to Defendants, when Plaintiff was confronted with the findings of his employment hours and call response times, he resigned from his paid position with the District as a dispatcher and from his position as a volunteer member of the Department. (Id. at 4-5 (citing Def. Exs. G ("District Resignation Letter") and H ("Department Resignation Letter")).)
Plaintiff disputes that he engaged in misconduct or that he needed LOSAP points. Plaintiff asserts that when the Department receives a call for any type of emergency, the dispatcher on duty is responsible for signing in members who respond to the emergency. (Fotopolous Aff. ¶ 32.) In addition, to fulfill the LOSAP obligations, a volunteer firefighter only needs 25 points each year, which are accumulated through a variety of activities.
Following Plaintiff's resignation, Flahavan took over Plaintiff's position as Captain of Company 8, and Wicks and Hirtzel, the individuals accused in the 2009 assault of Lentini, were reassigned to the Department without negative repercussions. (Id. ¶ 40.)
Plaintiff claims that he was retaliated against for failing to support Korona, Lang and Flahavan in elections, and that Defendants' conduct has caused him "severe emotional distress, mental anguish, physical injury, anxiety and depression that persist to date, as a result of [his] wrongful termination." (Id. ¶ 41.)
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Bronzini v. Classic Sec., L.L.C., 558 Fed.Appx. 89, 89, 2014 WL 943933, at *1 (2d Cir. Mar. 12, 2014); Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir.2013); Kwong v. Bloomberg, 723 F.3d 160, 164-65 (2d Cir.2013); Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174 (2d Cir.2012). The role of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The "mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir.2000). The Second Circuit has cautioned that "`[w]here an employer acted with discriminatory intent, direct evidence of that intent will only rarely be available, so affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'" Taddeo v. L.M. Berry & Co., 526 Fed.Appx. 121, 122 (2d Cir.2013) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010)).
Plaintiff alleges that Defendants violated his First Amendment rights to freedom of speech and association by retaliating against him for refusing to associate with a political faction within the District, which ultimately resulted in his coerced resignation. (Pl. Opp'n 1.)
As the Supreme Court has made clear, public employees do not surrender their First Amendment rights to comment on matters of public interest because of their employment. See Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ("[P]ublic employees do not surrender all their First Amendment rights by reason of their employment.
"To state a First Amendment retaliation claim, a plaintiff must establish that: (1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech." Puglisi v. Town of Hempstead, Dep't of Sanitation, Sanitary Dist. No. 2, 545 Fed.Appx. 23, 26 (2d Cir.2013) (quoting Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir.2011)); see also Adams v. Ellis, 536 Fed.Appx. 144, 144 (2d Cir.2013); Wrobel, 692 F.3d at 27; Singh v. City of New York, 524 F.3d 361, 372 (2d Cir.2008). "[T]he 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.'" Singer v. Ferro, 711 F.3d 334, 339 (2d Cir.2013) (alterations in original) (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951); see also Garcia v. Hartford Police Dep't, 706 F.3d 120, 129-30 (2d Cir.2013) ("[T]he plaintiff must show that... the speech at issue was made as a citizen on matters of public concern rather than as an employee on matters of personal interest...." (citation and internal quotation marks omitted)); Spencer v. Philemy, 540 Fed.Appx. 69, 70 (2d Cir.2013) ("[T]he 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.'" (alterations in original) (quoting Singer, 711 F.3d at 339)). The Second Circuit has held that the "public concern" requirement applies to associational conduct in addition to speech. Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir.2004).
"A matter of public concern is one that relates to any matter of political, social, or other concern to the community." Spencer, 540 Fed.Appx. at 70 (alteration and internal quotation marks omitted) (quoting Singer, 711 F.3d at 339). Speech made pursuant to an employee's duties and responsibilities is not protected speech. See Garcetti, 547 U.S. at 421, 126 S.Ct. 1951 ("[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."); see also Monz v. Rocky Point Fire Dist., 519 Fed.Appx. 724, 727 (2d Cir.2013) (expressions made pursuant to employee's official duties as captain of fire company were not constitutionally protected).
To determine whether speech is a matter of public concern the Court must look at the entire record and take into
The Court must also examine whether the speech addresses a personal grievance or has a public purpose. Spencer, 540 Fed.Appx. at 70 ("Among the relevant considerations is `whether the speech was calculated to redress personal grievances or whether it had a broader public purpose.'" (quoting Singer, 711 F.3d at 339)); see also MacFall v. City of Rochester, 495 Fed.Appx. 158, 160-61 (2d Cir. 2012) (stating that speech is not protected if it is "merely `calculated to redress personal grievances'" (quoting Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir.2008))). Although the Court can consider the employee's motive, any such motive is not dispositive of the issue. Spencer, 540 Fed.Appx. at 70 ("The employee's motive for speaking `surely may be one factor' in determining whether the speech was on a matter of public concern, but motive `is not, standing alone, dispositive or conclusive.'" (quoting Sousa v. Roque, 578 F.3d 164, 175 (2d Cir.2009))). "The fact that a statement was made to the employer in private is not determinative of whether its subject was a matter of public concern." Jackler v. Byrne, 658 F.3d 225, 235-36 (2d Cir.2011) (citations omitted). The question of whether a public employee spoke on a matter of public concern is a question of law. Id. (citing Singer, 711 F.3d at 339).
As with the right to freedom of speech, "[t]he right to free association is `a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.'" State Emp. Bargaining Agent Coal. v. Rowland ("Rowland"), 718 F.3d 126, 132 (2d Cir. 2013) (quoting Shelton v. Tucker, 364 U.S. 479, 485-86, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960)), cert. denied, 571 U.S. ___, 134 S.Ct. 1002, 187 L.Ed.2d 863 (2014). "[G]overnment employers may not `condition hiring decisions on political belief and association ... unless the government has a vital interest in doing so.'" Rowland, 718 F.3d at 132 (quoting Rutan v. Republican Party of Illinois, 497 U.S. 62, 78, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990)); see also Wrobel v. Cnty. of Erie, 211 Fed. Appx. 71, 72 (2d Cir.2007) ("Government employees who are not policymakers have the right not to affiliate with or support a particular party or faction as a condition of employment." (citing Rutan, 497 U.S. at 69, 110 S.Ct. 2729)).
To establish a First Amendment claim based on associational conduct, "the plaintiff must demonstrate by a preponderance of the evidence that the conduct at issue was protected, that he suffered an adverse employment action, and that there was a causal connection between the protected conduct and the adverse employment action." Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 46-47, 2014 WL 700718, at *10 (2d Cir. Feb. 25, 2014) (alteration and citation omitted); see also Bearss v. Wilton, 445 Fed.Appx. 400, 404 (2d Cir.2011) ("To establish a First Amendment retaliation claim for political association, the plaintiff must show that she engaged in political association and that such conduct was the cause of defendants'
These First Amendment protections have "been extended to politically neutral employees who are treated less favorably than employees politically aligned with those in power, as well as to employees who suffer because of their political support of a losing faction of the party in power." Wrobel, 692 F.3d at 28 (citing Welch v. Ciampa, 542 F.3d 927, 939 & n. 3 (1st Cir.2008); Gann v. Cline, 519 F.3d 1090, 1095 (10th Cir.2008); Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265, 273 (3d Cir.2007); and McCloud v. Testa, 97 F.3d 1536, 1551 (6th Cir.1996)). However, "[o]nly if an employee's speech or associational conduct `touches on a matter of public concern' can a First Amendment claim proceed." Wrobel, 692 F.3d at 28 (quoting Cobb, 363 F.3d at 102).
The Second Circuit has held that where a public employee does "not pledg[e] his support for [a] [new] administration and cho[oses] not to affiliate himself politically with it," retaliation for such conduct, if adequately proven, could give rise to Section 1983 liability. Id. (internal quotation marks omitted) (citing Wrobel, 211 Fed. Appx. at 72). The record must show that a political association exists, id. at 29, and a Plaintiff must present "evidence or available inference that [the] distinction is political in the sense that it relates to any political, social, or other community concern," id. at 28.
However, "[e]ven if there is evidence that the adverse employment action was motivated in part by protected speech, the government can avoid liability if it can show that it would have taken the same adverse action in the absence of the protected speech." Puglisi, 545 Fed.Appx. at 26 (quoting Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir.2011)).
Plaintiff claims that he engaged in protected speech and associational conduct by opposing underage drinking in the firehouse, opposing Lang, and refusing to hold a second election in January 2011, and that Defendants retaliated against him by suspending him and coercing his resignation as a result. Defendants argue that Plaintiff did not engage in protected speech or conduct, and that Plaintiff resigned of his own volition when faced with evidence of misconduct.
While the Court finds that speech about underage drinking in the firehouse addresses a matter of public concern, and is therefore protected, Plaintiff has failed to adduce sufficient evidence upon which a jury could find that he engaged in such protected speech. Furthermore, even assuming arguendo that Plaintiff made statements about underage drinking in the firehouse, he has failed to demonstrate a causal connection between this speech and the adverse employment actions he suffered. Lastly, the Court finds, as a matter of law, that Plaintiff's speech and associational conduct relating to the Department's elections and "political factions" does not constitute protected activity.
Plaintiff argues that his protected speech and associational conduct are his (1) speaking out in 2009 about underage drinking in the firehouse (Pl. Opp'n 20), (2) opposition to Lang in the December 2009 election, (id. at 11), and (3) refusal to hold a second election in January 2011.
Plaintiff argues that he engaged in protected speech in 2009 when he spoke out against underage drinking in the firehouse,
An underage drinking problem in the firehouse is a matter of public concern. See Monz, 519 Fed.Appx. at 727. In Monz, a case factually similar to this case, the plaintiff Monz was a volunteer firefighter in the Rocky Point Fire District who was barred from reinstatement after he spoke out about limiting drinking in the firehouses. The plaintiff in Monz publicly "expressed his dismay with the extent of drinking occurring in the firehouses" in the Rocky Point Fire District at a commissioner's meeting and "successfully lobbied for changes to the hours volunteer firefighters could consume alcoholic beverages on site." Monz, 519 Fed.Appx. at 726. The Second Circuit affirmed the district court's determination that Monz's speech about the alcohol policy at the commissioner's meeting was a matter of public concern. Id. at 727.
Here, Plaintiff claims that he attempted to "shed light" on the underage drinking issue "to the community" and sent a letter to that effect. (Pl. Opp'n 20.) However, despite claiming to have sent this letter, Plaintiff fails to identify to whom the letter was sent or describe the letter's contents. Indeed, other than his own conclusory assertion about sending the letter, Plaintiff offers no proof that such a letter was sent. Even drawing all inferences in Plaintiff's favor, as the Court is required to do, and recognizing that underage drinking in a firehouse would be of concern to the public, see Monz, 519 Fed.Appx. at 727, the Court finds that Plaintiff has failed to produce sufficient evidence upon which a jury could find that he sent a letter about underage drinking in the firehouse or that Plaintiff engaged in protected speech on this topic.
Plaintiff argues that his "right to freely associate" was infringed by Defendants, (Pl. Opp'n 11), because Lang "used his political influence and power within the Fire District to punish [Plaintiff] and anyone in [Plaintiff's] company who did not support [Lang], his faction or his actions." (Fotopolous Aff. ¶ 15.) Plaintiff supported Single, Lang's opponent, in the election for Fire Commissioner. (Tr. 15:24-16:3.)
To establish a First Amendment claim based on associational conduct, "the plaintiff must demonstrate by a preponderance
There is no evidence in the record to support Plaintiff's argument that there was a political faction within the District, or that Plaintiff opposed this political faction which resulted in Lang and Korona taking adverse actions against him. Plaintiff testified that he opposed Lang and supported Lang's opponent in the race for Fire Commissioner. (Fotopolous Aff. ¶ 14.) Plaintiff claims that he was punished for his unwillingness to support Lang, along with anyone in his Company "who did not support [Lang], his faction or his actions." (Id. ¶ 15.) However, distinction based on a political association must be "political in the sense that it relates to any political, social, or other community concern." Wrobel, 692 F.3d at 28-29. Plaintiff's opposition to Lang does not relate to a public matter, but to an employment-related, i.e., personal grievance. At most, the evidence shows that Plaintiff and his cohorts, some of the members of Company 8, were not friendly or closely associated with Lang and some of his cohorts, and that because Plaintiff supported Lang's opponent and Lang won the election, Lang, as the new boss, took certain measures against Plaintiff and his group. Plaintiff has failed to show that by opposing Lang, he and his group of friends in the Department were doing anything more than opposing an individual they disliked for personal reasons. Cf. Connick, 461 U.S. at 147, 103 S.Ct. 1684 ("[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."); Spencer, 540 Fed. Appx. at 70 (in the speech context, the Court must consider "whether the speech was calculated to redress personal grievances or whether it had a broader public purpose" (quoting Singer, 711 F.3d at 339)); see also MacFall v. City of Rochester, 495 Fed.Appx. 158, 160-61 (2d Cir. 2012) (stating that speech is not protected if it is "merely `calculated to redress personal grievances'" (quoting Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir.2008))). Thus, Plaintiff did not engage in associational conduct protected by the First Amendment.
Plaintiff argues that he engaged in additional First Amendment protected conduct when in January 2011, he refused to hold a new election for Company 8 officers that would have barred four of the members of Company 8 from voting. Those members were on probation at the time of the election, and Plaintiff was instructed by Korona that they were not permitted to vote. (Fotopolous Aff. ¶ 21.) Plaintiff believed that allowing them to vote while on probation was consistent with the relevant by-laws. (Id.) After the election, Plaintiff was instructed to hold a new election, and Plaintiff refused. (Id. ¶ 22.) Plaintiff claims that holding a new election would have "ensure[d] that Flahavan would win," and Flahavan was a Company 8 member aligned with Lang and Korona. (Id. ¶¶ 20, 22.)
Any statements or conduct by Plaintiff in support of the members of Company 8 and their right to vote would
In addition to proving that he engaged in protected speech or associational conduct, which Plaintiff failed to do here, Plaintiff must demonstrate that he suffered an adverse action. Plaintiff argues that he suffered an adverse action when he was suspended from his volunteer position on January 3, 2011, and when he was coerced to resign from both his volunteer firefighter position and his paid dispatcher position on January 12, 2011. Defendants argue that Plaintiff's resignation was not coerced; rather Defendants had a right to fire him, and Plaintiff voluntarily resigned when confronted with evidence of wrongdoing.
To establish an adverse action for purposes of a First Amendment retaliation claim a plaintiff must show "conduct that would deter a similarly situated individual of ordinary firmness from exercising [his] constitutional rights." Smith v. Levine, 510 Fed.Appx. 17, 21 (2d Cir.2013) (quoting Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004)); see also Ford v. Palmer, 539 Fed.Appx. 5, 6 (2d Cir.2013) ("Only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of [First Amendment] retaliation." (quoting Dawes v. Walker, 239 F.3d 489, 493 (2d Cir.2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002))). In the First Amendment
As discussed below, a reasonable jury could find that Plaintiff's suspension and coerced resignation constituted adverse employment actions.
Plaintiff was suspended from his unpaid, volunteer firefighter position with the Department for refusing to follow direct orders to hold a new election for Company 8 officers. (Fotopolous Aff. ¶ 22; Fotopolous Ex. C.) Plaintiff was notified by letter of the "[d]isciplinary [a]ction and [c]harges" and informed that a hearing date would be scheduled and formal charges delivered by mail.
Plaintiff's claim that he was coerced to resign can be considered a claim of constructive discharge, and therefore satisfies the adverse action requirement for Plaintiff's First Amendment retaliation claim. A constructive discharge occurs when an employer "intentionally create[s] an intolerable work atmosphere that force[s the plaintiff] to quit involuntarily." Andersen v. Rochester City Sch. Dist., 481 Fed.Appx. 628, 632 (2d Cir.2012) (evaluating claim for constructive discharge in violation of Title VII, the NYSHRL and the First Amendment (quoting Serricchio v. Wachovia Secs. LLC, 658 F.3d 169, 185 (2d Cir.2011))), cert. denied, 568 U.S. ___, 133 S.Ct. 836, 184 L.Ed.2d 652 (2013); see also Dall v. St. Catherine of Siena Med. Ctr., 966 F.Supp.2d 167, 175-79, 2013 WL 4432354, at *7-9 (E.D.N.Y. Aug. 14, 2013) (evaluating claim for constructive discharge in violation of Title VII and NYSHRL); Edwards v. Huntington Union Free Sch. Dist., 957 F.Supp.2d 203, 214 (E.D.N.Y. 2013) (evaluating claim for constructive discharge in violation of Title VII).
In order to establish a claim for constructive discharge, it is not enough for a plaintiff to resign instead of facing potential disciplinary charges. Bailey v. N.Y.C. Bd. of Educ., 536 F.Supp.2d 259, 266 (E.D.N.Y.2007). Nor is it enough for a plaintiff to fear termination. Massie v. Ikon Office Solutions. Inc., 381 F.Supp.2d 91, 96-100 (N.D.N.Y.2005) (holding that "fear of being terminated [was] not an adverse employment action because of its lack of consequence"). However, threats of termination may be sufficient to establish a constructive discharge claim. Grey v. City of Norwalk Bd. of Educ., 304 F.Supp.2d 314, 324 (D.Conn.2004) (finding that "threats of termination alone are sometimes sufficient to show constructive discharge" (citing Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir.1987))); see also Chertkova v. Conn. Life Ins. Co., 92 F.3d 81, 89-90 (2d Cir.1996) ("In Lopez, we held that telling plaintiff he would be fired following probation, `no matter what he did to improve his allegedly deficient performance,' was sufficient alone to support a finding of constructive discharge." (quoting Lopez, 831 F.2d at 1188)).
To determine whether threats of termination are sufficient to establish constructive discharge courts look at factors such as whether the threats of termination were repeated, direct, or involved additional adverse conduct. See, e.g., Murray v. Town of N. Hempstead, 853 F.Supp.2d 247, 270 (E.D.N.Y.2012) (finding no constructive discharge where employee merely heard a rumor that supervisor wanted him terminated); McCalla v. SUNY
Plaintiff argues that he was told to immediately sign the resignation letters presented to him, otherwise he would be arrested and prosecuted, would never work again and would lose his benefits. (Fotopolous Aff. ¶¶ 25-26.) Defendants contend that Plaintiff was not coerced to resign, but that he chose to resign in the face of evidence that would have entitled Defendants to fire him. (Def. Mem. 8.) However, weighing the evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that Plaintiff was faced with more than the mere possibility of discipline or rumors of termination, and that he resigned because of the threat of termination, arrest and/or prosecution. Plaintiff testified that he was told "to sign the resignation letters or lose everything, including any of [his] benefits and ... [his] ability to ever get another job again," and that "if [Plaintiff] did not sign the papers that [he] would be arrested, they would ruin [his] life and [he] would never get another job again." (Fotopolous Aff. ¶¶ 25-26.) A reasonable jury could find that Plaintiff was faced with a direct threat and was given the choice to resign or be fired or worse. Therefore, the Court finds that a reasonable jury could conclude that Plaintiff was constructively discharged, satisfying the adverse action requirement for his First Amendment retaliation claim.
Plaintiff argues that he was suspended and coerced into resigning because "he did not associate with a specific political faction within the Fire District." (Pl. Opp'n 1.) He argues that the causal "prong is met because Fotopoulos [sic] established a causal relationship between his membership of the losing political group and refusal to support Commissioner Lang and Chief Korona's faction and Defendants' suspension and subsequent termination of his employment." (Id. at 10.) However, Plaintiff has failed to show that the adverse actions taken against him were because he engaged in protected speech or associational conduct.
"To establish causation, a plaintiff must show that the protected speech was a substantial motivating factor in the adverse employment action." Cioffi, 444 F.3d at 167 (citation and internal quotation marks omitted); see also Monz, 519 Fed.Appx. at 726. "A causal relationship can be demonstrated either indirectly by means of circumstantial evidence, including that the protected speech was followed by adverse treatment, or by direct evidence
Even assuming arguendo that Plaintiff actually spoke out about underage drinking in the firehouse, and thus engaged in protected speech in 2009, Plaintiff was not suspended or constructively discharged until January 2011, over a year after his alleged speech. Plaintiff has failed to offer any evidence that demonstrates that his 2011 suspension and discharge were substantially motivated by his purported 2009 speech against underage drinking. See Cioffi, 444 F.3d at 167 ("To establish causation, a plaintiff must show that the protected speech was a substantial motivating factor in the adverse employment action." (citation and internal quotation marks omitted)); Wrobel, 692 F.3d at 32 ("A causal relationship can be demonstrated either indirectly by means of circumstantial evidence, including that the protected speech was followed by adverse treatment, or by direct evidence of animus." (citation omitted)).
In addition, the extended time-span between Plaintiff's alleged speech about underage drinking and his suspension and discharge fails to support an inference of retaliation based on temporal proximity. The Second Circuit "has not identified an outer limit beyond which a temporal relationship is too attenuated to support a finding of causality," and district courts must "exercise our judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases." Kim v. Columbia Univ., 460 Fed.Appx. 23, 25 (2d Cir.2012) (alteration, citations, and internal quotation marks omitted). Here, the span of one year between Plaintiff's protected conduct and the adverse actions taken against him is too attenuated to support an inference of retaliation. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting, in Title VII retaliation context, that temporal proximity must be "very close" to be sufficient evidence of causality); Stoddard v. Eastman Kodak Co., 309 Fed.Appx. 475, 480 (2d Cir.2009) (holding, in Title VII retaliation context, that "where the protected
Plaintiff asserts that the Defendants conspired to violate Plaintiff's constitutionally protected rights and retaliate against Plaintiff for refusing to associate with the "powerful political group in the Fire District." (Pl. Opp'n 25.) To make out a claim for conspiracy pursuant to § 1985, "the plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." Robinson v. Allstate Ins. Co., 508 Fed.Appx. 7, 9 (2d Cir.2013) (quoting United Bhd. of Carpenters v. Scott ("Scott"), 463 U.S. 825, 828-29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983)); see also Bhatia v. Yale Sch. of Med., 347 Fed.Appx. 663, 665 (2d Cir.2009) (same); Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir.2007) (same); Britt v. Garcia, 457 F.3d 264, 269 n. 4 (2d Cir. 2006) (same). "A plaintiff must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end." Id. (alteration omitted) (quoting Webb v. Goord, 340 F.3d 105, 110 (2d Cir.2003)). "Furthermore, the `conspiracy must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.'" Id. (quoting Britt, 457 F.3d at 269 n. 4); Reynolds v. Barrett, 685 F.3d 193, 201-02 (2d Cir. 2012) (Section 1985 and 1986 claims require "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.").
Although it is unclear whether under Second Circuit law a political party is a protected group satisfying § 1985's class-based discrimination requirement, the Second Circuit has clearly stated that a plaintiff who claims discrimination because he or she stood "in political and philosophical opposition to the defendants" and were "outspoken in their criticism of the defendants' political and governmental attitudes and activities do not constitute a cognizable class under Section 1985."
Plaintiff's claim is foreclosed by the Second Circuit's decision in Gleason. Plaintiff argues that he is a member of a protected class because he was "a government employee who ... refused to associate with the powerful political group in the Fire District structure, the Chief's group...." (Pl. Opp'n 25.) Plaintiff also alleges that "he is part of a protected class because he is a member of Company 8's group and that group refused to associate with the Chief's group." (Id.) Even assuming Plaintiff's contention to be true, his alleged protected class falls squarely within the ambit of Gleason, and thus does not qualify as a protected class for purposes of § 1985 liability. See Gleason, 869 F.2d at 695; Arteta, 141 Fed.Appx. at 8 (affirming district court's dismissal of plaintiffs' § 1985 conspiracy claim because "a plaintiff who does not claim discrimination based on his political party affiliation but rather contends that he was discriminated against because he was a political opponent of the defendants is not a member of a protected class under § 1985" (citing Gleason, 869 F.2d at 694-96)); Rzayeva v. United States, 492 F.Supp.2d 60, 82 (D.Conn.2007) ("Membership in non-racial, political classes generally cannot serve as a basis for § 1985 claims." (citing Scott, 463 U.S. at 836, 103 S.Ct. 3352 and Gleason, 869 F.2d at 695)). Plaintiff's § 1985 conspiracy claim is therefore dismissed.
Plaintiff argues that the Defendants "neglected, refused, or failed to prevent" the conspiracy to deprive him of his rights, in violation of § 1986, (Pl. Opp'n 27), when the Board failed to accept Plaintiff's rescission
Plaintiff's § 1986 claim also fails because § 1986, like § 1985, requires "some racial, or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators' action." Reynolds, 685 F.3d at 201-02. As discussed above, Plaintiff's membership in Company 8 which "refused to associate with the Chief's group," (Pl. Opp'n 25), is not a protected class for purposes of § 1985 or § 1986. See Gleason, 869 F.2d at 695; Arteta, 141 Fed. Appx. at 8.
At oral argument the Court dismissed Plaintiff's procedural due process claim. The Court explains its decision here. Plaintiff claims that as a public employee, Defendants' failure to provide him with a pre-termination hearing deprived him of due process. (See Pl. Opp'n 22-23.) However, as Plaintiff's counsel admitted at oral argument, because Plaintiff could have commenced an Article 78 proceeding to challenge his coerced resignation, Plaintiff cannot establish a procedural due process claim.
While a public employee with a property right in his job is normally entitled to a pre-termination hearing, it is impractical for employees who are constructively discharged to obtain a pre-termination hearing, and the availability of an Article 78 proceeding subsequent to termination provides adequate procedural due process. See Hoover v. Cnty. of Broome, 340 Fed.Appx. 708, 711 (2d Cir.2009) (finding the plaintiff "would not be entitled to a pre-deprivation remedy for the constructive discharge," and "[h]aving failed to utilize the adequate post-deprivation remedy of an Article 78 proceeding," the plaintiff's due process claim was "without merit"); Stenson v. Kerlikowske, 205 F.3d 1324, 2000 WL 254048, at *1 (2d Cir. Mar. 3, 2000) (unpublished) ("However, since Stenson alleges that he was coerced into resigning, the underlying deprivation was sufficiently unforeseeable that the availability of an Article 78 proceeding provided Stenson with `a meaningful opportunity to
Plaintiff argues that Defendants are liable as municipalities because even a single unlawful discharge can support a claim if ordered by a person who is an official policymaker. (Pl. Opp'n 20.) Plaintiff argues that "Commissioner Lang, Chief Korona and Superintendent Sullivan's actions undoubtedly represent government policy because Commissioner Lang, as one of the Board Members, Thomas Sullivan as the District Superintendent and Chief Korona, have final authority over hiring and firing decisions, which are discretionary matters and their decisions in this area constitute the municipality's final actions." (Pl. Opp'n 21.) At oral argument, Plaintiff conceded that Lang, Korona and Sullivan do not have the power to hire or fire Plaintiff, but argued that because of their titles and positions, they are high-ranking officials and policymakers and their actions therefore subject Defendants to liability. Plaintiff further argues that Defendants are liable because the Board refused to either decline to accept Plaintiff's resignation or to accept Plaintiff's rescission of his resignation. Defendants argue that Plaintiff has failed to identify an officially adopted policy, custom or practice to support
The dismissal of Plaintiff's underlying claim for First Amendment retaliation requires dismissal of Plaintiff's municipal liability claim, as Defendants cannot be liable where there is no underlying constitutional violation. Johnson v. City of New York, 551 Fed.Appx. 14, 14-15, 2014 WL 223432, at *1 (2d Cir.2014) ("Because [plaintiff] has not alleged a valid underlying constitutional deprivation, his claim against New York City pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), must also fail." (citation omitted)); Kajoshaj v. New York City Dep't of Educ., 543 Fed.Appx. 11, 16-17, 2013 WL 5614113, at *4 (2d Cir.2013) (affirming dismissal of the plaintiffs' Monell claim against the municipal defendant because plaintiff failed to plausibly plead a constitutional violation by the municipality's employees); Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir.2013) ("Unless a plaintiff shows that he has been the victim of a federal law tort committed by persons for whose conduct the municipality can be responsible, there is no basis for holding the municipality liable."); Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006) ("Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation."); Mendoza v. County of Nassau, No. 11-CV-02487, 2012 WL 4490539, at *7 (E.D.N.Y. Sept. 27, 2012) ("When there is no underlying constitutional violation, there can be no municipal liability under Monell.").
Even if Plaintiff had a viable underlying First Amendment claim, in order to sustain a claim for relief pursuant to § 1983 against a municipal defendant, a plaintiff must show the existence of an official policy or custom that caused injury and a direct causal connection between that policy or custom and the deprivation of a constitutional right. Monell v. Dep't of Social Servs. of City of New York., 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom ... inflicts the injury that the government as an entity is responsible under § 1983."); see Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir.2010) ("[T]o hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right." (alteration in original) (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.2007))).
A plaintiff may also establish municipal liability premised on the acts of a municipal policymaker with final policymaking authority. "In order to prevail against a municipality based on the acts of a public official, a § 1983 plaintiff must prove, inter alia, that the constitutional injury was caused `pursuant to official municipal policy of some nature,' or by a municipal policymaker with `final policymaking power' over the challenged action." Massena v. Bronstein, 545 Fed.Appx. 53, 55 (2d Cir.2013) (citations omitted) (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018 and Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir.2008)); see also Hines v. Albany Police Dep't, 520 Fed.Appx. 5, 7 (2d Cir. 2013) ("`[W]here action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only
For purposes of municipal liability, it is not enough that Lang, Korona and Sullivan are high-ranking officials within the District as Plaintiff contends. Plaintiff concedes that Lang, Korona and Sullivan do not have final authority over hiring and firing policy, and Plaintiff has provided no evidence that Lang, Korona and Sullivan had policymaking authority over suspensions. Because they do not have this authority, Lang, Korona and Sullivan are not final policymakers in this area, and as such, their actions of suspending Plaintiff or forcing or coercing Plaintiff's resignation cannot subject Defendants, as municipal entities, to liability. See Massena, 545 Fed.Appx. at 55 (stating that municipal liability lies where the constitutional injury is caused "by a municipal policymaker with `final policymaking power' over the challenged action," and affirming dismissal of municipal liability claim where the city official responsible for administering the plaintiff's contract but not responsible for awarding contracts could not impose liability on the City for non-renewal of the contract (citation omitted)); Schwab, 435 Fed.Appx. at 40 (finding plaintiff high school employee failed to sufficiently plead municipal liability premised on acts of the District Superintendent of Schools, the high school principal, and another employee where she did "not adequately allege[] that any of the individual defendants had final authority to establish municipal policy with respect to the hiring and firing of District employees" (citation and internal quotation marks omitted)); see also Zherka, 412 Fed.Appx. at 348-49 ("[S]ection 1983 liability can only attach where a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the
To the extent that Plaintiff argues that the Board, as the body vested with discretion over hiring and firing, participated in his alleged injury either by failing to decline Plaintiff's resignation or by failing to accept Plaintiff's rescission of his resignation, Plaintiff has not demonstrated that this action by the Board was retaliatory in nature. Plaintiff has not shown any causal connection between his alleged protected activity — his speech about underage drinking in the firehouse sometime in 2009, his opposition to Lang in the December 2009 election, and his refusal to hold a second Company 8 officer election in January 2011 — and the actions of the Board. See Nagle v. Marron, 663 F.3d 100, 109 (2d Cir.2011) (plaintiff must show the protected speech was a substantial motivating factor in the adverse employment action (citing Cioffi, 444 F.3d at 167)); Cioffi, 444 F.3d at 167 (same). Plaintiff's municipal liability claim therefore fails.
Because the Court dismisses all of Plaintiff's federal claims, the Court declines to exercise jurisdiction over Plaintiff's sole remaining state law claim pursuant to New York Civil Service Law § 75. "District courts may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." Pension Ben. Guar. Corp. v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013) (citations and internal quotation marks omitted); see also One Commc'ns Corp. v. JP Morgan SBIC LLC, 381 Fed. Appx. 75, 82 (2d Cir.2010) ("If all of a plaintiff's federal claims are dismissed, a district court is well within its discretion to decline to assert supplemental jurisdiction over any state law claims"); Sullivan v. City of New York, No. 10-CV-0038, 2011 WL 3806006, at *6 (S.D.N.Y. Aug. 29, 2011) ("where federal claims are dismissed before trial, the state [claims] should be dismissed as well." (quoting Marcus v. AT & T Corp., 138 F.3d 46, 57 (2d Cir.1998))). The Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claim of violation of the New York Civil Service Law § 75. Plaintiff's state law claim is therefore dismissed without prejudice.
The Court grants Defendants' motion for summary judgment as to all of Plaintiff's federal claims. The Court declines to exercise jurisdiction over Plaintiff's remaining state law claim for violation of the New York State Civil Service Law and that claim is dismissed without prejudice.
SO ORDERED.
