dismissing plaintiff's claim because it was not of greater value to the public than any other award to a civil rights plaintiffSummary of this case from Kretzmon v. Erie Cnty.
April 11, 2000.
MITCHELL MANDELL, ESQ., REED SMITH SHAW McCLAY, LLP, Counsel for Plaintiff.
JOHN HINCHCLIFF, ESQ., LAURIE JOHNSTON, ESQ., TRUE WALSH MILLER, LLP, Counsel for Defendants.
MEMORANDUM DECISION AND ORDER
Currently before the court is defendants' motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which plaintiff opposes. For the reasons that follow, the court grants defendants' motion.
Plaintiff, Barbra A. Brown ("Brown"), brings this 42 U.S.C. § 1983 action for damages, equitable relief, declaratory relief, and attorneys' fees to redress defendants' alleged violations of her constitutional and civil rights under the Free Speech and Due Process Clauses of the United States Constitution, and likewise seeks damages and equitable relief to redress defendants' alleged retaliation and discrimination under New York Executive Law § 296, or the New York Human Rights Law ("NYHRL").
Solely for the purposes of the instant motion, the following facts, gleaned from the complaint, are assumed to be true. Defendant Massena Memorial Hospital ("the Hospital"), a municipally-owned entity pursuant to New York General Municipal Law § 126, employed Brown as an Assistant Administrator for Patient Care Services from June 1994 until October 23, 1996. Brown, a registered nurse, was the Hospital's only female manager during her tenure. She was qualified for her position and performed her job duties satisfactorily. See Compl. ¶¶ 3, 9-10.
During her term as manager, Brown maintains defendants "exhibited a pervasive discriminatory attitude towards women's health care issues." Id. ¶ 10. For example, upon commencing employment with the Hospital, Brown attempted to introduce a "patient-oriented nursing protocol," which required that each patient have one nurse in charge of his care, and that the treating physician would conference with the nurse to discuss treatment. Id. Defendants, however, "derided and resisted the protocol" because they viewed it as a ""feminist' model of patient care": e.g., as empowering nurses, most of whom were female, with too much responsibility and voice in patient care.Id.
Brown also alleges that defendant James B. Watson ("Watson"), then the Hospital's Chief Executive Officer, subjected her and the facility's other female employees to a hostile work environment. Brown complains that on a daily basis, Watson "signaled to the other male managers at approximately 7:30 a.m. that they should join him for coffee, but he never included [her]." Id. ¶ 12. Though Brown attempted to join and the other male managers, she states the meetings became "awkward" and Watson "made it clear" that she was unwelcome "in his all-male circle." Id. Brown likewise complains that in October 1996, Watson invited male managers to join him at his camp for a "`Boys' Day Out,'" but did not invite her. She likewise claims that Watson used offensive, misogynist language in her presence, see id. ¶¶ 14-15, and had commented on the physical appearance of some of the Hospital's nurses, which led her to feel uncomfortable in his presence. See Id. ¶ 16.
During her employment, Brown claims she learned defendants had targeted and stigmatized one of the Hospital's physicians, Dr. Olof Franzon, because he was an advocate of midwifery and critical of the Hospital. In fear of losing her job. Brown explains that in 1996 defendants forced her to participate in their "corrupt and unethical actions" against Dr. Franzon: she was directed to monitor the doctor's paging and response time; asked to provide defendant Kenneth Maxik ("Maxik") with Franzon's "C-section" statistics, which, she believes, were later manipulated to demonstrate that Franzon was performing a high rate of such procedures; and made to write letters "against" Dr. Franzon, which she was directed to sign following the Hospital's attorney's review and revision of the letters. Id. ¶ 18.
In October 1996, defendants included Brown on their list of witnesses who were to testify at the administrative hearing being held to determine whether Dr. Franzon's medical privileges should be revoked. When Watson asked her what her testimony would be, she replied, "the truth," which was also the message she conveyed to Maxik. Id. ¶ 19. Brown explains that defendants knew, or reasonably should have known, that ""the truth' referred to defendants' corrupt and unlawful activities targeted against Dr. Franzon." Id. On October 23, 1996, almost immediately after Brown had made her statements to Watson and Maxik, the Hospital terminated her. She was told that her termination had nothing to do with her job performance, but instead was a cost-cutting measure. See Id. ¶ 20.
Contemporaneous with her termination, the Hospital offered Brown a severance package. The deal required her to sign the agreement immediately, without obtaining legal advice. Among its provisions were a general release and a confidentiality provision. The latter provision imposed a blanket ban upon Brown that not only precluded her from "talking about defendants `in a negative manner,'" but also mentioning their "peer review and quality assurance information." Id. ¶ 21. Brown insists that the agreement was "intended to prevent [her] from speaking out about [defendants'] corrupt and unlawful conduct toward Dr. Franzon in the peer review and quality assurance process." Id. ¶ 22. Although she signed the agreement, upon receiving her first installment check Brown returned it, disavowed the agreement, and ultimately testified at Dr. Franzon's hearing. Id. ¶ 23.
Within two years after her termination, the Hospital created a Nurse Executive position, which Brown claims featured duties that were substantially similar to her previous position. It did not hire her for the position; rather, Brown, who was fifty-eight when she was fired, believes that the person hired was younger than her and received a lower salary. Id. ¶¶ 24-27.
Brown raises eight claims. First, she alleges defendants terminated her because she "exercised her First Amendment rights" ( e.g., by insisting she would "tell the truth" during Dr. Franzon's administrative hearing); second, she claims defendants compelled her to sign the separation agreement because she exercised these same rights; third, she maintains that defendants violated her Fifth Amendment right to due process when (1) they refused to offer her the newly-created Nurse Executive position because, as a civil servant, her employment created a property interest and (2) they terminated her employment; fourth, Brown alleges defendants' termination of her was retaliation for her complaining of Watson's discriminatory conduct and in violation of the NYHRL; fifth, she contends her discharge was in violation of the NYHRL's prohibition on age discrimination; sixth, she insists her termination was impermissibly based upon her gender and in violation of the NYHRL's prohibition on gender discrimination; seventh, Brown submits defendants subjected her to a hostile work environment, again in violation of the NYHRL; and eighth, she alleges Watson is personally liable under the NYHRL for aiding and abetting the age and gender-based discrimination.
Defendants challenge Brown's allegations. Roughly ten months after she was fired, they note, she filed a claim with the Equal Employment Opportunity Commission ("EEOC"), which, they insist, alleged "the very same harassment, age and sex discrimination claims asserted in this action." Dfts' Mem. of Law at 1. The EEOC dismissed those charges on June 30, 1998 and Brown failed to commence an action within the statutory limitation of ninety days, thereby waiving her claims. Accordingly, defendants suggest she "has . . . been forced to dress what is fundamentally an employment discrimination case in constitutional clothing" to appear in federal court. Id. They argue her allegations do not state any cognizable free speech or due process claim, and also that the pendent state law claims against the Hospital are time-barred.
The court examines these arguments seriatim.
DISCUSSION I. Standard for a 12(b)(6) Motion
A complaint cannot be dismissed on a 12(b)(6) motion unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of its claim that would entitle her to relief. See Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980) (per curiam); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986). In deciding a motion to dismiss, the court will accept as true all factual allegations in the complaint and construe them favorably to the plaintiff. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991). The function of a Rule 12(b)(6) motion is to assess the legal feasibility of the complaint and not to assay the weight of the evidence that might be offered in support of it. See Diehl v. Village of Antwerp, 964 F. Supp. 646, 649 (N.D.N.Y. 1997) (Scanlon, M. J.) (citations omitted). Defendants offer two affidavits with their motions. A defendant normally cannot introduce additional evidence in support of a Rule 12(b)(6) motion without converting it into a Rule 56 motion for summary judgment. See Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied, 504 U.S. 911, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992). Although Brown has responded with her own affidavit, as well as a Rule 7.1(f) Statement, defendants have not filed an answer, nor has discovery been conducted in this matter, therefore the court will not convert its motion to one for summary judgment. Instead, the court will examine the motion solely on its face.
The Northern District of New York's Local Rules were amended on January 1, 1999. The Local Rule 7.1(f) Statement, which is a short statement of uncontested, material facts accompanying a motion for summary judgment, is now known as the Local Rule 7.1(b)(1)(C) Statement. Should the parties require an updated copy of the Local Rules, it is available through the court's web site: www.nynd.uscourts.gov.
II. Brown's First Amendment Claims
Brown raises two First Amendment claims, both of which allege retaliation. First, she claims defendants terminated her because she insisted she would "tell the truth" during Dr. Franzon's administrative hearing. Second, she states defendants compelled her to sign the separation agreement because she insisted she would testify truthfully.
To make a prima facie First Amendment retaliation claim under § 1983, Brown must demonstrate by a preponderance of the evidence that: (1) her speech was constitutionally protected; (2) she suffered an adverse employment decision; and (3) a causal connection exists between her speech and the adverse employment determination against her, so that it can be said that her speech was a motivating factor in the determination. See Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999) ( citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). To survive a motion to dismiss under the final prong, Brown's pleading need not clearly establish that defendants harbored retaliatory intent; rather, it is sufficient to allege facts which reasonably could support an inference to that effect. See Gagliardi v. Village of Pawling, 18 F.3d 188, 195 (1994).
A. Protected Speech
The question of whether certain speech enjoys a protected status under the First Amendment is one of law, not fact. See Morris, 196 F.3d at 109 (citations omitted). Here, the determinative issue is whether the speech may "be fairly characterized as constituting speech on a matter of public concern." Id. Generally, speech on "any matter of political, social, or other concern to the community" is protected by the First Amendment. Id. Brown asserts that her statement that she would "tell the truth" when called to testify before the administrative board regarding Dr. Franzon's medical privileges was protected speech; defendants counter that it was not. There is no dispute — at least for the purposes of this motion — that defendants are state actors for § 1983 purposes. See, e.g., American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40,___, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999) ("To state a claim for relief in an action brought under § 1983, [plaintiffs] must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law"). Instead, the issue is whether Brown's statement is protected speech.
Certainly, testimony at the hearing would be protected speech. See, e.g., Melton v. City of Oklahoma City, 879 F.2d 706, 714 (10th Cir. 1989), on reh'g en banc, 928 F.2d 920 (10th Cir.), cert. denied, 506 U.S. 906, 112 S.Ct. 296, 116 L.Ed.2d 241 (1991) ( First Amendment protects a public employee from employer retaliation for participating in a legal proceeding, either as a party or a witness). Yet, is her statement, made prior to the hearing, protected speech? The matter appears to be one of first impression in this Circuit.
Defendants argue that under Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), Brown's speech cannot be afforded protection. The court, however, concurs with Brown that the Pickering test is inapplicable, at least at this juncture. The Pickering test balances two competing interests: the well-established notion that "[i]ndividuals do not relinquish their First Amendment rights by accepting employment with the government" with the state's "interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general" Id., 391 U.S. at 568, 88 S.Ct. 1731. Thus, although the government "may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large," United States v. National Treasury Employees Union, 513 U.S. 454, 465, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995), if those restraints are to be valid, they must first pass scrutiny under the Pickering balancing test. That test holds that in evaluating a restriction on government employees' speech, a court must seek "to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Here, as Brown argues, defendants are not suggesting that they sought to restrain her speech to promote public efficiency; rather, defendants merely contend Brown's speech was not protected. Instead, the court bases its analysis on the facts alleged in the complaint, and whether Brown's speech, in context, implicates "a matter of public concern." Morris, 196 F.3d at 109
According to her complaint, Dr. Franzon was the target of defendants' "corrupt and unlawful conduct" — some of which Brown had been "forced" to participate in — in an effort to "stigmatiz[e]" him. Eventually, a hearing was scheduled regarding whether Dr. Franzon's privileges should be revoked, and Brown was included by defendants on its list of witnesses. When Watson asked Brown what the substance of her testimony would be, she replied that she would "tell the truth," which, she asserts, referred to defendants' "corrupt and unlawful activities targeted against Dr. Franzon." Soon after making this statement, she was terminated as part of a cost-cutting measure. Upon termination, she was offered a severance package that required her to sign a general release. The release included confidentiality provisions, which banned her from speaking about defendants "in a negative manner" and from referring to their "peer review and quality assurance information." Although she signed the agreement, she later repudiated it and testified at Dr. Franzon's hearing. Defendants then tried to "enforce" the agreement.
It is unclear from the complaint whether defendants attempted to "enforce" the severance agreement itself, or the terms of the confidentiality agreement.
Under these circumstances, which the court must assume to be true, the court finds plaintiffs statement that she would tell the truth at Dr. Franzon's pending hearing is not protected speech touching upon a matter of public concern. Cases in this Circuit clearly require something more: speech critical of a public employer must actually be articulated prior to the adverse employment action. Cf. Frank v. Relin, 1 F.3d 1317, 1331 (2d Cir.), cert. denied, 510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993) (holding a public employer cannot, with impunity, fire an employee who "blew the whistle" on other employees' violations of law on the ground that those disclosures impaired office morale); cf. Piesco v. City of New York, 933 F.2d 1149, 1158 (2d Cir.) cert. denied, 502 U.S. 921, 112 S. Ct. 331, 116 L. Ed. 2d 272 (1991) (public employee's right to give truthful answers before a legislature's investigative committee took precedence over the employer's interest in efficiently performing government services). Here, although Brown stated she would "tell the truth" at Dr. Franzon's hearing, she had not articulated what "the truth" was prior to her termination.
This is not to say that Brown should have no remedy if what she alleges is true, but is only to state that the First Amendment is not her means of redress.
III. Brown's Due Process Claim
Brown alleges defendants violated the Fifth Amendment when they terminated her without due process of law. As defendants are state actors — and not federal actors — the court presumes defendant intended to allege a substantive due process claim under the Fourteenth Amendment. In order to prevail on a substantive due process claim under § 1983, Brown must: (1) demonstrate that she has a constitutionally protected property right in the government benefit at issue; (2) suffer a deprivation of that right as a result of government action; and (3) prove that she was deprived of that right without due process of law. See Greene v. Town of Blooming Grove, 935 F.2d 507, 509-510 (2d Cir. 1991). Brown alleges that she was a permanent civil service employee, but was unlawfully terminated on account of her expressed willingness to testify truthfully at Dr. Franzon's hearing.
The threshold issue is whether Brown held a property interest in her position at the Hospital, which is a question of law. In this Circuit, courts look to New York Civil Service Law and the statutes which create a particular position or the authority to appoint or remove an individual to or from the position to determine whether a New York public employee has a property interest in his position requiring that she be afforded a hearing before termination. Todaro v. Norat, 112 F.3d 598, 600 (2d Cir. 1997). Although Brown insists she is a permanent civil service employee with a property interest in her position, she curiously fails to address the statutory law applicable to her claim. Moreover, at oral argument, her counsel could not identify which statutes granted her a protected liberty interest in her position. Absent reference to the applicable statutes, her claim fails for want of demonstration that she enjoyed a property interest in position at the Hospital. This claim, however, is denied without prejudice to renewal, provided that Brown identifies the applicable civil service statutes that govern her employment status.
IV. Brown's Human Rights Law Claims
Defendants argue, correctly, that under New York Law, Brown's claims brought under the NYHRL are time-barred. Although an action brought pursuant to Executive Law § 296 is not a tort claim falling within the notice provisions of the General Municipal Law, Brown nevertheless must comply with New York Town Law § 67, which requires her to submit a notice of claim in compliance with New York General Municipal Law § 50-e. Municipal Law § 50-e mandates that claims such as Brown's must be commenced pursuant to the provisions of Municipal Law § 50-i. See Scopelliti v. Town of New Castle, 210 A.D.2d 308, 620 N.Y.S.2d 405. Municipal Law § 50-i, in turn, requires that an action "shall be commenced within one year and ninety days after the happening of the event upon which the claim is based." Id. Failure to submit a notice of claim requires dismissal of all NYHRL claims. See Baker v. County of Monroe, 47 F. Supp.2d 371, 375 (W.D.N.Y. 1999).
Again, the Massena Memorial Hospital is municipally-owned pursuant to New York General Municipal Law § 126. Compl. ¶ 3.
Brown's complaint does not allege she filed a notice of claim; indeed, her opposition papers concede she did not file such a notice. See Plf's Mem. of Law at 21. Instead, Brown maintains: (1) that no notice of claim was required because she brought her action to vindicate a public interest, namely women's rights; and (2) that if a notice of claim is required, she should be allowed leave to serve a late notice of claim, as defendants will not be prejudiced because they knew of her previous EEOC filing. Defendants disagree.
In Mills v. County of Monroe, 59 N.Y.2d 307, 311, 464 N.Y.S.2d 709, 451 N.E.2d 456, cert. denied, 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725, the New York Court of Appeals stated that "notice of claim requirements do not apply to actions brought to `vindicate a public interest.'" The matter litigated must be of a public interest, however. Assuming Brown prevailed on her NYHRL claims, those claims "would [not] be of any greater value to the public than any other award to a civil rights plaintiff." See Finley v. Giacobbe, 827 F. Supp. 215, 220 (S.D.N.Y. 1993). Her "public interest" argument is misplaced.
Moreover, this court is without power to grant Brown leave to file a late notice of claim as such applications must be made to a state supreme or county court. See N.Y.Gen.Mun.L. § 50-e(7) (McKinney 1999). The court simply is without jurisdiction to entertain Brown's putative motion for leave to file a late notice of claim. See Polite v. Button, 999 F. Supp. 705, 708 (N.D.N Y 1998) (McAvoy, C.J.). Nor does Brown's charge filed with the EEOC serve as a notice of claim. See Baker, 47 F. Supp.2d at 375 ( citing McNeil v. Aguilos, 831 F. Supp. 1079, 1085 (S.D.N Y 1993)). Her NYHRL claims must be dismissed because she has not filed a notice of claim upon the Town of Massena.
Wherefore, based upon the foregoing, defendants' Rule 12(b)(6) motion is GRANTED and her claims are dismissed. Plaintiffs § 1983 due process claim, however, is DISMISSED WITHOUT PREJUDICE to renewal provided that she identifies the applicable civil service statutes that govern her employment status.
IT IS SO ORDERED.