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Neilson v. D'Angelis

United States District Court, E.D. New York
Dec 20, 2002
CV-00-6106 (CPS) (E.D.N.Y. Dec. 20, 2002)

Opinion

CV-00-6106 (CPS)

December 20, 2002


MEMORANDUM AND ORDER


Plaintiff George Neilson brings this action against defendant State of New York and against defendants Anthony D'Angelis, Anthony Delgado, Louis Bianculli, Bruce Markowitz, and John Does 1 through 5, in both their individual and official capacities, asserting the following eight claims: (1) interference with plaintiff's right to access the courts under the First and Fourteenth Amendments to the United States Constitution and comparable provisions of the New York State Constitution; (2) deprivation of plaintiff's liberty and property interests in violation of the Due Process Clause of the United States Constitution; (3) age discrimination and unlawful retaliation under the United States Constitution, 42 U.S.C. § 1983, New York Executive Law §§ 296-97, and the New York City Administrative Code § 8-502(c); (4) denial of equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution and comparable provisions of the New York State Constitution; (5) unlawful conspiracy under state law; (6) defamation, libel, and slander under state law; (7) intentional infliction of emotional distress under state law; and (8) prima facie tort under state law.

Defendants now move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing all of the claims set forth in the complaint. In his response, plaintiff defends only his claims of (1) denial of equal protection under § 1983 and the Fourteenth Amendment to the United States Constitution; (2) unlawful retaliation under § 1983 and the First Amendment to the United States Constitution, (3) unlawful retaliation under the Human Rights Laws of New York State and New York City, (4) defamation, libel, and slander, and (5) intentional infliction of emotional distress. He withdraws the balance of his claims. For the reasons set forth below, the motion for summary judgment as to the remaining claims is granted in part and denied in part.

BACKGROUND

The following facts are drawn from plaintiff's complaint and from the parties' submissions in connection with this motion. Except where otherwise noted, they are undisputed.

Plaintiff and three of the individual defendants are employed by New York State's Office of Court Administration (the "OCA") and work in the New York Supreme Court. Plaintiff George Neilson is employed as a senior court officer; defendant Anthony D'Angelis, as the chief clerk for Queens County; defendant Major Louis Bianculli, as the ranking officer at the Queens County courthouse in Kew Gardens; and defendant Sergeant Bruce Markowitz, as a senior court officer. Defendant Anthony Delgado worked as a captain until he retired in February 1999.

In 1993, Captain McLaughlin, one of Neilson's supervisors at the time, reported a complaint by Neilson's neighbor — namely, that he had frightened her with a gun and threatened to shoot her dog. Later that year, defendant Delgado alleged that, after he informed Neilson of an unwelcome reassignment from Long Island City to Kew Gardens, Neilson followed him home and made intimidating gestures. Delgado also reported that he received anonymous letters containing threatening language and a series of late-night telephone calls from an anonymous caller who would breathe heavily but not speak. In response to these allegations, Neilson brought a suit in the New York Supreme Court against Delgado, D'Angelis, and McLaughlin, asserting claims of defamation, libel, and slander, intentional infliction of emotional distress, and tortious interference with contractual relations.

Neilson's firearm privileges were suspended as a result of the allegations. He sued under Article 78 of the New York Civil Procedure and Law Rules, asserting that his weapons had been improperly confiscated. Ordered by OCA to undergo a psychological evaluation, Neilson was seen by a psychiatrist, Dr. Mendel, twice in November 1993, and again on June 12, 1996.

In his 1996 report, Dr. Mendel concluded that, "[b]ased on a review of the material presented to me and the current evaluation, there appears to be no documented contraindication to returning firearms to this officer." (Timor Aff. Ex. 3.)

Twice in 1997, Neilson wrote letters to defendant D'Angelis, requesting the reinstatement of his full firearm privileges. In a series of memoranda written in 1997 and 1998, Major McLaughlin, defendant Bianculli, and defendant D'Angelis all recommended to their respective supervisors that Neilson have his on-duty firearm privileges restored. Another psychological evaluation was ordered to assess Neilson's fitness to carry a weapon on duty. After conducting this evaluation, Dr. Mendel stated that he did not "believe there [was] any contraindication at [that] time to allow Officer Neilson on duty firearm privileges." (Timor Aff. Ex. 3.) On June 4, 1998, Judge Carey, Deputy Chief Administrative Judge of the New York City Courts, authorized the return of Neilson's weapons for on-duty use only.

In February 1999, defendant Delgado ceased his regular employment. Defendants contend that he retired at that time. Plaintiff contends that he took sick leave and returns frequently to the courthouse. On July 12, 1999, the New York Supreme Court dismissed all of Neilson's causes of action against McLaughlin, D'Angelis, and Delgado, except for the slander claim against Delgado.

On September 30, 1999, Neilson filed a grievance, stating that he had been denied a request for an overtime assignment and been informed that he "could not, in the future, work said overtime." ( Id.)

On October 25, 1999, defendant Bianculli recommended to defendant D'Angelis that a renewed request by Neilson for the full restoration of his firearm privileges be granted, and D'Angelis concurred in this recommendation in a memorandum sent to Judge Carey the next day. On November 18, 1999, Judge Carey authorized Neilson's full-time use of his weapons.

Plaintiff alleges that, in late-November 1999, "as a means of retaliating against [him] for [his] internal discrimination complaint and state court lawsuits, defendants falsely and maliciously charged [him] with vandalizing defendant Markowitz' personal automobile." (Pl.'s Aff. ¶ 16.) Plaintiff further alleges that the charge was dropped once he established that he was not near the automobile, or even at work, on the date of the alleged incident concerning the car.

While being deposed in connection with this action on April 25, 2002, Markowitz stated that plaintiff had threatened to damage his car.

In March 2000, while patrolling a restricted hallway of the Queens County courthouse, plaintiff encountered a cleaning service employee named Louis Cortez. The employee later complained to defendant Bianculli that plaintiff was holding a gun by his side at some point during the encounter. At D'Angelis' direction, Bianculli took plaintiff's gun, shield, and identification pending an investigation. The parties dispute whether Bianculli was following established procedure in doing so. Bianculli interviewed each of the parties, accepted a written statement from Cortez, and prepared a written report of the incident. Bianculli commented that this was the most serious allegation of misconduct that he had seen in his twenty years as a court officer. Court Officer Dlugokenski, a union representative, later testified that Bianculli told him, "`I am sorry I have to do it this way. It's the only way I know. If it was anybody else I may not have a problem with it, but it's George.'" (Dlugokenski Dep. at 149.) Dlugokenski took this statement "to mean George Neilson in particular was a problem in the facility. And if it was anybody else he may have blown it off or may not have gone as far as he did." ( Id. at 150.)

Defendants allege that Bianculli first sent news of the initial complaint and later submitted both his report and Cortez' statement to D'Angelis, who in turn forwarded the information and documents to his supervisor, Judge Carey. Plaintiff admits ignorance of the details but disputes that these communications took place. (Pl.'s Local Rule 56.1 Statement ¶¶ 7-8, 13).

In April 2000, Neilson's slander claim against Delgado went to trial. Plaintiff contends that Bianculli and D'Angelis testified on Delgado's behalf; defendants dispute this and assert that Bianculli had no involvement in the lawsuit. The parties do not dispute the balance of the events that took place at the trial. Neilson called Markowitz, but he was a reluctant witness. During a break in the trial, Delgado informed Neilson that he was angry about the suit and that he intended to retaliate. He stated, "`[Y]ou will be old and gray before you get your firearm back; 22-year-old officers will have their guns, but not you.'" (Neilson Aff. ¶ 23.) Neilson received a jury verdict in his favor and an award of $25,000.

In late-June 2000, Cortez was fired from the Queens District Attorney's office after he was caught obtaining and duplicating confidential payroll records. On July 12, 2000, Judge Carey caused a charge of misconduct to be brought against Neilson, based on four allegations: (1) that Neilson approached and questioned "a cleaning man . . . with [his] gun drawn," (2) that he failed to inform the sergeant on duty of the incident, (3) that he falsely statedto Bianculli that he had not unholstered his gun, and (4) that he falsely stated to Robert Piazza of the OCA Inspector General's Office that he had never drawn his gun. (Timor Aff. Ex. 3.) Defendants note that "Judge Carey acts upon the recommendation of Chief Clerk D'Angelis and Major Bianculli, and makes. a decision based on the information provided by these individuals." (Pl.'s Local Rule 56.1 Statement ¶ 14-15.)

Plaintiff contends, and defendants do not dispute, that defendants D'Angelis and Bianculli discussed the charge with: (1) a Mr. Marvin, the personnel director of the District Attorney's office who Neilson called to testify about Cortez' prior employment at that office during the disciplinary hearing; (2) a Mr. Gospodarsky, Mr. Cortez' supervisor; (3) a Ms. Smithberg, the OCA prosecutor who conducted the disciplinary hearing; (4) Sergeant Norwood, who was interviewed by Bianculli during the course of the inquiry into the allegations and was called as a witness at the hearing; (5) Senior Court Officer Murphy, who was on duty with Neilson on the night of the incident and, as a result, was questioned by Bianculli; (6) a Mr. Piazza, the OCA investigator who received the information in the course of carrying out his duties; (7) Court Officers Dlugokenski and Dubocz, Neilson's union delegates, who were present during Bianculli's interview of Neilson; and (8) Dr. Mendel, the state-appointed psychiatrist who examined plaintiff.

Plaintiff alleged in his complaint that "[i]n late-March 2000, . . . the defendants in this case falsely and maliciously charged [him] with overreacting in an incident in which [he] confronted a courthouse porter." (1st Am. Compl. ¶ 19; emphasis added.) In the declaration he submitted in opposition to the present motion, he repeated this allegation using identical language, except that he identified only defendants D'Angelis and Bianculli as the individuals who made these statements. Defendants allege in their moving papers, and plaintiff does not deny in his opposing papers, that defendants Delgado and Markowitz made no statements regarding the encounter.

On December 5, 2000, Judge Kleinman, a judicial hearing officer, held a hearing on the charge against Neilson. At the conclusion of the hearing; Judge Kleinman found no evidence that Neilson threatened Cortez with the gun, failed to inform the sergeant on duty of the incident, or falsely told Piazza that he had never drawn his weapon. He found the allegation that Neilson falsely stated to Bianculli that he had not unholstered his gun substantiated. Judge Kleinman recommended a one-week suspension without pay. Judge Carey then imposed the recommended penalty.

Defendants contend that Delgado did not participate "in any way in the investigation, hearing or discipline of plaintiff" and has no knowledge of the incident. (Defs.' Local Rule 56.1 Statement ¶¶ 45-46.) Plaintiff disputes these contentions, stating that Delgado must have known about it because he "was friendly with Chief Clerk D'Angelis and Major Bianculli." (Pl.'s Local Rule 56.1 Statement ¶¶ 45-46.) Defendants also contend that Markowitz had no participation in these events. Plaintiff responds with a conclusory assertion that this fact is "in dispute" but admits that he has no information to support a contrary showing.

On June 7, 2001, Judge Carey directed Neilson to undergo medical and psychological evaluations. Dr. Mooradian found Neilson to be "physically capable of having his firearms restored." (Neilson Aff. Ex. B.) The psychiatrist, Dr. Mendel, concluded that "[t]he new incident of March 2000 in which his explanation again differs from other accounts, raises questions about his capacity to mitigate rather than escalate potentially explosive confrontations and his ability to handle his aggressive impulses." ( Id.) Dr. Mendel recommended that his weapons not be restored and that Neilson be re-evaluated in six months. On March 7, 2002, Judge Carey again advised Neilson to appear for medical and psychological evaluations. Once again, Dr. Mooradian found Neilson to be physically capable of having his firearms restored. Dr. Mendel recommended that "his weapons be returned to him at [that] time for on-duty use only, and [that] full return of weapons be delayed until at least another year of close supervision." ( Id.) To this day, Neilson continues to work with these restrictions and, as a result, remains disqualified for certain overtime assignments.

Plaintiff contends that he was treated much more harshly than John Does 1 through 6. "John Doe 1" was offered alternative discipline, was placed on probation for three months, and lost three days of annual leave after his gun accidentally misfired in the restroom. Plaintiff contends that he was thereafter assigned a desirable position. "John Doe 2" had a history of alcoholism and on-duty intoxication. Defendants allege that he was not guilty of misconduct involving a firearm. In all events, John Doe 2 consented to alternative discipline and underwent treatment. "John Doe 3" assaulted a traffic agent while he was off duty. His weapons and identification were taken from him, and he has yet to receive his weapons back. "John Doe 4" stole a credit card from defendant Markowitz and used it to make calls to a phone-sex telephone number. He later made restitution and resigned from his position as sergeant. "John Doe 5" was fired for stealing narcotics being safeguarded as evidence in the courthouse. Plaintiff contends that the history of drug use by "John Doe 5" predated his termination and that he was allowed to continue working after failing a drug test. "John Doe 6" was accused of harassing his girlfriend and threatening to kill both her and himself. His weapons and identification were taken from him, and he has yet to receive his weapons back. Defendants have identified an additional ten officers whose firearm privileges are restricted. They further allege that formal disciplinary charges have been brought against 148 court officers in the Unified Court System. Plaintiff notes that none of these officers are under defendants' supervision.

Defendant names only "John Does 1 through 5" as defendants, but he discusses John Does 1 through 6 in his papers.

DISCUSSION

A court must grant a motion for summary judgment if the movant shows that "there is no genuine issue as to any material fact" and that "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is appropriate "[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The trial court's function in deciding such a motion is not to weigh the evidence or resolve issues of fact, but to decide instead whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

Immunity from Suit

The Eleventh Amendment to the United States Constitution bars federal courts from entertaining suits for money damages against states, their agencies, and their officers acting in an official capacity, absent abrogation by Congress or waiver by the state. Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25, 29-30 (2d Cir. 1991). Plaintiff does not dispute that the Eleventh Amendment bars his "federal claims" against the State of New York and against the individual defendants in their official capacities. (Pl.'s Mem. L. Opp. at 5.) Plaintiff is certainly correct in this regard. See Santiago, 945 F.2d at 29-30 (holding that neither the Fourteenth Amendment nor § 1983 abrogates sovereign immunity). Plaintiff, however, understates the scope of sovereign immunity under the Eleventh Amendment. See Pennhurst State School Hosp. v. Halderman, 465 U.S. 89 (1984). New York's sovereign immunity also operates to preclude this Court from exercising supplemental jurisdiction over pendent claims under 28 U.S.C. § 1367 absent New York's consent. See Raygor v. Regents of Univ. of Minn., 122 S.Ct. 999, 1005 (2002) ("[W]e hold that § 1367's grant of jurisdiction does not extend to claims against nonconsenting state defendants."). The New York State Human Rights Law, N.Y. Exec. L. §§ 290-301, does not include a waiver of the state's sovereign immunity to suit in federal court. See Lambert v. New York State Office of Mental Health, 97 CV 1347, 2000 WL 574193, at *7 (E.D.N.Y. Apr. 24, 2000). Even if New York City were empowered to waive the sovereign immunity of New York State, its Administrative Code does not contain the explicit language needed to do so. See Leiman v. New York, No. 98 CIV 5538, 2000 WL 1364365, at *7 (S.D.N.Y. Sept. 21, 2000). In addition, the Eleventh Amendment bars plaintiff's common law claims of intentional infliction of emotional distress and defamation. See Lambert, at *7; Pazamickas v. New York State Office of Mental Retardation Dev. Disabilities, 963 F. Supp. 190, 196-97 (N.D.N.Y. 1997). Accordingly, all of plaintiff's claims are dismissed as against the State of New York and the individual defendants acting in their official capacities.

Section 1983

Plaintiff asserts, under 42 U.S.C. § 1983, that defendants violated his Fourteenth Amendment right to equal protection and his First Amendment right to free speech.

Under Section 1983, any person who, acting under color of state law, deprives another of a right, privilege, or immunity secured by federal law will be liable to that individual for civil damages. See Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990). Section 1983 itself creates no substantive rights; it provides only a procedure for securing redress for the deprivation of rights established elsewhere. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). In order to maintain an action under Section 1983, a plaintiff must show (1) that defendants acted under "color of state law" and (2) that their conduct or actions deprived plaintiff of a right, privilege, or immunity guaranteed by the Constitution or laws of the United States. See Pitchell v. Callan, 13 F.3d 545, 547-48 (2d Cir. 1994). The parties do not dispute whether defendants acted under color of state law. They dispute only whether defendants' conduct was unlawful.

Defendants, raised the defense of qualified immunity in the papers they submitted in connection with this motion, but they withdrew this defense in their oral arguments before the Court.

Equal Protection

Plaintiff alleges that defendants singled him out for selective treatment in violation of the Fourteenth Amendment. Defendants respond with two alternative allegations: (1) plaintiff was treated no differently from other court officers, and (2) even if he were subjected to selective treatment, the individual defendants had no personal involvement in it.

The Equal Protection Clause of the Fourteenth Amendment is "essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 439 (1985); see also Harlen Assocs. Inc. v. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). For a claim of selective treatment to succeed, a plaintiff must show (1) that he was selectively treated compared to others who were similarly situated and (2) that his selective treatment was based on impermissible considerations such as race, religion, an intent to inhibit or punish the exercise of constitutional rights or a malicious or bad-faith intent to injure a person. Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000).

Plaintiff presents sufficient evidence to permit a reasonable factfinder to conclude that he was treated selectively. Plaintiff's comparisons to "John Does 1 through 6" may provide a limited measure of support for his claim. The only two officers who plaintiff alleges were involved with mishandling firearms were offered alternative discipline. Also, defendant Bianculli allegedly told plaintiff's union representative that he might have acted differently if Cortez' complaint had involved another officer.

The allegations defendants make in response — that ten other officers had their firearm privileges restricted and that 148 court officers have been disciplined — do not change the result. Plaintiff contends, and defendants do not deny, that these officers had different supervisors. These officers are not similarly situated, therefore, and their treatment is not probative as to plaintiff's claim of selective treatment. See Shumway v. UPS, 118 F.3d 60, 64 (2d Cir. 1997) (rejecting a plaintiff's allegations of disparate treatment where the other employees were not supervised by the plaintiff's supervisors on the ground that these employees were not "similarly situated"); Bengard v. United Parcel Serv., No. 99 CV 8454, 2001 U.S. Dist. LEXIS 17649, at *35-36 (E.D.N.Y. Aug. 22, 2001) (same).

Plaintiff also makes a sufficient showing to permit a reasonable trier of fact to find that his selective treatment was based on impermissible considerations. Defendants do not contend otherwise.

Specifically, he asserts' that defendants "knew that the porter, who had been terminated for misconduct, had serious credibility issues and was not to be trusted, but they used the porter incident to retaliate against plaintiff for his lawsuits and internal discrimination complaints." (Pl.'s Mem. L. at 10.) Plaintiff filed his grievance on the last day of September 1999, and the trial of the earlier defamation lawsuit was scheduled to start in April 2000. Given the temporal proximity between these two events and the processing of Cortez' complaint in March 2000, a reasonable factfinder could conclude that these events fueled defendants' decisions to respond to the complaint as they did. Cf. Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 446-47 (2d Cir. 1999) (noting that temporal proximity between filing of deposition notices in discrimination suit and incidents of abuse was suggestive of retaliatory intent); DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987) (holding that "proof of causal connection" in Title VII retaliation cases "can be established indirectly by showing that the protected activity was followed closely by discriminatory treatment"); Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir. 1980) (finding a causal connection even though the retaliatory action occurred eight months after the filing of the complaint).

Defendants rightly note., however, that a plaintiff seeking to recover damages for an alleged constitutional deprivation under § 1983 must show "personal involvement" on the part of each defendant. See Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001). In particular, a plaintiff must demonstrate to the satisfaction of the factfinder that the defendant "(I) personally participated in the alleged constitutional violation, (ii) was grossly negligent in supervising subordinates who committed the wrongful acts, or (iii) exhibited deliberate indifference to the rights of the plaintiff by failing to act on information indicating that unconstitutional acts were occurring." Id.

The record contains sufficient facts to support the requisite finding that defendants D'Angelis and Bianculli were personally involved in the handling of Cortez' complaint. After consulting with D'Angelis, Bianculli seized Neilson's gun, shield, and identification, conducted interviews of the parties involved, and submitted his reports. D'Angelis received and related all of this information. To the extent that investigating, charging, and disciplining Neilson effected a violation of his constitutional rights, D'Angelis and Bianculli had a hand in it. See id. at 155 (holding that, "helping others to do the unlawful acts, rather than doing them" oneself, is sufficient).

Defendants' submissions attempt to portray these defendants as subordinates, driven by duty and devoid of discretion, who merely passed along information to Judge Carey, the only person in a position to influence the outcome. The record, however, can be read to depict a process in which superiors in the chain of command rely routinely and heavily on the recommendations of their subordinates. At each juncture in the earlier restoration of Neilson's firearm privileges, D'Angelis and Bianculli made their recommendations to their respective superiors. Uniformly, these recommendations were followed.

Delgado's involvement presents a closer question. While his friendship with D'Angelis and Bianculli might be too slender a reed on which to hang a claim of personal involvement for the purposes of § 1983, plaintiff's contentions that Delgado regularly visited the courthouse, that Bianculli and D'Angelis testified for Delgado at trial in April 2000, and that Delgado told plaintiff at that time that he would be "old and gray before [he got] his firearm back" provide sufficient evidence to support a finding of personal involvement.

The same, however, cannot be said of Markowitz. Plaintiff's legal analysis of the issue of personal involvement makes no mention at all of defendant Markowitz. He does not figure at all in the chronology of events that followed the encounter with Cortez, and plaintiff alleges no facts that connect him to these events. Since there is no basis on which to conclude that Markowitz was involved with the alleged violations, he is not amenable to suit in his individual capacity on the equal protection claim under § 1983.

Retaliation

Plaintiff alleges that he was subjected to unlawful retaliation in violation of the First Amendment. Specifically, he alleges that defendants accused him of vandalism and of misconduct during his encounter with Cortez, all in retaliation for his filing a lawsuit in 1993 and a grievance in 1999. Defendants fail to address this claim except insofar as they reiterate their contention that the individual defendants had no personal involvement in any unlawful conduct.

This Court grants defendants' motion for summary judgment with respect to this claim, however, because plaintiff has clearly failed to establish a prima facie case of retaliation under § 1983 and the First Amendment. In order to make out a prima facie case of First Amendment retaliation, a plaintiff must demonstrate: (1) his speech was constitutionally protected; (2) he suffered an adverse employment action; and (3) a causal connection exists between the speech and the adverse employment action such that the speech can be said to have been a motivating factor in the determination. Morris v. Landau, 196 F.3d 102, 110 (2d Cir. 1999). A plaintiff's speech is only protected where it can be "fairly characterized as constituting speech on a matter of public concern." Frank v. Relin, 1 F.3d 1317, 1328-29 (2d Cir. 1993). A public employee's speech is to be placed either in the "public concern" or the "private interest" category based on the primary aim of the speech. Saulpaugh v. Monroe Comm. Hosp., 4 F.3d 134, 147 (2d Cir. 1993) (Newman, C.J., concurring). This issue is a matter of law for the Court to decide, Relin, 1 F.3d at 1329, based on "the content, form and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-48 (1983). "[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency in reaction to the employee's behavior." Id. There is no basis here on which to conclude that plaintiff had the primary aim of speaking on matters of public concern in bringing his lawsuit in 1993 or in filing his grievance in 1999. See Tiltti v. Weise, 155 F.3d 596, 603 (2d Cir. 1998) (holding that patrol officers' complaints about their assignments and pay were not matters of public concern); Ezekwo v. New York City Health Hosps. Corp., 940 F.2d 775, 781 (2d Cir. 1991) (holding that a physician's complaints about the various inadequacies of her residency program were not matters of public concern because she "was not on a mission to protect the public welfare," but rather "to protect her own reputation and individual development as a doctor"). Nor does plaintiff ever allege that he had any such aim. The claim fails, therefore, as a matter of law.

Human Rights Law

Plaintiff also contends that he was subjected to unlawful retaliation in violation of the Human Rights Laws of New York State and New York City. He further contends that the individual defendants aided and abetted this retaliatory conduct. Defendants argue that the individual defendants cannot be held liable because plaintiff has failed to establish three requisite elements: (1) that there was any causal connection between plaintiff's protected activity and the adverse employment action, (2) that defendants represent plaintiff's employer, and (3) that defendants personally participated in any retaliatory conduct.

To establish a prima facie case of retaliation under the Human Rights Laws of both New York State and New York City, a plaintiff must prove that: (1) he or she participated in a protected activity; (2) the employer was aware of this activity; (3) the employer adopted an employment action adverse to plaintiff; and (4) there is a causal connection between the protected activity and the adverse employment action. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998); Sowemimo v. D.A.O.R. Sec., Inc., 43 F. Supp.2d 477, 487 n. 3 (S.D.N.Y. 1993) ("Retaliation claims under the [NYS] HRL and the NYCHRL . . . are analytically identical to those under Title VII for the purpose of summary judgment.").

Plaintiff contends that he engaged in two protected activities of which defendants were aware: bringing a lawsuit in 1993 and filing a grievance in 1999. While defendants do not challenge plaintiff's contention, it is clear that only one of these activities was actually protected. The lawsuit involved only claims of defamation, libel, and slander, intentional infliction of emotional distress, and tortious interference with contractual relations. Nowhere does he allege that he was opposing a discriminatory practice in bringing those causes of action. Nor does the record provide any evidence to that effect. His prosecution of that suit, therefore, is not protected activity. See N.Y. Exec. L. § 296(1)(e) (making it unlawful for an employer to retaliate "against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article"); Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (holding that plaintiff must have possessed a "good faith, reasonable belief that the underlying employment practice was unlawful" under the anti-discrimination statute in question); Boyce v. New York City Mission Soc'y, 963 F. Supp. 290, 295 (S.D.N.Y. 1997) (dismissing retaliation claim where there was no evidence "that [p]laintiff was complaining that she was being discriminated against because of her sex"). On the other hand, because the grievance itself speaks explicitly, if generically, of a supervisor's "[d]iscriminatory" assignment of overtime, there is sufficient evidence of a "good faith, reasonable belief" on plaintiff's part that his supervisor's conduct violated the anti-discrimination statutes of New York State and New York City. Reed, 95 F.3d at 1178. Defendants make no argument to the contrary.

The New York City Administrative Code is more specific but is otherwise quite similar. It makes it unlawful for an employer to retaliate against:

any person because such person has (i) opposed any practice forbidden under this chapter, (ii) filed a complaint, testified or assisted in any proceeding under this chapter, (iii) commenced a civil action alleging the commission of an act which would be an unlawful discriminatory practice under this chapter, (iv) assisted the commission or the corporation counsel in an investigation commenced pursuant to this title, or (v) provided any information to the commission pursuant to the terms of a conciliation agreement made pursuant to section 8-115 of this chapter.

N.Y.C. Admin. Code 8-107(7).

Plaintiff need not establish that he successfully described in that complaint conduct amounting to a violation of any anti-discrimination statute. Manoharan v. Columbia Univ. Coll. of Physicians and Surgeons, 842 F.2d 590, 593 (1988).

Plaintiff has satisfied the second prong by showing that he filed it with the OCA. See Reed, 95 F.3d at 1178 (finding knowledge requirement "easily proved" because the corporate employer was aware of plaintiff's complaints); Alston v. New York City Transit Auth., 14 F. Supp.2d 308, 311 (S.D.N.Y. 1998) ("In order to satisfy the second prong of her retaliation claim, plaintiff need not show that individual decision-makers within the [New York City Transit Authority] knew that she had filed . . . [an] EEOC complaint."). Defendants do not deny that plaintiff has made the requisite showing.

Similarly, there is enough evidence to satisfy the second prong's "implicit" requirement that defendants "understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited" by the Human Rights Laws. See Goldieri-Ambrosini v. National Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998).

With respect to the third prong, plaintiff alleges that defendants accused him of vandalizing defendant Markowitz' car and charged him with misconduct during his encounter with Cortez. While defendants do not challenge plaintiff's characterization of these actions as adverse employment actions, it is clear that only the handling of Cortez' complaint constitutes such an action. "A plaintiff sustains an adverse employment action if he endures a materially adverse change in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d. Cir. 2000) (citations omitted). In order to be "materially adverse," a change must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. The Second Circuit has provided the following illustrations: "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id. (internal citations and quotation marks omitted).

Plaintiff does not allege that the accusations constituted, or even caused, a change in the terms and conditions of his employment. In fact, he states only that the "charge[s]" were soon "dropped." The accusations may well have incited in Neilson feelings of humiliation, unhappiness, and discomfort, but this does not amount to a change in a term or condition of employment. See Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997) (fact that acts left employee feeling "frightened" and "humiliated" failed to show that employee suffered an adverse employment action); Islamic Soc'y of Fire Dep't Pers. v. City of New York, 205 F. Supp.2d 75, 85 (E.D.N.Y. 2002) ("[C]ourts in this circuit have universally rejected attempts by plaintiffs to show an adverse employment action based simply on the plaintiff's personal feelings about the employer's actions.").

The second bout of alleged retaliation, the mishandling of Cortez's complaint, does not suffer from the same problem. As discussed above, "[a]n adverse action is one that affects the terms, privileges, duration, or conditions of employment." Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir. 1996). Under this definition, the revocation of plaintiff's firearm privileges, coupled with his resultant preclusion from performing certain overtime work assignments, and his one-week suspension without pay represent adverse employment actions. See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001) (holding that suspension without pay constituted an adverse employment action); cf. Markovic v. New York City Sch. Constr. Auth., 99 Civ. 10339, 2002 U.S. Dist. LEXIS 214, at *21 (S.D.N.Y. Jan. 8, 2002) (noting that there was no evidence of a loss of salary or benefits in holding that there was no adverse employment action); Harrison v. N.Y. City Off-Track Betting Corp., 99 Civ. 6075, 2001 U.S. Dist. LEXIS 15524, *6 (Sept. 28, 2001) (same); Ruggieri v. Harrington, 146 F. Supp.2d 202, 216 (E.D.N.Y. 2001) (same). Defendants offer no argument to the contrary.

Defendants argue, instead, that plaintiff has failed to satisfy the fourth element of a prima facie case. A plaintiff may prove a causal connection in any one of three ways: "[1] indirectly by showing that the protected activity was followed closely by discriminatory treatment, or [2] through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or [3] directly through evidence of retaliatory animus directed against a plaintiff by the defendant." DeCintio v. Westchester Cty. Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987) (internal citations and quotation marks omitted). Plaintiff has pointed out the temporal proximity between his filing of the grievance and defendants' handling of Cortez' complaint in the hope of providing indirect evidence of a causal connection. Defendants argue that a period of almost six months is too long for the timing to serve this purpose. The Second Circuit has "not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship." Gorman-Baker v. Cornell Coop. Extension of Schnectady Cty., 252 F.3d 545, 554 (2d Cir. 2001). This Court need not resolve this issue, however, because plaintiff alleges disparate treatment, and, as explained above in the section discussing plaintiff's equal protection claim, plaintiff has presented sufficient evidence to support his allegation.

Compare Hollander v. American Cyanamid Co., 895 F.2d 80, 86 (2d Cir. 1990) (holding that there was no causal connection where there was a three-month lag) with Grant v. Bethlehem Steel Corp., 622 F.2d 43-45-46 (2d Cir. 1980) (eight-month gap between EEOC complaint and retaliatory action suggested a causal relationship).

Defendants' second argument for summary judgment with respect to this claim, that plaintiff has not shown that the individual defendants constitute his employer, is misplaced. In support of their contention that plaintiff is required to make such a showing, defendants cite to a single case, Patrowich v. Chemical Bank, 63 N.Y.2d 541 (1984). Patrowich does stand for the general proposition that a corporate employee cannot be held liable under the New York State Human Rights Law where "he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others." Patrowich, 63 N.Y.2d at 542. However, this holding is simply inapposite to situations in which the plaintiff alleges, pursuant to Section 286(6) of the New York Executive Law, that a defendant aided and abetted an act of retaliation. See Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (following the lead of courts that, based on the language of § 286(6), "have distinguished Patrowich by holding that a defendant who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the [Human Rights Law]"); Murphy v. ERA United Realty, 251 A.D.2d 469, 472 (2d Dep't 1998) ("The decision of the Court of Appeals in Patrowich v. Chemical Bank, which did not discuss liability pursuant to Executive Law § 296(6) for aiding and abetting a discriminatory practice, does not warrant a different conclusion.") (citation omitted).

The relevant provision of the New York State Human Rights Law states that it is unlawful "for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so." N.Y. Exec. Law § 296(6). The New York City Human Rights Law contains an identical aider-and-abettor provision, N.Y.C. Admin. Code 8-107(6), which calls for the same analysis. See Farage v. Johnson-McClean Techs., No. 01 Civ. 4856, 2002 U.S. Dist. LEXIS 9471 (S.D.N.Y. May 29, 2002). Thus, under both provisions, only an individual "who actually participates in the conduct giving rise to a [retaliation] claim may be held personally liable." See Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995).

As defendants rightly argue, however, it is still necessary for plaintiff to demonstrate that each defendant personally participated in the alleged retaliation. See Tomka, 66 F.3d at 1317. For the reasons set forth in my earlier discussion of "personal involvement" in the context of § 1983, I dismiss the retaliation claim against defendant Markowitz, but not against the other three individual defendants.

Defamation

Plaintiff contends that defendants made defamatory statements with respect to two incidents. First, he alleges that, in late-November 1999, defendants "falsely and maliciously charged plaintiff with vandalizing defendant Markowitz' personal automobile" and that defendant Markowitz stated during his deposition in this case that plaintiff had threatened to vandalize his car. Second, plaintiff alleges that defendants' statements regarding plaintiff's encounter with Cortez amount to defamation. Defendants respond only to the second allegation; they assert that defendants Delgado and Markowitz made no statements at all and that the disclosures of defendants D'Angelis and Bianculli were protected by a qualified privilege.

Defendants asserted, for the first time in their reply memorandum, that New York's statute of limitations bars plaintiff's claim of defamation based on the alleged accusations that plaintiff vandalized and/or threatened to vandalize defendant Markowitz' car. In a subsequent letter dated October 2, 2002, defendants withdrew this argument.

Under New York law, a plaintiff claiming defamation must show that the defendant made (1) a false and defamatory statement of fact, (2) regarding plaintiff, (3) published it to a third party, (4) with the applicable level of fault, (5) which statement resulted in injury to the plaintiff or is defamatory per se, and (6) is not protected by privilege. Albert v. Loksen, 239 F.3d 256, 265-66 (2d Cir. 2001).

Plaintiff alleges that defendants falsely and maliciously charged him with vandalizing Markowitz' car. He has provided time sheets to demonstrate that he was not at work on the date of the alleged incident. There is no dispute as to whether they concern plaintiff. Moreover, the statements are defamatory per se because they involve the serious and indictable crime of vandalism. See Nevin v. Citibank, N.A., 107 F. Supp.2d 333, 343 (S.D.N.Y. 2000) (noting that "statement that imputed the commission of criminal offense . . . may constitute slander per se"); Liberman v. Gelstein, 80 N.Y.2d 4292, 434 (1992) (holding that charges of serious crime are defamatory per se); Privitera v. Town of Phelps, 79 A.D.2d 1, 3, 435 N.Y.S.2d 402, 404 (4th Dept. 1981) (holding as defamatory per se statements charging plaintiff with an "indictable offense upon conviction of which punishment may be inflicted"). Defendants offer no argument at all as to why the claim of defamation should be dismissed with respect to these charges, and their motion for summary judgment is accordingly denied in this respect.

In making his later accusation, however, Markowitz was dutifully responding to a question that had been put to him by the deposing attorney. His testimony is therefore protected by an absolute privilege and is not actionable. See Andrews v. Gardiner, 224 N.Y. 440, 446 (1918); Allan Allan Arts Ltd. v. Rosenblum, 201 A.D.2d 136, 138 (2d Dep't 1994).

Plaintiff also alleges that defamatory statements were made regarding his encounter with Cortez. In a declaration submitted in opposition to the present motion, he states only that defendants D'Angelis and Bianculli made defamatory charges. Defendants allege, and plaintiff does not deny, that Delgado and Markowitz made no statements regarding the encounter. Because plaintiff has failed to make a showing that defendants Delgado and Markowitz made any statement regarding the incident with Cortez, this Court dismisses any defamation claim asserted against them on this basis. See, e.g., Jacobson v. Deutsche Bank, A.G., 206 F. Supp.2d 590, 593 (S.D.N.Y. 2002) (holding that a showing by plaintiff that a particular defendant "actually uttered" the statement in question is "the first and most fundamental element" of a defamation claim and granting a motion for summary judgment on this basis).

The statements allegedly made by defendants D'Angelis and Bianculli pertain to plaintiff's fitness to perform his job and are therefore defamatory per se. See Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992) (holding that statements "that tend to injure another in his or her trade, business or profession" are defamatory per se). Defendants are correct in contending that communications regarding an employee's performance or misconduct are protected by a qualified privilege. Albert, 239 F.3d at 272-73. As defendants concede, however, this privilege is of no avail where the speaker has exhibited malice. Albert, 239 F.3d at 272-73. Plaintiff alleges that the statements were made maliciously, with knowledge of their falsity and with intent to injure him. A factfinder, therefore, could reasonably conclude that these statements were defamatory.

Intentional Infliction of Emotional Distress

Plaintiff contends that defendants subjected him to intentional infliction of emotional distress. Specifically, he alleges:

[D]efendants' malicious and baseless acts of accusing plaintiff of workplace misconduct, threatening plaintiff with suspension and termination, depriving plaintiff of his firearm and overtime assignments, and sending plaintiff for medical and psychological examinations were extreme, outrageous, and designed to cause plaintiff severe emotional distress.

(Pl.'s Mem. L. at 16-17.) In support of their motion for summary judgment, defendants state that "the conduct plaintiff complains of falls far short of the requirements necessary to establish this claim." (Defs.' Mem. L. at 38.) Plaintiff cites no authority at all to support his argument that defendants' conduct satisfies the standard imposed by New York law.

Under New York law, a claim for intentional infliction of emotional distress requires: (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress. See Conboy v. ATT Corp., 241 F.3d 242 (2d Cir. 2002). The first element is satisfied only when the conduct in question "has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Howell v. New York Post Co., 81 N.Y.2d 115 (1993). Thus, "it has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort." Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999) (citing Restatement (Second) of Torts § 46 cmt. d (1965)). Whether the conduct alleged may reasonably be regarded as so extreme and outrageous as to permit recovery is a matter for the court to determine in the first instance. See id.

As defendants rightly argue, the employment actions of which plaintiff complains fall far short of the legal standard for this tort. In Murphy v. American Home Products Corp., 58 N.Y.2d 293 (1983), the New York Court of Appeals was faced with a plaintiff's allegations that he was transferred and demoted for reporting fraud, coerced to leave by being told that he would never be allowed to advance, discharged and ordered to leave immediately after reporting other illegal conduct, and then forcibly and publicly escorted from the building by guards when he returned the next day to pick up his belongings. It held that this conduct fell "far short" of the tort's "strict standard" for outrageous behavior and affirmed the trial court's dismissal of plaintiff's claim of intentional infliction of emotional distress. Id. at 303. False and. malicious accusations of misconduct, or even of serious criminal behavior, do not constitute intentional infliction of emotional distress. See Santan-Morris v. New York Univ. Med. Ctr., No. 96 CV 0621, 1996 U.S. Dist. LEXIS 18237, at *9 (S.D.N.Y. Nov. 10, 1996) (holding that false accusations of embezzlement were insufficient). With respect to the medical and psychological evaluations, it should be noted that most of the examinations were scheduled in response to plaintiff's requests for restoration of his firearm privileges and were undergone without objection. Subjecting him to the evaluations does not amount to actionable conduct under this tort. See Stuto, 164 F.3d at 827. Accordingly, plaintiff's claims of intentional infliction of emotional distress are dismissed.

CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment is granted in part and denied in part. It is granted with respect to all of the claims against the State of New York and the individual defendants in their official capacities, the claims of retaliation under the First Amendment, the claims of retaliation under the Human Rights Laws, except as against D'Angelis, Bianculli, and Delgado with respect to the alleged mishandling of Cortez' complaint as a means of retaliating against plaintiff for his filing of a grievance, the claim of defamation against Markowitz based on his deposition testimony, the claims of defamation against Delgado and Markowitz regarding the incident with Cortez; and the claims of intentional infliction of emotional distress. It is denied in all other respects.

The Clerk is directed to furnish a filed copy of the within to all parties and to the magistrate judge.

SO ORDERED.


Summaries of

Neilson v. D'Angelis

United States District Court, E.D. New York
Dec 20, 2002
CV-00-6106 (CPS) (E.D.N.Y. Dec. 20, 2002)
Case details for

Neilson v. D'Angelis

Case Details

Full title:George Neilson, Plaintiff, v. Anthony D'Angelis etc., et alia, Defendants

Court:United States District Court, E.D. New York

Date published: Dec 20, 2002

Citations

CV-00-6106 (CPS) (E.D.N.Y. Dec. 20, 2002)