Summary
dismissing a stigma-plus claim "because adequate post-deprivation remedies [through an Article 78 proceeding] were available and Plaintiff failed to take advantage of them"
Summary of this case from Spang v. Katonah-Lewisboro Union Free School DistrictOpinion
No. 04 Civ. 00525 (LTS) (AJP).
September 29, 2008
MEMORANDUM OPINION AND ORDER
Plaintiff Matthew Cooper ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1983 against Defendants Metropolitan Transportation Authority ("MTA"), Metro-North Commuter Railroad ("Metro-North"), S.L. Herrington ("Herrington") and Andrew J. Paul ("Paul") (collectively "Defendants"), alleging that Defendants violated his First Amendment and due process rights when they terminated him from his managerial and engineering positions at Metro-North. Defendants move the Court for summary judgment on all claims pursuant to Federal Rule of Civil Procedure 56(c). The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction of Plaintiff's state law claims pursuant to 28 U.S.C. § 1367.
Defendant's name is spelled as "Harrington" in the caption and in the Amended Complaint, but as "Herrington" in Defendant's affidavit and deposition transcript. The Court reads both spellings as referring to the same party, and utilizes the "Herrington" spelling herein.
Defendants' motion papers were accompanied by a Statement of Undisputed Facts pursuant to Local Civil Rule 56.1 ("Def. 56.1 St."), and several evidentiary submissions. Plaintiff submitted a response to Defendants' Rule 56.1 Statement ("P1. 56.1 St."), as well as accompanying affidavits and exhibits. The Court has carefully considered and thoroughly reviewed the parties' submissions, and for the following reasons, Defendants' motion is granted on all counts.
BACKGROUND
The following facts are undisputed unless otherwise noted. Plaintiff joined Metro-North as a signal maintainer in 1991, was licensed as an engineer in July 1999, and was promoted to Operations Manager in December 1999. (Lipton Decl. Ex. A — Am. Compl. ¶¶ 11-13.) As an engineer, Plaintiff was a member of the Association of Commuter Rail Employees Union ("ACRE"). Plaintiff retained this membership as a managerial employee in December 1999 by taking a leave of absence under Rule 24 of the applicable Collective Bargaining Agreement ("CBA"). (Id. at ¶¶ 14-16.) On August 15, 2003, Plaintiff and eleven fellow employees were injured in a train car collision ("the accident") that occurred during the attempted linking and towing of a stranded train during a blackout. (Barkan Decl. Ex. 9 — Longobardi Report.) The collision resulted in approximately $130,000 in property damage, and Plaintiff suffered a debilitating shoulder injury. (Id.; Def. 56.1 St. ¶ 49.) At the time of the accident, Plaintiff was acting in his capacity as Operations Manager. (Def. 56.1 St. ¶ 10.)
Referred to as "Association of Commuter Employees Union" in the Amended Complaint.
References to parties' 56.1 Statements are deemed to refer as well to the evidence cited in the relevant paragraphs thereof.
On August 19, 2003, Plaintiff met with Herrington, at the time Deputy Chief of Operations, and Gus Meyers, Superintendent in charge of Grand Central Terminal. (Herrington Aff. ¶ 8; Def. 56.1 St. ¶ 19.) Defendants characterize the meeting as one called to discuss Plaintiff's role in, and responsibility for, the accident. (Def. 56.1 St. ¶ 20.) Plaintiff alleges that, at the meeting, Herrington told Plaintiff to admit that the accident was his fault and stated that such an admission would allow Plaintiff to keep his engineering position and only be fired from his Operations Manager position. (P1. 56.1 St. at ¶ 73.)
Plaintiff alleges that the accident was caused by several circumstances outside of his control. (Id. at ¶ 65.) Plaintiff contends that, prior to the accident, he had informed Herrington and Meyers that Metro-North managers required training on the linking and towing procedure used on the day of the accident but was told that training was not possible due to budgetary restrictions. (Id. at ¶ 61.)
On August 21, 2003, the Metro-North Department of Operations Services filed formal charges against two Metro-North union employees in connection with the accident. (Def. 56.1 St. ¶ 26.) A disciplinary hearing ("disciplinary hearing" or "the hearing") was scheduled for August 27, 2003. (Id.) Plaintiff was instructed to appear as a witness at the hearing. (Id.) Plaintiff did not appear at the hearing, but later provided a doctor's note from his psychiatrist stating that he was unable to travel. (Id. at ¶¶ 28-29.) The hearing was adjourned until September 3, 2003, at which time Plaintiff again failed to attend. (Id. at ¶¶ 35, 38.) Plaintiff contends that the doctor's note explained his continued absence. (Pl. 56.1 St. ¶¶ 76-77.)
On September 4, 2003, Plaintiff was terminated in all capacities (managerial and engineering) from his employment with Metro-North. (Def. 56.1 St. ¶ 44.) Defendants state that Plaintiff was terminated for insubordination because he twice failed to appear at the hearings as required, and assert that Plaintiff's failure to appear was significant because disciplinary proceedings must be conducted promptly for remedial purposes. (Def. 56.1 St. ¶¶ 39-40.) The termination letter sent to Cooper by Herrington characterizes Plaintiff's failure to appear and the alleged subsequent hindrance of the disciplinary proceedings as an abrogation of responsibilities and "unprofessional behavior" warranting termination. (Herrington Aff. Ex. G — Termination Letter (Sept. 4, 2003).) Plaintiff alleges that he failed to attend the hearings for medical reasons and asserts that his absence did not warrant termination. (Pl. 56.1 St. ¶ 76.)
In 2004, Plaintiff initiated an action under the Federal Employers Liability Act ("FELA claim" or "FELA action") against the MTA and Metro-North, seeking to recover damages for physical injuries suffered as a result of the accident. (Def. 56.1 St. ¶ 49.) The court, in that proceeding, granted the Defendants' motion to preclude Plaintiff from recovering economic damages for the loss of his Operations Manager position on the ground that his inability to continue in that position was based on his termination rather than physical injuries. (Id.) Plaintiff did recover for past and future lost wages, benefits, and pain and suffering stemming from the loss of his engineering position. (Id. at ¶¶ 49-50.)
Plaintiff subsequently initiated this action. Defendants moved to dismiss the original complaint and the Court dismissed that complaint as against Defendants MTA and Metro-North, and Herrington and Paul in their official capacities, with leave to replead. The Court denied the motion to dismiss Plaintiff's claims as against Herrington and Paul in their individual capacities. Plaintiff filed an amended complaint, asserting claims for Section 1983 municipal liability as against the MTA, Metro-North, and Herrington and Paul in their official capacities, and for Section 1983 liability as against Herrington and Paul in their individual capacities. Plaintiff also asserted defamation and breach of employment contract claims under state law. Defendants again moved to dismiss on all counts. The Court granted Defendants' Rule 12(b)(6) motion on two of the causes of action, both involving deprivation of a property interest in the managerial position without due process. Defendants now move for summary judgment on all remaining counts.
DISCUSSION
Summary Judgment Standard
Summary judgment is to be granted in favor of the moving party when "the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing that no genuine issue of material fact exists.Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256 (1986). A material fact is genuinely disputed only if the evidence is such that a reasonable jury could find in favor of the non-moving party based on that fact. Holtz v. Rockefeller Co., 258 F.3d 62, 69 (2d Cir. 2001) (citing Anderson, 477 U.S. at 248). The nonmoving party must put forth specific facts showing the existence of a genuine issue for trial. Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002). "[M]ere conclusory allegations, speculation or conjecture," are not sufficient to enable a non-moving party to overcome a motion for summary judgment. Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).
First Amendment Claim
Plaintiff claims that Defendants terminated his Metro-North employment in order to prevent him from testifying, at the disciplinary hearing and a Federal Railroad Administration proceeding, about his opinions on safety and training concerns related to the accident. Plaintiff argues that this preemptive firing violated his rights under the First Amendment and 42 U.S.C. § 1983. Defendants move for summary judgment, arguing that: (1) Plaintiff's testimony would have been speech pursuant to his employment duties and therefore would not have been protected under the First Amendment; (2) Plaintiff was not terminated based on his speech; (3) even if Plaintiff's anticipated speech was a motivating factor in Plaintiff's dismissal, Plaintiff would nevertheless have been dismissed for insubordination; and (4) Plaintiff's recovery in the prior FELA action bars recovery for any First Amendment violations in this action. The Court need not address all of Defendants' arguments, as summary judgment in Defendants' favor on this First Amendment claim is appropriate because Plaintiff's testimony would have been pursuant to his official employment duties and not protected speech for First Amendment purposes.
Plaintiff, in his Amended Complaint and 56.1 Statement response, refers to a proceeding before the Federal Railroad Administration ("FRA") as an additional setting in which he would have testified about the accident. (Lipton Decl. Ex. A — Am. Compl. ¶¶ 47-48; Pl. 56.1 St. ¶¶ 92-93.) There is no record of a formal hearing regarding the accident ever occurring before the FRA.
"[T]he First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (citing, e.g., Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968)). However, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421. According to Plaintiff, the testimony which Defendants allegedly aimed to preclude would have included statements regarding Metro-North's failure to provide training in the maneuvers executed on the night of the accident. (Opp'n Mem. at 13 ("[I]f Cooper had testified before the Federal Railroad Administration he would have been testifying as to the improper procedures with regard to cutting brakes, refusal to provide training with regard to hooking up engines to stalled trains, and otherwise putting the railroad in a very bad light.").)
Plaintiff admits that he was summoned to appear and give testimony at the hearing as a "company witness." (Lipton Decl. Ex. C — Cooper Dep. 72:3.) According to the undisputed facts, Operations Managers are "responsible for safe, efficient, and economical performance within their assigned territory, and must ensure that subordinate personnel . . . comply with all operating, maintenance, and safety rules." (Def. 56.1 St. ¶ 4.) The position description for Operations Manager also lists "[i]mplement[ing] departmental Priority One safety initiatives and support[ing] inter-departmental safety goals and objectives" and "[o]bserv[ing] and report[ing] on compliance with all Operating and Safety Rules" as two major responsibilities. (Herrington Aff. Ex. A — Metro-North Human Resources Position Description.) As Plaintiff's proposed statements speak to safety and training concerns, which are included in the Operations Manager job description, and Plaintiff was summoned to give testimony as an employee of Metro-North rather than as a private citizen, Plaintiff's speech at the disciplinary hearing or any FRA proceeding clearly would have been made pursuant to his official duties and, thus, would not have been protected speech under the First Amendment. Thus, just as a claim of retaliatory discharge premised on employment-related speech by a public employee would necessarily fail in light of the Supreme Court's holding inGarcetti, Plaintiff's contention that he was fired in order to prevent him from making statements relating to the accident and matters within the scope of his Metro-North employment is insufficient to support a viable claim for violation of Plaintiff's First Amendment rights. Defendants' motion for summary judgment is, accordingly, granted as to Plaintiff's First Amendment claim.
Deprivation of Property Interest Without Due Process
Plaintiff asserts that Defendants' termination of his Operations Manager position after he became injured, without paying him short- and long-term disability benefits that he contends were due him under a policy applicable to management employees, constituted a deprivation of a constitutionally-protected property interest in the benefits without due process of law. To state such claim, a plaintiff must first show that a recognized property interest exists. Abato v. NYC Off-Track Betting Corp., No. 03 Civ. 5849, 2007 WL 1659197, at *8 (S.D.N.Y. June 7, 2007). Such property interests are not constitutionally established, but are instead "defined by existing rules or understandings . . . that secure certain benefits and that support claims of entitlement to those benefits." Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
Plaintiff cites Section 21-005 of the Metro-North Corporate Operating Procedures Manual ("Manual"), which lays out the eligibility and application procedures for employee health benefits, to establish his claim of a property interest in short- and long-term disability pay. (Opp'n Mem. at 18.) Plaintiff has not demonstrated his entitlement to long-term disability benefits because he fails to show that he applied for the benefits as required by the Manual. Plaintiff's entitlement to short-term disability is somewhat less clear based on the record, as the Manual is less explicit about the manner in which a request for short-term disability should be initiated. However, Plaintiff also puts forth no evidence, other than conclusory statements of entitlement, to refute Defendants' argument that benefits, including disability pay, are not due to individuals post-termination. (Davis Aff. ¶ 3.) As such, Plaintiff fails to establish a constitutionally-recognized property interest in the short- and long-term disability benefits.
"If absence extends beyond 26 weeks, an employee may apply for income payments from the MTA Metro-North Long-Term Disability Insurance Program . . . Employees expecting to be absent for more than 26 weeks due to injury or illness should apply for LTD." (Barkan Decl. Ex. 6 — Corporate Operating Procedures Manual Section 21-005 (emphasis added).)
Even if the existence of a valid property interest in short- and long-term disability benefits had been demonstrated, however, Plaintiff's due process claim would fail because adequate post-deprivation remedies were available and Plaintiff failed to take advantage of them. Plaintiff at no time argues that pre-deprivation remedies should have been made available to him. Further, there is nothing in the record to indicate that Metro-North had a policy of providing pre-termination hearings in situations such as Plaintiff's. It is undisputed, however, that post-termination Article 78 proceedings were available to Plaintiff and that he never initiated such proceedings. (Def.'s Mem. in Supp. at 25; Opp'n Mem. at 21-22.) The Second Circuit has recognized the validity of an Article 78 hearing as a adequate post-deprivation remedy for property interests. See Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996) (Article 78 hearing an adequate post-deprivation remedy for property interest in job status); McDarby v. Dinkins, 907 F.2d 1334 (2d Cir. 1990) (Article 78 proceeding satisfies due process in claim challenging procedures for denying accident disability pension benefits).
In a letter to the Court dated June 17, 2008, Plaintiff contends that Defendants' post-deprivation remedy argument should not be considered because Defendants waived this defense by not raising it in prior motions or in the Answer to the Amended Complaint. The Court need not consider the issue of waiver here, however, as Plaintiff was provided with, and took advantage of, an adequate opportunity to respond to the post-deprivation remedy argument in his Reply Memorandum. Astor Holdings. Inc. v. Roski, 325 F. Supp. 2d 251, 260-61 (S.D.N.Y. 2003) (citing Curry v. City of Syracuse, 316 F.3d 324, 330-31 (2d Cir. 2003) (holding that a district court may consider the merits of a defense raised for the first time at the summary judgment stage, so long as the opposing party has an adequate opportunity to respond).
Plaintiff argues that such a proceeding would not be adequate in this case, as Article 78 hearings do not provide the same opportunity to seek monetary damages as does a Section 1983 action. (Opp'n Mem. at 21-22.) The inability to recover the same amount of damages in an Article 78 hearing as on a Section 1983 claim is not, however, determinative of the adequacy of the state remedy in terms of satisfying the Due Process Clause. Hudson v. Palmer, 468 U.S. 517, 535 (1984). The existence of Article 78 proceedings thus bars Plaintiff's due process violation claim, and summary judgment is granted in favor of Defendants as to Plaintiff's claim for deprivation of a property interest in short- and long-term disability benefits without due process.
Deprivation of Liberty Interest Without Due Process
Plaintiff asserts a "stigma-plus" claim for deprivation of his liberty interest in his good name and reputation without due process of law, citing the termination of both of his Metro-North positions and Defendants' assertion that the termination was justified on the basis of insubordination. A "stigma-plus" liberty interest claim requires a plaintiff to allege both the utterance of a statement that is injurious to his or her reputation, and a tangible burden in addition to the stigmatizing statement. Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005). The defamatory statement "must be sufficiently public to create or threaten a stigma." Id.
Plaintiff argues that Defendants' characterization of him as insubordinate is stigmatizing because the possibility of disclosure of the information to potential employers will affect his ability to obtain management employment in the future. (Opp'n Mem. at 20.) There is no evidence on the record, however, that Plaintiff has been turned down for any employment based on statements made by Defendants at the time of Plaintiff's termination, and it is undisputed that he has since obtained employment as a high school teacher. (Def. 56.1 St. ¶ 48.) It is also undisputed that Plaintiff is no longer seeking a railroad job due to his permanent disability. Id. As such, Plaintiff does not demonstrate that any statements made by Defendants regarding insubordination "create or threaten a stigma," and Plaintiff thus fails to establish a claim for deprivation of a liberty interest.
Even if Defendants' statements were found to be actionable, however, Plaintiff's claim for deprivation of a liberty interest without due process would fail because adequate post-deprivation remedies were available and Plaintiff failed to take advantage of them. As previously explained, it is undisputed that Article 78 proceedings were available to the Plaintiff and he failed to take advantage of them. Plaintiff argues, however, that Article 78 hearings do not address a loss of liberty interest in reputation. (Opp'n Mem. at 21-22 (citing Davidson v. Capuano, 792 F.2d 275 (2d Cir. 1986); Rossi v. Goord, 2006 WL 2811505 (N.D.N.Y. Sept. 28, 2006); Murphy v. Capone, 191 A.D.2d 683 (N.Y.A.D. 1993)).) The cases cited by Plaintiff, however, address only the preclusive effect (or lack thereof) of an Article 78 hearing on a future Section 1983 claim for monetary damages and do not discuss the adequacy of an Article 78 hearing for due process purposes in a liberty interest context. The Second Circuit has recognized the validity of an Article 78 hearing in addressing the deprivation of the liberty interest. See Hellenic, 101 F.3d at 881; see also,Rivera v. Cmty. Sch. Dist. Nine, 145 F. Supp. 2d 302, 308 (S.D.N.Y. 2001) (availability of an Article 78 hearing bars a "stigma-plus" claim of deprivation of liberty interest in reputation). Thus, Plaintiff's claim of a deprivation of liberty interest without due process cannot stand.
Defendants further argue that the availability of CBA-mandated arbitration constitutes an alternate adequate post-deprivation remedy to the extent that Plaintiff's claims are tied to his union position as an engineer. (Reply Mem. at 15.) The Second Circuit has generally held that CBA-mandated arbitration provides adequate post-deprivation process for constitutional purposes.See O'Connor v. Pierson, 426 F.3d 187, 198 (2d Cir. 2005) ("CBA-mandated grievance procedures are routinely (though not always) held to provide adequate post-deprivation process.");Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 213 (2d Cir. 2003) (CBA grievance and arbitration procedure sufficient to satisfy due process). Here, ACRE filed a grievance with the Metro-North Labor Relations Department on Plaintiff's behalf following his termination, and it is undisputed that, when the Labor Relations Department rejected the grievance claim, Plaintiff and ACRE failed to then further advance the matter to arbitration. (Def. 56.1 St. ¶ 47.)
In light of the availability of CBA-mandated arbitration in connection with Plaintiff's union engineering position and the availability of the Article 78 process, Plaintiff had adequate post-deprivation remedies available to him. His due process claim thus fails, and summary judgment is hereby granted in favor of Defendants as to the claim for deprivation of a liberty interest without due process.
Supplemental State Law Claims
As summary judgment is granted on all federal claims as to all Defendants, the Court declines to exercise supplemental jurisdiction of Plaintiff's state law claims. See 28 U.S.C. § 1367(c); Lennon v. Miller, 66 F.3d 416, 426 (2d Cir. 1995) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)) ("[I]f the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.").
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment dismissing Plaintiff's federal claims is granted in its entirety. The Court declines to exercise jurisdiction over Plaintiff's state law claims, and they are, accordingly, dismissed without prejudice to refiling in state court. The Clerk of Court is respectfully requested to enter judgment in Defendants' favor and close this case. This Memorandum Order resolves docket entry no. 54.