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granting defendant's motion for summary judgment on plaintiff's First Amendment retaliation claim where plaintiff stated that his speech was made as part of his duties as defendant's employee
Summary of this case from Anderson v. New YorkOpinion
04 Civ. 7344 (DC).
November 22, 2006
LEEDS MORELLI BROWN, P.C., Attorneys for Plaintiff, By: Matthew S. Porges, Esq., Carle Place, NY.
MICHAEL A. CARDOZO, ESQ., Corporation Counsel of the City of New York, Attorneys for Defendant, By: Mario Frangiose, Esq., Pamela Richardson, Esq., New York, NY.
MEMORANDUM DECISION
In this civil rights case, plaintiff David Healy, a former employee of defendant New York City Department of Sanitation ("DOS"), alleges that DOS unlawfully retaliated against him for creating a report, while still an employee, concerning alleged corruption and fraud within DOS. Healy alleges the retaliation took the form of a demotion, transfer from his unit to another unit, and other harassment. DOS moves for summary judgment pursuant to Federal Rule of Civil Procedure 56.
DOS contends that when Healy made the report of alleged corruption he was speaking as an employee and not as a citizen, and therefore his speech was unprotected and he cannot sustain a First Amendment claim for retaliation. DOS also contends that (1) Healy is barred from presenting his New York state "whistle-blower" claim to this Court because, under the relevant statute, as an employee subject to a collective bargaining agreement he cannot bring this claim before this Court, and (2) there is no private right of action under the applicable New York City Administrative Code "whistle-blower" statute.
Healy has failed to respond with sufficient evidence to establish a genuine issue of material fact for trial with respect to his federal retaliation claim. I conclude also as a matter of law that Healy is barred from presenting his state claim and that there is no private right of action under the section of the Administrative Code in question. Accordingly, DOS's motion for summary judgment is granted and the complaint is dismissed.
BACKGROUND
A. Facts
Construed in the light most favorable to Healy, the nonmoving party, the facts are as follows:
1. Healy's Employment with DOS
Healy was employed with DOS starting on July 9, 1990, initially in the Bureau of Collection and Cleanup (the "BCC"). (Compl. ¶ 7; Richardson Decl. Ex. A). In 1993 or 1994, Healy completed DOS's Enforcement Division (also known as the "Sanitation Police") training program, and was assigned to Enforcement Division headquarters in Brooklyn. (Compl. ¶¶ 8-9). Healy returned to the BCC in November 1994, because of budget cuts, but returned to the Enforcement Division as a Sanitation Police Officer in March 1995. (Id. ¶ 10). In July 1996, after he passed a civil service exam, Healy was promoted to the position of Supervisor and completed Supervisor training. (Healy Dep. 17:10-18:1). Thereafter Healy was transferred to BCC as a Supervisor, overseeing sanitation workers' daily activities. (Compl. ¶¶ 12, 32).
Healy desired to return to the Enforcement Division as a Supervisor, and on July 26, 2000, he wrote to the Department of Investigation, Office of the Inspector General for the Department of Sanitation (the "DOS/IG"), advocating for this return. (Porges Decl. Ex. E). In December 2000, Healy was returned to the Enforcement Division as a Supervisor, and held the corresponding rank of Lieutenant. (Compl. ¶¶ 13-14).
In November 2001, after managing certain activities for DOS at the World Trade Center site, Healy was offered the commander position in charge of the Firearms Training Unit (the "FTU") and was given the title of "Captain" by Commissioner Dino Russo. (Id. ¶¶ 14-15; Healy Dep. 60:3-9). At all times Healy retained the civil service rank of Supervisor and received the same pay and benefits. (Healy Dep. 56:15-23).
As commander of the FTU, Healy and his staff were responsible for firearms, training of officers, maintaining certifications, and auctioning impounded vehicles. (Compl. ¶ 16). Additionally, Healy was DOS's liaison to the New York Police Department and the State Municipal Police. (Id. ¶ 31). On or about June 13, 2002, upon direction of his supervisor Inspector Daniel McClernon, Healy began maintaining the assignment, collection, and storage of all Enforcement Division shields and identifications. (Id. ¶ 17). Shortly thereafter, Healy completed an inventory check of these items. (Id. ¶ 18; Healy Dep. 47:21-52:16). In completing the inventory, Healy discovered that it was "full of errors and omissions and discovered evidence that individuals were impersonating police officers." (Compl. ¶ 19). Healy compiled his findings in a report (the "Report"), which he submitted to McClernon on or about June 18, 2002. (Id. ¶ 20).
On January 3, 2003, DOS Commissioner John Doherty issued an order adjusting the titles and ranks for the Enforcement Division. (Richardson Decl. Ex. M). Effective January 6, 2003, the only titles would be "Workers, Lieutenant for Supervisors, and Inspector for General Superintendents Level 1." (Id.). Doherty's order further stated that "[t]he policy of designating personnel to other titles ended years ago," but that "[f]or whatever reason the policy sta[r]ted up again in [his] absence." (Id.). Because Doherty did not consider it good policy to grant any additional titles, he once again ended the practice and aligned Enforcement Division titles with the equivalent civil service ranks. (Id.). Healy's salary and job responsibilities remained the same following this adjustment. (Healy Dep. 56:15-23). Healy perceived his change of title as a demotion, and on January 6, 2003, submitted a written request for an explanation to McClernon, Enforcement Division Chief James Moss, and Uniformed Sanitationmen's Association, Local 831, International Brotherhood of Teamsters (the "Union") President Joe Mannion. (Compl. ¶¶ 23, 25).
DOS submitted a letter from Michael Bimonte, Chief of Staff at DOS, dated March 28, 2003, regarding the title changes for several Sanitation Police Lieutenants, including Healy. (Richardson Decl. Ex. O). The letter states that DOS had "not demoted any" of the referenced Lieutenants. (Id.). It further explains that "the police title which would be equivalent of a Sanitation Supervisor is Police Lieutenant," and that DOS "unilaterally terminated the practice of creating police titles where no equivalent civil service title existed." (Id.).
On or about January 8, 2003, DOS/IG investigators visited the FTU office and collected the Enforcement Division identification log and the Report, which Healy had submitted to McClernon in June 2002. (Id. ¶ 27). On January 27, 2003, Healy was called to DOS/IG to clarify the Report. (Id. ¶ 28; Richardson Decl. Ex. C 8).
On March 20, 2003, Moss's office informed Healy that he would be transferred from his unit in the Enforcement Division and returned to the BCC as a Supervisor, effective March 31, 2003. (Id. ¶ 29). On or about the same date, Healy contacted DOS/IG, alleging that his transfer was in retaliation for his cooperation with the DOS/IG investigation into missing identifications. (Richardson Decl. Ex. C 1).
On March 26, 2003, Healy filed a formal complaint with DOS/IG requesting whistle-blower status under the New York City Administrative Code. (Compl. ¶ 34). On or about April 2, 2003, Healy met with DOS/IG and submitted oral and documentary evidence relating to his allegations of DOS corruption. (Id. ¶ 35). From April 2, 2003, to August 22, 2004, Healy, through his attorneys, made numerous requests to DOS/IG for the status and/or result of the investigation. (Id. ¶ 36). On August 23, 2004, DOS/IG issued a two-page report to Healy, dated May 11, 2004, denying his request for whistle-blower status. (Id. ¶¶ 38-39).
The Union never filed a grievance regarding Healy's transfer from the Enforcement Division to the BCC, and the Union never informed Healy that it considered his transfer a violation of the collective bargaining agreement. (Healy Dep. 117:21-118:2, 118:21-25).
2. Healy's Allegations of Harassment
The following allegations made by Healy are assumed to be true for the purposes of this motion.
Beginning on or about March 28, 2003, Healy received "hang-up" calls from a number he traced to DOS and phone calls at home from DOS employees who had never previously called him, informing him that he should be careful because DOS was "gunning for him." (Compl. ¶¶ 42-44). Union President Mannion told Healy it would be best not to press "this matter . . . because other employees have tried to `stand up' and their jobs were destroyed," and that DOS was "furious" that he claimed whistle-blower status. (Id. ¶¶ 45-46). Healy contends that DOS employees have driven by his home numerous times in an effort at harassment. (Id. ¶ 52). Additionally, Healy asserts that the interruption of direct deposit of his paycheck, so that he had to visit DOS to receive one paycheck, constitutes retaliation and harassment. (Id. ¶ 47).
Healy also claims that he was harassed by the DOS Sick Leave Unit, receiving phone calls and home visits "more times than [he] believe[d] was appropriate." (Healy Dep. 165:12-13). Finally, Healy contends that the Union's failure to pay, in advance, a $4,000 dental bill — instead requiring Healy to seek reimbursement — was part of DOS's plan of harassment and retaliation. (Compl. ¶ 49-51; Healy Dep. 122:22-123:17 (stating that "the [U]nion [is] working in conjunction with [DOS] to harass me")).
B. Procedural History
On September 14, 2004, Healy filed the complaint in this action. Healy alleges that his perceived demotion and his subsequent transfer from the Enforcement Division, and the other alleged acts of harassment and retaliation, violate his rights under the First Amendment and 42 U.S.C. § 1983. Healy contends that the Report of alleged corruption and fraud at DOS is protected under the First Amendment as the speech of a public employee speaking as a citizen on matters of public concern. Additionally, Healy contends that his demotion and transfer from the Enforcement Division, and the other alleged acts of retaliation, violate his rights under New York Civil Service Law § 75-b. Finally, Healy contends that the demotions, transfer, and other alleged retaliation violate his rights under § 12-113 of the New York City Administrative Code. Healy requests an award of back pay, front pay, lost health insurance benefits, compensatory and punitive damages, plus attorneys' fees, costs, disbursements, and pre-judgment interest. Healy also requests an order granting him whistle-blower status and protection for the allegations herein, as well as any future disclosures relating to alleged corruption and fraud at DOS, and an order granting him the status of a retired Captain of the Enforcement Division with appropriate identification.
DISCUSSION
The standards governing motions for summary judgment are well-settled. A court may grant summary judgment only where there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. See Fed R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). To create an issue for trial, there must be sufficient evidence in the record to support a jury verdict in the nonmoving party's favor. See id.
To defeat a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). The nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. Nat'l Union Fire Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989) (quoting R.G. Group, Inc. v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted)). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts."BellSouth Telecomms., Inc. v. W.R. Grace Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).
A. The First Amendment Claim
A plaintiff has a cause of action under § 1983 where defendants (1) acted under color of state law; and (2) violated plaintiff's constitutional rights or privileges. Eagleston v. Guido, 41 F.3d 865, 872 (2d Cir. 1994).
To establish a First Amendment retaliation claim under § 1983, Healy must establish that (1) the speech at issue was protected; (2) he suffered an adverse employment action; and (3) there was a causal connection between the protected speech and the adverse employment action. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Sheppard v. Beerman, 317 F.3d 351, 55 (2d Cir. 2003) (stating that the speech must by "at least a substantial or motivating factor in the discharge" (quotations omitted)).
"A State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick v. Meyers, 461 U.S. 138, 142 (1983). "Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 126 S. Ct. 1951, 1957 (2006).
A court must apply a two-part test to establish whether an employee's speech is protected by the First Amendment. Id. at 1958. The U.S. Supreme Court recently clarified the applicable test in Garcetti: A court must first "determin[e] whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." Id. If the employee spoke as a citizen, the court must move to the second part of the test, questioning "whether the relevant government entity has an adequate justification for treating the employee differently from any other member of the general public." Id.; see Benvenisti v. City of N.Y., No. 04 Civ. 3166 (JGK), 2006 WL 2777274, at *7 (Sept. 23, 2006) ("First, the Court must determine whether the plaintiff was speaking as a `citizen' for First Amendment purposes.").
In Garcetti, the Court determined that the "controlling factor" was not that the employee expressed his views inside his office or that the subject matter of his expression was his employment, but rather that the employee's "expressions were made pursuant to his duties" of employment. Id. at 1959. The Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes." Id. at 1960; Benvenisti, 2006 WL 2777274, at *8.
The same factor controls here. In his complaint, Healy states that he created the inventory and Report "[a]s part of his duties," and reported his findings to McClernon, his supervisor. (Compl. ¶¶ 18, 20). In his deposition of March 23, 2006, Healy stated that he was in charge of the identification inventories (Healy Dep. 46:21-23), and that he created the inventory and sent the Report to McClernon pursuant to that responsibility. (Id. 47:1-16; see id. 47:21-52:16). In his affidavit accompanying his opposition to this motion for summary judgment, dated August 30, 2006, Healy contradicts his own complaint and his prior sworn testimony, and states that he created the inventory "because I believed doing so was important, not because I was required to do so by my job duties." (Healy Aff. ¶ 25).
Healy cannot create a genuine issue of material fact by contradicting his statements in prior pleadings and prior sworn testimony with a conclusory statement lacking supporting arguments and facts. See BellSouth Telecomms., Inc., 77 F.3d at 615. I conclude that no reasonable jury could find that Healy, in creating the inventory and Report, was speaking as a citizen rather than an as employee. See Garcetti, 126 S. Ct. at 1960. Therefore, his speech is not protected. See Connick, 461 U.S. at 142.
Furthermore, this Court notes that the contradictory statement contained in Healy's affidavit, denying that he made the inventory pursuant to his employment, was made after the Supreme Court issued its decision in May 2006 in Garcetti v. Ceballos, clarifying the requirement that a public employee must speak as a citizen on a matter of public concern to garner First Amendment protection. Healy's statements in his complaint and deposition, both alleging that the inventory was created in the course of carrying out his duties as an employee, were made prior to issuance of Garcetti.
Furthermore, even if Healy had successfully stated a First Amendment retaliation claim, DOS and the City of New York cannot be held liable under § 1983 for the acts of DOS officials solely based on the theory of respondeat superior. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). New York City can be held liable only if the alleged retaliation and harassment by DOS officials was the result of a policy or custom. Stevens v. Metro. Transp. Auth. Police Dep't., 293 F. Supp. 2d 415, 420 (S.D.N.Y. 2003); see Monell, 436 U.S. at 693-94. Healy nowhere claims that the purported retaliation and harassment he suffered was the result of a policy or custom. Accordingly, Healy fails to allege municipal liability, and his § 1983 claim must fail.
Defendant notes that Healy incorrectly names DOS as the defendant in this action. (Def.'s Mem. of Law 11 n. 2). Agencies of the City of New York are not suable entities under § 396 of the New York City Charter. See E. Coast Novelty Co., Inc. v. City of N.Y., 781 F. Supp. 999, 1010 (S.D.N.Y. 1992). "[A]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any Agency." N.Y. City Charter § 396; see, e.g., Thompson v. N.Y. City Dep't of Prob., No. 03 Civ. 4182 (JSR JCF), 2003 WL 22953165, at *6 (S.D.N.Y. Dec. 12, 2003) (finding that the Charter precludes employment discrimination actions brought against city agencies). Thus, the proper defendant is the City of New York. In his opposition, Healy requests leave to amend the caption. (Pl.'s Mem. of Law 20). In light of my rulings herein, this request is moot.
For the above reasons, Healy's § 1983 First Amendment retaliation claim fails as a matter of law.
B. The New York Civil Service Law Claim
Healy also asserts that he was demoted and transferred in violation of New York's "whistle-blower" statute, Civil Service Law § 75-b. This statute provides that
A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.
N.Y. Civ. Serv. Law § 75-b. "Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions," and which contains a binding arbitration provision for all such allegations, the employee shall grieve his claims and may assert them only before an arbitrator. Id. Only those employees not party to a collective bargaining agreement may file suit in federal court to enforce their rights under § 75-b. Id.; see Munafo v. Metro. Transp. Auth., Nos. 98 CV-4572 98 00-CV-0134 (ERK), 2003 WL 21799913, at *31 (E.D.N.Y. Jan. 22, 2003) ("An employee may bring suit under § 75-b in a court of competent jurisdiction only where a collective bargaining agreement does not substitute its own grievance procedure for the relief encapsulated by the statute."); Shaw v. Baldowski, 747 N.Y.S.2d 136, 143 (N.Y.Sup.Ct. 2002) (same).
As a DOS employee, Healy was a member of the Union and subject to a collective bargaining agreement containing provisions preventing DOS from taking adverse personnel actions. (Richardson Decl. Ex. W). In accordance with the provisions of § 75-b, the collective bargaining agreement requires all employees to grieve and arbitrate any alleged adverse employment actions. Id.; see N.Y. Civ. Serv. Law § 75-b. While Healy did contact DOS/IG with his complaints and did request whistle-blower status, these actions do not substitute for the grievance procedure under § 75-b.
In opposition to the motion for summary judgment, Healy, in his affidavit, states "I filed a grievance relative to the demotions and harassment I suffered, but that grievance was summarily denied in the first step of the grievance process." (Healy Aff. ¶ 31). In Healy's memorandum of law, this paragraph is cited as raising a genuine issue of material fact requiring trial as to whether Healy did or did not file a grievance. (Pl.'s Mem. of Law 19). Nowhere in Healy's complaint did he state that he filed a grievance, and he provides no further supporting facts and no supporting documents. See BellSouth Telecomms., Inc., 77 F.3d at 615 (noting that it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts"). Moreover, even if Healy did file a grievance that was in fact "summarily denied," the grievance procedure — and presumably an appeal therefrom — was his sole remedy as provided in § 75-b.See Munafo, 2003 WL 21799913, at *31.
Even assuming his allegations of retaliation to be true, Healy cannot bring this claim before this Court. See N.Y. Civ. Serv. Law § 75-b. Therefore, Healy's § 75-b claim fails as a matter of law.
C. The New York City Administrative Code Claim
Finally, Healy claims that the demotion, transfer, and other alleged retaliation and harassment he suffered violate § 12-113 of the New York City Administrative Code. This section provides that "[n]o officer or employee of an agency of the city shall take an adverse personnel action with respect to another officer or employee in retaliation for his or her making a report of information concerning conduct which he or she knows or reasonable believes to involve corruption." N.Y. City Admin. Code § 12-113. Section 12-113 further provides that any officer or employee who believes that such an adverse employment action has been taken may report this action to the commissioner of investigation. Id. The commissioner must then conduct an inquiry and provide a written statement of the outcome to the complainant. Id.
Section 12-113 provides no private right of action for a city officer or employee. See id.; Fabbr cante v. City of N.Y., No. CV-01-5575 (CPS), 2002 U.S. Dist. LEXIS 27815, at *36-38 (E.D.N.Y. Nov. 12, 2002). This section provides a process by which Healy might have complained about the alleged adverse employment action — and presumably Healy cculd have appealed any decision made under § 12-113. Section 12-113, however, does not provide grounds for relief before this Court. See N.Y. City Admin. Code § 12-113. Accordingly, this claim fails as a matter of law.
Healy's rebuttal is that the case cited by DOS in support of this argument (1) is unpublished, (2) has not been cited by "any other authority," and (3) "is so obscure that it does not appear on Westlaw, and Plaintiff has been unable to find it elsewhere." (Pl.'s Mem. of Law 20-21 n. 9). I find this argument wholly unavailing. Whether § 12-113 provides a private right of action is not, as Healy alleges, a genuine issue of material fact requiring trial. (Pl.'s Mem. of Law 20).
CONCLUSION
For the foregoing reasons, the motion to dismiss is granted. Healy's request for other relief is denied. The complaint is dismissed with prejudice, with costs but without fees. The Clerk of the Court shall enter judgment accordingly and close this case.
SO ORDERED