Opinion
INDEX NO. 161139/2017
01-07-2019
JONATHAN E. DEUTSCH, Plaintiff, v. CITY OF NEW YORK DEPARTMENT OF ENVIRONMENTAL PROTECTION and DIANE HAMMERMAN, Defendants.
NYSCEF DOC. NO. 11 DECISION & ORDER ALEXANDER M. TISCH, J.
In this case, plaintiff seeks compensation for alleged discrimination, retaliation, defamation (verified complaint, ¶ 60), and due process violations, relating to workplace violence charges brought against him and then later withdrawn. Defendants seek to dismiss the verified complaint (complaint) as failing to state a cause of action (CPLR 3211 [a] [7]). For the reasons set forth herein, defendants' motion is granted.
Background
Unless otherwise stated, the following is taken from the complaint. Plaintiff is an attorney employed by defendant City of New York Department of Environmental Protection (DEP). Defendant Diane Hammerman is or was a director for regulatory compliance at DEP.
Plaintiff alleges that, on October 26, 2016, while working with one coworker, Joely DeLarosa, he twice protested coworker Jia LeTian's (LeTian) interruption of his work on a high importance project assigned to plaintiff by his supervisor, Michael Quinn. LeTian wanted to have lunch with DeLarosa. Plaintiff states that, in response to his requests not to be interrupted, DeLarosa stated that she would not work with him. Plaintiff further states that DeLarosa informed one of plaintiff's supervisors that she did not want to work with plaintiff and that plaintiff had upset her. Later that day, plaintiff apologized to DeLarosa, if he had upset her. Plaintiff believed that this was the end of the matter.
The next day, Quinn advised plaintiff that DeLarosa and LeTian (together, complainants) had filed workplace violence complaints against plaintiff. Plaintiff states that this caused him to cry and state that he wanted a drink, even though he had earlier completed inpatient rehabilitation and maintained sobriety for 100 days. Plaintiff was advised to go home, and Quinn stated that he would authorize leave time, as plaintiff had no leave time remaining. Instead of following Quinn's advice, and because he was upset, plaintiff proceeded to DEP's office of workplace violence (OWV), where he was advised that no investigator had yet been assigned, and that plaintiff should go home, as he was in no condition to speak to anyone. Plaintiff responded that he wanted a drink, and later that day, received a call from DEP's deputy commissioner for human resources "asking if he was okay due to the traumatic situation leveled on him" (id., ¶ 22). Plaintiff stated that he would seek support and guidance from his Alcoholics Anonymous sponsor.
On October 28, 2016, plaintiff again dropped in at the OWV office, where he was asked if he wanted to waive his rights to representation. Plaintiff responded that he did not know the particulars of any complaints, but wanted to accept responsibility for his actions, and right any wrong, as it was important for his continued sobriety. Plaintiff told the investigators his version of the events, and they thanked him, stating that "'we know what this has put you through'" (id., ¶ 23).
Plaintiff proceeded to defendant Hammerman's office, to advise her that charges had been filed against him and that he was cooperating. Plaintiff contends that shortly thereafter, while he was speaking with a co-worker, Hammerman passed by and silently mouthed to the co-worker "'are you OK?'" (id., ¶ 24), which, plaintiff alleges, suggested that people near to or in conversation with him were in danger of harm. Plaintiff states that Hammerman's conduct caused him to become unsettled and distressed, and that she and the complainants knew of plaintiff's alcohol problem and prior rehabilitation treatment, as well as the emotional impact of their actions, and that plaintiff could relapse. Plaintiff states that, as a result of the October 28, 2015 incident with Hammerman, on November 12 and December 6, 2016, he was hospitalized for a bowel disorder, and treated with medication.
On December 22, 2016, plaintiff was called in for a meeting and handed a notice and statement of charges (Notice, or Notice and statement of charges) and a letter informing him that, effective immediately, he was suspended for 30 days without pay (id., exhibit 1, 2). The Notice informed plaintiff that, in accordance with Civil Service Law § 75, certain enumerated disciplinary charges were being brought against him. The first charge states that plaintiff, in violation of the workplace violence prevention policy, "acted in a manner prejudicial to good order and discipline" by: (1) yelling at a co-worker; (2) slamming his fist on a co-worker's desk; (3) intimidating co-workers "by looking at them in a threatening manner"; and (4) inducing fear of bodily harm in co-workers by explosive and intimidating behavior (id., exhibit 2). The second charge, not noted to be associated with the workplace violence prevention policy, states that plaintiff interfered with DEP activities by displaying "loud, threatening and intimating [sic] behavior which disrupted operations in the work place" (id.). The Notice also advised plaintiff that an informal conference, at which plaintiff could be represented, would be scheduled in order to resolve the charges. Plaintiff took ill and alleges that, within days thereafter, the suspension was converted to a medical leave.
Plaintiff states that, despite that he was on medical leave, he was advised that, if he wanted to take continuing legal education classes for which he had registered in early January, he could only do so if escorted in and out of the lectures by security. Plaintiff characterizes this conduct as an example of intimidation and harassment.
Plaintiff had a medical relapse in early January 2017, but returned to work on January 20, 2017. Upon his return, plaintiff was advised that his work station was relocated, and Quinn informed plaintiff that the relocation was punitive. The complainants were not relocated and, after the October 26, 2016 incident, but prior to the relocation, plaintiff sat in close proximity to one of the complainants without incident. Shortly after the relocation, plaintiff was advised by a coworker that Hammerman had asked "what was Deutsch doing on this floor" and that she asked the coworker to talk to plaintiff (id., ¶ 37). Plaintiff characterizes this conduct as Hammerman's harassment and intimidation.
Also after his January 2017 return, plaintiff was advised that his picture was posted in the security booth at a facility located in Hunts Point, New York, and was still there in March 2017. At some point in early 2017, plaintiff was asked if he was interested in a different attorney position, which had just become available, doing similar contract review work, but at a different location. Plaintiff accepted the offer and began working in the new position in March 2017.
On June 2, 2017, plaintiff received a letter informing him that the disciplinary charges against him had been withdrawn and the matter closed. Consequently, no hearing was held. Plaintiff states that he was never given the complaint against him, presumably meaning that he did not receive a copy of any writing filed by the complainants, as plaintiff alleges that a copy of the Notice and statement of charges was handed to him, and he has attached it to his complaint. On June 16, 2017, plaintiff entered in-patient rehabilitation for 28 days.
Plaintiff believes that the charges against him were initiated by Hammerman, and that she abused her authority in initiating the workplace violence disciplinary proceeding, and used her personal relationship with DEP's acting commissioner to have plaintiff charged with the violations and suspended without pay. Plaintiff contends that this resulted in his physical, mental and emotional harm, loss of pay, and damage to his reputation. Although plaintiff states that he was not given a copy of any writing filed by the complainants, he contends that indicia of the charges' fabrication, or their lack of a basis in fact, is that the complainants did not allege or state that they were in fear of harm or physical threats by plaintiff. Plaintiff states that additional indicia of the charges' lack of a basis in fact includes that he did not intimidate the complainants, or act in a threatening manner, and that security and the police were not called, as is required by the DEP's workplace violence prevention policy. Plaintiff contends that the charges asserted against him did not rise to the level of workplace violence, and that there were false "findings" issued in the statement of charges.
Plaintiff alleges that both of the defendants: (1) violated Labor Law §§ 215 and 740 and the Americans with Disabilities Act; (2) violated his constitutional due process rights; (3) failed to properly train, supervise, and monitor employees in the assessment, investigation, handling, enforcement and adjudication of workplace violence claims; and (4) defamed him by asserting charges against him. Plaintiff claims that defendants' conduct caused him to suffer physical, mental and emotional injuries. In the fifth cause of action, against Hammerman alone, plaintiff alleges that she was acting outside the scope of her authority and not in her official capacity as agent of the City of New York, and, consequently, "is personally responsible for unlawful action in retaliation, harassment and defamation against plaintiff" (id., ¶ 60).
Discussion
As a threshold issue, in moving to dismiss, defendants argue that plaintiff has failed to plead the timely filing of a notice of claim required pursuant to General Municipal Law § 50-e. This argument is unpersuasive because, in opposition, plaintiff provides three such notices, including one stamped by the New York City comptroller, and contends that they were filed in a timely manner, giving the dates. While defendants cite authority to support the proposition that actually pleading the timely filing of a notice of claim is required, those cases really concern challenges to a notice's timeliness, or some other aspect of the actual notice. Defendants also ignore the rule that, on a motion to dismiss, a plaintiff is permitted to augment his or her complaint with evidence and additional submissions, which must be considered. While plaintiff did not provide proof that all of the notices were filed, defendants do not challenge plaintiffs' filing assertion, or bring up issues about the notices themselves. In addition, "[t]he notice of claim requirements . . . do not apply to federal civil rights claims asserted pursuant to 42 USC § 1983" (Pendleton v City of New York, 44 AD3d 733, 738 [2d Dept 2007]; see also Rowe v NYCPD, 85 AD3d 1001, 1002 [2d Dept 2011] [same]).
Defendants argue that the complaint does not state a claim and should be dismissed. Pursuant to CPLR 3211 (a) (7), a party may move at any time for an order dismissing a cause of action asserted against it on the ground that the pleading fails to state a cause of action. In deciding the motion, the court must liberally construe the pleading, accept the alleged facts as true, and accord the non-moving party the benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83, 87 [1994]; Frank v DaimlerChrysler Corp., 292 AD2d 118, 121 [1st Dept 2002]). The court need only determine whether the alleged facts fit within any cognizable legal theory (id.).
Defendants argue that the complaint should be dismissed because, among other things: (1) Labor Law § 215 excludes municipal departments like DEP, and plaintiff has not adequately pleaded that he made a complaint about the employer's violation of the New York Labor Law or a colorable violation of that law, or that there was any adverse employment action taken against him; (2) Labor Law § 740 applies only to employees in the private sector and plaintiff has not alleged facts demonstrating that plaintiff was retaliated against for complaining about a violation that presents a substantial and specific danger to public health or safety; (3) plaintiff fails to state a claim under the Americans with Disabilities Act (ADA) because he does not demonstrate that he suffered an adverse employment action because of his alleged disability or was subjected to a hostile work environment; (4) plaintiff does not state a claim for defamation as statements made in the Notice are protected by a qualified privilege and the publication element of the claim is not stated; (5) to the extent that plaintiff may be attempting to state a due process claim based upon defamation, loss of reputation alone is not a property deprivation and plaintiff does not state a claim for defamation; (6) plaintiff does not allege facts sufficient to state a claim for failure to properly train, supervise and monitor employees, but only that there was an incident raising issues of workplace violation and a subsequent investigation; (7) the claims against Hammerman are predicated on the survival of a claim in this case and plaintiff has not stated a viable claim.
Plaintiff's ADA claim is dismissed. Defendants arguments were unopposed, and plaintiff is deemed to have abandoned the claim. Plaintiff also did not adequately plead factual allegations from which a reasonable inference may be drawn that defendants' conduct was directed toward, influenced by, or related to plaintiff's disability, except for the switching of plaintiff's leave to medical leave, about which plaintiff does not complain. Plaintiff only states that LeTian, DeLaRosa and defendants knew of his disability, not that the complainants complained about him, or that DEP issued charges, because of plaintiff's disability.
Defendants contend that plaintiff claims that DEP violated Labor Law § 740 by failing to give plaintiff a pre-termination hearing, allegedly in violation of plaintiff's due process rights. Labor Law § 740, a whistle-blower statute:
"creates a cause of action in favor of an employee who has suffered a retaliatory personnel action as a consequence of, inter alia, disclos[ing], or threaten[ing] to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or as a consequence of object[ing] to, or refus[ing] to participate in any such activity, policy or practice in violation of a law, rule or regulation"(Starikov v Ceva Frgt., LLC, 153 AD3d 1377, 1377-78 [2d Dept 2017] [internal quotation marks and citation omitted]). There is authority to support the proposition that Section 740 does not apply to public employers (see Hanley v New York State Exec. Dept., Div. for Youth, 182 AD2d 317, 320 [3d Dept 1992] [public employee's claim is governed by the standards set forth in Civil Service Law § 75-b and not Labor Law § 740]), and that public employers instead are covered by New York Civil Service Law § 75-b (Markovic v New York City Sch. Constr. Auth., 99 Civ. 10339 (AGS), 2002 WL 22043 at *4, 2002 US Dist. LEXIS 214, at *12, US Dist Ct, SD NY [public employees are covered by Civil Service Law § 75-b, not Labor Law § 740]). Furthermore, none of the complaint allegations suggest that plaintiff complained about something that his employer was doing that would fall into the category of creating and presenting a danger to the public health or safety. In addition, plaintiff complains, in opposition, that he was denied a pre-termination hearing; however, he does not allege hat he was terminated. While, in opposition, plaintiff's counsel states that plaintiff complained to his employer about being wrongfully charged with an act of alleged workplace violence, the complaint does not reveal such an allegation. Indeed, plaintiff alleges that he was very upset by being accused of workplace violence and wanted to try to make amends, as he felt that such a course of conduct would aid him in maintaining sobriety. Plaintiff also has not supplemented his complaint with an affidavit about a complaint that he made. Furthermore, assuming, for argument's sake, that plaintiff did complain about the fact that a complaint was lodged against him, as stated above, the other requirements of Labor Law § 740 are not stated in the complaint. Consequently, it is unnecessary for the court to reach defendants' argument that there was no adverse employment action taken against plaintiff.
Plaintiff contends that defendants have violated his federal and state constitutional due process rights. In opposition to the motion, plaintiff argues that he has a protected property right in his employment and that "[t]he deprivation of such right constitutes denial of due process and a violation of Labor Law section 740 and [he] may not be suspended without a fair hearing prior to such termination" (Laifer affidavit, ¶ 32).
"42 USC § 1983 provides that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured"(Eckardt v City of White Plains, 87 AD3d 1049, 1051-1052 [2d Dept 2011] [internal quotation marks omitted]). Defendants do not dispute that plaintiff "has a property right in continued civil service employment" (Matter of Rivera v Beekman, 86 AD2d 1, 9 [1st Dept 1982]). However, plaintiff does not plead that he was terminated from his position, but that he was suspended, and that the suspension was converted to medical leave. Plaintiff was suspended in accordance with Civil Service Law § 75-b, which provides for notice, a 30-day suspension, and the opportunity to be heard, through a hearing, prior to the imposition of certain, later, disciplinary actions. There is authority indicating that the procedures of Civil Service law § 75 withstand constitutional scrutiny (Donofrio v Hastings, 54 AD2d 1110, 1110 [4th Dept 1976] [stating, in claim for denial of plaintiff's request for counsel during preliminary investigation, that "[r]espondent's right to due process is fully protected by the requirements of section 75 of the Civil Service Law"]; see e.g. Szoke v Carter, 165 FRD 34, 37 [SD NY 1996] ["The Supreme Court has never held that a public employee, even one with tenure or its equivalent, has a right to a hearing prior to a suspension"]). Furthermore, "the due process guarantees provided in the Civil Service Law need not be extended to the preliminary investigative inquiries conducted by respondents" (Matter of Alpert v Grecco, 73 AD2d 710, 711 [3d Dept 1979] [emphasis added]).
Plaintiff makes only conclusory arguments regarding constitutional violations and he presents no legal authority to support his arguments that he was not provided with due process. Plaintiff also does not allege or state that he sought or requested a hearing to challenge the charges brought against him, and was denied the opportunity, or that he requested and was denied a copy of any written or recorded complaints filed by the complainants or other evidence relating to the investigation. Consequently, plaintiff does not state a claim, as he does not allege facts demonstrating that he was deprived of a property interest without the benefit of notice and the opportunity to be heard. Plaintiff links his claims of constitutional violations to Labor Law § 740, but he has not demonstrated a violation of that statute. Plaintiff also does not point to "a deprivation of rights as a result of an official policy or custom" (Leung v City of New York, 216 AD2d 10, 11 [1st Dept 1995]; Covell ex rel. Johnson v County of Oswego, 165 F Supp 2d 241, 250 [ND NY 2001], affd sub nom Covell v County of Oswego, 111 Fed Appx 69 [2d Cir 2004] [1983 claim may lie where due process violation arises from a "longstanding practice or custom which constitutes the standard operating procedure of the local government entity"]).
To the extent that plaintiff may be claiming a constitutional violation concerning the relocation of his desk, and assuming the truth of plaintiff's allegation that the relocation was punitive, plaintiff does not claim or provide authority to demonstrate that he had a protected right in having his desk in a particular location. Plaintiff also does not complain that his supervisor, Quinn, informed anyone else that the desk relocation was punitive, so there is no publication for defamation.
A plaintiff may also predicate a 42 USC § 1983 claim upon a municipality's failure to train and supervise its employees. To assert such a claim, however, a plaintiff "must plead and prove that the municipality's failure to train its [employees] in a relevant respect evidences a deliberate indifference to the rights of" those with whom the employees have interactions (Eckhardt, 87 AD3d at 1052 [internal quotation marks and citation omitted]). "In order to succeed on a failure to train claim, a plaintiff must show that "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [defendant] city can reasonably be said to have been deliberately indifferent to the need" (Covell, 165 F Supp 2d at 251, quoting City of Canton v Harris, 489 US 378, 390 [1989]; see Board of County Commr. Of Bryan County, Okl. v Brown, 520 US 397 [1997] [stating that an example of a situation in which the need for training has been deemed obvious is in the use of firearms]). Summed up, a plaintiff must plead facts that demonstrate: (1) the employer's violation of the plaintiff's federally-protected right; (2) the employer's knowledge of the need for training or different training, unless it is obvious; (3) the inadequate training of employees; and (4) that the inadequate training caused the plaintiff's injury.
In his complaint, plaintiff generally alleges that defendants failed to properly train, supervise and monitor its employees in the assessment, investigation, handling, enforcement and adjudication of workplace violence claims. The Court finds these allegations do not sufficiently plead this claim (see Saidin v Negron, 136 AD3d 458, 459 [1st Dept 2016] [conclusory allegations are not sufficient to state a failure to supervise claim under 42 USC 1983]; Leung, 216 AD2d at 11 [same]; compare Ramos v City of New York, 285 AD2d 284, 304 [1st Dept 2001]). This he has failed to do.
In opposition to the motion, plaintiff argues that DEP breached policy and official protocol by failing, at the time of the alleged incident, to call security or the police. Plaintiff contends that, if DEP deemed plaintiff's alleged conduct to be serious enough to warrant charges against him, it was serious enough to call security. Assuming DEP did fail to call security, plaintiff does not demonstrate that he suffered an injury due to this allegedly improper conduct.
However, the point plaintiff is, perhaps, making is that charges should not have been asserted against him in the first place, as plaintiff argues that by failing to adequately investigate the facts and circumstances of the alleged workplace violence charges, DEP brought disciplinary charges against plaintiff without knowing the truth or falsity of the charges, and recklessly and wantonly accused plaintiff without proper foundation or investigation. However, these are also conclusory statements. In addition, plaintiff does not suggest that the complainants did not file workplace violence complaints against him, or that the complainants did not make the allegations reflected in the statement of charges, or provide a basis for a belief that this is the case.
In the complaint plaintiff states that defendants made findings of fact, but no hearing was held, and only charges were made, not findings of fact.
In addition, concerning the investigation, plaintiff alleges that, prior to his receipt of the Notice and statement of charges, he had an opportunity to meet with and discuss the situation with the DEP OWV employees/investigators. Finally, plaintiff does not allege that DEP had a practice or pattern of improperly bringing unwarranted charges against employees under the workplace violence prevention policy, so as to support a claim that DEP had knowledge that training, or different training, was needed.
Plaintiff argues that the continued monitoring of him without justification by Hammerman and other unspecified employees indicates defendants' "lack of knowledge and training and only animus of the plaintiff" (Laifer affidavit, ¶ 36). First, plaintiff pleads only two occasions that involve what he characterizes as Hammerman's monitoring, and cites to no legal support indicating that such conduct was excessive, or a deprivation of his rights. Under all of these circumstances, plaintiff does not state a section 1983 claim of inadequate supervision, monitoring and training against defendants.
Regarding plaintiff's claim for retaliation under Labor Law § 215, the statute states in relevant part, at subdivision (1) (a) that: "[n]o employer . . . shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee (I) because such employee has made a complaint to his employer . . . that the employer has violated any provision of this chapter [the Labor Law]." As discussed above, the complaint is devoid of allegations that plaintiff complained to his employer, and is dismissed on that ground. Consequently, it is unnecessary to reach defendants' argument that the claim should be dismissed because Labor Law § 215 (c) states that "[t]his section shall not apply to employees of the state or any municipal subdivisions or departments thereof."
"To [plead] a claim for defamation, a plaintiff must [allege facts that show]: (1) a false statement that is (2) published to a third party (3) without privilege or authorization, and that (4) causes harm, unless the statement is one of the types of publications actionable regardless of harm" (Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]). "A defamation plaintiff must plead special damages unless the defamation falls into any one of four per se categories: (1) statements charging the plaintiff with a serious crime; (2) statements that tend to injure the plaintiff in her trade, business or profession; (3) statements that impute to the plaintiff a "loathsome disease"; and (4) statements that impute unchastity to a woman" (Nolan v State of New York, 158 AD3d 186, 195 [1st Dept 2018]). "The baseline for any discussion about what constitutes defamatory material is that it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community, even though it may impute no moral turpitude to him" (id., [internal quotation marks and citation omitted]).
Defendants argue that they have a qualified privilege concerning the statements in the Notice and statement of charges. Certainly there is a "qualified 'common interest' privilege, which protects good faith communications between employees and management regarding the employer's business" (Carone v Venator Group, Inc., 11 AD3d 399, 400 [1st Dept 2004] [citation omitted]). The disciplinary charges fall into that category. This portion of the claim must also be dismissed as plaintiff does not allege that the notice and charges were published, but only that the letter was handed to him. Plaintiff states that it was he who informed Hammerman that the charges had been asserted against him. Other than those involved in administering the disciplinary investigation and charges, and those people that plaintiff told himself, plaintiff does not alleges other distribution of the disciplinary charges, or "excessive publication" (Bulow v Women in Need, Inc., 89 AD3d 525, 526 [1st Dept 2011]).
In opposition to the motion, plaintiff complains that he was defamed because his photograph was posted in a security booth. With his complaint, plaintiff submits a picture which shows what appears to be an outdoor security booth, staffed with a uniformed security officer or guard, with sides with large glass sliding windows. However, his complaint does not refer to the photograph in support of his defamation claim (see compl, ¶¶ 51, 53 [referring only to the charges brought against him]). Even if the Court were to read the complaint liberally to include this allegation as part of the defamation claim, the claim fails because the complaint fails to allege how the photograph constitutes a "false statement" — particularly since he alleges he was suspended at the time the photo was posted in the security booth.
Conclusion
In light of the foregoing, it is ORDERED that defendants' motion to dismiss the complaint is granted in its entirety.
Dated: January 7, 2019
ENTER:
/s/_________
J.S.C.