KENNETH M. KARAS, District Judge:
Plaintiff William Ratajack ("Plaintiff"), a former member of the Brewster Fire Department, Inc. of the Brewster-Southeast Joint Fire District (the "Department"),
The following facts are taken from Defendants' Local Rule 56.1 statement in support of summary judgment, Plaintiff's response, Plaintiff's statement of additional facts creating a material dispute; Plaintiff's Local Rule 56.1 statement in support of his motion for partial summary judgment, Defendants' response, Defendants' counter statement of facts, and other documents in the record. The facts as described below are not in dispute, except to the extent indicated.
Plaintiff is self-employed as the owner of Southeast Mechanical Corp., a company in the business of installing commercial heating and plumbing systems. (Defs.' Rule 56.1 Statement of Material Facts ("Defs.' 56.1") ¶¶ 1-2 (Dkt. No. 40); Pl.'s Resp. to Defs.' Local Rule 56.1 Statement ("Pl.'s 56.1") ¶¶ 1-2 (Dkt. No. 48).) In 1999, Plaintiff became a member of the Department, and, after a probationary period, was made Lieutenant and was then promoted by the Fire Chief to Captain. (See Defs.' 56.1 ¶¶ 3-4; Pl.'s 56.1 ¶¶ 3-4; Att'y Decl. ("Massucci Decl.") Ex. C ("Pl.'s Dep. Tr.") 16-18 (Dkt. No. 38).) Additionally, Plaintiff was elected by the members of the Department to Second Assistant Chief and, in 2012, to First Assistant Chief. (See Defs.' 56.1 ¶ 4; Pl.'s 56.1 ¶ 4; Pl.'s Dep. Tr. 16-18.) Plaintiff had earlier served as captain. (See Defs.' 56.1 ¶ 13; Pl.'s 56.1 ¶ 13.) He resigned that position, however, over concerns relating to how the Fire Department was being managed, including that certain members were not attending calls, such as members Michael Miller ("Michael"), Steven, and Paul DeBartolomeo ("DeBartolomeo"). (Defs.' 56.1 ¶¶ 12-13; Pl.'s 56.1 ¶¶ 12-13.) Michael and Steven are brothers, and their father, Miller, is also a member of the Department. (See Defs.' 56.1 ¶ 8; Pl.'s 56.1 ¶ 8; Massucci Decl. Ex. H ("Miller Dep. Tr.") 13-14.) All three are Caucasian, but Miller also has two mixed-race, African-American children. (Defs.' 56.1 ¶¶ 9-10; Pl.'s 56.1 ¶¶ 9-10; Miller Dep. Tr. 14.) Arguably consistent with Plaintiff's concerns over Steven's, Michael's, and others' responsiveness, the Department or the District in 2013 hired paid EMS workers to cover daytime calls during the week due to concerns over an insufficient number of Fire Department members choosing to respond to calls. (Defs.' 56.1 ¶ 17; Pl.'s 56.1 ¶ 17.)
The Department is governed in part by a set of bylaws approved by the Board of Fire Commissioners (the "Board of Commissioners"). (See Massucci Decl. Ex. L ("Bylaws"); see also Pl.'s Cross 56.1 ¶ 17; Defs.' Cross 56.1 ¶ 17.) The bylaws provide how membership in the Department may end, including for cause, and require that any member be notified of the charges brought against him or her. (See Pl.'s Cross 56.1 ¶¶ 18-21, 58-59; Defs.' Cross 56.1 ¶¶ 18-21, 58-59.) Article 12 of those Bylaws, in part, reads:
(Bylaws Art. 12.)
On July 11, 2013, when he was First Assistant Chief, Plaintiff marched in the Mahopac parade dressed in uniform. (See Defs.' 56.1 ¶¶ 19-20; Pl.'s 56.1 ¶¶ 19-20; Defs.' Counter Statement of Facts ("Defs.' Counter Cross") 56.1 ¶¶ 2-3 (Dkt. No. 56); Massucci Decl. Ex. M ("Aug. 15 Letter").)
According to Defendants, Plaintiff then proceeded downstairs with McMurray, and continued the angry exchange with McMurray on the front steps of the firehouse, (Defs.' 56.1 ¶ 29 (citing Pl.'s Dep. Tr. 107-08; Massucci Decl. Ex. I ("Aug. 14 Meeting Tr.") 88-91)), which Plaintiff disputes, (see Pl.'s 56.1 ¶ 29 (citing Pl.'s Dep. Tr. 107-08; 114)).
Indeed, Defendants indicate that McMurray tapped Ratajack on the shoulder after he screamed "nigger," and reminded Plaintiff that he was in uniform and could not scream racial slurs in public, to which Plaintiff responded that he could say whatever he wanted, before again yelling "niggers" and referring to Mexicans in a derogatory manner, (Defs.' 56.1 ¶¶ 45-47 (citing, inter alia, Aug. 14 Meeting Tr. 93-94, 96-99; McMurray Aff.); see also McMurray Aff. ¶¶ 14-16; Aug. 14 Meeting Tr. 93-94), an assertion Plaintiff denies, (see Pl.'s 56.1 ¶¶ 45-47 (citing Pl.'s Dep. Tr. 119-21, 124)). According to Defendants, Plaintiff continued to yell "niggers" while pointing at the vehicle in which Steven was a passenger, (Defs.' 56.1 ¶ 48 (citing Aug. 14 Meeting Tr. 95; McMurray Aff.)), which Plaintiff disputes, (see Pl.'s 56.1 ¶ 48 (citing Pl.'s Dep. Tr. 120-21, 124; Miller Dep. Tr. 11)). The Parties agree, however, that at no time did Plaintiff see Steven exit the vehicle in the parking lot, nor did Plaintiff see Steven or any other member who did not march enter the firehouse to socialize. (Defs.' 56.1 ¶ 50; Pl.'s 56.1 ¶ 50.) Indeed, Plaintiff does not know why the vehicle was in the parking lot, and never inquired as to why Steven was there. (Defs.' 56.1 ¶ 51; Pl's 56.1 ¶ 51.) Nevertheless, according to Defendants, Plaintiff was loud enough that people at the gas station across the street stopped and looked when Plaintiff screamed "nigger." (Defs.' 56.1 ¶ 31 (citing Aug. 14 Meeting Tr. 95).)
In disputing whether Plaintiff simply does not remember using or in fact did not use the word "nigger" while outside, both sides cite Plaintiff's deposition transcript. (See Defs.' 56.1 ¶ 33 (citing Pl.'s Dep. Tr. 118-19); Pl.'s 56.1 ¶ 33 (citing Pl.'s Dep. Tr. 118, 120, 121, 124).) However, Plaintiff's deposition transcript is less than perfectly clear. In pertinent part, it reads:
(Pl.'s Dep. Tr. 117-21, 124.)
According to Defendants, while speaking with McMurray, Plaintiff also exclaimed "fuck you, fuck them, fuck everybody." (Defs.' 56.1 ¶ 34 (citing, inter alia, Aug. 14 Meeting Tr. 90); see also McMurray Aff. ¶ 18.)
Sean Crowley ("Crowley"), a member of the Fire Department, testified under oath that he observed and heard Plaintiff threatening McMurray, and screaming at him that Plaintiff was going to have the
Miller became aware of the July 11 incident the following day, when several members contacted him to advise him as to what had transpired. (Defs.' 56.1 ¶ 100, Pl.'s 56.1 ¶ 100.) Specifically, Crowley and others informed Miller that Plaintiff, appearing angry, used racial slurs, referred to Miller and his family as worthless "niggers," and made further threats against the Miller family. (See Defs.' 56.1 ¶¶ 101, 103; Pl.'s 56.1 ¶¶ 101, 103.) Miller, perceiving a threat to his family and himself, contacted Rieg within a few days after the incident, and informed him that Miller felt threatened and considered Plaintiff's behavior inappropriate for an officer. (Defs.' 56.1 ¶¶ 102, 104; Pl.'s 56.1 ¶¶ 102, 104.) Rieg assured Miller that he would investigate the matter. (Defs.' 56.1 ¶ 105, Pl.'s 56.1 ¶ 105.) Additionally, Miller sent a letter to the Board of Commissioners and the Board of Directors relating to what he had been told about Plaintiff's behavior. (See Defs.' 56.1 ¶ 106; Pl.'s 56.1 ¶ 106.)
Sometime after the incident, Rieg asked to speak with Plaintiff. (Defs.' 56.1 ¶ 52; Pl's 56.1 ¶ 52.) When Rieg asked Plaintiff if he had called the Millers a bunch of niggers, Plaintiff responded yes, and Rieg suspended him for 30 days. (Defs.' 56.1 ¶¶ 53-54; Pl's 56.1 ¶¶ 53-54; Pl.'s Cross 56.1 ¶¶ 22, 25; Defs.' Cross 56.1 ¶¶ 22, 25; Defs.' Counter Cross 56.1 ¶ 9.) In his deposition, Plaintiff recounted his conversation in the following manner:
(Pl.'s Dep. Tr. 127-30.) Sometime after that conversation, according to Plaintiff, he spoke with mechanic named Joe Dexter ("Dexter") who advised Plaintiff to get a lawyer because "there were discussions at the firehouse about trying to throw [Plaintiff] out." (Id. at 130-31.) Apart from this conversation with Dexter, according to Plaintiff, he was never informed that he may be removed from the Department before receiving notification of his expulsion. (Id. at 137.)
On July 30, 2013, the Board of Commissioners held a meeting, notice of which was not sent to Plaintiff, at which Miller's letter relating to Plaintiff and the underlying incident were to be discussed. (See Massucci Decl. Ex. F ("Goodwin Dep. Tr.") 44; see also Pl.'s Cross 56.1 ¶¶ 26-27; Defs.' Cross 56.1 ¶¶ 26-27.) In that letter, dated
On August 14, 2013, the Board of Commissioners had its regular meeting, which Klosowski attended, and advance notice of which was not sent to Plaintiff. (Defs.' 56.1 ¶ 83; Pl.'s 56.1 ¶ 83; Pl.'s Cross 56.1 ¶¶ 11, 29; Defs.' Cross 56.1 ¶¶ 11, 29.)
There is no question that Plaintiff did not call any witnesses at the July 30 or August 14 meetings, (Pl.'s Cross 56.1 ¶ 31, 55; Defs.' Cross 56.1 ¶ 31, 55); however, the
(Jacobs Dep. Tr. 171-72.)
(Hill Dep. Tr. 60.)
By letter dated August 15, 2013, Plaintiff received notice that he was removed
(Massucci Decl. Ex. O ("Pl.'s Att'y's Letter") 1; see also Defs.' 56.1 ¶ 57; Pl's 56.1 ¶ 57; Defs.' Counter Cross 56.1 ¶ 12.) Several months later, on November 26, 2013, Plaintiff was offered a "hearing" at which he could present "arguments and evidence in his defense." (Massucci Decl. Ex. P (Letter from Kelly to Maurer (Nov. 26, 2013)); see also Defs.' 56.1 ¶ 58; Pl's 56.1 ¶ 58; Defs.' Counter Cross 56.1 ¶ 13.) The next week, by letter dated December 6, 2013, Plaintiff through his attorney declined the offer, protesting that the "Board of Directors and/or the Fire Commissioners have rendered a decision without the minimal due process of prior notice and a right to be heard," and further stating that, "if the boards are unwilling to nullify their prior decision and provide an independent neutral fact finder, [Plaintiff's counsel] must advise [her] client to decline to participate." (Massucci Decl. Ex. Q (Letter from Maurer to Kelly (Dec. 6, 2013)); see also Defs.' 56.1 ¶ 51; Pl's 56.1 ¶ 51; Defs.' Counter Cross 56.1 ¶ 14.)
The Parties, however, dispute exactly why Plaintiff was dismissed. The stated reason for Plaintiff's termination, however, was he engaged in conduct unbecoming of an officer and detrimental to the best interest of the Department, that his behavior was threatening in nature and intimidating to other members of the Department, and that his behavior was discourteous, obscene, and abusive toward fellow officers and members of the Fire Department. (See Aug. 15 Letter 2-3.) For their part, Defendants assert that Plaintiff was "expelled exclusively for his behavior and use of the derogatory racial slurs on the firehouse steps while in uniform and threatening an officer in violation of the Brewster Fire Department by-laws Article 12," and that Plaintiff "admits he was expelled for the use of derogatory and racially charged language." (Defs.' 56.1 ¶¶ 64-65 (citing Pl.'s Dep. Tr. 171-72; Bylaws; Aug. 15 Letter).) Plaintiff, however, disputes this while admitting
Plaintiff has further claimed that his freedom of speech was violated because he was speaking out on an issue of public concern, including that members were becoming increasingly unwilling to participate in the non-firefighting activities of a volunteer fire department. (See Defs.' 56.1 ¶ 61; Pl's 56.1 ¶ 61.) According to Plaintiff, posts appearing on the social networking website Facebook in or before July 2011 revealed that staff were boycotting coming to the firehouse. (Pl.'s Dep. Tr. 161; Massucci Decl. Ex. S (Facebook posts).) Plaintiff, however, stresses that his concerns were not limited to Michael's, Steven's, and DeBartolomeo's boycott of non-fire calls during Plaintiff's tenure as captain, but that he was also concerned that a number of the members who also worked in paid fire departments were unwilling to do fundraising and community service, and that Klosowski, the Chairman of the District, acknowledged that members refused to attend EMS calls so frequently that the District had been forced to hire paid workers in 2013 for the majority of each week, and that the District had been informed of this "public safety hazard" by the Chiefs of the Fire Department, (see Pl.'s 56.1 ¶ 61) (citing Klosowski Aff. ¶¶ 4, 5-7; Hill Dep. Tr. 31-33).
Nevertheless, to hear Defendants tell it, this was not the first occasion upon which Plaintiff was subject to disciplinary action: In a matter allegedly involving Plaintiff, Defendants assert that Plaintiff had been involved in a fist fight with O'Hara and was suspended for "conduct unbecoming" in connection with the incident. (See Defs.' 56.1 ¶¶ 108, 110 (citing Miller Dep. Tr. 49-51).) Plaintiff denies that he was suspended, however, noting that the Department has no record of Plaintiff being suspended for a fistfight with O'Hara. (Pl.'s 56.1 ¶ 110 (citing Jacobs Dep. Tr. 172-73).) Additionally, although they do not assert that he was disciplined as a result, Defendants claim that Plaintiff threatened Tim Sullivan, DeBartolomeo, and Crowley in the past. (Defs.' 56.1 ¶ 109 (citing Miller Dep. Tr. 49-50).) For his part, Plaintiff asserts that he has never been disciplined in any manner by the Department prior to the incident at hand. (Pl.'s Cross 56.1 ¶¶ 23, 57
On January 2, 2014, Plaintiff filed his Complaint against the Department, Rieg, Goodwin, Julie Kuklevsky ("Kuklevsky"), George Godfrey ("Godfrey"), McMurray, Jeff Bergstrom ("Bergstrom"), David Beshears ("Beshears"), Dominick Consentino ("Consentino"), Jacobs, the District, Klosowski, Clair, R. Gerald Schramek ("Schramek"), Tofte, Miller, Michael, and Steven. (Dkt. No. 1.) On March 20, 2014, the defendants — including several who have subsequently been dismissed from this case — filed their Verified Answer. (Dkt. No. 4.) By letter dated January 28, 2015, Defendants requested a pre-motion conference in advance of their anticipated Motion for Summary Judgment. (Dkt. No. 25.) The next day, Plaintiff also submitted a pre-motion letter, requesting a pre-motion conference in order to file a Motion for Summary Judgment on the Complaint's first cause of action, his due process claim. (Dkt. No. 28.) On January 30, 2015, Plaintiff submitted his response to Defendants' pre-motion letter, (Dkt. No. 30), and Defendants submitted their response to Plaintiff's on February 3, 2015, (Dkt. No. 32). On March 11, 2015, the Court held a pre-motion conference, at which a briefing schedule for the Parties' Motions was set. (Dkt. (minute entry for Mar. 11, 2015).)
On May 1, 2015, Defendants filed their Motion for Summary Judgment and accompanying papers. (Dkt. Nos. 37-40.) Prior to submitting his Motion for Summary Judgment, on May 13, 2015, Plaintiff filed a Motion for a Voluntary Dismissal of claims against Rieg, Kuklevsky, Godfrey, Bergstrom, Beshears, Consentino, Clair, Schramek, Tofte, and Michael, (Dkt. Nos. 41-42), which the Court granted the next day, (Dkt. No. 43). On June 4, 2015, Plaintiff filed his Opposition to Defendants' Motion for Summary Judgment, (Dkt. No. 48), and, on June 8, 2015, his Motion for Partial Summary Judgment with accompanying papers, (Dkt. Nos. 50-53). Defendants filed their Opposition to Plaintiff's Motion for Partial Summary Judgment and accompanying papers as well as their reply in support of their own Motion for Summary Judgment on June 25, 2015. (Dkt. Nos. 54-56.) On July 8, 2015, Plaintiff filed his Reply in support of his Motion for Partial Summary Judgment. (Dkt. No. 57.) On July 10, 2015, Defendants submitted a letter to the Court concerning an argument made in Plaintiff's Reply, (Dkt. No. 59), which the Court denied as a surreply, (Dkt. No. 61).
Defendants move for summary judgment on Plaintiff's due process, First Amendment retaliation, and his slander claims. Plaintiff, in contrast, seeks summary judgment on his procedural due process claims.
Summary judgment is appropriate where the movant shows that "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
"On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law." Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir.2014) (internal quotation marks omitted). At summary judgment, "[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court's goal should be "to isolate and dispose of factually unsupported claims." Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
The United States Constitution forbids any "State [from] depriv[ing] any person of life, liberty, or property, without due process of law," U.S. Const. amend. XIV, § 1, an interdiction which binds volunteer fire departments, see Janusaitis v. Middlebury Volunteer Fire Dep't, 607 F.2d 17, 22-25 (2d Cir.1979) (concluding that the actions of a local fire department constituted state action). The Parties seek summary judgment on the question of whether
To begin, in order to "plead a violation of procedural due process, ... a plaintiff must first identify a property right, second show that the government has deprived him of that right, and third show that the deprivation was effected without due process." J.S. v. T'Kach, 714 F.3d 99, 105 (2d Cir.2013) (alteration, emphasis, and internal quotation marks omitted); see also Chrebet v. Cty. of Nassau, 24 F.Supp.3d 236, 244 (E.D.N.Y.2014) (same), aff'd, 606 Fed.Appx. 15 (2d Cir.2015). The Second Circuit teaches that "[t]he threshold issue is always whether the plaintiff has a property ... interest protected by the Constitution." Morales v. New York, 22 F.Supp.3d 256, 276 (S.D.N.Y.2014) (quoting Narumanchi v. Bd. of Trs., 850 F.2d 70, 72 (2d Cir.1988)). "Such property interests cannot be found on the face of the Constitution, but rather `are created, and their dimensions are defined by, existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits.'" Looney v. Black, 702 F.3d 701, 706 (2d Cir.2012) (alterations omitted) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). Thus, "[w]hen determining whether a plaintiff has a claim of entitlement, [courts] focus on the applicable statute, contract[,] or regulation that purports to establish" it. Brown v. New York, 975 F.Supp.2d 209, 242 (N.D.N.Y.2013) (quoting Martz v. Inc. Vill. of Valley Stream, 22 F.3d 26, 30 (2d Cir.1994)). However, "[a] `unilateral expectation' is not sufficient to establish a constitutionally protected property right." Looney, 702 F.3d at 706 (quoting Roth, 408 U.S. at 577, 92 S.Ct. 2701). "Rather, a plaintiff must have `a legitimate claim of entitlement to' the alleged property interest." Id. (quoting Roth, 408 U.S. at 577, 92 S.Ct. 2701); see also Harrington v. Cty. of Suffolk, 607 F.3d 31, 34 (2d Cir. 2010) ("To have a property interest in a benefit, a person clearly must have more than an abstract need or desire and more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." (quoting Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005))).
Here, the Parties apparently do not dispute that Plaintiff had a property interest in his position as a volunteer firefighter. (See Pl.'s Cross Mem. 8 (arguing that Plaintiff had a property interest in his position as a volunteer firefighter); see generally Mem. of Law in Opp'n to Mot. for Summ. J. ("Defs.' Cross Opp'n") (Dkt. No. 54) (not arguing lack of property interest in Plaintiff's position).) And for good reason: "[I]t is well-settled that in New York, volunteer firefighters are considered public employees and must be afforded due process in disciplinary proceedings...." Reed v. Medford Fire Dep't, Inc., 806 F.Supp.2d 594, 610 (E.D.N.Y.2011) (internal quotation marks omitted); see also Bigando v. Heitzman, 187 A.D.2d 917, 590 N.Y.S.2d 553, 554 (1992) ("It is undisputed that volunteer firefighters are considered public employees and must be afforded due process in disciplinary proceedings...."). Additionally, there is no disputing that Plaintiff was deprived of this property
The next question, then, is "whether the government deprived the plaintiff of that interest without due process," an inquiry that "asks what process was due to the plaintiff, and inquires whether that constitutional minimum was provided in the case under review." Narumanchi, 850 F.2d at 72 (citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). As a general proposition, in conducting this inquiry, the Second Circuit has held that "[a]n employee who has a property interest in his employment" — like Plaintiff — "`is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story,' before he is subjected to the loss of employment," Munafo v. Metro. Transp. Auth., 285 F.3d 201, 212 (2d Cir.2002) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)); see also Amato v. Hartnett, 936 F.Supp.2d 416, 437 (S.D.N.Y. 2013) (same), although "procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided afterwards," Munafo, 285 F.3d at 212 (quoting Locurto v. Safir, 264 F.3d 154, 171 (2d Cir.2001)); see also Amato, 936 F.Supp.2d at 437 (same).
Despite these general principles, "due process does not require the impossible," DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir.2003) (citing Zinermon v. Burch, 494 U.S. 113, 128-29, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)), and "[w]here a deprivation at the hands of a government actor is `random and unauthorized,' hence rendering it impossible for the government to provide a pre-deprivation hearing, due process requires only a post-deprivation proceeding," id. (citing Hudson v. Palmer, 468 U.S. 517, 534, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)), for which purposes an Article 78 proceeding may well be sufficient, see Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir.1984) (finding an employee who alleged he was coerced into resigning from his former job was "not deprived of due process simply because he failed to avail himself of the opportunity" to bring an Article 78 proceeding, where such proceeding "gave [him] a meaningful opportunity to challenge the voluntariness of his resignation").
Thus, in order to determine what sort of process Plaintiff was entitled to, it is incumbent upon the Court to determine whether his firing was "random and unauthorized." DiBlasio, 344 F.3d at 302 (internal quotation marks omitted). "The controlling inquiry is solely whether the state is in a position to provide for predeprivation process," HANAC, 101 F.3d at 880 (internal quotation marks omitted), and, so, it makes sense to begin with the statute that, as the Parties rightly recognize, sets forth the procedures by which volunteer firefighters can be removed from their positions, (see Pl.'s Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Opp'n") 9 (Dkt. No. 48); Defs.' Cross Opp'n 4-7). That statute in its entirety states:
N.Y. Gen. Mun. Law § 209-1 (emphasis added). Seizing on this last line, New York courts have made clear that the hearing guarantee contemplated by § 209-1(3) does not apply when charges are brought pursuant
Although, to be sure, Plaintiff disputes that his conduct on the night in question is the actual reason he was terminated, there is no real dispute that he was at least procedurally removed from his position pursuant to the bylaws. (See Aug. 15 Letter 3.) Likewise, it is also clear that Article 12, § 1 of the Bylaws provide that "[t]he Board of Directors may remove a member from the roles of the [D]epartment, upon due notice via a registered letter form the recording secretary, for [a number of] reasons," including, "[f]or conduct unbecoming an officer, firefighter, or detrimental to the best interests of the department." (See Bylaws Art. 12.) Indeed, the letter that Plaintiff, through his counsel, sent to the Boards of Directors and Commissioners is consistent with the notion that, procedurally speaking, Plaintiff was terminated in accordance with the Bylaws, inasmuch as the letter requests that the recipients "accept th[e] letter as [Plaintiff's] appeal ... pursuant to Article 12 Sec. 2 of the By-Laws." (Pl.'s Att'y's Letter (emphasis added).)
Defendants, however, characterizing Plaintiff's position as that Defendants failed to follow the bylaws and dictates of § 209-1, contend that Plaintiff's allegations amount to a claim that Defendants' acts were random and unauthorized, such that an Article 78 proceeding is sufficient. (See Defs.' Cross Opp'n. 9-10.) In support of this proposition, they cite Byrne v. Ceresia, 503 Fed.Appx. 68 (2d Cir.2012), a Second Circuit summary order affirming the district court's judgment that the plaintiff was not deprived of his procedural due process rights when fired from his position as court officer-captain for the New York State Office of Court Administration, reasoning that Plaintiff "d[id] not challenge [his employer's] established procedures for terminating disabled employees," but rather "claim[ed] that [the] [d]efendants failed to follow those procedures." Id. at 69-70. It is possible — and, indeed, tempting — to read Byrne broadly to suggest that, whenever a plaintiff alleges that he has been terminated in violation of the law, he must not possess a procedural due process claim because surely then his termination would have been random and unauthorized. Cf. Martinez v. O'Leary, No. 11-CV-1405, 2013 WL 3356983, at *3 (E.D.N.Y. July 3, 2013) ("The Second Circuit has endorsed state court Article 78 review as a sufficient post-deprivation remedy in the context of a deprivation claim based on a change in employment status." (citing Byrne, 503 Fed.Appx. at 69)); Camhi v. Glen Cove City Sch. Dist., 920 F.Supp.2d 306, 312 (E.D.N.Y.2013) (concluding that the revocation of a teacher's tenure on the grounds that giving her tenure had been an ultra vires act was "random and unauthorized"). However, an argument that Byrne brings all illegal firings within the purview of the so called "Parratt-Hudson" exception — or
In contrast, here, there is a very real thread of logic uniting Plaintiff's termination with New York law: Section 209-1 authorizes expulsion pursuant to the bylaws, and the bylaws permit expulsion for "conduct unbecoming" "upon due notice via a registered letter." (See Bylaws Art. 12.) In other words, it makes perfect sense to conclude here, that, in contrast with Byrne, had § 209-1 or the bylaws been written differently, the relevant procedures followed in Plaintiff's expulsion may well have been different. And, indeed, the Second Circuit itself has indicated that a deprivation is less likely to be random and unauthorized when preceded by a hearing. See Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458, 466 n. 8 (2d Cir.2006) ("[T]o the extent that the purpose of the Parratt-Hudson inquiry is to determine whether the government actor could have provided pre-deprivation process, that question must clearly be answered in the affirmative here, because the [b]oard actually conducted a hearing before [the action at issue].") Therefore, the Court declines to read Byrne — which, in any event, the Second Circuit considered sufficiently short of revolutionary to merit summary affirmance — as dispositive here.
Rather, the more relevant case law comprises those decisions which directly confront the issue of whether an allegedly wrongful termination made pursuant to § 209-1 requires a pre-deprivation hearing. In Dushane v. Leeds Hose Co. # 1 Inc., 6 F.Supp.3d 204 (N.D.N.Y.2014), a case in which a volunteer firefighter was suspended for the stated reason that he made "a derogatory sexual reference to a female member under the age of eighteen," and ultimately terminated "due to multiple counts of insubordination," the court concluded that, because "[the] [d]efendants acknowledge[d] that [the] [p]laintiff was removed for his violation of [the department's] by-laws," and because § 209-1 does not affect a department's ability to remove volunteer members pursuant to department bylaws, the plaintiff's termination could not be labeled as "random and unauthorized." 6 F.Supp.3d at 208, 215 (internal quotation marks omitted).
Similarly, in Reed v. Medford Fire Department, 806 F.Supp.2d 594 (E.D.N.Y. 2011), the plaintiff volunteer firefighter received a letter informing him that he was suspended for violating the department's sexual harassment policy until the department's next general meeting on March 7. Id. at 600. On March 7, the fire department sent the plaintiff a notice that the charges against him would be considered at a meeting pursuant to § 209-1 and the department's bylaws on March 26, but nonetheless voted through its members to find the plaintiff guilty and to withdraw notice of that meeting. Id. After the plaintiff brought a successful Article 78 proceeding, a New York Supreme Court justice ordered that the department conduct a hearing in accordance with § 209-1 and the department's bylaws, which was eventually held in December. Id. at 601-02. In addressing the defendants' motion for summary judgment on the plaintiff's subsequent procedural due process claim, the court found a dispute of material fact surrounded whether the department's conduct in terminating the plaintiff was "random and unauthorized." See id. at 611. In so doing, the court expressly noted that "the fact that the [p]laintiff contends that the... [d]efendants['] actions violated the municipal law and [d]epartment by-laws does not require a finding that the Medford [d]efendants['] conduct was `random and unauthorized.'" Id. at 612. Therefore, to the extent that Plaintiff was terminated without a pre-deprivation hearing of some kind, he was denied due process. Cf. Dushane, 6 F.Supp.3d at 216-17 ("[A]s alleged, [the plaintiff] did not receive oral or written notice of all of the charges against him. [The] [p]laintiff has therefore sufficiently alleged that the pre-suspension and pre-termination process he received was inadequate." (citation omitted)); Leonardi v. Bd. of Fire Comm'rs of Mastic Beach Fire Dist., 643 F.Supp. 610, 613 (E.D.N.Y.1986) ("[T]he ... failure [by the board of fire commissioners] to provide [the plaintiff volunteer firefighter] with a pre-termination hearing constitutes a deprivation of a property interest without the due process of law guaranteed by the Fourteenth Amendment.").
Having concluded that Plaintiff was entitled to a pre-termination proceeding of some kind, there remains the question of what process was due. While "[t]he pretermination process `need not be elaborate' or approach the level of a `full adversarial evidentiary hearing,'" (Otero v. Bridgeport Hous. Auth., 297 F.3d 142, 151 (2d Cir.2002) (quoting Loudermill, 470 U.S. at 545, 105 S.Ct. 1487)); see also Reed, 806 F.Supp.2d at 612 (same), it is well established that "due process does require that before being terminated such an employee be given oral or written notice of the charges against h[im], an explanation of the employer's evidence, and an opportunity
Here, a reasonable jury would not have a sufficient evidentiary basis to conclude that he did. Although due process does not demand "actual notice before the government may extinguish a person's property interest," it does "require[ ] the government to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Reed, 806 F.Supp.2d at 614 (internal quotation marks omitted). There is no question that Plaintiff was not sent formal notice of either of the July 30, 2013 or the August 14, 2013 Board meetings. (See Pl.'s Cross 56.1 ¶¶ 27, 29; Defs.' Cross 56.1 ¶¶ 27, 29.) And although Rieg spoke to Plaintiff before he was suspended, Plaintiff has testified that the only person who informed Plaintiff prior to his expulsion that he might be removed from the Department was Dexter. (See Pl.'s Dep. Tr. 130-31, 137.) While Defendants object to Plaintiff's claim that he was "not provided notice" of the July 30, 2013 or August 14, 2013 Board meetings by asserting that Plaintiff "can only attest to that which is in his personal knowledge and cannot attest to what the Brewster Fire Department or the Brewster-Southeast Joint Fire District did or did not do," (Defs.' Cross 56.1 ¶¶ 27, 29), and further deny Plaintiff's assertion that he "was not provided notice of the charges and evidence against him prior to expulsion," (Defs.' Cross 56.1 ¶ 40 (citing Pl.'s Dep. Tr. 127-28; Goodwin Dep. Tr. 14-15)), they offer no evidentiary support to indicate that Plaintiff in fact was afforded such notice.
Even if the notice was adequate, however, a jury could not reasonably conclude on the evidence presented that Plaintiff had an opportunity to be heard before termination. Despite some noises from Defendants that Plaintiff could have inserted himself into the August 14 meeting, (see, e.g., Defs.' Cross Opp'n 6 ("Plaintiff mentions numerous times in his motion papers that [he] was not permitted to be heard.... [T]here is no evidence that Chief R[ie]g prevented Plaintiff from explaining or defending himself."); Mem. of Law in Reply to Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Defs.' Reply") 1 (Dkt. No. 55) ("[T]here is no evidence that Chief R[ie]g prevented Plaintiff from explaining or defendant himself.")), there is no question that the August 14 meeting was the regular Board of Commissioners meeting, (Defs.' 56.1 ¶ 83; Pl.'s 56.1 ¶ 83), which was adjourned in favor of the Directors meeting of the same date. And while there is at least some evidence in the record demonstrating that at least one person present at the August 14 meeting felt as though Plaintiff was expelled without the opportunity to share his side of the story, (see Hill Dep. Tr. 60 ("I just didn't understand how you could possibly do that [i.e., expel Plaintiff] without even letting the man have anything to say as to what happened. I thought this was America.")), Defendants cite no evidence in the record when objecting to Plaintiff's assertion that he was not allowed to participate in a hearing before being expelled, (see Defs.' Cross 56.1 ¶ 39). Defendants may not substitute their speculation in place of some reason — rooted in the evidentiary record — to believe that Plaintiff not only had notice of the August 14 meeting, but could also have been heard at it. See, e.g., Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir.2008) ("A party opposing summary judgment does not show the existence of a genuine issue of fact to be tried merely by making assertions that are conclusory or based on speculation." (citation omitted)).
In addition to the Parties' cross motions for summary judgment on Plaintiff's procedural due process claim, Defendants also seek dismissal of Plaintiff's substantive due process claim. (See Defs.' Mem. 8-10.) Reviewing Plaintiff's Complaint, it is not even clear that he brought a substantive due process claim, (see generally Compl. (Dkt. No. 1)), and Plaintiff
"Substantive due process protects against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill advised." Cunney v. Bd. of Trustees, 660 F.3d 612, 626 (2d Cir.2011) (internal quotation marks omitted). "In order to shock the conscience and trigger a violation of substantive due process, official conduct must be outrageous and egregious under the circumstances; it must be truly brutal and offensive to human dignity." Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir.2007) (internal quotation marks omitted); see also Velez v. Levy, 401 F.3d 75, 93-94 (2d Cir.2005) (noting that actions which shock the conscience occur "largely in the context of excessive force claims," but also unquestionably include other "malicious and sadistic abuses of power by government officials, intended to oppress or to cause injury and designed for no legitimate government purpose" (internal quotation marks omitted)); Schultz v. Inc. Vill. of Bellport, No. 08-CV-930, 2010 WL 3924751, at *6 (E.D.N.Y. Sept. 30, 2010) (noting that the shock the conscience standard "is not easily met; the plaintiff must show the government conduct was egregious and outrageous, not ... merely incorrect or ill-advised." (quoting Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d Cir.2006)) (footnote and internal quotation marks omitted)), aff'd, 479 Fed.Appx. 358 (2d Cir.2012). When bringing a substantive due process claim for deprivation of a property right, in addition to establishing, as Plaintiff has, the existence of a valid property right, a plaintiff must also "demonstrate that the defendant acted in an arbitrary or irrational manner in depriving him of that property interest." Crowley v. Courville, 76 F.3d 47, 52 (2d Cir.1996). Nevertheless, "where a specific constitutional provision prohibits government action, plaintiffs seeking redress for that prohibited conduct in a § 1983 suit cannot make reference to the broad notion of substantive due process." Velez, 401 F.3d at 94; see also Miller v. N.Y.C. Dep't of Educ., 71 F.Supp.3d 376, 385 (S.D.N.Y. 2014) (same), aff'd, 622 Fed.Appx. 38 (2d Cir.2015); Rother v. N.Y. State Dep't of Corr. & Cmty. Supervision, 970 F.Supp.2d 78, 100 (N.D.N.Y.2013) (dismissing substantive due process claim where it "s[ought] to remedy the same harm and challenge[d] the same conduct" as the plaintiff's procedural due process claim); Roman v. Velleca, No. 11-CV-1867, 2012 WL 4445475, at *10 (D.Conn. Sept. 25, 2012) ("[S]ubstantive due process claims must be dismissed where they are merely duplicative of claims explicitly protected under other constitutional sources.").
Here, the overwhelming majority of Plaintiff's claims fall into ambit of other provisions of the Constitution — specifically, the First Amendment and the Due Process Clause of the Fourteenth Amendment — thereby closing off his ability to seek relief by invoking the concept of substantive due process. See Velez, 401 F.3d at 94. But more fundamentally still, Plaintiff has not alleged facts significantly egregious as to shock the conscience. See Cunney, 660 F.3d at 626. In any event, it is hardly irrational that a fire department — an organization charged with protecting the safety of the community, cf. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987) ("[T]he government has a legitimate interest in the smooth functioning of a public facility and, especially, in preserving the `esprit de corps' that is essential to a fire department's joint endeavor of saving lives." (citing Janusaitis, 607 F.2d at 26)) — would
Defendants also argue that, even if Plaintiff prevails on his due process claims, the District, its Commissioners, and McMurray cannot be held liable because Plaintiff was discharged not by those Defendants, but by the Department's Board of Directors. (Defs.' Mem. 3-4.) Likewise, Defendants argue that Goodwin, Jacobs, and Klosowski are entitled to qualified immunity. (Id. at 1-3.)
At this stage, a refresher as to who the Defendants are and their titles would likely be helpful. Following voluntary dismissal of certain defendants from this case, (see Dkt. No. 43), the Defendants that remain in this case are the Department, the District, Goodwin, McMurray, Jacobs, Klosowski, Miller, and Steven. Goodwin and Jacobs are both members of the Board of Directors. (Aug. 14 Meeting Tr. 3.) Klosowski is a member of the Board of Commissioners. (Id. at 2.) McMurray, the person with whom Plaintiff was speaking when, according to Defendants, Plaintiff repeatedly exclaimed the word "nigger" while outside, was a member of Department, but not a member of the Board of Directors or the Board of Commissioners. (Defs.' 56.1 ¶ 94; Pl.'s 56.1 ¶ 94; see also Aug. 14 Meeting Tr. 3, 86 (noting members of Board of Directors in attendance but not identifying McMurray, despite presence at meeting); Goodwin Dep. Tr. 104 ("Q. Is Mr. McMurray a member of the fire district board of commissioners? A. No.").) Miller and Steven are both members of the Department. (Miller Dep. Tr. 14 (identifying Steven as a member of the Department); Miller Letter 1 (letter from Miller indicating that he is a member of the Department).) Goodwin and Jacobs are both members of the Board of Directors. (Defs.' 56.1 ¶ 90; Pl.'s 56.1 ¶ 94; Pl.'s Cross 56.1 ¶¶ 6-9; Defs.' Cross 56.1 ¶¶ 6-9.)
To begin, the District can properly be held responsible for violating Plaintiff's Due Process rights.
The Court agrees that the District may be held liable. Claims against a New York fire district are analyzed under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and its progeny. See Lozada v. Weilminster, 92 F.Supp.3d 76, 106-07 (E.D.N.Y. 2015) (considering Monell claim against fire district, but rejecting the claim on the merits); Fotopolous v. Bd. of Fire Comm'rs of Hicksville Fire Dist., 11 F.Supp.3d 348, 372-75 (E.D.N.Y.2014) (same); see also Klemow v. City of Kingston, No. 84-CV-1477, 1987 WL 28138, at *3 (N.D.N.Y. Dec. 17, 1987) ("In [Monell]..., the Supreme Court held that ... political subdivisions of the state can be held liable as `persons' under § 1983 for civil rights[ ] violations caused by their official policies, or customs.").
"Congress did not intend municipalities" — or, for that matter, fire districts — "to be held liable [under § 1983] unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell, 436 U.S. at 691, 98 S.Ct. 2018; see also Fotopolous, 11 F.Supp.3d at 373 (same). Therefore, a defendant in a Monell action "can be held liable under [§] 1983 if the deprivation of the plaintiff's rights under federal law is caused by a governmental custom, policy, or usage of the municipality." Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir.2012); Berk v. City of N.Y., No. 13-CV-3917, 2015 WL 7162239, at *3 (S.D.N.Y. Nov. 9, 2015) (same). "Absent such a custom, policy, or usage, a municipality cannot be held liable on a respondeat superior basis for the tort of its employee." Jones, 691 F.3d at 80 (italics omitted); Berk, 2015 WL 7162239, at *3 (same). Put differently, a Monell defendant may not be liable under § 1983 "by application of the doctrine of respondeat superior." Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (italics omitted); see also Moroughan v. Cty. of Suffolk, 99 F.Supp.3d 317, 326 (E.D.N.Y. 2015) ("[A] municipal entity may only be held liable where the entity itself commits a wrong ...." (emphasis omitted)). Instead, there must be a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); see also City of St. Louis v. Praprotnik, 485 U.S. 112, 122, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) ("[G]overnmental bodies can act only through natural persons,... [and] governments should be held responsible when, and only when, their official policies cause their employees to violate another person's constitutional rights."). In other words, in order "[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." Wray v. City of N.Y., 490 F.3d 189, 195 (2d Cir.2007) (internal quotation marks omitted); see also Lamont v. Wilson, No. 14-CV-5052, 2015 WL 5003558, at *6 (S.D.N.Y. Aug. 20, 2015) ("Courts in th[e] [Second] Circuit apply a two prong test for § 1983 claims brought against a municipal entity. First, the plaintiff must prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer. Second, the plaintiff must establish a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." (citations and internal quotation marks omitted)).
There is no question that the bylaws by which the Department is governed are approved by the Board of Fire Commissioners. (See Bylaws; see also Pl.'s Cross 56.1
Several factors militate in favor of concluding that the District is liable even though the Department's Board of Directors did the firing. First, a number of cases involving Monell claims relating to terminated firefighters have considered whether the entity sued had authority over the fire company's personnel. In Yeager v. City of McGregor, for instance, the Fifth Circuit concluded that firefighters who alleged that they were unconstitutionally terminated could not bring a Monell claim because the municipal defendant did not, in the first instance, hold authority to regulate the membership of the fire department. See 980 F.2d 337, 343 (5th Cir. 1993).
This law is of particular relevance for Monell purposes. As one court explained in considering a Monell claim against a Connecticut fire district,
Massaro v. Allingtown Fire Dist., No. 03-CV-136, 2006 WL 1668008, at *6 (D.Conn. June 16, 2006) (emphasis omitted) (citing Praprotnik, 485 U.S. at 123, 108 S.Ct. 915). There, the court concluded that Monell liability could lie as to a fire district where the board of fire commissioners allegedly discriminated against the plaintiff on the basis of race by promoting a person of a different race than the plaintiff to the position of fire chief. Id. at *1-2, *7. The court reasoned that the board was statutorily charged with appointing all positions in the department, that the board was the policymaking authority for the department in terms of appointing, disciplining, and removing members, that Connecticut law "state[d] as such," and that the board was the policymaking authority for the area of appointing, disciplining, and removing persons within the fire department. Id. at *7. Here, there is no question that the District approved the bylaws, and that it had authority to control the conduct of the firefighters. See Reed, 806 F.Supp.2d at 611. Therefore, the District's adoption of the bylaws is sufficient to support Monell liability.
Plaintiff has not, however, established Klosowski's liability. It is well established that "vicarious liability is inapplicable to § 1983 suits," and, therefore, "the personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Victory v. Pataki, 814 F.3d 47, 67 (2d Cir.2016) (ellipses and internal quotation marks omitted). And while there is authority for the proposition that "[t]he personal involvement of a supervisory defendant may be shown by evidence that... the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom," Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995), there is no basis to conclude such is the case with Klosowski. While Klosowski is in at least his sixteenth year as fire commissioner, (see Klosowski Aff. ¶ 2), and the bylaws were approved in 2011, (see Bylaws), any suggestion that he thereby is responsible for the policy is simple speculation. However, that is not enough to defeat Klosowski's Motion, as "when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim." CILP Assocs., L.P., 735 F.3d at 123 (alteration omitted). Perhaps recognizing this, Plaintiff argues that Klosowski is personally liable
(Pl.'s Opp'n 14 (citations omitted).) This argument, however, goes plainly to the question of the propriety of Plaintiff's expulsion, an issue which is beside the point of whether Klosowski was sufficiently involved in the procedural due process violations that accompanied Plaintiff's expulsion. Therefore, Klosowski cannot be held liable.
Defendants assert, without analysis, that McMurray cannot be held liable because he did not discharge Plaintiff. (Defs.' Mem. 3-4.) Plaintiff in his opposition does not seem to seriously argue otherwise. That makes sense, because Defendants are correct. McMurray was a member neither of the Board of Commissioners nor the Board of Directors. (Defs.' 56.1 ¶ 94; Pl.'s 56.1 ¶ 94; see also Aug. 14 Meeting Tr. 3, 86 (noting Board members in attendance but not identifying McMurray, despite presence at meeting); Goodwin Dep. Tr. 104 ("Q. Is Mr. McMurray a member of the fire district board of commissioners? A. No.").) As such, he did not expel Plaintiff from the Department, and, consequently, did not deprive him of procedural due process.
Defendants also argue that Jacobs, Goodwin, and Klosowski are immune from suit under the doctrine of qualified immunity.
Here, there can be little question that the law was clearly established that Plaintiff, having a property interest in his position, was entitled to process related to his expulsion. See Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir.2010) (finding clearly established since Loudermill that government employees who may be terminated only for cause must be afforded opportunity to present their side of the story before discharge). However, that is
Defendants also move for summary judgment as to Plaintiff's claim for First Amendment retaliation. (See Defs.' Mem. 10-16.) "In adjudicating the rights of public employees to speak without facing retaliation from a government employer," the Second Circuit has recently explained, "courts attempt `to arrive at a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'" Lynch v. Ackley, 811 F.3d 569, 577 (2d Cir.2016) (alteration omitted) (quoting Pickering v. Bd. of Ed., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). In so doing, "[c]ourts must weigh the employee's speech interests against the government's interest in `effective and efficient fulfillment of its responsibilities to the public, including promoting efficiency and integrity in the discharge of official duties, and maintaining proper discipline in public service.'" Id. (alterations omitted) (quoting Lane v. Franks, ___ U.S. ___, 134 S.Ct. 2369, 2381, 189 L.Ed.2d 312 (2014)).
To that end, while the Second Circuit has "described the elements of a First Amendment retaliation claim in several ways, depending on the factual context," Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008), it has made clear that, in the public employee context, "[w]hether ... speech is protected from retaliation under the First Amendment entails two inquiries," Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir.2008), specifically, "(1) `whether the employee spoke as a citizen on a matter of public concern' and, if so, (2) `whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.'" Id. (quoting Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). "This step one inquiry in turn encompasses two separate subquestions: (1) whether the subject of the employee's speech was a matter of public concern and (2) whether the employee spoke `as a citizen' rather than solely as an employee." Matthews v. City of N.Y., 779 F.3d 167, 172 (2d Cir.2015) (internal quotation marks omitted). Additionally, and relevant here, "[t]o constitute speech on a matter of public concern, an employee's expression must `be fairly considered as relating to any matter of political, social, or other concern to the community.'" Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir.2011) (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)); see also Schoolcraft v. City of N.Y., No. 10-CV-6005, 2012 WL 2161596, at *4 (S.D.N.Y. June 14, 2012) (same), reconsideration denied, 2012 WL 2958176 (S.D.N.Y. July 20, 2012). "If the answer to either question is no, that is the end of the matter." Matthews, 779 F.3d at 172; see also White v. City of N.Y., No. 13-CV-7156, 2014 WL 4357466, at *9 (S.D.N.Y. Sept. 3, 2014) ("If the answer to this question is no, then `the employee has no First Amendment cause of action based on [his] employer's reaction to the speech.'" (alterations omitted) (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951)). "If, however, both questions are answered in the affirmative," the Second Circuit has
To begin, Defendants argue that Plaintiff's invectives directed toward the non-participating attendees at the firehouse cannot serve as predicate speech for purposes of a First Amendment retaliation claim. Indeed, whether the non-participating members should be termed, in Plaintiff's words, "a piece of shit," a "bunch of niggers," or persons to whom one might direct "generic curse words," (Pl.'s 56.1 ¶ 27), cannot be "fairly considered as relating to any matter of political, social, or other concern to the community." Jackler, 658 F.3d at 236 (internal quotation marks omitted). Indeed, the Court is hard pressed to find that such undeniably revulsive and vulgar language could or should be part of a discourse on matters of public concern. See Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1187 (6th Cir.1995) ("Focusing on the `content, form[,] and context' of [the plaintiff's] use of the word `nigger,' this [c]ourt can find nothing `relating to any matter of political, social[,] or other concern to the community.'"); Thayer v. City of Holton, 515 F.Supp.2d 1198, 1201-02, 1206-07 (D.Kan.2007) (finding that a number of vulgar statements, including that the manager of the city for which the plaintiff worked was a "gutless piece of shit," were not matters of public concern).
Unsurprisingly, Plaintiff does not hinge his First Amendment retaliation claim upon the notion that he was unfairly expelled in his racist outburst; rather, he expresses skepticism that his expulsion was truly for his use of racial slurs. (See Pl.'s Opp'n 14-17.) To that end, he regurgitates a litany of assertions from his 56.1 Counter Statement indicating, inter alia, that other Department members regularly used profanity, that McMurray used the word "nigger" in regard to an African-American member while he was present, and that Giambattisto testified to hearing racial slurs used regularly. (See id. at 15-17.) Moreover, Plaintiff argues that no Department member, apart from him, has been expelled within the past ten years, and that no Department member has ever been punished for the use of racial slurs. (See id. at 17.) According to Plaintiff, "[t]he[se] disputed material factual issues regarding Defendants' intent preclude granting summary judgment on Plaintiff's First Amendment Retaliation Claim." (Id. at 17.) At best, Plaintiff has articulated his suspicions for why there may have been more to his dismissal than Defendants' stated reasons.
Even assuming that Plaintiff spoke out on members' putative failure to come to the firehouse and, more generally, an increasing unwillingness to participate in the non-firefighting activities of a volunteer fire department, (see Defs.' 56.1 ¶ 61; Pl's 56.1 ¶ 61), this still does not qualify as a matter of public concern. It is true that matters concerning the internal affairs of a fire department can be a matter of public concern, see, e.g., Gusler v. City of Long Beach, 823 F.Supp.2d 98, 126 (E.D.N.Y. 2011) ("The subject of the letter [at issue] was the alleged deficiencies in recent firefighter responses in Long Beach, including allegations of misconduct, malpractice and negligence. Such behavior within the fire department would be of general interest[,] and of value and concern to the public." (internal quotation marks omitted)); Shanks v. Vill. of Catskill Bd. of Trustees, 653 F.Supp.2d 158, 165 (N.D.N.Y.2009) (reporting fire department safety violations to
At the outset, while Plaintiff's Complaint alleges that "Defendants ... made false statements of fact concerning Plaintiff to third parties, both in writing, and through spoken words," (Compl. ¶ 79), it is not completely clear upon which facts Plaintiff rests his defamation claims, (see Compl. ¶¶ 79-82).
Because Plaintiff's defamation allegations turn upon the content of these letters, his is a claim of libel. See Albert v. Loksen, 239 F.3d 256, 265 (2d Cir.2001) (explaining that "[g]enerally, spoken defamatory words are slander; written defamatory words are libel"); Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 176 (2d Cir.2000) ("Libel is a method of defamation expressed in writing or print."). To recover for libel under New York law, a plaintiff must "prove five elements: (1) a written defamatory statement of fact regarding the plaintiff; (2) published to a third party by the defendant; (3) [the] defendant's fault ...; (4) the falsity of the defamatory statement; and (5) injury to [the] plaintiff." Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d Cir.2001); see also Giuffre v. Maxwell, 165 F.Supp.3d 147, 150-51, 2016 WL 831949, at *2 (S.D.N.Y. Feb. 29, 2016) (same). Additionally, an otherwise actionable statement may not be actionable if subject to a qualified privilege. See, e.g., Colantonio v. Mercy Med. Ctr., 135 A.D.3d 686, 24 N.Y.S.3d 653, 658-59 (2016) ("Generally, communications `protected by a qualified privilege are not actionable unless a plaintiff can demonstrate that the declarant made the statement with malice.'" (quoting Rosenberg v. MetLife, Inc., 8 N.Y.3d 359, 834 N.Y.S.2d 494, 866 N.E.2d 439, 442 (2007))). Before exploring why Defendants are entitled to summary judgment on each of the letters, the Court must first survey the legal principles underlying several of these requirements.
With regard to the first of these elements, under New York law, "`pure opinion' ... is not actionable because `[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.'" Davis v. Boeheim, 24 N.Y.3d 262, 998 N.Y.S.2d 131, 22 N.E.3d 999, 1004 (2014) (quoting Mann v. Abel, 10 N.Y.3d 271, 856 N.Y.S.2d 31, 885 N.E.2d 884, 885-86 (2008)); see also Levin v. McPhee, 119 F.3d 189, 196 (2d Cir.1997) ("[E]xpressions of opinion are not actionable...."); Gross v. N.Y. Times Co., 82 N.Y.2d 146, 603 N.Y.S.2d 813, 623 N.E.2d 1163, 1166 (1993) (noting that "expressions of opinion ... are not actionable," but that "assertions of fact ... may form the basis of a viable libel claim"). "Distinguishing between fact and opinion is a question of law for the
Davis, 998 N.Y.S.2d 131, 22 N.E.3d at 1005 (alterations and internal quotation marks omitted); see also Giuffre v. Maxwell 165 F.Supp.3d at 151-52, 2016 WL 831949, at *3 (same).
As a matter of federal constitutional law, the standard of fault required to sustain a libel claim varies depending on the status of the plaintiff. Greene v. Paramount Pictures Corp., 138 F.Supp.3d 226, 236-37, 2015 WL 5794313, at *9 (E.D.N.Y. Sept. 30, 2015). "[U]nder the First Amendment, a public official cannot recover for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not," Air Wisc. Airlines Corp. v. Hoeper, ___ U.S. ___, 134 S.Ct. 852, 861, 187 L.Ed.2d 744 (2014) (some internal quotation marks omitted), a limitation later expanded to public figures, see Curtis Publ'g Co. v. Butts, 388 U.S. 130, 154-55, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), and
Nevertheless, the New York Court of Appeals has declined the invitation to set the bar for private plaintiffs as low as negligence "where the content ... is arguably within the sphere of legitimate public concern," in which case the plaintiff "must establish, by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties." Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 379 N.Y.S.2d 61,341 N.E.2d 569, 571 (1975).
"New York affords qualified protection to defamatory `communication[s] made by one person to another upon a subject in which both have an interest.'" Albert, 239 F.3d at 272 (alteration in original) (quoting Stillman v. Ford, 22 N.Y.2d 48, 290 N.Y.S.2d 893, 238 N.E.2d 304, 306 (1968)); see also Chao v. Mount Sinai Hosp., No. 10-CV-2869, 2010 WL 5222118, at *7 (S.D.N.Y. Dec. 17, 2010) ("New York recognizes a `common interest' qualified privilege that protects communications `made by one person to another upon a subject in which both have an interest.'" (quoting Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857, 605 N.E.2d 344, 349 (1992))), aff'd, 476 Fed.Appx. 892 (2d Cir. 2012).
"Communications by supervisors or co-workers made in connection with the evaluation of an employee's performance, including allegations of employee misconduct and communications regarding the reasons for an employee's discharge, fall within the privilege." See Albert, 239 F.3d at 272 (citing McNaughton v. City of N.Y., 234 A.D.2d 83, 650 N.Y.S.2d 688, 689 (1996); Mock v. LaGuardia Hospital-Hip Hosp., Inc., 117 A.D.2d 721, 498 N.Y.S.2d 446, 447 (1986)); see also Ibraheem v. Wackenhut Servs., Inc., 29 F.Supp.3d 196, 217 (E.D.N.Y.2014) ("[I]nsofar as [two employees] could be held liable for passing along what was reported to them by [two other employees], they are protected by the so-called common-interest privilege
"A defendant forfeits this qualified privilege by making a false, defamatory statement with `malice' of either the common-law or constitutional variety." Albert, 239 F.3d at 272 (citing Liberman, 590 N.Y.S.2d 857, 605 N.E.2d at 349-50); see also Peffers v. Stop & Shop Supermarket Co., No. 14-CV-3747, 2015 WL 5460203, at *7 (S.D.N.Y. June 9, 2015) (noting that, "[o]nce qualified privilege has been established, a plaintiff must show that [the] defendants acted with malice in order to overcome the privilege," which may be "either of the common law or of the constitutional variety" (italics and internal quotation marks omitted)); Makinen v. City of N.Y., 53 F.Supp.3d 676, 702 (S.D.N.Y.2014) ("[S]tatements [subject to qualified privilege] are protected unless they were made with common-law malice ... or constitutional malice...."). "Common-law malice means spite or ill will, and defeats the privilege only if it is the one and only cause for the publication." Albert, 239 F.3d at 272 (alterations, citation, and internal quotation marks omitted); see also Chandok v. Klessig, 632 F.3d 803, 815 (2d Cir. 2011) ("[A]s to common-law malice, only if a jury could reasonably conclude that spite or ill will was the one and only cause for the publication is a triable issue raised." (alteration and internal quotation marks omitted)); Stukuls v. State, 42 N.Y.2d 272, 397 N.Y.S.2d 740, 366 N.E.2d 829, 835 (1977) (referring to the plaintiff's burden where the common-interest privileged attached as to "prov[e] that malice was the one and only cause for the publication"); Bernacchi v. Cty. of Suffolk, 118 A.D.3d 931, 988 N.Y.S.2d 663, 665 (2014) ("[W]here a plaintiff can demonstrate that the communication made by the defendant was not made in good faith but was motivated solely by malice, the protection provided by the qualified privilege will be inapplicable."); Phelan, 868 N.Y.S.2d at 738 (indicating that common-interest privilege is inapplicable where the communication was "motivated solely by malice"); Golden v. Stiso, 279 A.D.2d 607, 720 N.Y.S.2d 164, 165 (2001) ("Once a qualified privilege is shown to exist, the burden of
In contrast to common-law malice, "[c]onstitutional or `actual' malice means publication with `knowledge that [the statement] was false or ... reckless disregard of whether it was false or not.'" Albert, 239 F.3d at 272 (second and third alterations in original) (quoting Liberman, 590 N.Y.S.2d 857, 605 N.E.2d at 349). "Reckless disregard as to falsity means that the statement is made with a high degree of awareness of the publication's probable falsity or while the defendant in fact entertained serious doubts as to the truth of the publication." Id. (alterations and internal quotation marks omitted); see also Liberman, 590 N.Y.S.2d 857, 605 N.E.2d at 350 (noting that "there is a critical difference between not knowing whether something is true and being highly aware that it is probably false," as "[o]nly the latter establishes reckless disregard in a defamation action"). Mere falsity, however, is not enough to establish malice. See Air Wisc. Airlines Corp., 134 S.Ct. at 861 ("[W]e have required more than mere falsity to establish actual malice...."); Smith v. Montefiore Med. Ctr., 116 A.D.3d 573, 984 N.Y.S.2d 50, 51 (2014) ("While an allegation of falsity is insufficient to create an inference of malice, malice may be inferred from a statement that is so extravagant in its denunciations or so vituperative in its character as to warrant an inference of malice." (citation and internal quotation marks omitted)). As between constitutional malice and common law malice, the Second Circuit has noted that "[t]he critical difference between common-law malice and constitutional ... malice is that the former focuses on the defendant's attitude toward the plaintiff, the latter on the defendant's attitude toward the truth." Chandok, 632 F.3d at 815 (ellipses and internal quotation marks omitted).
With these general principles in mind, the Court considers whether a reasonable jury could conclude that Plaintiff has been defamed.
As noted, the first of the three possible communications that could form the basis of a defamation claim is Steven Miller's resignation letter. That letter in its entirety reads:
(See Massucci Decl. Ex. U.) To the extent that a "reasonable reader" would even have "believed that the challenged statements were conveying facts about the plaintiff," when "look[ing] to the over-all context in which the assertions were made," Davis, 22 N.E.3d at 1005 (alteration and internal quotation marks omitted), this letter cannot support Plaintiff's defamation claim because it is time-barred: In New York, the statute of limitations for defamation is one year. N.Y. C.P.L.R. 215. Nevertheless, Plaintiff filed his Complaint on January 2, 2014, (see generally Compl.), nearly two years after Steven Miller's letter, (see Massucci Decl. Ex. U (reflecting February 27, 2012 date for the letter)). Because, "[u]nder CPLR § 215(3), a claim for libel must be asserted within one year of the date on which the libelous material first was published, that is, displayed to a third party," Tucker v. Wyckoff Heights Med. Ctr., 52 F.Supp.3d 583, 596-97 (S.D.N.Y.2014) (quoting Hanly v. Powell Goldstein, L.L.P., 290 Fed.Appx. 435, 439 (2d Cir.2008)), and because "a later discovery of published defamatory material does not toll the one-year statute of limitations," id. (citing Teneriello v. Travelers Cos., 226 A.D.2d 1137, 641 N.Y.S.2d 482, 483 (1996)), Plaintiff's claim is time barred to the extent it is based upon Steven Miller's letter.
Matters are somewhat more complicated with respect to Miller's letter. Ultimately, a claim based on it is also unavailing, as certain of Miller's statements are nonactionable statements of opinion, and the others are protected by the common interest qualified privilege.
As a preliminary matter, it is helpful to begin with a review of the content of Miller's letter. For analytical purposes, the allegations in Miller's letter can be conceptualized as falling into five groups: statements concerning (1) Plaintiff's alleged past suspensions,
To begin, Miller's final category of statements — that is, his articulated concerns that Plaintiff was a racist or a future threat to others — is nonactionable opinion. This is so for at least two reasons. First, Miller's letter, in hypothesizing that Plaintiff is a racist and a threat to the Department, takes pains to detail the facts underlying his accusations. For instance, before posing such questions as whether, for instance, Plaintiff would put minority members in harm's way, Miller expressly says, "[m]y request is based upon the following" and identifies the quote that gives rise to his suspicions. (See Miller Letter, at unnumbered 2.) This is significant because, as the Second Circuit has recognized, while "[a] statement[ ] [that] may be characterized as hypothesis ... may ... be actionable if [it] impl[ies] that the speaker's opinion is based on the speaker's knowledge of facts that are not disclosed to the reader," a statement of opinion is not actionable where it "discloses the facts on which it is based." Levin, 119 F.3d at 197; see also Ony, Inc. v. Cornerstone Therapeutics, Inc., No. 11-CV-1027, 2012 WL 1835671, at *10 (W.D.N.Y. May 18, 2012) (same), aff'd, 720 F.3d 490 (2d Cir. 2013). Such is precisely the case here, and, therefore, Miller's claims that Plaintiff is a racist and may be a future harm are non-actionable opinion. See Silverman v. Daily News, L.P., 129 A.D.3d 1054, 11 N.Y.S.3d 674, 675-76 (finding newspaper article questioning whether a principal who had allegedly authored "racist writings" and had ties to a "white supremacist group" should be in charge of a school with a large minority population was not actionable as libel, in part because "there was full disclosure of the facts supporting the opinions"), appeal dismissed 26 N.Y.3d 962, 17 N.Y.S.3d 80, 38 N.E.3d 825 (2015), leave to appeal denied, 26 N.Y.3d 915, 23 N.Y.S.3d 641, 44 N.E.3d 939 (2015); Russell v. Davies, 97 A.D.3d 649, 948 N.Y.S.2d 394, 395-96 (2012) (concluding that an article detailing the plaintiff's allegedly racist and anti-Semitic essay provided only non-actionable opinion, where "there was full disclosure of the facts supporting the opinions").
However, Miller's letter, to the extent that it asserts that Plaintiff is a racist who poses a threat of future harm, is also rightly regarded as non-actionable because its tone makes clear that its content is opinion in this respect. Courts are not to lose sight of the broader context in which contested statements are made. See, e.g., Davis, 998 N.Y.S.2d 131, 22 N.E.3d at 1005 (indicating that courts should consider "whether either the full context of the communication in which the statement appears ... and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact" (alteration and internal quotation marks omitted)). Here, the context makes clear that Miller is not asserting new facts against Plaintiff, but is expounding upon the corollaries of the purported facts that he has presented — and in the form of questions no less. Simply put, tone matters. See Sandals Resorts Int'l Ltd. v. Google, Inc., 86 A.D.3d 32, 925 N.Y.S.2d 407, 415 (2011) (finding an email to be non-actionable opinion where it was "replete with rhetorical questions" and, considered as a whole, an "exercise in rhetoric"); cf. Bellavia Blatt & Crossett, P.C. v. Kel & Partners LLC, 151 F.Supp.3d 287, 293-95, 2015 WL 8941120, at *5 (E.D.N.Y. Dec. 16, 2015) (noting that "rhetorical indicators" such as word choice inform the inquiry
Miller's remaining statements are protected under the qualified privilege. As noted, "New York affords qualified protection to defamatory `communication[s] made by one person to another upon a subject in which both have an interest,'" which includes "[c]ommunications by ... co-workers made in connection with ... allegations of employee misconduct." Albert, 239 F.3d at 272 (first alteration in original) (quoting Stillman, 290 N.Y.S.2d 893, 238 N.E.2d at 306). Therefore, because Miller's letter is exactly such a communication, the qualified privilege attaches. See Campanella v. Cty. of Monroe, 853 F.Supp.2d 364, 369, 372 (W.D.N.Y.2012) (finding a common interest "clearly shared" in a "memorandum of record" prepared by a lieutenant alleging that the plaintiff deputy sheriff violated the sheriff's office rules proscribing, among other things, "conduct unbecoming"). The question then becomes whether Plaintiff can demonstrate that Miller was motivated by constitutional malice or common law malice.
At the outset, it bears noting that, in his opposition to Defendants' Motion, Plaintiff makes only a feeble attempt to assert the existence of malice, noting that "Paragraph 66 to Plaintiff's Response to Defendants' 56.1 Statement, which has more than forty (40) discrete subparagraphs, identifies the type of convincing evidentiary support for Plaintiff's claim that Defendants acted with actual malice," and, more generally, asserting that malice, as a general matter, may be difficult to determine on a motion for summary judgment. (See Pl.'s Opp'n 19-21.) Nevertheless, Plaintiff does present some evidence to suggest that certain of Miller's assertions were false. Therefore, the Court will consider each remaining category of statement in Miller's letter, in an effort to determine whether that evidence can overcome the qualified privilege.
First, Plaintiff has presented some evidence suggesting that he was not, in fact, previously suspended for conduct unbecoming. (See Pl.'s 56.1 ¶¶ 66(b)-(d) (citing Klosowski Dep. Tr. 19; Goodwin Dep. Tr. 41-42, 78, 84; McMurray Dep. Tr. 109); Pl.'s Counter 56.1, at unnumbered 52-53 ¶¶ 3, 5-6 (citing Klosowski Dep. Tr. 19; Goodwin Dep. Tr. 41-42, 78, 84; McMurray Dep. Tr. 109).) To that end, Plaintiff cites Klosowski's deposition transcript, which indicates that Plaintiff's disciplinary file reveals that he was not disciplined prior to that time, (see Klosowski Dep. Tr. 19), Goodwin's testimony, which indicates that Goodwin did not remember Plaintiff being disciplined prior to June 2013, (see Goodwin Dep. Tr. 42-43), and could not find evidence of Plaintiff having been suspended twice before for conduct unbecoming, (id. at 78-79, 85), and McMurray saying that, while he "heard of a possible incident," involving Plaintiff having been suspended earlier, he "[did not] know for a fact," (see McMurray Dep. Tr.
With regard to constitutional malice, a reasonable jury would not be able to conclude that Miller made the statement concerning Plaintiff's prior suspension "with knowledge that [it] was false or [with] reckless disregard of whether it was false or not," that is, "with a high degree of awareness of the [statement's] probable falsity or while [Miller] in fact entertained serious doubts as to the truth of the publication," Albert, 239 F.3d at 272 (internal quotation marks omitted). To the contrary, Miller in his deposition did not retreat from his assertion that Plaintiff had been suspended for a fistfight with O'Hara, but further claimed that he had seen a letter indicating that Plaintiff was suspended at that time for conduct unbecoming. (See Miller Dep. Tr. 50-51.) Any conclusion that Miller must have known that his assertion was false on the grounds that it was (arguably) untrue, would be an exercise in conjecture, which is insufficient to establish constitutional malice. See, e.g., Ashby v. ALM Media, LLC, 110 A.D.3d 459, 973 N.Y.S.2d 109, 110 (2013) (dismissing claim where "[the] [p]laintiff's allegations of malice, in an effort to overcome the common-interest privilege, amount to little more than mere surmise and conjecture" (internal quotation marks omitted)).
An arguably closer call exists with respect to common-law malice; however, Plaintiff's claim there, too, fails. It is true that "[common-law malice] focuses on the defendant's attitude toward the plaintiff," Chandok, 632 F.3d at 815, and it is true that Miller's letter alludes to an effort on Plaintiff's part to "discredit members of [Miller's] family for what has been shown to be a personal issue," (Miller Letter, at unnumbered 1), which, one might infer, suggests a negative attitude toward Plaintiff on Miller's part. However, for purposes of the common-interest privilege, "earlier disputes are not evidence of malice." Williams v. Cty. of Genesee, 306 A.D.2d 865, 762 N.Y.S.2d 724, 727 (2003) (alterations and internal quotation marks omitted); see also Sborgi, 722 N.Y.S.2d at 15 (same); Anas v. Brown, 269 A.D.2d 761, 702 N.Y.S.2d 732, 734 (2000) (same); McGovern v. Hayes, 135 A.D.2d 125, 524 N.Y.S.2d 558, 560 (1988) (same); Friedman v. Ergin, 110 A.D.2d 620, 487 N.Y.S.2d 109, 111 (same), aff'd, 66 N.Y.2d 645, 495 N.Y.S.2d 364, 485 N.E.2d 1029 (1985). Even if Miller could be said to possess sufficient "spite or ill will" toward Plaintiff to permit the conclusion that he acted with common-law malice, such malice, as noted, "defeats the privilege only if it is the one and only cause for the publication," Albert, 239 F.3d at 272 (internal quotation marks omitted). Plaintiff has pointed to no evidence — nor likely could he — to suggest that spite or ill will toward Plaintiff was the one and only cause for Miller's decision to tell Giambattisto that Plaintiff had previously been suspended for conduct unbecoming, as opposed to, for instance, an effort to contextualize Miller's other statements in the letter. Therefore, Plaintiff's assertion that Miller libeled him in claiming that Plaintiff had been previously suspended for conduct unbecoming is not actionable.
Similarly, Plaintiff has not adduced sufficient evidence upon which a reasonable jury could conclude that Miller acted with malice in alleging that Plaintiff attempted to discredit him and his family. (See Miller Letter, at unnumbered 1.) In contesting this assertion, Plaintiff points only to evidence that McMurray knows of no efforts on Plaintiff's part to discredit the Miller family. (See Pl.'s 56.1 ¶¶ 66(j)-(k) (citing McMurray Dep. Tr. 99; Miller Letter); Pl.'s Counter 56.1, at unnumbered 53-54 ¶¶ 12-13 (citing McMurray Dep. Tr. 99; Miller Letter).) Far from establishing "a high degree of awareness [on Miller's part] of the [statement's] probable falsity" or that Miller "in fact entertained serious doubts as to the truth of the publication," Albert, 239 F.3d at 272 (alterations and internal quotation marks omitted), or that
Finally, a reasonable jury could not find the privilege defeated with respect to Miller's claims that Plaintiff made threats against his family on the night in question. Plaintiff again cites McMurray's transcript to suggest that McMurray does not know the basis of Miller's concern for his sons' safety, and never heard Plaintiff threaten the Miller family (see Pl.'s 56.1 ¶¶ 66(l)-(s) (citing Jacobs Dep. Tr 170; McMurray Dep. Tr. 92-93, 105-06; Miller Letter); Pl.'s Counter 56.1, at unnumbered 54 ¶¶ 14-20 (citing Jacobs Dep. Tr. 170, McMurray Dep. Tr. 92, 105-06, Miller Letter)). However, McMurray's transcript suggests that Plaintiff indeed threatened the Millers:
(McMurray Dep. Tr. 92.). Similarly, Jacobs testified that he "[did not] have any independent knowledge" of whether Plaintiff threatened Miller's safety, but that, while he would "have to go through the transcript," he "believe[d] somebody had something to say about that." (Jacobs Dep. Tr. 169-70.) Therefore, Plaintiff has not successfully shown malice — constitutional or common-law — sufficient to defeat Miller's qualified privilege.
Because, for the reasons discussed supra, the remaining claims in Miller's letter are opinion, summary judgment is at this stage appropriate in favor of Defendants with respect to Miller's letter.
However, even if the common-interest privilege did not attach to any statements of fact in Miller's letter, summary judgment is nevertheless appropriate in light of New York's elevated fault standard for libel actions. As noted, "where the content ... is arguably within the sphere of legitimate public concern," a plaintiff "must establish, by a preponderance of the
That is significant, because, while Plaintiff contradicts the claims alleged in the letter, he has not adduced evidence sufficient to conclude that Miller "acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties." Chapadeau, 379 N.Y.S.2d 61, 341 N.E.2d at 571. With respect to Miller's non-opinion statements, other than those about Plaintiff's prior suspensions and efforts to discredit the Miller family, the evidence makes clear that Miller spoke with a number of persons who were present for the events of July 11, 2013, (see Miller Dep. Tr. 9 ("On the following morning, I was contacted by several members of the department. Each telling me that — of the incident that occurred the night before.... I don't recall all of the names right now. There were at least six members. They were the members that were present during that incident.")), and that, among other things, they told him that Plaintiff made threats against the Miller family, (see id. at 10 ("Just about anyone that was at that incident approached me to tell me that I need to watch out for myself and that there were threats made against me.")). This basis was sufficient for Miller to describe these events in his letter. Cf. Gaeta v. N.Y. News, Inc., 62 N.Y.2d 340, 477 N.Y.S.2d 82, 465 N.E.2d 802, 806 (1984) (finding the defendant did not "act[ ] in a grossly irresponsible manner" under Chapadeau when publishing ultimately incorrect facts from a source who had previously furnished accurate information to someone else, whose statements had inherent plausibility, and as to whom there was no reason to suspect any animus toward the plaintiff); Park v. Capital Cities Commc'ns, Inc., 181 A.D.2d 192, 585 N.Y.S.2d 902, 906 (1992) (finding nothing grossly irresponsible in statement made about plaintiff ophthalmologist accused of unnecessary eye surgeries because, "[t]o the contrary, [the plaintiff's] actions could more accurately be described as a carefully circumscribed effort to bring the general problem of unnecessary eye surgery to the public's attention"). Similarly,
As noted, a letter from an employer to an employee explaining the reasons for his termination will fall within the scope of the qualified privilege. See Burns, 803 N.Y.S.2d at 170 ("[T]he termination letter was protected by a qualified privilege since the defendant made the communication upon a subject in which he had an interest to speak, and the communication was made to persons with a corresponding interest" (alterations, ellipses, and internal quotation marks omitted)); see also Frechtman v. Gutterman, 115 A.D.3d 102, 979 N.Y.S.2d 58, 64 (2014) (finding letter from client terminating attorney's representation of the client to be protected by common-interest qualified privilege); Sullivan v. Am. Airlines, Inc., 80 A.D.3d 600, 914 N.Y.S.2d 276, 278 (2011) (finding that letters of termination indicating that the plaintiffs' employment was being terminated for posting racially insensitive cartoons was subject to a qualified privilege). Accordingly, in order to turn that letter into the basis of a libel action, Plaintiff would need to offer some reason why a reasonable jury could conclude that the basis for the letter was malice, whether constitutional or common law. See Chandok, 632 F.3d at 815. Instead of doing so, Plaintiff argues that he "has produced ample evidence to demonstrate the existence of genuine issues of material fact" on the issue of malice, inasmuch as "Paragraph 66 to Plaintiff's Response to Defendants' 56.1 Statement, which has more than forty (40) discrete subparagraphs, identifies the type of convincing evidentiary support for Plaintiff's claim that Defendants acted with actual malice." (Pl.'s Opp'n 21.) In that paragraph, before identifying various purported falsehoods in Miller's and Steven's letters, Plaintiff asserts that "Defendants' Exhibit M, the expulsion letter sent to Ratajack by the Brewster Fire Department, in cooperation with and under its concurrent authority with the Brewster Southeast Joint Fire District incorporates the false and defamatory statements made by Martin Miller, with actual malice." (Pl.'s 56.1 ¶ 66.) Regrettably, Plaintiff in no way elaborates as to his basis for claiming that the Department and the District acted with actual malice. It may be that Plaintiff believes the Board of Directors must have acted with malice in order to terminate him based on Miller's letter. However, such speculation is legally insufficient to create malice. See, e.g., Bernacchi, 988 N.Y.S.2d at 665 ("Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege." (internal quotation marks omitted)); see
For the foregoing reasons, the Court grants summary judgment to Plaintiff on his procedural due process claim as asserted against the Department and the District. In addition, the Court finds the individual Defendants are entitled to qualified immunity on the procedural due process claims. Defendants are entitled to summary judgment in all other respects. There is no need to consider whether the individual Defendants are entitled to qualified immunity with respect to the First Amendment retaliation and defamation claims, because the Court has already found them not to be liable with regard to those claims. See Kelsey v. Cty. of Schoharie, 567 F.3d 54, 62 (2d Cir.2009) ("When the facts, viewed in light most favorable to the plaintiff, do not demonstrate that an officer's conduct violated a constitutional right, the court need not further pursue the qualified immunity inquiry...."). Therefore, the Clerk of the Court is respectfully requested to terminate the pending motions. (See Dkt. Nos. 37, 50.) The Court will hold a conference on April 15, 2016, at 10:00 am.
SO ORDERED.
Additionally, Defendants cite Exhibit R, which appears to be surveillance footage from around the firehouse from the night in question. However, the video has no sound.
Plaintiff also cites portions of Hill's deposition transcript, however, in which Hill testifies, among other things, that a member has the right to a hearing before being removed under the bylaws, and that Plaintiff was not treated in a manner compliant with the bylaws. (See Pl.'s Cross 56.1 ¶¶ 36-38; see also Hill Dep. Tr. 61-62.) These are legal conclusions, and outside the ken of a lay witness. See, e.g., Cameron v. City of N.Y., 598 F.3d 50, 54 (2d Cir.2010) (describing the prohibition of witnesses "from testifying in the form of legal conclusions" as a "bedrock principle[ ] of evidence law").
Moreover, at the summary judgment stage of the Dushane case, the court concluded that Plaintiff was not terminated due to a "random and unauthorized act," noting that there was "[no] evidence that suggest[ed] that [the] board of directors lacked the authority to suspend or terminate [the] plaintiff." See Dushane v. Leeds Hose Co. #1 Inc., No. 13-CV-677, at *19 (N.D.N.Y. Feb. 22, 2016).
(Pl.'s Dep. Tr. 127-28.) Similarly, the second piece of Defendants' evidence is an excerpt from Goodwin's deposition transcript, which does not have to do with Plaintiff's notice. (See Goodwin Dep. Tr. 14-15.)
