MAUSKOPF, District Judge.
Defendants, the County of Nassau, the Nassau County Civil Service Commission, Thomas R. Suozzi, John J. Senko, Jr., James F. Demos, David J. Gugerty, Anthony M. Cancellieri, John Donnelly, Peter Sylver, Bruce Nyman, and Patricia Bourne (together, "Defendants"), move for reconsideration pursuant to Federal Rules of Civil Procedure 59(e) and 60(b) and Local Rule 6.3 of this Court's January 22, 2010 Memorandum and Order, 684 F.Supp.2d 268 (E.D.N.Y.2010), denying their motion for summary judgment as to Plaintiffs Thomas Williams and Robin Pellegrini's (together, "Plaintiffs") First Amendment retaliation claims. For the reasons set forth below, Defendants' motion is DENIED as to Pellegrini and GRANTED as to Williams. Accordingly, Williams' claims of First Amendment retaliation are DISMISSED.
Plaintiffs commenced this civil rights action on December 18, 2003. (Doc. No. 1.) They asserted numerous causes of action against the County of Nassau, the Nassau County Civil Service Commission ("CSC"), and the Office of Housing and Intergovernmental Affairs ("OHIA"), as well as various individuals in both their official and individual capacities. Plaintiffs amended their Complaint on February 18, 2004. (Doc. No. 19.)
On March 31, 2005, Judge Feuerstein dismissed a number of Plaintiffs' claims. (Doc. No. 61.) On December 26, 2007, Defendants moved for summary judgment on the remaining six causes of action, (Doc. No. 126), and this Court referred that
The Court denied Defendants' motion for summary judgment as to Williams' and Pellegrini's claims of First Amendment retaliation (the second and third causes of action). Defendants now move for reconsideration of that portion of the decision pursuant to Federal Rules of Civil Procedure 59(e) and 60(b) and Local Rule 6.3. Defendants argue that Pellegrini's First Amendment retaliation claims should be dismissed because the R & R overlooked the causal element of a prima facie case for retaliation. Further, Defendants argue that the Second Circuit's opinion in Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir.2010), which was decided after this Court adopted the R & R, changes the analysis of whether Williams spoke as a citizen or in his official capacity as Executive Director of the CSC.
The standard for making a successful motion for reconsideration is stringent, "and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995) (citations omitted); Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992) ("The major grounds justifying reconsideration are an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." (citations and internal quotation marks omitted)). A motion for reconsideration is not an opportunity to relitigate claims that have already been adjudicated. See Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.1998) (stating that a motion for reconsideration "is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple" (citation and internal quotation marks omitted)); Davidson v. Scully, 172 F.Supp.2d 458, 461-62 (S.D.N.Y.2001) (explaining that motions for reconsideration brought pursuant to Local Rule 6.3 must be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court," and may not be used to advance new facts, issues, or arguments not previously presented to the court (citation and internal quotation marks omitted)).
Plaintiffs first argue that Defendants' motion for reconsideration must be denied as untimely. (Pls.' Mem. of Law in
Defendants argue that the R & R overlooked whether Pellegrini's termination was caused by her protected speech. To establish a First Amendment retaliation claim, a public employee must demonstrate the following: (1) the employee spoke "as a citizen upon matters of public concern"; (2) he suffered an adverse employment action; and (3) "the speech at issue was a substantial or motivating factor in the adverse employment action." Benvenisti v. City of N.Y., No. 04-CV-3166 (JGK), 2006 WL 2777274 at *7, 2006 U.S. Dist. LEXIS 73373, at *21-22 (S.D.N.Y. Sept. 23, 2006) (citations and internal quotation marks omitted); see also Healy v. City of N.Y., No. 04 Civ. 7344(DC), 2006 WL 3457702, at *4, 2006 U.S. Dist. LEXIS 86344, at *11-12 (S.D.N.Y. Nov. 22, 2006). Defendants argue that summary judgment is warranted because Pellegrini, the former Acting Director of OHIA, failed to provide evidence sufficient to show that County officials knew of her protected speech with co-workers, outside counsel for OHIA, and her friends, including a former police chief, his wife, and his daughter. (Defs.' Mem. in Supp. of Mot. for Recons. ("Defs.' Br.") at 10-11.) Defendants, however, fail to acknowledge that they made precisely the same argument in their original motion for summary judgment. (See Defs.' Mem. in
Rather, in what appears to be a weak end-run around a previously litigated issue, Defendants couch their argument using the familiar buzz-words on reconsideration, that is, that the R & R "overlooked" the issue of causation. (Defs.' Br. at 11.) Specifically, Defendants contend that the R & R does not include "any finding that Defendants were aware of [Pellegrini's] communications [with co-workers, outside counsel, and friends] and that her termination resulted therefrom." (Id. at 10.) This Court finds itself somewhat puzzled by this argument. The R & R, after engaging in significant analysis of the record and relevant case law, clearly states that "based on the evidence submitted, sufficient questions of fact exist with respect to whether or not Pellegrini's termination was motivated by her speech, particularly since Pellegrini's speech and termination all occurred within a period of six months." (R & R at 29-30 (emphasis added).) Defendants' argument in support of reconsideration as to Pellegrini reflects either a misreading of the R & R, which clearly and adequately addressed the issue of causation, or an attempt to take "a second bite at the apple." Sequa Corp., 156 F.3d at 144. Either way, Defendants' motion for reconsideration is DENIED as to Pellegrini.
Defendants argue that the Second Circuit's decision in Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir.2010), which interpreted Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), invalidates the analysis in the R & R as to whether Williams' speech was protected by the First Amendment. Only two examples of Williams' speech are arguably protected by the First Amendment:
The standard for determining whether the speech of a public employee is protected by the First Amendment "entails two inquiries: (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." Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir. 2011) (citations and internal quotation marks omitted). Here, Defendants ask this Court to reconsider the question of whether, in the instances relevant to this
In determining whether a plaintiff spoke as an employee or a citizen, courts must consider factors such as whether the speech was made "in furtherance of" the plaintiff's "core [employment] duties" and whether the form of the speech had a "relevant citizen analogue." Id. at 203. Neither factor is dispositive. Id. at 204; see also Castro v. Cnty. of Nassau, 739 F.Supp.2d 153, 179 (E.D.N.Y. 2010). Rather, these factors serve as proxies for the controlling question of what "role the speaker occupied when he spoke." Jackler v. Byrne, 708 F.Supp.2d 319, 324 (S.D.N.Y.2010) (citing Weintraub, 593 F.3d at 204). Accordingly, "under the First Amendment, speech can be `pursuant to' a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer." Weintraub, 593 F.3d at 203.
"`The inquiry into the protected status of speech is one of law, not fact.'" Benvenisti, 2006 WL 2777274, at *7, 2006 U.S. Dist. LEXIS 73373, at *24 (quoting Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)); see also Sousa v. Roque, 578 F.3d 164, 170 (2d Cir.2009) ("To determine whether or not a plaintiff's speech is protected, a court must begin by asking `whether the employee spoke as a citizen on a matter of public concern.' If the court determines that the plaintiff either did not speak as a citizen or did not speak on a matter of public concern, `the employee has no First Amendment cause of action based on his or her employer's reaction to the speech.'" (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951)).
As the Executive Director of the Nassau County CSC, Williams' official role was to advise the Civil Service Commission on civil service matters, to implement the policies made by the three commissioners, to assure that those policies were enforced and put into operation, and to handle day-to-day operations of the commission staff. (R & R at 3; Defs.' R. 56.1 Stmt. ¶ 4; Pls.' Reply to Defs.' 56.1 Stmt. ¶ 4.)
While he served as Executive Director of the CSC, Williams told Defendant Cancellieri, the Deputy County Executive of Nassau County, he was concerned that employees in the Planning Department, the OHIA, and the Treasury Department were working out of title in violation of the Civil Service Laws. (R & R at 10, 12; Defs.' R. 56.1 Stmt. ¶¶ 43-44; Pls.' Reply to Defs.' 56.1 Stmt. ¶¶ 43-44.) Williams further advised Cancellieri that this arrangement could potentially constitute a misuse of federal funds. (R & R at 12.) The County Executive is an elected official who serves as the head of Nassau County government. Nassau County Charter § 201. According to the Nassau County Charter, "the Civil Service Commission [has] . . . the powers and duties of a municipal civil service commission," and it is "the duty of the County Executive to supervise, direct, and control, subject to the provisions of the act, the administration of all departments, offices and functions of the county government. . . ." Id. §§ 203-1, 1303. The County Executive has "the powers and duties, with reference to the County Civil Service Commission, of the mayor of a city." Id. § 1303. The Deputy County Executive is appointed by the County Executive, and is responsible for performing the administrative duties of the County Executive, as well as other duties determined by the County Executive. Id. §§ 203, 205.
Williams was required to report only to the three Civil Service Commissioners, and owed no reporting responsibility to Cancellieri. (R & R at 24.) The R & R took this to be a controlling fact, citing the district court opinion in Weintraub for the proposition that when an when a public employee "goes outside of the established institutional channels in order to express a complaint or concern, the employee is speaking as a citizen, and the speech is protected by the First Amendment." (R & R at 25) (citing Weintraub v. Bd. of Educ., 489 F.Supp.2d 209, 219 (E.D.N.Y. 2007), aff'd, 593 F.3d 196 (2d Cir.2010).) The R & R applied this principle to hold that because "Williams had no duty to report any concerns he may have had to Cancellieri, his actions in doing so were taken as a private citizen and not as a public employee." (Id.) The Second Circuit's decision in Weintraub puts a finer point on this reasoning.
Weintraub and its progeny make clear that merely reporting information outside the chain of command is not necessarily sufficient, in and of itself, to establish that
Garcetti and Weintraub require courts to take a practical approach to determining whether public employees have spoken pursuant to their official duties. For example, in Castro, the plaintiff's duties as a private security guard included enforcing school parking regulations, and the court found that his complaints to the school principal, as opposed to his employer, a private contractor, about laxity in the enforcement of parking regulations were made pursuant to his official duties. 739 F.Supp.2d at 179 & n. 20. Likewise, in Morey v. Somers Cent. Sch. Dist., the plaintiff was head custodian of a high school who reported the possible existence of asbestos in the school gymnasium. No. 06-CV-1877 (PGG), 2010 WL 1047622, at *6-8, 2010 U.S. Dist. LEXIS 26262, at *19-23 (S.D.N.Y. Mar. 19, 2010), aff'd, 410 Fed.Appx. 398, 2011 WL 441323, 2011 U.S.App. LEXIS 2554 (2d Cir. Feb. 9, 2011). Although the custodian's official duties did not include identifying or abating asbestos, the court held that his warnings about asbestos were sufficiently related to school maintenance and cleaning that he was speaking as a public employee and not as a regular citizen. (Id.)
Here, too, Williams' discussions with Cancellieri were in furtherance of his core official duties. Williams contacted Cancellieri, the Deputy County Executive, in order to solicit Cancellieri's help in ensuring that various Nassau County agencies and departments were in compliance with Civil Service Laws, one of Williams' core job duties as Executive Director of the CSC. (Pls.' R. 56.1 Cntrstmt. ¶¶ 7, 38.) Even Plaintiffs admit that for the Nassau County government to run and for Williams to carry out his responsibilities, Williams necessarily had to, and did, interact regularly with other Nassau County government officials. (Pls.' Reply to Defs.' R. 56.1 Stmt. ¶ 6.) In addition to meeting with Cancellieri at regularly scheduled senior staff meetings, Williams met with Cancellieri and others "probably ten or twelve" times in eleventh months, and provided them with advice concerning Civil Service regulations. (Pls.' Reply to Defs.' R. 56.1 Stmt. ¶ 22; Doc. No. 130 ¶¶ 77-79.) Plaintiff also testified that he had "probably" at least twenty phone conversations with Cancellieri about various Civil Service issues. (Williams Dep. at 247.) This undisputed evidence demonstrates that it was not unusual for Williams to discuss Civil Service issues with Cancellieri on an official basis. Moreover, pursuant to the
Although he had no duty to report information to Cancellieri, in his role as Executive Director of the CSC, Williams relayed to Cancellieri his "concerns about the County's unlawful actions, including compliance by various departments (i.e., the Treasurer) with Civil Service Laws, Rules and Regulations," issues at the core of his job duties. (Pls.' R. 56.1 Cntrstmt. ¶¶ 21, 38 ("as the Executive Director of the Civil Service Commission" Williams was "bound to ensure" that Nassau County agencies and departments complied with the Civil Service Laws)). As the County Executive supervises, directs, and controls all Nassau County departments and agencies, it is entirely unremarkable that Williams would contact him on an official basis to discuss Civil Service violations in various agencies and departments. Indeed, by reporting the lack of compliance with Civil Service requirements to the Deputy County Executive, Williams was "was fulfilling his undisputed duty to see that those" requirements were satisfied. See Winder v. Erste, 566 F.3d 209, 215 (D.C.Cir.2009).
Moreover, the way in which Williams reported his concerns to Cancellieri has no citizen analogue, or "channel of discourse available to non-employee citizens." Weintraub, 593 F.3d at 204. While citizens may write letters to, or request meetings with, the Deputy County Executive, none would have the kind of access to Cancellieri that Williams had as Executive Director of the CSC. See D'Olimpio v. Crisafi, 718 F.Supp.2d 340, 354 (S.D.N.Y. 2010) (noting that plaintiffs' statements were "made in a manner that would not be available to a non-public employee citizen") (emphasis added); see also Medina v. Dep't of Educ. of N.Y., No. 10-CV-1180 (BSJ), 2011 WL 280800, at *3, 2011 U.S. Dist. LEXIS 5194, at *8-9 (S.D.N.Y. Jan. 14, 2011) (plaintiff guidance counselor who complained to principal, union representative, and students' parents "was only in a position to raise these concerns to these specific people as a direct result of his position as a guidance counselor"); Heffernan v. Straub, 612 F.Supp.2d 313, 326 (S.D.N.Y.2009) (holding plaintiff made speech pursuant to his official duties when
Tellingly, in their opposition to the motion for reconsideration, Plaintiffs do not dispute Defendants' contention that, under Garcetti and Weintraub, Williams spoke with Cancellieri in his official capacity, choosing instead to focus instead on Williams' statements to the Nassau County Legislature. The Court turns next to this issue.
Williams' testimony before the Nassau County Legislature ("Legislature") is also not protected by the First Amendment because Williams was speaking there in his official capacity as Executive Director of the CSC. Although Williams offered his testimony to the Legislature on the rules of a government agency—likely a matter of public concern—"[t]he fact that the plaintiff's speech addresses a matter of public concern is not dispositive." Morey, 2010 WL 1047622, at *6 n. 7, 2010 U.S. Dist. LEXIS 26262, at *19 n. 7. To receive First Amendment protection, a public employee must both "speak as a citizen, and. . . speak on a matter of public concern." Castro, 739 F.Supp.2d at 179. Williams' testimony before the Nassau County Legislature fails to meet the first requirement, and is therefore not protected by the First Amendment.
The circumstances and content of Williams' testimony at the hearing indicate that he was speaking in his official capacity as Executive Director of the CSC.
Plaintiffs rely heavily on the fact that Williams himself approached the Legislature. Williams explained his presence at the hearing as follows: "I was coming by here [sic] today to visit with some of my friends when I was informed there had been some questions concerning Civil Service regulations and the Office of Emergency Management. I was also informed of some of the answers which I do not believe were entirely accurate and I wanted to make myself available. I stayed there about an hour or so to make myself available to answer the questions that were being asked earlier so that you can have the correct and full information." (Defs.' Reply in Supp. of Mot. for Recons. Ex. A, at 8.) Williams was informed about the Legislature's Civil Service questions by an unnamed "friend and colleague." (Pls.' R. 56.1 Cntrstmt. ¶ 91.) Notwithstanding the circumstances in which Williams found himself in the legislative chamber, it is evident that the reason the Legislature permitted him to correct prior testimony of Nassau County officials regarding
Williams testimony was also "in furtherance" of his "core duties" as Executive Director of the CSC. Weintraub, 593 F.3d at 203. In explaining to the Legislature how title and appointment procedures work, Plaintiff addressed "questions concerning Civil Service regulations and the Office of Emergency Management." (Defs.' Reply in Supp. of Mot. for Recons. Ex. A, at 8-10.) As Plaintiffs acknowledge, the CSC "assist[s] Nassau County government and its municipal agencies by providing guidance, information, and assistance on how to comply with Civil Service Law." (Pls.' R. 56.1 Cntrstmt. ¶ 9.) Moreover, "as the Executive Director of the Civil Service Commission," Williams was "bound to ensure" that all Nassau County government agencies and departments complied with the Civil Service Law. (Pls.' R. 56.1 Cntrstmt. ¶ 21.) It is apparent from the hearing transcript that Williams believed that the Legislature had received an inaccurate account of the rules, and he felt it incumbent upon himself to put forth his `expert' perspective, which is indeed "`part-and-parcel' of his concerns" about "properly execut[ing] his duties." Weintraub, 593 F.3d at 203 (citation and internal quotation marks omitted); see Castro, 739 F.Supp.2d at 179 (noting that in deciding whether speech was made pursuant to official duties courts may consider "whether the speech resulted from special knowledge gained through the plaintiff's employment" (citation omitted)). The fact that Williams was not required to speak to the Legislature is not dispositive. Weintraub 593 F.3d at 203 (speech can be `pursuant to' a public employee's official job duties even though it is not required by, or included in, the employee's job description,
Williams did not provide his personal opinion on any matter at the hearing, and was clearly addressing technical matters under the CSC rules and regulations as he attempted to answer the legislator's question. Indeed, when the legislator's question concerned funding for the Office of Emergency Management, and not Civil Service titles and appointments, he responded, "[T]hat's not a Civil Service question, I apologize. I was told it was a Civil Service question." (Defs.' Reply in Supp. of Mot. for Recons. Ex. A, at 10-11.)
In sum, given the uncontroverted facts in the record, and drawing all inferences in favor of Plaintiffs, this Court finds as a matter of law that Williams' speech to the Legislature "owes its existence to [his] professional responsibilities" as Executive Director of the CSC. Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951. No reasonable juror could find that Williams was speaking as a citizen in any of the instances detailed in the record. Accordingly, the First Amendment does not protect his speech, and Defendants motion for reconsideration as to Williams' First Amendment retaliation claims is GRANTED.
For the reasons set forth above, Defendants' motion for reconsideration (Doc. No. 170) is GRANTED as to Plaintiff Williams' First Amendment retaliation claims, and DENIED as to Plaintiff Pellegrini's First Amendment retaliation claims. As these First Amendment claims constitute Plaintiff Williams' only remaining claims, Williams Complaint is now dismissed in its entirety. The parties are ordered to file a Joint Status Report by April 15, 2011 as to Plaintiff Pellegrini's remaining claims.
SO ORDERED.