Opinion
03 Civ. 5045 (SHS) (DF).
May 23, 2005
MEMORANDUM AND ORDER
INTRODUCTION
This matter was referred to me by Judge Stein for general pretrial supervision. Plaintiff Angelo Ruotolo ("Plaintiff"), a former New York City police officer, alleges that the defendants, the City of New York (the "City") and individual employees of the New York Police Department (the "Department") (collectively "Defendants"), retaliated against him, in violation of his rights under the First and Fourteenth Amendments to the Constitution, for authoring a report that exposed environmental risks caused by the Department. Plaintiff has now moved pursuant to Rule 15(d) of the Federal Rules of Civil Procedure to supplement his Complaint. Plaintiff seeks to add new allegations of retaliation that occurred after the Complaint was filed and to name three additional defendants. In conjunction with his motion, Plaintiff has submitted a Proposed Second Amended Supplemental Complaint ("Second Amended Complaint"). Defendants oppose the motion on the ground that both Plaintiff's new allegations and his claims against the newly-named defendants would be futile.
For the reasons stated below, Plaintiff's motion for leave to file his Second Amended Complaint is granted, except to the extent that Plaintiff may be seeking to add new, independent claims for (1) violation of the First Amendment by retaliation against Plaintiff for the act of filing his Complaint in this action or (2) constructive discharge.
BACKGROUND
A. Plaintiff's Complaint
According to the Complaint, Plaintiff, in 1999, was a sergeant with the Department, serving as Training and Safety Officer at the 50th Precinct in the Bronx. ( See Complaint, dated July 7, 2003 ("Compl.") (Dkt. 1), ¶¶ 14-15.) In October 1999, Plaintiff wrote a report identifying environmental and health risks that may have resulted from spillage from gasoline storage tanks at the 50th Precinct. ( Id. ¶¶ 16-17.) Plaintiff hand-delivered this report to his Commanding Officer, Deputy Inspector Raymond Rooney, who then forwarded it to Chief Patrick J. Timlin and Chief Anthony Izzo. ( Id. ¶ 16.) According to Plaintiff, expert analysis of environmental conditions at the 50th Precinct then confirmed that contamination from the gasoline storage tanks exceeded OSHA and EPA standards. ( Id. ¶ 19.) As a result, the City undertook a major remediation effort. ( Id. ¶ 22.) The presence of the hazardous condition received widespread media coverage, allegedly resulting in considerable embarrassment to Defendants. ( Id. ¶ 20.)
Plaintiff claims that his "blowing the whistle" regarding environmental contamination at the 50th Precinct provoked a pattern of retaliation from Defendants that "began almost immediately." ( Id. ¶ 23.) This alleged pattern began when, between October 1999 and July 2000, Plaintiff was reassigned over 140 times and routinely made to work different shifts, which was allegedly unusual given Plaintiff's experience and seniority and "a departure from all prior practice in the precinct." ( Id. ¶¶ 24-26.) Plaintiff also claims that he was repeatedly denied use of his own saved time for leave ( id. ¶ 27), and that, in July 2000, he was permanently removed as Safety Training Officer without cause and replaced by a less qualified officer ( id. ¶ 28).
In November 2001, Plaintiff was administratively transferred to the 41st Precinct in the Bronx, allegedly in violation of standard Department procedure. ( Id. ¶ 29.) According to Plaintiff, assignment to the 41st Precinct is one of the Department's least attractive assignments, because the precinct has one of the highest rates of crime and violence in New York City. ( Id. ¶ 30.) Plaintiff repeatedly requested reassignment, but his requests were denied, despite Department advertisements for open positions and other placements. ( Id. ¶ 31.)
Additionally, Plaintiff claims that he was subjected to retaliatory discipline for trivial or pretextual reasons. ( Id. ¶ 32.) Plaintiff alleges that no other supervisor had been disciplined for such minor infractions as sitting at an unassigned desk or using an overly-narrow margin on a typed report. ( Id. ¶¶ 32, 34.) Moreover, Plaintiff alleges that the various disciplinary charges brought against him were inconsistent with his performance evaluations, which were consistently positive. ( Id. ¶ 35.)
In response to these events, Plaintiff retained legal counsel, who filed an internal complaint (in the form of a letter, dated February 18, 2003, addressed to Defendant Police Commissioner Kelly) on his behalf. ( Id. ¶¶ 40-41.) When the Department did not respond to Plaintiff's internal complaint, Plaintiff filed a Notice of Intention to File a Claim against the City of New York with the City Comptroller's Office in April 2003, but again he received no response. ( Id. ¶ 43.)
Plaintiff filed this action on July 8, 2003, under 42 U.S.C. § 1983, alleging violations of his rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment. ( See id. ¶¶ 54-59.) Plaintiff also asserted pendent state claims for "whistleblower retaliation," based on Section 740 of the New York Labor Law and three New York City regulations. ( See id. ¶¶ 60-63.) In addition to the City, Plaintiff initially named seven individual defendants alleged to be responsible for the retaliation. ( Id. ¶¶ 46-53.) Plaintiff sought compensatory and punitive damages, claiming that Defendants' retaliatory conduct had cost him "several hundred thousands of dollars" in lost salary, overtime, and pension benefits. ( Id. ¶¶ 36-39, 65.) Plaintiff also sought an injunction against Defendants to prevent further retaliation, to restore him to the employment status he had achieved prior to the retaliation, and to restore his lost benefits. ( Id. ¶ 64.)
The individual defendants named in Plaintiff's initial Complaint were Police Commissioner Raymond Kelly, Chief Timlin, Chief Izzo, Deputy Inspector Rooney, Lieutenant William Riley, Deputy Inspector Thomas DiRusso, and Lieutenant Philip Wishnia. ( See Compl. ¶¶ 4-10.)
B. Denial of Defendants' Motion To Dismiss
On February 6, 2004, Defendants filed a motion to dismiss the Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. ( See Notice of Motion to Dismiss the Complaint, filed February 6, 2004 (Dkt. 15).) The Court (Stein, J.) denied the motion with respect to Plaintiff's federal claims but granted it with respect to Plaintiff's state and local law claims. ( See August 25, 2004 Order (Dkt. 24).) Drawing inferences in Plaintiff's favor, the Court held that Plaintiff's § 1983 claim had properly asserted the three elements of retaliation in violation of the First Amendment: protected speech, an adverse employment action, and causation. (Transcript of proceedings held on August 25, 2004, before the Honorable Sidney H. Stein ("8/25/04 Tr.") (Dkt. 26), at 6.) The Court also held that Plaintiff had properly pleaded retaliation in violation of the Due Process Clause of the Fourteenth Amendment. ( Id. at 6-7 (citing Friedl v. City of New York, 210 F.3d 79, 86 (2d Cir. 2000); Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988)).) As to Plaintiff's state and local law claims, however, the Court held that Plaintiff's "hodgepodge of allegations" did not constitute a cause of action under any of the state or local laws that Plaintiff had cited, and the Court granted Defendants' motion to dismiss with respect to those claims. ( Id. at 7-10.) C. Plaintiff's Motion To Supplement His Complaint
In his opposition to Defendants' Motion to Dismiss, Plaintiff sought to amend his Complaint to assert a retaliation claim under Section 75-b of the New York Civil Service Law. (8/25/04 Tr. at 4-5.) Although the Court noted that Plaintiff had not followed the correct procedure for seeking leave to amend his Complaint, it nonetheless deemed Plaintiff's papers to constitute a motion to amend. ( See id.) The Court permitted the amendment, but then granted Defendant's motion to dismiss the claim because the New York Civil Service Law only provides a cause of action where no grievance procedure is available under a collective bargaining agreement, and Plaintiff had not rebutted Defendants' argument that there had been grievance procedures available to him. ( See August 25, 2004 Order (Dkt. 24); 8/25/04 Tr. at 9-10.) On a motion for reconsideration, Plaintiff argued that, as a practical matter, he would have been unable to assert a whistleblower retaliation claim in a grievance hearing, but the Court denied this motion. ( See Letter from Bonnie Mussman to Judge Stein, memo endorsed Sept. 13, 2004 (Dkt. 27).)
On October 13, 2004, Plaintiff filed the instant motion to supplement the Complaint. ( See Notice of Motion, dated Sept. 28, 2004 (Dkt. 30).) By this motion, Plaintiff seeks to add allegations regarding retaliatory activities that allegedly occurred after the original Complaint was filed and to name as defendants three more Department employees — Lieutenant Anthony Henry ("Henry"), Commanding Officer James Essig ("Essig"), and Chief Terence A. Monahan ("Monahan") — who allegedly participated in those activities. ( See Second Amended Complaint, dated February 8, 2005.) Plaintiff asserts that the mistreatment that he allegedly received after he filed the Complaint in this action was in further retaliation for his report on environmental hazards "and/or" was in retaliation for his filing of the Complaint. (Def. Mem. at 2.)
In a first Proposed Amended and Supplemental Complaint, Plaintiff sought to add "Chief Portel" as one of three new defendants. Plaintiff's counsel then represented to the Court that they had discovered that "Chief Monahan," rather than Chief Portel, was the individual who had engaged in certain alleged misconduct. The Court thus permitted Plaintiff to substitute Chief Monahan for Chief Portel in a Second Amended Complaint. ( See letter from Bonnie Mussman to the Court, dated February 9, 2005 ("Pl. 02/09/05 Letter").) Other than this substitution, there is no difference between Plaintiff's first and second proposed new pleading. Plaintiff's Proposed Second Amended Supplemental Complaint bears a date of February 8, 2004, but the Court assumes that this is a typographical error, as it was submitted to the Court in February 2005, together with a letter from Plaintiff's counsel dated February 9, 2005. ( See Pl. 02/09/05 Letter.)
Specifically, Plaintiff claims that, after he filed the Complaint, Defendant Lieutenant Philip Wishnia ("Wishnia") regularly threatened him with discipline, cursed at him "antagonistically," and, in general, created a hostile work environment. (Second Amended Complaint ¶ 45.) Wishnia also allegedly denied Plaintiff overtime comparable to that received by other senior sergeants in the same precinct. ( Id. ¶ 46.) When, on various occasions, Plaintiff complained to Essig about Wishnia's conduct, Essig allegedly cursed at Plaintiff and refused to intervene. ( Id. ¶ 47.) On February 1, 2004, Plaintiff, for the first time in his 25-year career, received a negative performance evaluation, which was signed by Henry and approved by Essig. ( Id. ¶¶ 49-54.)
Subsequently, Plaintiff was investigated by the Department for leaving the boundaries of his precinct during his lunch hour. ( Id. ¶¶ 55-58.) On the first day of the investigation, Plaintiff was relieved of his duties and placed on "modified duty" by Monahan, a penalty that Plaintiff claims is ordinarily reserved for more serious misconduct. ( Id. ¶¶ 59-64.) Once on modified duty, Plaintiff was again reassigned multiple times. ( Id. ¶¶ 65-66.) Based on his belief that the Department was "trying to force him to leave by side-lining his career and by creating an intolerably hostile work environment," Plaintiff chose to retire rather than risk a potential termination, which would have caused him to lose his pension. ( Id. ¶ 67.) Just weeks before he retired, the Department formally charged Plaintiff for leaving the precinct while on duty, a step which, according to Plaintiff, guaranteed that he would retire on modified duty and be unable to carry a firearm in any future employment. ( Id. ¶¶ 68-70.) In his Second Amended Complaint, Plaintiff still seeks compensatory and punitive damages, and, although he has now retired, he also still seeks an injunction, in order to expunge the purportedly "bogus charges" from his record and to restore his benefits to the level they would have reached had Defendants not retaliated against him. ( Id. ¶¶ 93-94.)
Defendants oppose Plaintiff's motion to supplement his Complaint on the grounds that the proposed supplementation would be futile. ( See Memorandum of Law in Opposition to Plaintiff's Motion to Amend and Supplement the Complaint, filed October 15, 2004 ("Def. Mem.") (Dkt. 33), at 6.) In particular, Defendants contend that Plaintiff's new allegations of wrongful treatment do not rise to the level of adverse employment actions sufficient to support a § 1983 claim for retaliation in violation of the First or Fourteenth Amendments. ( Id. at 6-11.) Defendants also argue that the new events that Plaintiff alleges are too remote in time from Plaintiff's authorship of his environmental report — and/or from Plaintiff's filing of this action — to be able to support a retaliation claim. ( Id. at 11-13.)
Finally, Defendants argue that Plaintiff should not be permitted to add a new claim for either retaliation arising out of the filing of the Complaint or for constructive discharge. According to Defendants, it would be futile for the Court to allow a retaliation claim based on the filing of Plaintiff's Complaint because the Complaint itself cannot be deemed to constitute constitutionally protected speech. ( See Def. Mem. at 13-16.) Defendants also argue that the Court should not permit any belated attempt by Plaintiff to raise a constructive discharge claim, given Plaintiff's prior representations to both counsel and the Court that he was not seeking to raise such a claim. ( See Defendants' Memorandum of Law in Sur-Opposition to Plaintiff's Purported Claim of Constructive Discharge, dated November 10, 2004 (Dkt. 35), at 1-2.)
Plaintiff initially informed Defendants' counsel, with respect to his proposed supplementation, that he was not seeking to add a constructive discharge claim. ( See Letter from Bonnie Mussman, Esq. to the Court, dated October 26, 2004 ("Pl. 10/26/04 Letter").) When Defendants confirmed this in their opposition brief, however, their were met by a reply brief in which Plaintiff's counsel professed a change of heart, arguing that the newly pleaded allegations would, in fact, support such a claim. ( See Pl. Reply Mem. at 7-8 (arguing that the Proposed Complaint states a claim for constructive discharge sufficient to satisfy Fed.R.Civ.P. 8(a)); see also Pl. 10/26/04 Letter (stating that Plaintiff "changed [his] position and will pursue a constructive discharge claim.").) The Court permitted Defendants to respond to this argument, and then requested supplemental briefing on the question of whether it would be futile for Plaintiff to add a constructive discharge claim under state law, given the reasoning of the Court in dismissing Plaintiff's previously-asserted state law claims. Plaintiff submitted a letter-brief on that issue, seemingly seeking to support an independent state law claim. ( See Letter from Bonnie Mussman, Esq. to the Court, dated March 31, 2005.)
DISCUSSION
I. APPLICABLE LEGAL STANDARDSUnder Rule 15(d) of the Federal Rules of Civil Procedure, a motion to supplement a pleading is properly made "when a party seeks to plead events which have happened since the date of the pleading sought to be supplemented." Marcucci v. N.Y. Dist. Council of Carpenters Welfare Fund, No. 97 Civ. 7406 (LBS), 2001 WL 1622213, at *2 n. 3 (S.D.N.Y. Dec. 17, 2001) (internal quotations omitted) (citing Flaherty v. Lang, 199 F.3d 607, 614 n. 3 (2d Cir. 1999)). In addition, a Rule 15(d) motion may be appropriate when the movant seeks to add new parties or claims arising from the new events. See Griffin v. City Sch. Bd. of Prince Edward Cty., 377 U.S. 218, 226 (1964) ("[I]t follows, of course, that persons participating in these new events may be added if necessary. Such amendments are well within the basic aim of the rules to make pleadings a means to achieve an orderly and fair administration of justice."); Quentin Group LLC v. Interlink Prods. Int'l Inc., No. 97 Civ. 0108 (SC), 1997 WL 313156, at *2 (S.D.N.Y. June 9, 1997) ("A party may supplement its complaint by adding new claims to the action 'when subsequent events make it necessary to do so.'" (quoting 3 James Wm. Moore et al., Moore's Federal Practice § 15.30, at 15-107 (3d ed. 1997))).
Rule 15(d) motions are evaluated by the Court under the same standards used to evaluate motions to amend pleadings under Rule 15(a), with leave "freely given when justice so requires." New York State Nat'l Org. for Women v. Cuomo, 182 F.R.D. 30, 36 (S.D.N.Y. 1998) (quoting Fed.R.Civ.P. 15(a)); see also Forbes Wallace, Inc. v. Chase Manhattan Bank, 79 F.R.D. 563, 565 (S.D.N.Y. 1978) ("Rule 15(d) does not contain the express injunction of Rule 15(a) that 'leave [to amend] shall be freely given when justice so requires.' However, there is authority in this Court that the same standards are to be applied to motions under both subdivisions of Rule 15." (citations omitted)). Under Rule 15(a), a motion to amend a pleading should be denied, "if there is an 'apparent or declared reason — such as undue delay, bad faith or dilatory motive . . ., repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of an amendment, [or] futility of amendment.'" Dluhos v. Floating and Abandoned Vessel Known as "New York," 162 F.3d 63, 69 (2d Cir. 1998) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); accord Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir. 1987) (citation omitted). Similarly, a motion to supplement under Rule 15(d) should be denied where the supplementation is proposed in bad faith, or would be unduly prejudicial or futile. Quaratino v. Tiffany Co., 71 F.3d 58, 66 (2d Cir. 1995) (citing Foman v. Davis, 371 U.S. at 482). The decision whether to grant leave to amend or supplement a pleading is within the sound discretion of the Court. Id.
An amendment or supplementation of a pleading is considered "futile" when the proposed new claim would not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991); see also Vasile v. Dean Witter Reynolds Inc., 20 F. Supp. 2d 465, 468 (E.D.N.Y. 1998), aff'd, 205 F.3d 1327 (2d Cir. 2000) (denying leave to supplement where the claim to be added would fail to state a claim upon which relief may be granted). Thus, if the proposed supplemental complaint would be subject to "immediate dismissal" for failure to state a claim, the Court should not permit the supplementation. Jones v. New York State Div. of Military Naval Affairs, 166 F.3d 45, 55 (2d Cir. 1999). If, however, the party seeking to supplement "'has at least colorable grounds for relief, justice . . . require[s]'" that its motion be granted. Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 783 (2d Cir. 1984) (citation omitted).
Futility is generally adjudicated without resort to any outside evidence. See, e.g., Nettis v. Levitt, 241 F.3d 186, 194 n. 4 (2d Cir. 2001) ("Determinations of futility are made under the same standards that govern Rule 12(b)(6) motions to dismiss."); see also Jaghory v. New York State Dep't of Ed., 131 F.3d 326, 329 (2d Cir. 1997) (citing Albright v. Oliver, 510 U.S. 266, 268 (1994)) (stating that, under the Fed.R.Civ.P. 12(b)(6) standard, the Court "must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff").
II. PLAINTIFF'S MOTION A. Supplementation of Existing Claims
Applying the liberal standards of Rule 15(a) to Plaintiff's motion under Rule 15(d), it is evident that the Plaintiff should be permitted to supplement the § 1983 claim raised in his initial pleading, by adding new factual allegations regarding events occurring subsequent to the filing of the Complaint, and by adding as defendants the individuals who allegedly participated in those events. There is no indication of, nor do Defendants argue, that any undue delay, bad faith, or prejudice would result from allowing supplementation. Defendants principal argument against permitting Plaintiff to add new allegations of events that occurred after the Complaint was filed is that such supplementation would be futile.
In arguing "futility," however, Defendants seemingly disregard the fact that this Court, drawing reasonable inferences in Plaintiff's favor, has already denied Defendants' motion to dismiss Plaintiff's initial Complaint. ( See supra at 4-5.) Accepting Plaintiff's proposed new allegations as true and viewing them in the light most favorable to Plaintiff, it is apparent that those allegations could further support Plaintiff's charge that Defendants engaged in an ongoing pattern of retaliation against him, beginning almost immediately after he authored his environmental report and continuing through his retirement. Where, as here, a plaintiff alleges a single, ongoing pattern of retaliatory conduct, a motion to supplement the Complaint by adding further events and participants in the same alleged pattern is not futile. See 6A Charles A. Wright, et al., Federal Practice and Procedure § 1508, at 204-05 ("If the original pleading gave defendant notice that the conduct, transaction, or occurrence is of a continuing nature, he should be prepared to defend against all claims arising out of it, whether they arose before or after the original complaint was filed.").
Defendants' argument that the new events alleged by Plaintiff are too remote in time from his authorship of the environmental report to combine with his previous allegations in a common pattern of retaliation also fails. In support of this argument, Defendants rely heavily on Gilford v. City of New York, No. 03 Civ. 0091 (SHS), 2004 U.S. Dist. LEXIS 13150, at *21-22 (S.D.N.Y. July 13, 2004). As Plaintiff correctly notes, however, Gilford was decided on a motion for summary judgment, after the completion of discovery. ( See Pl. Reply Mem. at 4.) Indeed, the Court specifically noted in Gilford that a lack of temporal proximity defeated an inference that an adverse employment action was taken by an employer in retaliation for protected employee speech only where the record contained no "direct or indirect evidence of a retaliatory motive." Gilford, 2004 U.S. Dist. LEXIS 13150, at *21. Here, such an inquiry would be premature, as the Court is not required, at this stage, to examine the evidentiary record.
In short, Defendants have offered no persuasive reason why this Court should deny Plaintiff the opportunity to assert new allegations in further support of the claims he has already asserted and which have already been upheld as adequately pleaded. Therefore, Plaintiff's motion to supplement his Complaint to this extent is granted.
B. Addition of New Claims 1. Retaliation for Plaintiff's Filing of the Complaint
It appears from Plaintiff's proposed pleading and his briefs that he may be seeking to assert two discrete retaliation claims under 42 U.S.C. § 1983, based on Defendants' conduct directed to (a) his "whistle-blowing" report, as originally alleged, and (b) his filing of the Complaint in this action. As to this second potential claim, Plaintiff now seeks to plead that Defendants' retaliatory conduct intensified after he filed his Complaint, culminating in his constructive termination from the Police Department. ( See Am. Compl. ¶¶ 44-70; see also Def. Mem. at 13-16.) To the extent Plaintiff is indeed attempting to plead a new, separate claim for retaliation arising from the filing of his Complaint, leave to add this claim is denied, as the Complaint does not constitute protected speech under the First Amendment, and the assertion of the claim would thus be futile.
For a public employee to state a valid retaliation claim under § 1983, the employee must allege that (1) his speech was constitutionally protected; (2) he suffered from an adverse employment action; and (3) his speech was a motivating factor behind the adverse employment action. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). As a threshold matter, a public employee's speech is protected by the First Amendment only if it can "be fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 146; see Blum v. Schlegel, 18 F.3d 1005, 1012 (2d Cir. 1994) ("The determinative issue is whether [the speech] arises from the speaker's status as a public citizen or from the speaker's status as a public employee."); see also Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir.) ("In reaching this decision, the court should focus on the motive of the speaker and attempt to determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose."), cert. denied, 528 U.S. 823 (1999); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.) (holding that "public concern" requirement also applies to public employee's First Amendment right to petition the government for redress), cert. denied, 510 U.S. 865 (1993). This issue is a question of law that the Court may appropriately decide in determining whether Plaintiff's motion to supplement should be denied as futile. See Connick, 461 U.S. at 148 n. 7; Lewis, 165 F.3d at 163.
Unlike the environmental report that is the basis of the retaliation claim in Plaintiff's original Complaint in this action, the Complaint itself cannot be fairly characterized as constituting speech on a matter of public concern. Even assuming Plaintiff's allegations are true and viewing them in the light most favorable to him, Plaintiff's First Amendment rights were not violated, because the subject matter of his Complaint was "personal in nature and generally related to [his] own situation." Ezekwo v. NYC Health Hosps. Corp., 940 F.2d 775, 781 (2d Cir.), cert. denied, 502 U.S. 1013 (1991). Although Plaintiff, seeking to hold the City liable on his § 1983 claim pursuant to Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978), has requested wide-ranging discovery regarding retaliation claims brought by other police officers against the Department, Plaintiff's Complaint neither alleged that Plaintiff was the victim of a Department-wide policy or practice of retaliation, see Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993), cert. denied, 510 U.S. 1164 (1994), nor included claims for relief on behalf of others similarly situated, see Brennan v. Straub, 246 F. Supp. 2d 360, 366 (S.D.N.Y. 2003). On the contrary, in his Complaint, Plaintiff repeatedly alleged that defendants singled him out, in violation of Department policies and practices, for retaliatory treatment, and Plaintiff only sought individual relief in the form of damages and injunctive restoration of his employment status. ( See Compl. ¶¶ 25-39, 64-65.) Plaintiff's Complaint was calculated to redress personal grievances, and thus, under the law of this Circuit, it was not constitutionally protected speech.
Accordingly, to the extent that Plaintiff now seeks to assert a separate claim that defendants retaliated against him because he filed a Complaint in this action, leave to assert that claim is denied as futile.
2. Constructive Discharge
The parties' correspondence and briefing on this motion reflect some confusion as to whether, in light of Plaintiff's allegedly forced retirement, Plaintiff is seeking to add an independent statutory or common law claim for "constructive discharge." From the last papers submitted by Plaintiff on his motion to supplement, it would appear that Plaintiff is, in fact, seeking to add such a claim. ( See supra note 4.) Yet in a telephone conference on May 9, 2005, Plaintiff's counsel represented to the Court that Plaintiff is not seeking to add any such independent claim, although he is seeking to allege, as a factual matter, that his "retirement" constituted a constructive discharge, which may satisfy the element of an "adverse employment action" necessary to state a First Amendment retaliation claim. See Quoka v. City of West Haven, 2003 WL 21223422, at *2 (2d Cir. 2003) (stating that constructive termination constitutes an adverse employment action in a First Amendment retaliation claim); see also Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002) (noting that "classic examples" of adverse employment actions are "discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand").
For the reasons stated above, Plaintiff's motion to add factual allegations regarding his retirement, in order to provide further support for his previously-pleaded retaliation claim, is granted. Based on counsel's representation to the Court, however, the Second Amended Complaint is deemed not to include an independent constructive discharge claim, and to the extent Plaintiff's motion includes a request for permission to add such an independent claim, the motion is denied.
CONCLUSION
For all of the foregoing reasons, Plaintiff's motion for leave to file the Second Amended Complaint is granted, except to the extent that Plaintiff's motion seeks leave to add new claims for either retaliation arising out of the filing of the Complaint or constructive discharge.
SO ORDERED.