MARGO K. BRODIE, District Judge.
On March 5, 2016, Plaintiffs Jean Jeune and Cory Wright commenced the above-captioned actions with almost identical allegations against Defendants Rudolph F. Crew, Jerald Posman and Brian Clarke (the "Jeune Defendants") and Defendants Crew, Posman and Esther Hundley (the "Wright Defendants"), respectively. (Jeune Compl., Docket Entry No. 1; Wright Compl., Docket Entry No. 1.) Several months later, on May 12, 2016, Plaintiff William Fulcher commenced a similar action against Defendants Crew, Posman, Allen, Clarke, Hundley, Gary Johnson, Sylvia Kinard and Tanya E. Isaacs (the "Fulcher Defendants"). (Fulcher Compl., Docket Entry No. 1.)
Defendants move to dismiss
The facts alleged in the Jeune SAC, Wright SAC and Fulcher Amended Complaint are assumed to be true for the purpose of deciding these motions, and, to the extent the facts between the complaints overlap, the Court cites to the Jeune SAC for ease of reference.
In or around 2007, CUNY and the Dormitory Authority of the State of New York ("DASNY") began construction on a 190,000 square foot, five-story administrative building on Medgar Evers campus in Brooklyn, New York (the "Administrative Building").
According to Plaintiffs, Meridian:
(Jeune SAC ¶¶ 19-20.) Defendant Hundley, a Public Safety Officer at Medgar Evers, was assigned to oversee Meridian, and, according to Plaintiffs, was "fully aware of the fraud, corruption and waste of taxpayers' monies and the serious safety deficiencies" within the Administrative Building. (Jeune SAC ¶ 18; Wright SAC ¶ 36; Fulcher Am. Compl. ¶ 23.) Plaintiffs allege that the Administrative Building is constructed in an "unsafe manner" and that DASNY and CUNY must "shut it down for immediate repairs to its life safety systems and other systems." (Jeune SAC ¶ 21.)
Plaintiffs made "complaints" and "reports" to some unknown person or entity that "CUNY and DASNY, their agents and [their] vendor partners intentionally covered up fraud, corruption and waste of taxpayers' monies," which resulted in "dangerous conditions within the life safety system and other systems" of the Administrative Building.
From 2009 until 2015, Wright served as Chief Administrative Superintendent in the Facilities Management Department at Medgar Evers. (Wright SAC ¶¶ 1, 22, 112-13.) Wright's responsibilities included "overall management" of the personnel assigned to buildings and grounds as well as the maintenance of all Medgar Evers facilities. (Id. ¶ 23.)
Jeune was a Senior Stationary Engineer
Apart from the one-month period between March and April of 2015 when Fulcher held the position of Senior Stationary Engineer, Fulcher worked as a Stationary Engineer until CUNY terminated his employment on January 21, 2016. (Fulcher Am. Compl. ¶¶ 1, 11, 37-38, 58.) The responsibilities of a Stationary Engineer include operating, maintaining, adjusting, testing and repairing "fire protection systems, electro-mechanical building equipment and related auxiliary systems in public buildings," performing "periodic inspections of equipment and repairs of such equipment" and overseeing "preventive maintenance."
Prior to 2010, while the Administrative Building was under construction, Wright requested and was granted permission to access the Administrative Building. (Wright SAC ¶¶ 23, 37.) While inspecting the construction, "based on his training, education and experience," Wright noted "serious deficiencies within the mechanical, electrical, and plumbing systems that [could] only be explained as fraud, corruption and waste of taxpayers' monies," which deficiencies included missing air dampers, duct work, dedicated electrical services lines and dissimilar metal throughout the building. (Id. ¶¶ 24-25.) Wright "immediately forwarded these serious deficiencies" to the Medgar Evers Campus Planning Director at the time, Frank Tumminello, and Tumminello notified both CUNY and DASNY agents. (Id. ¶¶ 28-29.) After Wright shared the deficiencies with Tumminello, he was no longer allowed access to the construction site. (Id. ¶ 30.)
Separately, at an unidentified time, Wright became aware of "constant backups in the Franklin Avenue cellar ladies restroom" and "significant overflow problems." (Id. ¶¶ 76, 80.) He purchased a pipe camera and discovered a breach. (Id. ¶ 79.) Wright alleges the breach resulted from Richards Plumbing, the vendor partner hired by CUNY and DASNY, improperly connecting pipes "as a cost saving measure." (Id. ¶ 80.) Wright "raised" concerns regarding the overflow of water to CUNY and DASNY agents, and explained that "the flow of water will eventually erode the gas vapor barrier and cause gas to enter [the Administrative Building] compromising the health and safety of the occupants and other stakeholders." (Id. ¶ 81.)
On or about February 10, 2015, Wright went to the office of Defendant Crew, President of Medgar Evers, to "request a personal meeting with him to report fraud, corruption and waste of taxpayers' monies." (Id. ¶ 112.) Wright does not allege that he met with Crew or made any statements to Crew. "[S]hortly thereafter," Defendant Posman, the Senior Vice President and Chief Operating Officer, terminated Wright and told him that it was the "President's decision."
Jeune and Fulcher allege that the Administrative Building contained an "unsafe and volatile condition of leaking undetectable natural gas and carbon monoxide" because the "vendor partners intentionally installed defective gas valves within the laboratories" as well as "expired and defective gas sensors to increase . . . profits." (Jeune SAC ¶¶ 25, 34; Fulcher Am. Compl. ¶¶ 27, 41.) On May 1, 2015, CUNY hired an outside contractor from "R&D Group," who found that "numerous laboratory research and classrooms were equipped with expired and defective gas sensors." (Jeune SAC ¶ 33; Fulcher Am. Compl. ¶ 40.)
On or around June of 2015, Jeune and Fulcher informed Defendant Allen, the Assistant Vice President of Facilities Management, Campus Planning and Operations, "of the natural gas problem and the necessity to immediately repair the gas valve controls and gas sensors." (Jeune SAC ¶ 35; Fulcher Am. Compl. ¶ 43.) At an unidentified time, Jeune and Fulcher informed Allen and Defendant Clark, the Chief Administrative Superintendent of Buildings and Grounds, "about the defective natural gas and carbon monoxide sensors because these deficiencies pose a direct danger for the students, occupants and other stakeholders." (Jeune SAC ¶ 37; Fulcher Am. Compl. ¶ 45.) On July 1, 2015, CUNY hired a second contractor, ASCO, and ASCO "confirmed [that] there was a problem with the natural gas valves." (Jeune SAC ¶ 36; Fulcher Am. Compl. ¶ 44.) Despite the warnings from Jeune and Fulcher, on or around September 1, 2015, Allen ordered Jeune to "open the natural gas valves for classes." (Jeune SAC ¶ 38.)
In or around August or September of 2015, Fulcher reported his "serious safety concerns about the defective gas valves" to DOL employee Kwo Iam.
On September 10, 2015, Jeune expressed "serious safety concerns" to Allen regarding the condition of the Administrative Building's cooling tower. (Jeune SAC ¶ 39.) On or about September 21, 2015, CUNY and DASNY hired a vendor partner "to test for the presence of Legionella bacteria[,] which was detected in one of the campus cooling towers." (Id. ¶ 40.)
Sometime "shortly" after late September of 2015, the Jeune Defendants "abruptly demoted" Jeune from the Senior Stationary Engineer position and "charged him with misconduct after he allegedly performed a `mutual'[
In or around September of 2015, the Fulcher Defendants, with the exception of Hundley, changed Fulcher's work hours and denied his request for a reasonable accommodation to take care of his spouse. (Fulcher Am. Compl. ¶¶ 56-57.) Several months later, on January 21, 2016, the Fulcher Defendants, with the exception of Hundley, terminated Fulcher's employment due to "unsatisfactory job performance" even though Fulcher had a satisfactory evaluation. (Id. ¶ 58.)
At some unidentified time, Fulcher alleges that Isaacs, the Director of Human Resources/Labor Designee, did not "hire him from the established Engineers Examination list although he received a passing grade." (Id. ¶¶ 12, 35.) Fulcher does not specify the title of the position that he sought nor the date on which Isaacs failed to hire him.
In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, "accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor." Concord Assocs., L.P. v. Entm't Prop. Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this principle is "inapplicable to legal conclusions" or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678.
The Wright and Fulcher Defendants argue that the Court lacks jurisdiction over Defendant Hundley because Plaintiffs have not served Hundley with the summons and the individuals served were not appointed or authorized to accept service on her behalf. (Wright Defs. Mem. 21-22; Fulcher Defs. Mem. 22-23.) Defendants also argue that Plaintiffs fail to state a claim against Hundley. (Wright Defs. Mem. 20-21; Fulcher Defs. Mem. 21-22.) Wright and Fulcher do not address whether service was proper under federal or state law and instead argue that the service comported with due process because it was "reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Wright Opp'n 1 n.1; Fulcher Opp'n 1 n.1.)
The Court finds it unnecessary to decide the jurisdictional issue of whether service of process was proper because, as discussed below, Plaintiffs' claims fail on the merits against all Defendants, including Hundley. See Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979) ("[P]ersonal jurisdiction . . . is [not] fundamentally preliminary in the sense that subject-matter jurisdiction is, for [it is a] personal privilege[] of the defendant, rather than [an] absolute stricture[] on the court."); United States v. Vazquez, 145 F.3d 74, 80 & n.3 (2d Cir. 1998) (addressing the merits of the claims even though personal jurisdiction was not established due to lack of proper service because "the failure timely to serve a summons and complaint on the opposing party is excusable," and therefore it was "not an exercise of the hypothetical jurisdiction of the sort disapproved of by the Supreme Court" (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 92-102 (1998))); Taylor v. Westor Capital Grp., 943 F.Supp.2d 397, 400 (S.D.N.Y. 2013) ("[D]ismissal under Rule 12(b)(6) renders unnecessary any further consideration of the parties' dispute over service of process under Rule 12(b)(5)." (collecting cases)); see also Jessamy v. City of New Rochelle, 292 F.Supp.2d 498, 503 n.4 (S.D.N.Y. 2003) (addressing Rule 12(b)(5) motion first by noting that courts "may assume without deciding that the plaintiff properly has served the defendants in a timely manner" and then dismissing the case on the merits).
Plaintiffs allege that because they reported safety concerns regarding defects in the construction of the Administrative Building, Defendants took adverse employment actions against them by, among other things, demoting Jeune and terminating Wright's and Fulcher's employment. (See generally Jeune SAC, Wright SAC, Fulcher Am. Compl.)
Defendants argue that Plaintiffs fail to state First Amendment retaliation claims because: (1) Plaintiffs did not speak as private citizens but rather, as public employees in the course of their regular job duties; and (2) even if their speech was protected speech, Plaintiffs fail to plausibly allege that there was a causal connection between the adverse actions they allege and any protected speech.
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 adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech." Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015) (quoting Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011)); see also Eyshinskiy v. Kendall, ___ F. App'x ___, ____, 2017 WL 2829682, at *1 (2d Cir. June 30, 2017); Singh v. City of New York, 524 F.3d 361, 372 (2d Cir. 2008).
The Supreme Court has instructed courts to conduct a two-step inquiry into whether a public employee's speech is entitled to protection:
Lane v. Franks, 573 U.S. ___, ____, 134 S.Ct. 2369, 2378 (June 19, 2014) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).
Thus, the First Amendment protects a public employee from retaliation by his or her employer for the employee's speech only if the employee speaks "[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); see also Eyshinskiy, ___ F. App'x at ____, 2017 WL 2829682, at *1 ("The first inquiry encompasses two separate questions: `(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. If the answer to either question is no, that is the end of the matter.'" (quoting Matthews, 779 F.3d at 172)); 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)).
Courts consider two sub-questions to determine whether an employee spoke as a citizen rather than an employee: (1) whether the speech falls outside of the employee's official responsibilities or duties and (2) whether a civilian analogue to the speech exists. Matthews, 779 F.3d at 173 (citation omitted). "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes." Lane, 573 U.S. at ___, 134 S. Ct. at 2376 (quoting Garcetti, 547 U.S. at 421). "The critical question . . . is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." Id. at 2379; see Monz v. Rocky Point Fire Dist., 519 F. App'x 724, 727 (2d Cir. 2013) (holding that expressions made pursuant to employee's official duties as captain of fire company were not constitutionally protected).
"Although a `civilian analogue' to a government employee's speech militates in favor of an inference that the employee's speech is protected by the First Amendment, the presence of an unofficial analogue does not necessarily mean the speech is protected." Cohn v. N.Y.C. Dep't of Educ., ___ F. App'x ___, ____, 2017 WL 4162234, at *2 (2d Cir. Sept. 20, 2017) (citations omitted) (holding that even "if private citizens [could] complain to [the New York State Department of Education and the Board of Regents] in the same way [the plaintiff] did, it would not change [the Court's] conclusion that [the plaintiff's] speech was made pursuant to his official duties, and therefore unprotected by the First Amendment"); Weintraub v. Bd. of Educ. of City Sch. Dist. of N.Y., 593 F.3d 196, 204 (2d Cir. 2010) (Although the lack of a civilian analogue is "not dispositive," "it does bear on the perspective of the speaker—whether the public employee is speaking as a citizen—which is the central issue."); Montero v. City of Yonkers, 224 F.Supp.3d 257, 269-70 (S.D.N.Y. 2016) (discussing that after Matthews, courts in the Second Circuit "are split" about whether the civilian analogue is a prerequisite to finding an employee's speech protected but concluding that the civilian analogue is not dispositive (collecting cases)).
In evaluating whether speech falls outside of an employee's official duties, courts utilize a functional approach. Matthews, 779 F.3d at 173; Weintraub, 593 F.3d at 202 ("The objective inquiry into whether a public employee spoke `pursuant to' his or her official duties is `a practical one.'" (quoting Garcetti, 547 U.S. at 424)). The court must consider the "nature of the plaintiff's job responsibilities, the nature of the speech, and the relationship between the two. Other contextual factors, such as whether the complaint was also conveyed to the public, may properly influence a court's decision." Ross v. Breslin, 693 F.3d 300, 306-07 (2d Cir. 2012) (holding that a payroll clerk's complaint to her supervisors and further "up the chain of command" regarding pay discrepancies was pursuant to her job responsibilities, which included "processing the payroll and making sure pay rates were correct").
Even if speech is not "required by, or included in, the employee's job description, or in response to a request by the employer," it may still be unprotected employee speech if the speech is "part-and-parcel of [the employee's] concerns about his ability to properly execute his duties." Weintraub, 593 F.3d at 203 (citation and internal quotation marks omitted) (holding that a teacher's complaint that a school administrator failed to discipline a student who had thrown a book at the teacher was "part-and-parcel" of the execution of his job duties "as a public school teacher—namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning"); see also Matthews, 779 F.3d at 174-75 (holding the plaintiff's speech was protected where it expressed an opinion on a "precinct-wide policy," rather than a "specific violation[] of law," and it was "neither part of his job description nor part of the practical reality of his everyday work" to speak about or consider such policies); Looney v. Black, 702 F.3d 701, 712-13 (2d Cir. 2012) (holding that the plaintiff's "vague allegations . . . that, as the town employee who oversaw the entire `organization and conduct of the building advisory, inspection and enforcement programs,' the alleged speech [to a town resident and the public regarding a wood burning boiler/stove and smoke discharge as public health concerns and his opinion regarding an outside agency enforcing a cease and desist order against [t]own residents] was closely related to his work as [b]uilding [o]fficial"); Klaes v. Jamestown Bd. of Pub. Util., No. 11-CV-606, 2013 WL 1337188, at *16 (W.D.N.Y. Mar. 29, 2013) (finding that the engineer-plaintiff's complaints regarding safety violations were not protected speech where his complaints to his supervisors and other employees were "exclusively dedicated" to the division he was charged with monitoring and his duties included "enforc[ing] safety regulations").
A civilian analogue exists if the speech "is made through channels available to citizens generally." Matthews, 779 F.3d at 175; Eyshinskiy, ___ F. App'x at ____, 2017 WL 2829682, at *1 (quoting Matthews, 779 F.3d at 175)). "[A]n indicium that speech by a public employee has a civilian analogue is that the employee's speech was to an independent state agency responsible for entertaining complaints by any citizen in a democratic society regardless of his status as a public employee." Matthews, 779 F.3d at 175 (citation omitted); Weintraub, 593 F.3d at 204 (The traditional examples of forms of speech with a civilian analogue are a "letter to an editor or a complaint to an elected representative or inspector general."); see, e.g., Eyshinskiy, ___ F. App'x at ____, 2017 WL 2829682, at *1 (holding that an assistant principal's complaints made through the Department of Education's web application or directly to his supervisors did not have a relevant civilian analogue); Matthews, 779 F.3d at 175-76 (finding a civilian analogue where a police officer complained to precinct commanders who "regularly heard civilian complaints about [p]recinct policing issues"); Weintraub, 593 F.3d at 204 (holding that "lodging of a union grievance is not a form or channel of discourse available to non-employee citizens" because the "internal communication" was made "pursuant to an existing dispute-resolution policy established by [the plaintiff's] employer" rather than by "voicing his grievance through channels available to citizens generally"); Montero, 224 F. Supp. 3d at 269 (finding that where the plaintiff spoke at a meeting that did not allow "public access" and the complaint did not include allegations "suggesting that public citizens could have aired their grievances" at the meeting, the plaintiff's speech did not have a civilian analogue); Ross v. N.Y.C. Dep't of Educ. (Ross Dep't of Educ.), 935 F.Supp.2d 508, 519-22, 521 n.12 (E.D.N.Y. 2013) (noting that "the court is not convinced that there is a civilian analogue" to a teacher's OSHA complaint because he engaged in a form of complaint only available to employees).
Despite drawing all inferences in Plaintiffs' favor, with the exception of Fulcher's complaint to a DOL employee, Plaintiffs' respective complaints fail to allege "more than a vague set of circumstances regarding speech which necessarily owed its existence to" their respective roles at Medgar Evers, and therefore Plaintiffs have not adequately alleged that they spoke as citizens rather than as public employees. Looney, 702 F.3d at 713 (citation and internal quotation marks omitted). The Court first addresses Plaintiffs' allegations that they complained of "fraud, corruption and waste of taxpayers' monies," and then addresses each Plaintiff's individual allegations.
Plaintiffs each allege that they "report[ed]" to some unknown person or entity that "CUNY and DASNY, their agents' and [their] vendor partners intentionally covered up fraud, corruption and waste of taxpayers' monies." (Jeune SAC ¶¶ 1, 13; Wright SAC ¶¶ 1, 13; Fulcher Am. Compl. ¶¶ 1, 13, 35.)
These allegations are too conclusory to allege protected speech. There are no alleged facts to substantiate the complaints regarding "fraud, corruption and waste of taxpayers' monies" and there are no alleged facts to support the inference that Plaintiffs actually made these complaints, or to whom Plaintiffs made the complaints. See Iqbal, 556 U.S. at 678 (holding that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are insufficient to defeat a motion to dismiss); Irwin v. W. Irondequoit Cent. Sch. Dist., No. 16-CV-6028, 2017 WL 881850, at *6 (W.D.N.Y. Mar. 2, 2017) (denying a motion to amend a complaint to add a First Amendment retaliation claim because the facts were "too vague and speculative" as the plaintiffs "did not identif[y] the protected speech . . . let alone any speech or conduct at all"); Clark v. Dominique, 798 F.Supp.2d 390, 403 (N.D.N.Y. 2011) (dismissing a First Amendment retaliation claim consisting of only "vague factual predicates and conclusory labels" where the plaintiff "without any meaningful detail" alleged that "she was terminated in `retaliation for whistleblowing, and reporting and documenting what [she] believed were illegal acts on the part of the employer'"); Thomas v. N.Y.C. Dep't of Educ., No. 09-CV-5167, 2011 WL 1225972, at *13 (E.D.N.Y. Mar. 29, 2011) (dismissing a First Amendment retaliation claim for failure to state a claim where the plaintiffs alleged that they exercised their First Amendment rights "to oppose defendants' illegal acts of creating false reports and covering up other wrongdoing in their school" but did not describe any statements made by the plaintiffs or specify to whom any statements were made); Winters v. Meyer, 442 F.Supp.2d 82, 87 (S.D.N.Y. 2006) (dismissing a First Amendment retaliation claim where the plaintiff failed to plead any facts to support her claim that her speech was protected).
Plaintiffs' argument that their speech is protected under Matthews is unavailing. In Matthews, the police officer plaintiff made detailed allegations that the NYPD retaliated against him because he complained to several NYPD captains and an unnamed precinct executive officer about an arrest, summons, and stop-and-frisk quota system implemented in his precinct.
Plaintiffs' conclusory allegations that they complained of "fraud, corruption and waste of taxpayers' monies" does not transform their otherwise unprotected employee speech into speech protected under Matthews. Unlike in Matthews, where the plaintiff complained of a precise precinct-wide policy even though it was not part of his job duties or everyday work to comment on such a policy, id. at 169 (the plaintiff complained that police officers were "under pressure to comply with" "a quota system mandating the number of arrests, summons, and stop-and-frisks that police officers must conduct" and "a point system that awarded points to police officers for issuing . . . good summonses and subtracted points for less desirable summonses" (internal quotation marks omitted)), Plaintiffs' only non-conclusory allegations are that they made complaints about specific Administrative Building deficiencies, for example, the gas valves, gas and carbon monoxide detectors, the water cooling towers and plumbing, (Jeune SAC ¶¶ 35, 37, 39; Fulcher Am. Compl. ¶¶ 43, 45-46; Wright SAC ¶¶ 28-29, 81), which complaints, as discussed in detail below, were part-and-parcel of their job duties and responsibilities in their respective roles as Senior Stationary Engineer, Stationary Engineer and Chief Administrative Superintendent. Cf. Matthews, 779 F.3d at 174-75 (Matthews' speech expressed an opinion on a "precinct-wide policy," rather than a "specific violation[] of law," and it was "neither part of his job description nor part of the practical reality of his everyday work" to speak about or consider such policies); see also Harisch v. Goldberg, No. 14-CV-9503, 2016 WL 1181711, at *8 (S.D.N.Y. Mar. 25, 2016) (distinguishing Matthews in part because the plaintiff "was flagging specific violations of law and rules," which was part of his duty as a police lieutenant, "rather than discussing a department-wide policy" as the plaintiff in Matthews); Micillo v. N.Y.C. Dep't of Educ., No. 14-CV-943, 2015 WL 915270, at *2 (S.D.N.Y. Mar. 3, 2015) (finding that the plaintiff's claim fell "well outside Matthews' ambit" because the alleged speech "did not implicate the implementation or formulation of any policy that transcended the scope of [the plaintiff's] duties" but only included speech about "specific wrongdoing by specific individuals related to his official job responsibility") (adopting report and recommendation).
Wright alleges that he engaged in protected speech when he requested a meeting with Crew and when he complained about the Administrative Building's construction deficiencies. (Wright SAC ¶¶ 28-29, 37, 81, 112.) During the relevant period, Wright was the Chief Administrative Superintendent at Medgar Evers and in that role he was responsible for "the overall management of the personnel assigned to buildings and grounds as well as the maintenance of all [Medgar Evers] facilities." (Wright SAC ¶ 22.)
Wright alleges that he went to Crew's office to request a personal meeting with Crew, the president of Medgar Evers, to complain about fraud, corruption and waste of taxpayers' money, (Wright SAC ¶ 112), but he does not allege that he met or spoke with Crew. See, e.g., Davis v. N.Y.C. Dep't/Bd. of Educ., No. 14-CV-2281, 2015 WL 5772204, at *9 (E.D.N.Y. Aug. 19, 2015) (recommending dismissal of a First Amendment retaliation claim where the plaintiff "d[id] not describe any specific statements, nor specify to whom any statements were made or under what circumstances"), report and recommendation adopted, 2015 WL 5772204 (E.D.N.Y. Sept. 29, 2015); Anand v. N.Y. State Dep't of Taxation and Fin., No. 10-CV-5142, 2012 WL 2357720, at *9 (E.D.N.Y. June 18, 2012) (dismissing a First Amendment retaliation claim because the "amended complaint d[id] not adequately describe the speech at issue, the subsequent adverse employment decision, or the individuals involved in that decision"). Even if such a meeting did occur, Wright fails to establish that his speech was protected because he does not specify the content of his speech and instead only alleges vague and conclusory statements that he intended to report "fraud, corruption and waste of taxpayers' monies." See Iqbal, 556 U.S. at 678; see, e.g., Irwin, 2017 WL 881850, at *6; Clark, 798 F. Supp. 2d at 403; Thomas, 2011 WL 1225972, at *13.
Wright's complaints about construction deficiencies at the Administrative Building are unprotected speech because the complaints were made pursuant to his job duties and responsibilities, or, at the very least, were "part-and-parcel of his concerns about his ability to properly execute his duties." Weintraub, 593 F.3d at 203 (citations omitted).
At some time prior to the completion of the Administrative Building in 2010, Wright alleges that he noticed "serious deficiencies within the mechanical, electrical, and plumbing systems that [could] only be explained as fraud, corruption and waste of taxpayers' monies," which deficiencies included missing air dampers, duct work, dedicated electrical services lines and dissimilar metal throughout the building. (Id. ¶¶ 23-25, 37.) Wright "immediately forwarded these serious deficiencies" to the former Medgar Evers Campus Planning Director, Tumminello, who in turn shared the concerns with agents of CUNY and DASNY. (Id. ¶¶ 28-29.) Wright also alleges that he discovered a breach in plumbing caused by a construction shortcut taken as "a cost saving measure," which caused an overflow of water. (Id. ¶¶ 79-80.) At an unidentified time, Wright reported to agents of CUNY and DASNY his concern that the overflow of water resulting from the breach might result in "gas contamination" in the Administrative Building, which posed a safety and health right to students. (Id. ¶ 81.)
Wright was responsible for "the overall management of the personnel assigned to buildings and grounds as well as the maintenance of all [Medgar Evers] facilities," (Wright SAC ¶ 22), and reporting the structural facility deficiencies is precisely the type of complaint that falls within Wright's duty to maintain Medgar Evers' facilities. See, e.g., Looney, 702 F.3d at 713 ("[T]he listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes." (quoting Garcetti, 547 U.S. at 424-25)); Langton v. Town of Chester, 168 F.Supp.3d 597, 605 (S.D.N.Y. 2016) (dismissing a First Amendment retaliation claim where the alleged protected speech "squarely concern[ed] the management, or mismanagement, of the library, and it is precisely these type of critiques and analyses that [the] [p]laintiff was charged with generating as a library trustee"); Micillo, 2015 WL 915270, at *2 (rejecting the argument that because a job description did not include reporting time-card fraud, the plaintiff who was responsible for "collecting and submitting payroll" spoke as a private citizen when reporting such fraud).
In addition, to the extent the allegations identify to whom Wright made his complaints, he exclusively identifies fellow CUNY employees and/or agents of DASNY, which further demonstrates that his complaints were made pursuant to his duties and responsibilities as the manager of the facilities at Medgar Evers.
Accordingly, Wright's speech was not protected because he spoke pursuant to his official duties and responsibilities as the manager of facilities.
Jeune and Fulcher allege that Defendants retaliated against them because: (1) Fulcher complained about CUNY's failure to hire or promote him; (2) they both complained to Allen and Clarke that the Administrative Building had faulty gas valves and carbon monoxide detectors and Jeune complained to Allen about issues with the Administrative Building's cooling tower; and (3) Fulcher complained to a DOL employee about the faulty gas valves. (Jeune SAC ¶¶ 35, 39; Fulcher Am. Compl. ¶¶ 12, 36, 43, 46.) At the time of the alleged protected speech, Jeune and Fulcher held positions as Senior Stationary Engineer and Stationary Engineer, respectively. (Jeune SAC ¶ 51; Fulcher Am. Compl. ¶¶ 37-39.)
Fulcher alleges that after he was denied the promotion to Senior Stationary Engineer, presumably by Isaacs, he wrote a letter to CUNY regarding the denial and he was subsequently denied overtime pay from in or about May of 2015 to July of 2015 in retaliation for "reporting" Isaacs to CUNY. (Id. ¶¶ 36-39, 42.)
The Court dismisses this allegation because Fulcher's complaint to CUNY that Isaacs failed to hire him was a personal grievance about the denial of his promotion request, and is therefore not protected speech. See Gordon v. City of New York, 612 F. App'x 629, 631 (2d Cir. 2015) ("Among the relevant considerations in deciding if speech addresses a matter of public concern `is whether the speech was calculated to redress personal grievances or whether it had a broader public purpose.'" (quoting Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013))); Golodner v. Berliner, 770 F.3d 196, 204 (2d Cir. 2014) ("[T]he `First Amendment does not protect all private ventings of disgruntled public employees.'" (quoting Singer, 711 F.3d at 340)); Lefebvre v. Morgan (Lefebvre II), 234 F.Supp.3d 445, 454 n.3 (S.D.N.Y. 2017) (explaining that allegations based on the filling of multiple "grievance reports" relating to the conditions of the plaintiff's employment cannot form the basis of a First Amendment retaliation claim). In addition, because Fulcher fails to allege whether it was Isaacs or any other Fulcher Defendant who denied his request for overtime pay, Fulcher has not shown that Isaacs engaged in retaliatory conduct. See Richard v. Fischer, 38 F.Supp.3d 340, 358 (W.D.N.Y. 2014) (dismissing a First Amendment retaliation claim against certain defendants for failure to allege that they engaged in the retaliatory acts of filing false disciplinary reports).
Jeune and Fulcher allege that in or around June of 2015, they reported to Allen that a "natural gas problem" with the Administrative Building required immediate repair of the gas valves, (Jeune SAC ¶ 35, Fulcher Am. Compl. ¶ 43), and at an unidentified time, they reported deficiencies with the natural gas and carbon monoxide sensors to Allen and Clarke, (Jeune SAC ¶ 37; Fulcher Am. Compl. ¶ 45). Separately, Jeune alleges that on September 10, 2015, he expressed new safety concerns to Allen regarding the condition of the Administrative Building's cooling tower. (Jeune SAC ¶ 39.)
As Senior Stationary Engineer, Jeune's responsibilities included operating, maintaining, testing and repairing "all utilities in public buildings . . . [and] plant equipment such as . . . electrical equipment, heating and ventilating equipment, . . . mechanical, electrical, and plumbing equipment in University buildings;" and ensuring "compliance with all jurisdictional codes." Similarly, Fulcher's responsibilities as Stationary Engineer included operating, maintaining, adjusting, testing and repairing "fire protection systems, electro-mechanical building equipment and related auxiliary systems in public buildings," performing "periodic inspections of equipment and repairs of such equipment" and performing and overseeing "preventive maintenance."
Jeune's and Fulcher's complaints about the "natural gas problem" requiring immediate repair of the gas valves and the deficiencies with the natural gas and carbon monoxide sensors fall squarely within their duties and responsibilities; the complaints concern maintaining and repairing "equipment and systems," ensuring "compliance with all jurisdictional codes," completing "periodic inspections of equipment and repairs of such equipment" and performing "preventive maintenance."
Jeune's complaint to Allen regarding the Administrative Building's cooling tower is similar in nature to Jeune's and Fulcher's complaints about the gas valves and gas and carbon monoxide sensors and also falls within his duties and responsibilities. Jeune had supervisory authority over "the operation, maintenance and use of equipment and systems," and ensuring "compliance with all jurisdictional codes," which compliance would necessarily include ensuring that unspecified "serious safety concerns" about the Administrative Building's cooling tower are addressed.
The public employee nature of Jeune's and Fulcher's complaints is further demonstrated by the fact that they complained to employees with similar or supervisory duties and responsibilities. Jeune and Fulcher shared their complaints exclusively with Defendants Allen and Clarke, both of whom worked in facilities and building management at Medgar Evers. (Jeune SAC ¶¶ 35, 37, 39; Fulcher Am. Compl. ¶¶ 43, 45.) Allen, the Assistance Vice President of Facilities Management, Campus Planning and Operations, and Clarke, the Chief Administrative Superintendent of Buildings and Grounds, both of whom appear to have been senior to Jeune
Fulcher alleges that in or around August or September of 2015, he met with DOL employee Kwo Iam to express "serious safety concerns about the defective gas valves," (Fulcher Am. Compl. ¶ 46). Fulcher does not include any additional allegations regarding the substance or context of his speech to Iam or Iam's duties and responsibilities. Fulcher also alleges that the Fulcher Defendants retaliated against him in September of 2015 when they collectively, with the exception of Hundley, changed his work hours and denied his request for a reasonable accommodation to take care of his spouse, (id. ¶¶ 56-57), and on January 21, 2016, the same group of Defendants terminated his employment due to "unsatisfactory job performance" even though Fulcher had a satisfactory evaluation, (id. ¶ 58).
Although the subject-matter of Fulcher's speech to the DOL employee is the same as his speech to Allen, (see Fulcher Am. Compl. ¶¶ 1, 11, 37-38, 58), because the complaint was made to an employee of an outside agency, here the DOL,
Choosing to complain through a channel outside of the work place does not automatically transform Fulcher's speech that is otherwise part-and-parcel of his job duties and responsibilities into private-citizen speech,
Where, as here, the Court has no details regarding the nature or context of the complaint to the DOL employee, the DOL employee's title or responsibilities, or more facts regarding Fulcher's ordinary safety reporting responsibilities, the Court cannot determine whether reporting to the DOL was part of Fulcher's duties, and therefore, cannot determine the nature of Fulcher's speech.
While it is unclear whether Fulcher's complaint to the DOL employee was speech made as a private citizen, Fulcher's claim nevertheless fails because Fulcher fails to allege the necessary causal relationship between the DOL complaint and any retaliatory acts by the Fulcher Defendants.
Fulcher made the DOL complaint in August or September of 2015. (Fulcher Am. Compl. ¶ 46.) At the end of September of 2015, approximately one month after Fulcher's allegedly protected speech, certain of the Fulcher Defendants changed Fulcher's work hours and denied his request for a reasonable accommodation to take care of his spouse, and approximately four months later, on January 21, 2016, terminated his employment. (Fulcher Am. Compl. ¶¶ 46, 56-58.)
Although Fulcher's allegation as to the timing of his DOL complaint, as it relates to the denial of his request for reasonable accommodation, change in work hours and termination, suggests that there may be a causal connection based on temporal proximity, because Fulcher does not allege that any of the Defendants were aware of his complaint to the DOL, the Court cannot infer that these actions were motivated even in part by retaliatory animus. Fulcher therefore fails to state a First Amendment retaliation claim regarding his complaint to the DOL. See Wrobel v. County of Erie, 692 F.3d 22, 32 (2d Cir. 2012) ("[I]t is only intuitive that for protected conduct to be a substantial or motiving factor in a decision, the decisionmakers must be aware of the protected conduct." (internal quotation marks omitted)); see, e.g., Cresci v. Mohawk Valley Cmty. Coll., ___ F. App'x ___, ____, 2017 WL 2392470, at *2 (2d Cir. June 2, 2017) (affirming a district court's dismissal of a First Amendment retaliation claim where the plaintiff "failed to allege facts from which the court could infer that [the defendant] was aware of any such protected speech"); Wu v. Metro-North Commuter R.R., No. 14-CV-7015, 2015 WL 5567043, at *6-7 (S.D.N.Y. Sept. 22, 2015) (dismissing claims on a Rule 12(b)(6) motion because the plaintiff had "not pleaded any facts that would suggest that [the] [d]efendant [] even had any knowledge of these complaints, rendering baseless any inference that he might have been motivated to retaliate for them"); Ehrlich v. Dep't of Educ. of City of N.Y., No. 11-CV-4114, 2012 WL 424991, at *4 (S.D.N.Y. Feb. 6, 2012) (dismissing a First Amendment retaliation claim for failure to allege causation where the plaintiff did "not specify where, when, or how any of the alleged speech (complaints) or adverse actions took place, or whether [the individual defendants] even knew of [the plaintiff's] complaints"); cf. Odermatt v. N.Y.C. Dep't of Educ., ___ F. App'x ___, ____, 2017 WL 2378196, at *2 (2d Cir. June 1, 2017) (holding that the plaintiff sufficiently alleged causation because it was "at least plausible" that the defendant "was aware of the email [containing the allegedly protected speech] and that removing [the plaintiff] was motivated by [the speech]" as the email was sent to the same address that defendant used to notify the plaintiff of the adverse action two days later).
Accordingly, for the reasons discussed above, Plaintiffs fail to state a First Amendment retaliation claim.
Defendants argue that the Court should dismiss the complaints with prejudice. (Jeune Defs. Mem. 1; Wright Defs. Mem. 1; Fulcher Defs. Mem. 1.) Plaintiffs have not requested the opportunity to amend their complaints.
"When a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint." Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999); see also Caren v. Collins, ___ F. App'x ___, ____, 2017 WL 3587488, at *3 (2d Cir. Aug. 21, 2017) ("[D]ismissal for insufficient pleadings are ordinarily with leave to replead . . . ." (quotation omitted)). "However, where the plaintiff is unable to demonstrate that he would be able to amend his complaint in a manner which would survive dismissal, opportunity to replead is rightfully denied." Hayden, 180 F.3d at 53; see also TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) ("A plaintiff need not be given leave to amend if it fails to specify either to the district court or to the court of appeals how amendment would cure the pleading deficiencies in its complaint."); Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (holding that the district court did not err in dismissing the claims with prejudice "[i]n the absence of any indication that [the plaintiff] could—or would—provide additional allegations that might lead to a different result").
Courts are especially cautious of allowing a plaintiff multiple attempts to amend a complaint. See, e.g., Neal v. Town of E. Haven, ___ F. App'x ___, ____, 2017 WL 3225638, at *2 (2d Cir. July 31, 2017) ("We further conclude that the [d]istrict [c]ourt acted within its discretion in dismissing the amended complaint with prejudice, in view of the fact that, after [the plaintiff's] original complaint was dismissed, he received leave to amend and failed to cure the original complaint's inadequacies."); Offor v. Mercy Med. Ctr., 676 F. App'x 51, 54 (2d Cir. 2017) ("[The plaintiff] amended her original complaint once, and moved to amend the complaint again after [the] defendants had filed a motion to dismiss. The district court did not abuse its discretion in dismissing the complaint with prejudice and denying her a fourth attempt."); Montero, 224 F. Supp. at 274-75 (dismissing a complaint with prejudice where the plaintiff had already amended the complaint and there "is no reason to suspect that, given another opportunity to amend, [the] [p]laintiff will be able to cure the substantive deficiencies"); Anthony v. Brockway, No. 15-CV-451, 2015 WL 5773402, at *3 (N.D.N.Y. Sept. 30, 2015) ("[The] [p]laintiff has already been given one opportunity to amend his complaint . . ., and there is nothing in his second amended complaint suggesting that [he] could do better given another opportunity.").
Here, allowing Fulcher a third attempt, and Jeune and Wright a fourth attempt, to plead a First Amendment retaliation claim as to all of their allegations would be a waste of judicial resources, and accordingly all but one of Plaintiffs' claims are dismissed with prejudice. Plaintiffs previously amended their complaints after a pre-motion conference where the Court discussed the deficiencies in Plaintiffs' complaints, (Min. Entry dated June 17, 2016), but as discussed above, they failed to cure the deficiencies.
The Court is not convinced based on the various iterations of the complaints that, if given another chance to amend, Plaintiffs would be able to cure the substantive deficiency of their First Amendment retaliation claims. Allowing an additional amendment, to parties that are and have been represented by counsel since the inception of this litigation, would be too generous. See, e.g., Lefebvre II, 234 F. Supp. 3d at 461 (granting a motion to dismiss with prejudice where the plaintiff had already benefited from two amended complaints, the first in response to a decision on the merits, and still failed to state a claim); see, e.g., Panzella v. City of Newburgh, 231 F.Supp.3d 1, 10 n.4 (S.D.N.Y. 2017) (dismissing claims with prejudice where the plaintiffs had already amended their complaint once in response to the defendant's pre-motion conference letter).
Moreover, Plaintiffs have not requested leave to amend their respective complaints, nor have they argued that any dismissal should be without prejudice, and the Court need not grant unsolicited leave to amend. See, e.g., Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 125-26 (2d Cir. 2013) ("While leave to amend under the Federal Rules of Civil Procedure is freely granted, no court can be said to have erred in failing to grant a request that was not made." (citations and internal quotation marks omitted)); see also Bastuk v. County of Monroe, 628 F. App'x 4, 7 (2d Cir. 2015) ("While represented by counsel in the district court, [the plaintiff] never requested leave to amend his complaint" and "the district court did not abuse its discretion here" by dismissing the complaint with prejudice. (citation omitted)); cf. Cresci, ___ F. App'x at ___, 2017 WL 2392470, at *3 (holding that the district court erred in dismissing the initial complaint with prejudice because the plaintiff requested leave to amend and the plaintiff should not have been required to file a proposed amended complaint until the court granted the motion to dismiss).
However, the Court denies without prejudice Fulcher's First Amendment retaliation claim based on the allegation that he complained to a DOL representative and allegedly was retaliated against as a result of that complaint.
For the foregoing reasons, the Court grants Defendants' motions to dismiss the Jeune and Wright SACs and Fulcher Amended Complaint with prejudice as to all claims except Fulcher's claim that Fulcher Defendants retaliated against him for speaking to a DOL employee. Fulcher shall file a second amended complaint within thirty (30) days of this Memorandum and Order. If Fulcher fails to file a second amended complaint within the time specified, the Court will dismiss Fulcher's action with prejudice for the reasons set forth above.
SO ORDERED.
