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Pierce v. Netzel

United States District Court, W.D. New York
May 10, 2004
98-CV-532A(F) (W.D.N.Y. May. 10, 2004)

Opinion

98-CV-532A(F).

May 10, 2004

DAVID J. SEEGER, ESQ., LEIGH E. ANDERSON, ESQ., Buffalo, New York, Attorney for Plaintiff.

FREDERICK A. WOLF, Erie County Attorney, KRISTIN KLEIN WHEATON, Assistant County Attorney, of Counsel, Buffalo, New York, Attorney for Defendants.


REPORT and RECOMMENDATION


JURISDICTION

This action was referred back to the undersigned by Honorable Richard J. Arcara on January 17, 2002 for further pretrial matters including report and recommendation on dispositive motions. The matter is presently before the court on Defendants' motion for summary judgment (Doc. No. 60) filed on August 30, 2002.

BACKGROUND

Plaintiff Eugene L. Pierce ("Pierce"), who is African-American, commenced this civil rights action on August 26, 1998, alleging he was constructively discharged from his employment as Deputy Superintendent at the Erie County Correctional Facility ("ECCF" or "the Facility"), based on his race, and that following his discharge, Defendants made slanderous statements regarding the circumstances of the discharge. Specifically, Pierce asserted four claims for relief, including claims pursuant to 42 U.S.C. § 1981 and 1983 (respectively, "§ 1981" and "§ 1983"), as well as pendent state law claims. Defendants in this action include ECCF Superintendent Frederick Netzel ("Netzel"), Erie County ("the County") and former Erie County Executive Dennis T. Gorski ("Gorski").

At the commencement of this action, Gorski was the incumbent count executive; he was succeeded on January 1, 2000, by Hon. Joel Giambra. Netzel is sued in both his individual capacity and in his official capacity as ECCF. Superintendent, whereas Gorski is sued only in his official capacity as Erie County Executive.

On September 17, 1998, Defendants moved to dismiss the Complaint for failure to state a claim. In a Report and Recommendation filed on August 3, 1999, The court recommended dismissal of the Complaint. Doc. No. 18. On October 25, 1999, the District Judge adopted the Report and Recommendation, (Doc. No. 25), and, on October 26, 1999, judgment was entered in favor of Defendants (Doc. No. 26) and the case was closed. An interlocutory appeal to the Second Circuit Court of Appeals followed and, on August 28, 2000, the Second Circuit issued an Order affirming the dismissal of the § 1981 claim as against Defendants Gorski and the County, and the § 1983 claim as against Defendant Netzel. Pierce v. Netzel, 225 F.3d 646, 2000 WL 979165, *1 (2d Cir. 2000) (Table). The Second Circuit, however, reinstated the § 1981 claim against Defendant Netzel, and the § 1983 claim against Defendants Gorski and the County. Pierce, supra, at 1-3. Because all the federal claims were no longer dismissed, the Second Circuit also reinstated the pendent state claims against all three Defendants. Id. at *3.

On March 21, 2001, Pierce filed an Amended Complaint ("the Amended Complaint") (Doc. No. 33), in which he asserts seven claims for relief against Defendants, including (1) Defendants violated 42 U.S.C. § 1983 by depriving Pierce of his right to procedural due process under the Fifth and Fourteenth Amendments; (2) Defendant Netzel's alleged unlawful conduct regarding Pierce's employment was motivated by racial animus, in violation of 42 U.S.C § 1981; (3) Defendant Netzel violated Pierce's right to equal protection under the Fourteenth Amendment; (4) Defendants' alleged constructive discharge of Pierce and the ensuing dissemination of alleged false information regarding such discharge violated Pierce's Fifth and Fourteenth Amendment rights to substantive due process; (5) Defendant Netzel's alleged constructive discharge of Pierce was in violation of New York State Human Rights Law § 296[1](a), N.Y. Exec. Law § 296(a) (McKinney 2001); (6) Defendant Netzel's alleged dissemination of false and defamatory statements following Pierce's constructive discharge constitutes slander per se in violation of New York law; and (7) Defendant Netzel intentionally inflicted emotional distress upon Pierce by allegedly disseminating false and defamatory statements after constructively discharging Pierce. On April 4, 2001, Defendants moved to dismiss the Amended Complaint for failure to state a claim. The motion was denied by Order filed February 1, 2002 (Doc. No. 57). Defendants filed an answer to the Amended Complaint on January 29, 2002 (Doc. No. 56). Discovery concluded on May 28, 2002.

On August 30, 2002, Defendants filed a motion for summary judgment. The motion is supported by the attached Affidavit of Assistant Erie County Attorney Kristin Klein Wheaton ("Wheaton Affidavit") and exhibits, the Affidavit of Frederick Netzel (Doc. No. 61) ("Netzel Affidavit") with attached exhibits, a Statement of Material Facts (Doc. No. 62) ("Defendants' Rule 56 Statement"), the Affidavit of Robert Huggins (Doc. No. 63) ("Huggins Affidavit"), and a Memorandum of Law (Doc. No. 64) ("Defendants' Memorandum"). On March 28, 2003, Pierce filed in opposition to summary judgment a Memorandum of Law (Doc. No. 66) (Doc. No. 66) ("Plaintiff's Response"), and the Affidavit of Eugene L. Pierce (Doc. No. 67) ("Pierce Affidavit"), with attached exhibits. On April 14, 2003, Defendants filed in further support of summary judgment a Reply Memorandum of Law (Doc. No. 69) ("Defendants' Reply"). Oral argument was deemed unnecessary.

As Pierce did not file a statement controverting the facts set forth in Defendants' Rule 56 Statement, such facts are deemed admitted. Local Rule of Civil Procedure 56.1(b) and (c).

Based on the following, Defendants' motion for summary judgment (Doc. No. 60) should be GRANTED; the Clerk of the Court should be ordered to close the file.

FACTS

The fact statement is taken from the pleadings and motion papers filed in this action.

Plaintiff Eugene L. Pierce ("Pierce"), an African American, commenced employment with Defendant County of Erie ("Erie County" or "the County") as Deputy Superintendent of the Erie County Correctional Facility ("ECCF" or "the Facility"), located in Alden, New York, in 1985 by appointment of then Erie County Executive Edward Rutkowski, a Republican. Defendant Frederick Netzel ("Netzel") was appointed ECCF. Superintendent in January 1988. Both the Superintendent and Deputy Superintendent positions are discretionary appointments of the Erie County Executive who, at all relevant times to this action, was Defendant Dennis T. Gorski ("Gorski"), a Democrat. Defendants' Rule 56 Statement ¶ 3; Amended Complaint ¶¶ 11, 14. Pierce and Netzel, in their respective positions at the ECCF, shared responsibility for maintaining and operating the Facility, including insuring that correct and ethical financial management practices were instituted and maintained at the Facility. Amended Complaint ¶¶ 16-17. Pierce consistently received outstanding evaluations throughout his employment at the Facility. Amended Complaint ¶ 13.

Pierce alleges that between 1988 and 1997, Netzel instituted certain improper and unsound practices and policies constituting financial mismanagement and sought to diminish Pierce's role as Deputy Superintendent, thereby rendering Pierce unable to correct the alleged improper practices and policies, including the accounting for and expenditure of funds in the "commissary account" which exists pursuant to regulations promulgated under New York law for the purpose of selling certain items to correctional inmates. Pierce maintains that prior to Netzel's appointment as ECCF. Superintendent, the profits resulting from commissary sales were consistently and properly utilized only for prisoner welfare and rehabilitation. Subsequent to Netzel's appointment as ECCF. Superintendent, however, Netzel "drastically curtailed the expenditure of commissary account returns or profits on inmate welfare and rehabilitation." Amended Complaint ¶ 37. Pierce further maintains that when Netzel encountered opposition from ECCF bookkeeper Karen Staniszewski ("Staniszewski"), and Staniszewski's successor, Janice Jaskowiak ("Jaskowiak"), an accountant, regarding Netzel's handling of the commissary account, Netzel caused Staniszewski's civil service position to be eliminated, and Jaskowiak to transfer to another county agency. Pierce criticized Netzel's handling of the commissary account, including advising Netzel that such handling of the commissary account would not withstand an audit by the County or State Comptroller. Amended Complaint ¶ 44.

Pierce also criticized Netzel for circumventing the Facility's long-standing policy requiring the filling of vacant civil service supervisory positions with the most senior security officer to have attained the necessary rank for such positions. In particular, Pierce criticized Netzel's conferring a broad range of supervisory authority and responsibilities upon one Steven Schellhammer ("Schellhammer"), a lieutenant with low seniority, thereby enabling Schellhammer to exercise authority over higher ranking officers with greater seniority. According to Pierce, as a result of Netzel's arrangement with Schellhammer, Schellhammer awarded himself overtime and dispensed with the requirement that other employees "log in" and "log out" with their respective watch commanders. Pierce maintains that because employees' time sheets could not then be verified against watch commanders' logs, this practice increased the potential that the opportunity for overtime pay would not be equally distributed, as well as for overtime pay abuse. Amended Complaint ¶¶ 55-56.

Other allegations by Pierce concern the discharge of ECCF choirmaster LaVern Durham ("Durham") in 1996 for what Pierce characterizes as baseless allegations that Durham was selling illegal drugs to inmates within the Facility. Pierce maintains that Netzel attempted to terminate Durham without investigating and verifying the charges and when Pierce requested evidence of Durham's alleged wrongdoing, Netzel provided Pierce with information which Pierce could not verify. When Pierce confronted Netzel about the information's falsity, Netzel became angry and said that Durham could remain at the Facility "this time," implying that Netzel intended to force Durham out of his position at the Facility. Amended Complaint ¶ 64.

Still other actions for which Pierce criticized Netzel using a racial slur when referring to African Americans, informing Pierce that Pierce's presence at Labor Relations meetings at the Facility, which Pierce had regularly attended, was no longer required, discontinuing certain programs and practices at the Facility that were popular with minority inmates, such as forbidding the use of certain female hair care methods favored by African-American females, curtailing Protestant religious services which were more popular with African-American inmates than with white inmates, suppressing African-American's participation in the Protestant church services choir, discontinuing the observation of Black History Month and Martin Luther King Jr.'s birthday, and routinely showing preference to white inmates over African American inmates with regard to Facility work assignments.

Pierce maintains that Netzel, in response to Pierce's criticisms of Netzel's alleged financial mismanagement of the Facility and violation of personnel policies resulting in a decrease in staff morale, Netzel expanded such actions and became hostile toward Pierce. According to Pierce, Netzel elicited false and scandalous allegations from ECCF inmates that Pierce had made homosexual overtures toward an inmate and had brought contraband into the Facility, both which were punishable by sanctions such as personnel discipline, fines and imprisonment, and presented such accusations to Defendant Gorski and the then Deputy County Executive James Keane ("Keane") to induce Gorski and Keane to terminate Pierce's employment with the County.

On September 26, 1997, Pierce met with Gorski who allegedly advised Pierce that because Pierce was a Republican appointee to whom Gorski, an elected official and member of the Democrat party, "had no political debt," Gorski could simply informed Pierce in a telephone conversation that Pierce's employment with the County was being terminated and that Gorski wished to reduce County expenses by eliminating Pierce's salaried position and replacing Plaintiff with another County employee at a lower salary. Amended Complaint ¶ 78. However, Gorski had determined that Pierce's age and years of service rendered Pierce eligible for early retirement and Gorski encouraged Pierce to accept an early retirement offer by signing the requisite forms that day, which happened to be the deadline for a timely early retirement application. Gorski further advised that Pierce was one of four appointed County employees to whom Gorski was offering early such early retirement incentives. According to Pierce, Gorski never advised Pierce of the allegations Netzel had made against Pierce. Pierce immediately signed the documents, thereby accepting the early retirement offer and Pierce's effective retirement date was October 15, 1997.

According to Pierce, following the tender of early retirement, Defendants disseminated to the public allegations that Pierce had been implicated at the Facility in misconduct, including engaging in homosexual relations with inmates at the Facility, and smuggling contraband into the Facility. Netzel also allegedly disseminated to the public that Gorski advised Pierce that if Pierce did not accept the early retirement offer, Gorski would discharge Pierce. Pierce discovered the allegations Netzel had allegedly made against Pierce during discovery in another unrelated action in this court, approximately eight months after retiring. Pierce then commenced the instant action alleging that despite his apparent acceptance of the early option offered by Gorski, he was constructively discharged from his employment with the County. Following Pierce's retirement, Robert Huggins ("Huggins"), an African-American male, was appointed as ECCF Deputy Superintendent.

Ferrell v. Netzel, 98-CV-009A(F).

DISCUSSION

Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The court is required to construe the evidence in the light most favorable to the nonmoving party. Tenenbaum v. Williams, 193 F.3d 58, 593 (2d Cir. 1999) (citing Anderson, supra, at 255). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, supra, at 322; see Anderson, supra, at 247-48 ("summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party"). In assessing a record to determine whether there is genuine issue of material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991).

"[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.' Such a motion, whether or not accompanied by affidavits, will be `made and supported as provided in this rule [FRCP 56],' and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, supra, at 323-24 (1986) (quoting Fed.R.Civ.P. 56). Thus, "as to issues on which the non-moving party bears the burden of proof, the moving party may simply point out the absence of evidence to support the non-moving party's case." Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir. 1998).

Summary judgment may be granted where the evidence proffered in support is sufficient to sustain a directed verdict in the movant's favor. Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) ("Summary judgment is designed to pierce the pleadings to flush out those cases that are predestined to result in a directed verdict."). Once a party moving for summary judgment has made a properly supported showing as to the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). When a defendant seeks summary judgment on the ground that there is an absence of evidence to support an essential element of the plaintiff's claim, the plaintiff's burden to produce evidence in opposition to summary judgment is de minimis; nevertheless, in opposing a motion for summary judgment a party "may not simply rely on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Goenaga, supra, at 18 (citing cases). Further, where the burden of proof on an issue for which summary judgment is sought is on the movant, should the movant fail to meet its initial burden of establishing the absence of any genuine issue of material fact as to that issue, the nonmovant will prevail even if the non-movant submits no evidentiary matter establishing there is indeed a genuine issue for trial. Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 47 (2d Cir. 1985). If, however, there is evidence in the record regarding a material fact as to which the moving party contends there is no dispute, from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. Rattner, supra, at 209.

In the instant case, Defendants seek summary judgment on all claims for relief. In particular, Defendants maintain that summary judgment should be granted as to all claims for relief asserted under New York law because Pierce failed to serve a notice of claim which, under New York law, is a prerequisite to such claims. Defendants also seek to dismiss the claims for employment discrimination asserted under § 1981 and New York Exec. Law § 296 on the basis that Defendants have rebutted any prima facie showing of such claims by articulating legitimate, nondiscriminatory reasons for the challenged employment actions which Pierce has failed to establish are merely pretextual. Defendants assert in favor of summary judgment on Pierce's due process claim that Pierce was not entitled to a name-clearing hearing. Defendants assert that the alleged slanderous statements constitute privileged communications. Finally, Defendant Netzel seeks summary judgment on the state claims for intentional infliction of emotional distress, slander and slander per se on the basis that Pierce has failed to point to any specific conduct by Netzel constituting such torts.

1. Federal Claims for Relief

Pierce asserts four claims for relief under federal law, including deprivation of procedural and substantive due process in violation of the Fifth and Fourth Amendments and 42 U.S.C. § 1983, violation of 42 U.S.C. § 1981, and violation of the Fourteenth Amendment Equal Protection Clause. Defendants seek summary judgment on the merits of all four federal claims

A. First and Fourth Claims for Relief — 42 U.S.C. § 1983

In the original Complaint, Pierce pleaded only one claim under § 1983, alleging that all Defendants violated Pierce's protected liberty interest in his reputation by disseminating false information in connection with Pierce's alleged constructive discharge, thereby damaging Pierce's reputation. Pierce did not differentiate in his original Complaint between the procedural and substantive due process bases for his claims, other than to assert in connection with the procedural due process claim that Pierce was denied a postdeprivation hearing. Amended Complaint ¶¶ 97, 102-03. The Second Circuit, on appeal of this court's decision dismissing Pierce's § 1983 claim for failure to state a claim, construed Pierce's § 1983 claim as alleging a violation of procedural due process. Pierce, supra, at *2. The Second Circuit also affirmed such dismissal as against Defendant Netzel because Pierce had failed to allege that Netzel had any final authority over the decisionmaking process resulting in Pierce's alleged constructive discharge. Id. at *3. The Second Circuit, however, held that Pierce had sufficiently alleged facts sufficient to support an inference that Gorski had such final authority and, thus, was required to provide Pierce with an opportunity to contest the allegations prior to disseminating them. Id. Further, if it was ultimately determined as a matter of law that Gorski had such final authority, "the requirement for imposition of liability on the County of Erie would also be met." Id. Accordingly, the Second Circuit reinstated the § 1983 claim as against Gorski and the County. Id. The Second Circuit's dismissal of the § 1983 claim as asserted in the original Complaint against Netzel is now the law of the case. See Day v. Moscow, 955 F.2d 807, 812 (2d Cir. 1992) (holding that where Second Circuit Court of Appeals had affirmed dismissal of claim against defendant for malicious prosecution on ground of absolute immunity, such dismissal was final, but that by vacating dismissal of other claims and granting plaintiff leave to file amended complaint, Second Circuit implied that amended complaint would be limited to those claims for which dismissal had been vacated, and plaintiff could not reassert malicious prosecution claim).

In the Amended Complaint, however, Pierce respectively asserts his First and Fourth Claims for Relief against all Defendants, alleging that Defendants violated his federal civil rights under § 1983 by depriving Pierce of his rights under the Fifth and Fourteenth Amendments to procedural and substantive due process. Specifically, Pierce's First Claim for Relief under § 1983 alleges a violation of procedural due process in that Defendants did not provide Pierce with an opportunity to refute the alleged charges of improper and immoral conduct at the ECCF which formed the basis for Pierce's alleged constructive discharge, Amended Complaint ¶¶ 101-103, whereas Pierce's Fourth Claim for Relief alleges a violation of substantive due process in that Defendants' alleged constructive discharge, accompanied by the dissemination of the challenged statements implying moral turpitude and criminal conduct have damaged Pierce's good name, reputation, honor and integrity. Amended Complaint ¶¶ 169-70.

Defendants argue in support of summary judgment on these claims, i.e., Pierce's First and Fourth Claims for Relief, that Pierce has failed to establish Pierce had either a protected liberty interest or property interest in continued employment as ECCF Deputy Superintendent which, according to Defendants, was an employment "at-will" position. Defendants' Memorandum at 21-24; Defendants' Reply at 6-8. Defendants alternatively argue that qualified immunity shields Defendants from liability on these claims. Defendants' Memorandum at 24; Defendants' Reply at 8-12. Pierce argues in opposition to summary judgment that he has a constitutionally protected liberty interest in his reputation which was damaged by the false allegations of immoral conduct underlying Pierce's alleged constructive discharge. Plaintiff's Response at 13-14. Defendants assert in further support of summary judgment that Pierce has failed to establish a deprivation of any liberty interest. Defendants' Reply at 6-8.

An employment discrimination claim under § 1983 "has two essential elements: (1) the defendant acted under color of state law; and (2) as a result of the defendant's actions, the plaintiff suffered a denial of her federal statutory rights, or her constitutional rights or privileges." Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). In the instant case, Pierce maintains that Defendants, acted under color of state law in constructively discharging Pierce, which amounted to depriving Pierce of his right to due process under the Fifth and Fourteenth Amendments.

No claim for employment discrimination lies under § 1983 based on a due process violation unless the plaintiff had a protectable interest in continued employment. See Abramson v. Pataki, 278 F.3d 93, 99 (2d Cir. 2002) (affirming dismissal of § 1983 claim where public employees could not allege either a property or liberty interest in continued public employment). Interests protected by the Fifth and Fourteenth Amendment Due Process Clauses relevant to an employment discrimination claim under § 1983 include property and liberty interests. See United States Const. Amend. 5 and Amend. 14; Pataki, supra. In the instant case, Pierce maintains Defendants deprived him of his constitutionally protected liberty interest in his reputation which was damaged by the alleged dissemination of false statements of moral turpitude in connection with Pierce's constructive discharge from his employment as ECCF Deputy Superintendent without a predeprivation hearing at which Pierce could have contested such allegations.

Preliminarily, the court observes that Pierce has again failed to allege any facts establishing that Defendant Netzel had any final decision-making authority with regard to Pierce's constructive discharge. Accordingly, the First and Fourth Claims for Relief should be dismissed as against Netzel. Pierce, supra, at *3. Nevertheless, as the Amended Complaint alleges, and as Defendants do not dispute, that such authority was held by Gorski, the First and Fourth Claims for Relief are viable as to Gorski, whose action may be imputed to the County provided that "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Department of Social Services, 436 U.S. 658, 690 (1978) (holding that a municipality cannot be held liable under § 1983 solely on a respondeat superior theory).

Pierce, however, has not alleged any facts that, even liberally construed, would sufficiently demonstrate that Pierce's alleged constructive discharge resulted from the unconstitutional implementation or execution of "a policy statement, ordinance, regulation or decision officially adopted and promulgated by [Erie County's] officers," including Gorski. Monell, supra, at 690. Nevertheless, where, as here, a plaintiff alleges a deprivation of civil rights

not as a result of the enforcement of an unconstitutional official policy or ordinance, but by the unconstitutional application of a valid policy, or by a [municipal] employee's single tortious decision or course of action, the inquiry focuses on whether the actions of the employee in question may be said to represent the conscious choices of the municipality itself. Such an action constitutes the act of the municipality and therefore provides a basis for municipal liability where it is taken by, or is attributable to, one of the [municipality's] authorized policymakers. Thus, even a single action by a decisionmaker who `possesses final authority to establish municipal policy with respect to the action ordered," is sufficient to implicate the municipality in the constitutional deprivation for the purposes of § 1983.
Amnesty America v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82 (1986)).

Accordingly, the court considers Pierce's § 1983 claims against both Gorski and the County.

Mere damage to reputation is not "by itself sufficient to invoke the procedural protection of the Due Process Clause." Paul v. Davis, 424 U.S. 693, 701 (1976). The Supreme Court has held, however, that a protectible liberty interest may be implicated "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him." Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). See also Board of Regents v. Roth, 408 U.S. 564, 573 (1972) (holding that a government employee's liberty interest would be implicated if he were dismissed based on charges imposing on the employee "a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities."). Generally, an individual is entitled to procedural protection before he is deprived of a liberty interest. See Zinermon v. Burch, 494 U.S. 113, 127 (1990) ("[T]he Constitution requires some kind of a hearing before the State deprives a person of liberty or property."). The Second Circuit has held that when an employee's liberty interest in his reputation is at stake, the employee is entitled to a hearing before information which could damage his reputation is disseminated. Valmonte v. Bane, 18 F.3d 992, 1003-05 (2d Cir. 1994).

In the context of public employment, "[s]pecial aggravating circumstances are needed to implicate a liberty interest." Donato v. Plainview-Old Bethpage Central School District, 96 F.3d 623, 630 (2d Cir. 1996), cert. denied, 519 U.S. 1150 (1997). "A free-standing defamatory statement made by a state official about an employee is not a constitutional deprivation." Id. "But a defamatory statement about an employee implicates a liberty interest when it is made during the course of that employee's termination from employment." Id. (citing cases). "[A] concurrent temporal link between the defamation and the dismissal is necessary if the employee is to succeed upon a claim of liberty deprivation." Martz v. Incorporated Village of Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994) (citing cases). For example, in Brandt v. Board of Cooperative Educational Services, 820 F.2d 41 (2d Cir. 1987), the Second Circuit found the requisite temporal link between the dissemination of the alleged defamatory statements and the employee's dismissal where the defendant employer placed stigmatizing charges in the plaintiff's personnel file, and such charges formed the basis for the plaintiff's termination, without first providing the plaintiff with an opportunity to contest the charges and clear his name at a hearing, and it was likely that prospective future employers would gain access to the plaintiff's personnel file and decide not to hire the plaintiff based on the charges contained therein. Brandt, supra, at 44-45. In contrast, the requisite temporal link did not exist where the defendant school board supplied defamatory information to the state unemployment office pertaining to a terminated teacher as the information was supplied after the teacher was terminated and, thus, occurred in the absence of an employment relationship. Gentile v. Wallen, 562 F.2d 193, 197-98 (2d Cir. 1977). In the instant case, the requisite temporal link between the alleged publication of defamatory statements and Pierce's alleged wrongful discharge is absent and, thus, Pierce cannot establish his entitlement to a predeprivation hearing or any violation of a protected liberty interest.

In particular, in Pierce's own description of his conversation with Gorski regarding the early retirement offer, Pierce states that "Defendant Gorski made no mention of allegations having been directed toward Plaintiff or Rev. Jerome Ferrell concerning misconduct, or of any investigation into the same." Amended Complaint ¶ 80. Pierce further asserts that "[t]he Defendants did not inform Plaintiff that allegations and so-called evidence [of immoral conduct with inmates] had been presented against him." Amended Complaint ¶ 82. Consistent with these allegations in the Amended Complaint are Pierce's statements at his deposition that Gorski did not mention any stigmatizing charges against Pierce at the September 26, 1997 meeting between Gorski and Pierce at which Gorski offered Pierce early retirement. Pierce Deposition at 140-42. Insofar as Pierce alleges that Defendants caused the false allegations and evidence to be disseminated to the public "[i]mmediately following Plaintiff's tender of early retirement," and that "Plaintiff had been summoned to Defendant Gorski's office and told by Defendant Gorski that he had to choose between accepting early retirement or being discharged from employment, thereby communicating to the public that Plaintiff's constructive discharge was punishment for alleged wrongdoing," Amended Complaint ¶¶ 84-85, Pierce has submitted no evidence attributing such statements to Netzel or Gorski. Accordingly, Pierce has failed to establish the requisite temporal link between the alleged dissemination of any stigmatizing allegations to the public concurrent with Pierce's alleged constructive discharge. Brandt, supra, at 44-45. As such, summary judgment should be GRANTED as to this aspect of Defendants' motion.

A transcript of Pierce's June 12, 2002 deposition testimony is attached as Exhibit C to the Pierce Affidavit and portions are attached as Exhibit H to the Wheaton Affidavit.

Further, as discussed, Discussion, supra, at 14-15, Pierce neither directly claims nor establishes a triable issue of fact as to whether Pierce had a protected property interest in his continued employment as ECCF Deputy Superintendent. However, given that Pierce maintains that he was constructively discharged, the court also construes such allegation as claiming a deprivation of a property interest in such continued employment.

The Second Circuit has held that employees at will have no protectable property interest in their continued employment unless contractual or statutory provisions guarantee continued at-will employment absent "sufficient cause" for discharge or the employee can prove a de facto system of tenure. Pataki, supra, at 99 (citing Arnett v. Kennedy, 416 U.S. 134, 151-52 (1974) (plurality)); Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 578 (1972); and Goetz v. Windsor Cent. Sch. Dist., 698 F.2d 606, 608-09 (2d Cir. 1983). See also White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1062 (2d Cir. 1993) (stating with regard to due process claim asserted under both Fifth and Fourteenth Amendments that "[a]n interest that state law permits to be terminated at the whim of another person is not a property right that is protected by the Due Process Clause."). In the instant case, Pierce asserts neither that his continued employment in his at-will Deputy Superintendent position was guaranteed absent sufficient cause for discharge, nor that a de facto system of tenure existed with regard to the position.

Significantly, Pierce's deposition testimony demonstrates that Pierce understood that his at-will employment could be terminated without having to establish sufficient cause, and that no de facto tenure system would otherwise protect him. See e.g., Pierce Deposition at 87-89 (Pierce explaining he did not apply for ECCF. Superintendent position when it became available after Gorski was elected and succeeded Rutkowski because Pierce, originally appointed by Rutkowski, understood Gorski would not likely appoint Pierce to such position, but that Pierce was pleased to have been asked to continue as Deputy Superintendent and train newly appointed Superintendent); id. at 141 (Pierce stating that Gorski was not required to offer Pierce early retirement and could have discharged Pierce on the basis that Pierce was a Republican appointee of the previous county executive); id. at 161-62 (Pierce explaining that shortly after Giambra, a Republican, was elected to succeed Gorski as County Executive, Pierce met with Giambra to discuss possible appointment to another county position). Such statements are consistent with Pierce's allegation in the Amended Complaint that Gorski could have terminated Pierce's employment simply because Pierce was appointed to the ECCF Deputy Superintendent position by Mr. Rutkowski, a Republican, whereas Gorski was a Democrat and, as such, "Gorski had no political debt to [Pierce]." Amended Complaint ¶ 78. Therefore, Pierce has failed to establish he had a protected property interest in his continued at-will employment as ECCF Deputy Superintendent.

Accordingly, Defendants' motion for summary judgment should be GRANTED as to Pierce's First and Fourth Claims for Relief, pursuant to § 1983, alleging violations of the Fifth and Fourteenth Amendments' Due Process Clauses. B. Second Claim for Relief — 42 U.S.C. § 1981

Pierce asserts as his Second Claim for Relief that his alleged constructive discharged was racially motivated in violation of 42 U.S.C. § 1981. Defendants argue in support of summary judgment on this claim that even if Pierce can satisfy the elements necessary to make a prima facie claim for employment discrimination based on race in violation of 42 U.S.C. § 1981, such case is rebutted by Defendants' articulation of a legitimate, nondiscriminatory reason for the employment action which Pierce has failed to challenge as mere pretext for actual discrimination. Defendants' Memorandum at 14-21; Defendants' Reply at 2-6. Pierce argues in opposition to summary judgment that sufficient inferences of discriminatory intent, as alleged in the Amended Complaint, establish that the legitimate, non-discriminatory reason articulated by Defendants is merely pretext for actual discrimination. Plaintiff's Response at 9-13.

Initially, the court observes that although the Second Circuit, on appeal, upheld this court's dismissal of Pierce's § 1981 claim as against Defendants Erie County and Gorski because Pierce had not alleged any facts supporting a reasonable factfinder's conclusion that Gorski acted out of racial animus in discharging Pierce, Pierce, supra, at *2, Pierce has reasserted such claim against both the County and Gorski, without alleging any new facts. Pierce also fails to raise any triable issue of fact as to whether Gorski acted with racial animus in discharging Pierce, that Pierce's alleged discharge resulted from the County's policy or custom of racial discrimination, or that Netzel held any authority to make such a policy which could be imputed to the County. The Second Circuit's dismissal of the § 1981 case as against Gorski and the County in the original Complaint is now the law of the case. Day, supra, at 812. Furthermore, Pierce has failed to allege any new factual allegations against Defendants Erie County or Gorski supporting a claim against either Defendant under § 1981. Accordingly, Pierce's Second Claim for Relief alleging a violation of § 1981 should be dismissed as against Defendants Erie County and Gorski for failing to state a claim, and such claim is addressed only with regard to Netzel.

Individuals may be held liable for employment discrimination based on race under § 1981. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000). A claim seeking personal liability under § 1981, however, requires personal involvement, i.e., "`some affirmative link to causally connect the actor with the discriminatory action.'" Id. (quoting Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 983 (10th Cir. 1991)). To survive summary judgment on this claim, Pierce must point to some evidence causally connecting Netzel with Pierce's alleged discriminatory constructive discharge.

The standards applicable in an employment discrimination action pursuant to 42 U.S.C. § 1981 are the same as those applicable in an employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., ("Title VII"), as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Gant v. Wallingford Board of Education, 195 F.3d 134, 146 (2d Cir. 1999). First, the plaintiff must establish a prima facie case of discrimination by showing that 1) he is a member of a protected class; 2) he was qualified for the position; 3) he suffered an adverse employment action; and 4) the action occurred under circumstances giving rise to an inference of discrimination. De la Cruz v. New York City Human Resources Admin., 82 F.3d 16, 20 (2d Cir. 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Once the plaintiff has established a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. Id. If the employer meets its burden, the plaintiff then must prove that the articulated justification is in fact a pretext for discrimination. Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-11 (1993)).

In the instant case, there is no dispute that Pierce has established the first two criteria for a prima facie case of employment discrimination based on race given that Pierce is an African American and always received satisfactory evaluations while employed as ECCF Deputy Superintendent. Whether Pierce can establish the third element, i.e., that Pierce suffered an adverse employment action, depends on whether Pierce can establish the fourth element, i.e., that such action occurred under circumstances giving rise to an inference of discrimination.

As discussed in connection with Pierce's § 1983 claim, however, the Second Circuit held on appeal that Gorski, rather than Netzel, held the final decisionmaking authority with respect to Pierce's employment with the County. Pierce, supra, at * 3. Because the decision to offer Pierce early retirement was made by Gorski, rather than by Netzel, even assuming, arguendo, that Netzel's conduct at the Facility which Pierce maintains demonstrates Netzel's racial animus against African-Americans, Gorski's decision cannot be said to have been based on Netzel's actions. There is thus no basis on which to hold Netzel responsible for any adverse employment action against Pierce, even assuming, arguendo, that Gorski's early retirement offer constituted a constructive discharge. See Donato, supra, at 633-34 (holding within context of retaliatory discharge claim plaintiff must establish causal connection between participation in protected activity and adverse employment action).

As there is no legal basis for Pierce's § 1981 claim against Netzel, the court need not consider Defendants' argument, Defendants' Memorandum at 16-20; Defendants' Reply at 2-6, that Defendants have sufficiently rebutted a prima facie case for employment discrimination against Netzel by articulating a legitimate, nondiscriminatory reason for the alleged adverse employment action, specifically, that Pierce was replaced by Huggins, who is also an African-American male, and that the incidents which Pierce maintains are circumstantial evidence of Netzel's alleged racial animosity were actually in response to legitimate safety concerns within the Facility.

Accordingly, summary judgment should be granted in favor of Defendants on Pierce's Second Claim for Relief.

C. Third Claim for Relief — Denial of Equal Protection

Pierce alleges that Defendants conducted the alleged unlawful conduct toward Pierce because of Pierce's race, thereby denying Pierce the equal protection of the law in violation of the Fourteenth Amendment's Equal Protection Clause and § 1983. Amended Complaint ¶¶ 152-54. Pierce further maintains that Netzel's conduct toward Pierce was "partially directed" against Pierce based on Netzel's general animosity against Pierce arising from Pierce's allegations that Netzel was improperly spending facility, inmate and public funds. Id. ¶ 153. Defendants argue in support of summary judgment on this claim that Pierce "has all but abandoned his equal protection claim" as Pierce "has failed to establish that he was similarly situated to nonminorities that were treated differently." Defendants' Reply at 12.

"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). In order to state a claim for an equal protection violation, a plaintiff must allege that a government actor intentionally discriminated against him "on the basis of race, national origin or gender." Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999). To establish an equal protection violation under § 1983, a plaintiff must show that he was "selectively treated compared with other similarly situated employees, and that selective treatment `was based on impermissible considerations such as race. . . .'" Knight v. Connecticut Dep't of Health, 275 F.3d 156, 166 (2d Cir. 2001) (quoting Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000) (internal quotation marks omitted)).

In the instant case, Pierce, by alleging that Netzel's conduct was "partially directed" against Pierce based on Netzel's general animosity against Pierce arising from Pierce's allegations that Netzel was improperly spending facility, inmate and public funds, Amended Complaint ¶ 155, impliedly concedes a basis other than race for Netzel's alleged unlawful conduct, i.e., retaliation against Pierce for complaining of Netzel's handling of the Facility's commissary account fund. A fair reading of Pierce's attribution of misfeasances against Netzel and Pierce's explicit assertion, Amended Complaint ¶ 155, that Netzel was angered by such allegation, strongly supports the inference that such allegations were a substantial cause for Netzel's desire to retaliate against Pierce. See Donato, supra, at 634 (affirming district court's dismissal of retaliatory discharge claim as plaintiff's evidence presented to establish that plaintiff's involvement in statutorily protected activity caused defendant employer to terminate plaintiff's employment was not credible).

Moreover, where a plaintiff attempts to establish an equal protection claim based on disparate treatment with regard to employment, the plaintiff must demonstrate that he is similarly situated to another employee. Knight, supra, at 166; Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). For an employee to be "similarly situated" for the purpose of establishing disparate treatment in an employment discrimination case, the individual as to whom the plaintiff attempts to draw a comparison must be similarly situated in all material respects, such as reporting to the same supervisor, being subject to the same standards governing performance, evaluation and discipline, and engaging in conduct similar to the plaintiff without any differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it. Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997). Here, Pierce offers nothing in opposition to summary judgment establishing that Pierce was treated differently from other similarly situated ECCF employees based on Pierce's race. In fact, Pierce does not even identify any other similarly situated ECCF employees to permit the court to compare the alleged discriminatory conduct to which Defendants subjected Pierce based on Pierce's race, with Defendants' treatment of non-African-American ECCF employees. See McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001) (plaintiff, white female employee, established she was similarly situated to black male employee who received more generous severance package, by producing evidence that both employees held positions of roughly equivalent rank, were terminated at same time, and severance package decisions were made by officers at highest level in company). Accordingly, summary judgment on Pierce's Third Claim for Relief should be GRANTED in favor of Defendants. 2. Claims for Relief Based on State Law

As stated, Netzel seeks summary judgment on all the state law claims on the basis that Pierce failed to serve Netzel with the requisite timely notice of claim and, as such, has failed to satisfy a condition precedent to suit under New York law, and that such failure is fatal to Pierce's state claims for relief. Defendants' Memorandum at 9-14; Defendants' Reply at 1-2. Alternatively, Netzel seeks summary judgment dismissing the various state claims on their merits. Defendants' Memorandum at 14, 24-29.

Assuming, arguendo, the District Judge agrees with the undersigned's recommendation that summary judgment be granted in favor of Defendants on Plaintiff's federal claims, then the court should refrain from exercising supplemental jurisdiction over the remaining claims asserted under state law. In Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988), the Supreme Court recognized that "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ., supra, at 350 n. 7. Similarly, 28 U.S.C. § 1367(c)(3) provides that district courts " may decline to exercise supplemental jurisdiction under [§ 1367(a)] if the district court has dismissed all claims over which it has original jurisdiction." (italics added). According to the Second Circuit, "the discretion implicit in the word `may' . . . permits the district court to weigh and balance several factors, including consideration of judicial economy, convenience, and fairness to litigants." Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994). The exercise of supplemental jurisdiction under 28 U.S.C. § 1367(a) is thus left to the district court's discretion. Ametex Fabrics, Inc. v. Just In Materials, Inc., 140 F.3d 101, 105 (2d Cir. 1998).

In the instant case, provided that the District Judge accepts the undersigned's recommendation and grant summary judgment in favor of Defendants on the federal claims, no federal claims will remain in this action and, as such, the balance of factors, i.e., judicial economy, convenience, fairness, and comity, Carnegie-Mellon University, supra, Purgess, supra, point toward the court declining to exercise supplemental jurisdiction and the court should dismiss the state law claims. Alternatively, Pierce's state claims should be dismissed both for failure to comply with the notice of claim provision and on their merits.

A. Notice of Claim

Pierce argues in opposition to summary judgment that service of a notice of claim was not a prerequisite to commencing the instant action because such notice is not required where, as here, an action is brought against municipal employees in their individual capacities unless the municipality is statutorily obligated to defend such Defendants. Plaintiff's Response at 5. Pierce further asserts that not only has Netzel failed to establish that the municipality, i.e., the County, has a duty to defend Netzel in the instant action, Netzel has also failed to establish that his alleged unlawful actions occurred within the scope of Netzel's employment. Id. at 5-8.

Actions grounded in tort against a municipality or its agents, officers and employees acting with in their official capacity are permitted under New York General Municipal Law ("N.Y. Gen. Mun. Law") § 50-i(1)(c) (McKinney 2001). As a condition precedent to suit against a municipality or its employees, the plaintiff is required to serve on the defendant a notice of claim, N.Y. Gen. Mun. Law § 50-d(2) (McKinney 1986). The notice of claim provision also applies to employment discrimination actions brought by county employees pursuant to N.Y. Exec. Law § 296. Mills v. County of Monroe, 451 N.E.2d 456, 457 (N.Y.), cert. denied 464 U.S. 1018 (1983). Furthermore, New York's notice of claim requirement is incorporated by reference into New York County Law § 52(1). Freundenthal v. County of Nassua, 784 N.E.2d 1165, 1170 (N.Y. 2003).

Unless otherwise indicated, references to N.Y. Gen. Mun. Law are to the 2001 edition of McKinney's Consolidated Laws of New York.

The notice of claim must comply and be served in accordance with N.Y. Gen. Mun. Law § 50-e (1)(a) and Gen. Mun. Law § 50-i(1)(b) requires that the complaint contain an allegation that 30 days have elapsed since the notice of claim was timely served upon the municipality in accordance with § 50-e(1)(a), and "that adjustment of payment thereof has been neglected or refused." Failure to timely file a notice of claim will result in a bar to the plaintiff's claim, unless leave to file a late notice of claim is granted pursuant to N.Y. Gen. Mun. Law § 50-e(5), the time period within which to serve a late notice of claim cannot be extended beyond the applicable limitations period, N.Y. Gen. Mun. Law §§ 50-e(5), 50-i(3), and the request must therefore also be filed within the statutory period. Rattner v. Netburn, 733 F. Supp. 162, 166 (S.D.N.Y. 1989), rev'd on other grounds, 930 F.2d 204 (2d Cir. 1991); Cohen v. Pearl River Union Free School Dist., 414 N.E.2d 639, 640 (N.Y. 1980).

It is settled that compliance with the requirements of a timely served notice of claim and pleading the lapse of at least thirty days following such service as mandated by N.Y. Gen. Mun. Law §§ 50-e and 50-i are preconditions to the institution of a valid action against a municipality. Davidson v. Bronx Municipal Hospital, 473 N.E.2d 761 (N.Y. 1984); Mroz v. city of Tonawanda, 999 F.2upp. 436, 449-52 (W.D.N.Y. 1998). In Davidson, the plaintiff sued a municipal hospital based on negligence when the plaintiff's violin was allegedly stolen from the plaintiff's vehicle while it was parked in a lot owned by the defendant. Although the plaintiff served the defendant with a summons and complaint within ninety days of the alleged theft, no notice of claim was served until 115 days after the theft. Accordingly, the plaintiff's complaint did not and could not allege that a notice of claim had been served at least thirty days earlier. The Court of Appeals held that the plaintiff had not complied with the condition precedent to a lawsuit against a municipal corporation by serving defendants with only a summons and complaint explaining that "[t]he mandatory 30-day period between service of the notice of claim and the summons and complaint serves the statutory purpose of allowing municipal defendants to conduct an investigation and examine the defendant with respect to the claim . . . and to determine whether the claim should be adjusted or satisfied before the parties are subjected to the expense of litigation." Davidson, at 762-63 (emphasis added). The court further observed, with regard to public corporations and their officers "who are subject to a great many claims, that notices of claims are processed by different administrative units, one for investigation and the other for litigation. By serving only a summons and complaint signalling [ sic] a litigation, and not the statutory notice of claim followed by a summons and complaint, signalling [ sic] a period for investigation, plaintiff frustrated such procedures and the legislative purpose served by the statutory scheme." Davidson, at 763. Based on the plaintiff's failure to comply with the notice of claim pleading requirements, dismissal of the complaint was affirmed. Id.

Similarly, in the instant case, Pierce has failed to serve Netzel with a notice of claim with regard to the claims Pierce asserts against Netzel under New York law. Moreover, the statute of limitations is one year for claims for slander and intentional infliction of emotional distress, New York Civil Practice Laws Rules ("N.Y. Civ. Prac. L. R.) § 215[3], and three years for claims asserting violations of New York Human Rights Law, N.Y. Civ. Prac. L. R. § 214[2]. Because more than six years have elapsed since Pierce retired from his employment with the County, it is no longer possible for Pierce to timely serve the required Notice of Claim, and to allege such service in a further amended complaint. Davidson, supra, at 763. Furthermore, compliance with § 50-i is substantive and, as such, Pierce is now barred from pursuing his state claims against Nezel. Reaves v. City of New York, 576 N.Y.S.2d 280, 280 (1st Dep't 1991).

Unless otherwise indicated, references to N.Y. Civ. Prac. L. R. are to McKinney's 2003).

Pierce, however, maintains that no notice of claim is required as to municipal employees sued in their individual capacities unless the municipality, i.e., Erie County, is statutorily obligated to defend the employee and that here the County is not so obligated to defend Netzel as Netzel is sued only in his individual, rather than official, capacity. Plaintiff's Response at 5-8. According to Pierce, Defendants have failed to establish either that the County is statutorily obligated to defend Netzel, or that Netzel's alleged unlawful actions were undertaken within the scope of Netzel's employment. Id. Pierce further maintains that whether Netzel engaged in the alleged unlawful conduct in his individual or official capacity is an issue of fact that cannot be decided in the instant summary judgment motion. Id. Defendants argue in further support of summary judgment that there is no question of fact that the County is statutorily obligated to defend Netzel against the pending claims as Netzel's alleged illegal conduct occurred within the scope of Netzel's employment with the County. Defendants' Memorandum at 12-14; Defendants' Reply at 1-2.

In support of summary judgment, Defendants point to the fact that all of Netzel's alleged illegal actions occurred with respect to Pierce's employment, with no allegations pertaining to off duty conduct or conduct outside the confines of ECCF. Defendants' Memorandum at 12. Defendants further maintain that simply alleging that Netzel's actions were outside the scope of employment is insufficient to avoid the Notice of Claim requirement; rather, Pierce must provide some evidence that such actions were, in fact, outside the scope of employment. Id. at 12-13.

Pierce is correct that no notice of claim is required for suits brought against a municipal employee unless the municipality is obligated by law to indemnify such employee. See N.Y. Gen. Mun. Law § 50-e(1)(b); Zwecker v. Clinch, 720 N.Y.S.2d 150, 152 (2d Dep't 2001) (observing that notice of claim need not be filed if municipality not required to indemnify defendant municipal employee). "The obligation to indemnify depends on whether the individual defendants were acting within the scope of their employment when they committed the alleged misdeeds." Zwecker, supra. (citing International Shared Services, Inc. v. County of Nassau, 634 N.Y.S.2d 722, 724 (2d Dep't 1995)). Moreover, to prevail on its assertion that the municipality is not required to indemnify the defendant municipal employee, the plaintiff is required to offer some evidence establishing that the defendant's alleged illegal actions occurred outside the scope of employment. Zwecker, supra, at 152; International Shared Servs., supra, at 724-25. Although whether a municipal defendant's alleged unlawful conduct occurred within the defendant's scope of employment is often a question of fact, the court is not precluded from deciding the question as a matter of law where the record, viewed in the light most favorable to the plaintiff, establishes only that the alleged conduct occurred within the scope of employment. McCormack v. Port Washington Union Free School District, 625 N.Y.S.2d 57,58-59 (2d Dep't 1995) (holding that plaintiff was required to comply with notice of claim provisions where complaint's assertions that school principal's actions in engaging in willful course of malicious conduct designed to defame and inflict emotional distress upon plaintiff constituted conduct "intimately related to the discharge of his duties as a principal and the legitimate goals of the [school d]istrict").

In the instant case, the allegations in the Amended Complaint refer only to conduct by Netzel the occurred solely in connection with Netzel's discharge of his duties as ECCF. Superintendent and Pierce offers no evidence in opposition to summary judgment reasonably tending to show otherwise. For example, all of Netzel's alleged unlawful conduct occurred both which Netzel was on duty and within the physical confines of the Facility. Amended Complaint ¶¶ 18-20, 28-70, 73-74, 84-85, 105-20, 123-28, 131-34, 142-50. Insofar as Netzel is alleged to have abused his authority as ECCF. Supervisor, such conduct includes failing to follow the established policies and procedures regarding the expenditure of commissary account funds, Amended Complaint ¶¶ 28-45, causing the Facility's bookkeeper's position to be eliminated and delegated duties to Lt. Schellhammer that ordinarily would be performed only by employees who had attained a higher rank and had more seniority, id. ¶¶ 47-56, attempting to discharge ECCF choirmaster Durham based on false allegations, id. ¶¶ 57-63, making unpopular decisions regarding personnel policies that were detrimental to staff morale, id. ¶¶ 64-65, making false allegations to Gorski that Pierce had engaged in homosexual relations with inmates at the Facility and had smuggled and distributed contraband to inmates within the Facility, id. ¶¶ 69-74, further disseminating such information to the public following Pierce's alleged constructive discharge, id. ¶¶ 84-85, and discontinuing certain programs and practices at the Facility that were popular with minority inmates such as forbidding the use of certain female hair care methods favored by African-American females, curtailing Protestant religious services which were more popular with African-American inmates than with white inmates, suppressing African-American's participation in the Protestant church services choir, and discontinuing the observation of Black History Month and Martin Luther King Jr.'s birthday. Id. ¶¶ 106-50. Such alleged conduct, even if undertaken with malice and to defame and inflict emotional distress upon Pierce, was "intimately related to the discharge of [Netzel's] duties as [ECCF. Superintendent] and the legitimate goals of the [Facility]." McCormack, supra, at 58. Accordingly, service of a notice of claim is a prerequisite to the state claims and by failing to timely comply with such prerequisite, Pierce is barred by New York law from pursuing such claims.

Pierce points to no evidence suggesting that such alleged defamatory statements were made by Netzel while off-duty and at a place outside the ECCF.

Dismissal of Pierce's state claims should thus be GRANTED. Alternatively, summary judgment should be granted in favor of Defendants on the merits of each of the state claims.

B. Merits of State Claims

Should the District Judge disagree with the undersigned's recommendation that Pierce's failure to timely serve Netzel with a notice of claim regarding the state claims requires the dismissal of the state claims against Netzel as a matter of law, the court, in the alternative, addresses whether the state claims should be dismissed, as a matter of law, against Netzel on the merits of such claims.

1. Fifth Claim for Relief — New York Exec. Law § 296

Claims for employment discrimination in violation of New York Human Rights Law, N.Y. Exec. Law § 296, are analyzed in the same manner as employment discrimination claims brought pursuant to Title VII, Weinstock v. Columbia University, 224 F.3d 33, 42 (2d Cir. 2000) ("The identical standards apply to employment discrimination claims brought under Title VII, Title IX, New York Executive Law § 296, and the Administrative Code of the City of New York"), and, thus, 42 U.S.C. § 1981. Hudson, supra, at 354. As such, for the same reasons discussed in connection with Pierce's claim under 42 U.S.C. § 1981, Discussion, supra, at 22-25, there is no merit to Pierce's Fifth Claim for Relief for employment discrimination in violation of New York's Human Rights Law, N.Y. Exec. Law § 296.

2. Sixth Claim for Relief — Slander Per Se

Defendants seek to dismiss Pierce's Sixth Claim for Relief alleging slander and slander per se, as inadequately pleaded. Specifically, Defendants maintains that actions for slander require that "the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally." N.Y. Civ. Prac. L. R. 3016[a]; See Forken v. CIGNA Corp., 651 N.Y.S.2d 824, 825-26 (4th Dep't 1996) (affirming grant of summary judgment in favor of defendants on defamation claim where complaint did not set forth particular words alleged to be defamatory and plaintiff failed to establish that any oral or written statement was untrue).

In the instant case, the Amended Complaint contains no allegation setting forth "the particular words complained of." N.Y. Civ. Prac. L. R. § 3016[a], however, does not apply to the Amended Complaint because pleadings filed in federal court are governed by Fed.R.Civ.P. 8 which requires, in pertinent part, only that "[e]ach averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required." Fed.R.Civ.P. 8(e)(1); Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir. 1986) (observing that failure to specifically state alleged libelous statement in complaint did not preclude court's consideration of whether such statement was actionable). Accordingly, that the Amended Complaint does not allege the particular words which Pierce maintains are actionable as slander per se is not fatal to the Sixth Claim for relief.

Nevertheless, summary judgment in favor of Defendants should be granted on the Sixth Claim for Relief claims because Pierce has failed to adduce any evidence establishing that Netzel published to third persons any false or defamatory statement as required for a claim of slander per se. Supan v. Michelfeld, 468 N.Y.S.2d 384, 387 (2d Dep't 1983) (holding that to establish claim for deprivation of liberty without due process based on slander per se, plaintiff must allege discharging employer made false charges impacting plaintiff's reputation or stigmatizing plaintiff's future employability and that charges were made public without providing plaintiff an opportunity to clear plaintiff's name). In particular, aside from conclusory and self-serving statements, the only evidence Pierce submits to establish that Netzel made statements concerning Pierce and constituting slander is an affidavit by Pierce's cousin Margaret Walton ("Walton") ("Walton Affidavit") in which Walton states in late 1997, Walton encountered Reverend Wayne Johnson ("Rev. Johnson"), who replaced Reverend Ferrell ("Rev. Ferrell") at the Facility in 1997, at a restaurant in Buffalo. Walton Affidavit ¶¶ 3-4. According to Walton, Rev. Johnson stated that Pierce and Rev. Ferrell were being investigated for homosexual activities that took place at the Facility. Walton Affidavit ¶¶ 4-5. Walton requested Rev. Johnson not to repeat the story as Walton did not believe it was true, but that Rev. Johnson ignored the request, explaining that he had seen photographs and videotapes of Rev. Ferrell engaging in homosexual conduct at the Facility and that Pierce was implicated in the "scandal" because Pierce knew of Rev. Ferrell's conduct and condoned it. Walton Affidavit ¶¶ 6-8. Walton advised Pierce of Rev. Johnson's statements, the veracity of which Pierce denied. Id. ¶ 9. Walton further maintain that in August 1998, Walton was informed by Reverend Wayne Wilcox ("Rev. Wilcox") that Rev. Johnson repeated the allegations concerning Rev. Ferrell to Rev. Wilcox. Id. ¶ 10. The Walton Affidavit, however, fails to establish any slander claim as against Netzel based on Netzel's conduct in communicating any defamatory information regarding Pierce.

Pierce Affidavit Exhibit D.

In particular, Walton's statements in the affidavit consists of hearsay statements, none of which qualify for any exception under the hearsay rule. Fed.R.Evid. 801(d). Moreover, nowhere within the Walton Affidavit are any of the alleged slanderous statements attributed to Netzel. Finnegan v. Board of Education of Enlarged City School District of Troy, 30 F.3d 273, 274-75 (2d Cir. 1994) (hearsay evidence is insufficient to avoid summary judgment). Accordingly, the Walton Affidavit is insufficient to meet Pierce's burden to avoid summary judgment on the Sixth Claim for Relief. The remaining evidence Pierce submits in opposition to summary judgment also fails to attribute any defamatory statements to Netzel.

Specifically, Pierce submits a transcript of a tape recorded interview of ECCF inmate Arthur Lee Perry ("Perry") conducted on September 11, 1997 ("Perry Interview"), a transcript of a deposition of Perry conducted on November 9, 1998 ("Perry Deposition") in connection with another, related case, in this court, i.e., Ferrell v. Netzel, 98-CV-009A(F), and the deposition of Pierce, conducted on June 12, 2002 ("Pierce Deposition"). Nowhere within such evidence, however, are any statements that, when viewed in the light most favorable to Pierce, both constitute slander and are attributable to Netzel. Rather, Perry, at his interview, described what Perry believed as homosexual overtures made by Pierce toward Perry. Perry Interview at 1-2, 6-8. However, Perry did not attribute these statements to Netzel but, rather, to Perry's own observations. Although Perry stated at his deposition that prior to commencing the September 11, 1997 interview, Netzel stated that Netzel wanted Pierce and Rev. Ferrell "out of there," Perry Deposition at 40, such statement by Netzel, even if true, is not defamatory in nature and, as such, does not constitute slander. Nor may it be reasonably construed as condoning or adopting Perry's comments about homosexual activity at ECCF and Pierce.

The Perry Interview, the Perry Deposition and the Pierce Deposition are respectively attached as Exhibits A, B and C to the Pierce Affidavit.

Furthermore, although Netzel is mentioned several times during Pierce's deposition testimony, such testimony is devoid of any slanderous statements attributable to Netzel. For example, Pierce, in reviewing his answers to Defendants' first set of interrogatories, corrects Pierce's earlier response that Netzel told New York Assemblyman Arthur O. Eve ("Eve"), that Netzel had a videotape of Pierce engaging in homosexual relations with ECCF inmates. Pierce Deposition at 16-18. Pierce replaced the response with one that did not attribute any defamatory statements to Netzel. Id. After making the correction, Assistant County Attorney Wheaton posed the following question to Pierce: "[d]id Arthur Eve tell you that Netzel had told him of those allegations, Mr. Pierce?" Id. at 17. Pierce replied, "[n]o, he did not." Id. Examples of other statements made by Pierce at his deposition regarding the alleged defamatory statements include statements by Netzel implicating Rev. Ferrell, but not Pierce, Pierce Deposition at 150-54 (explaining that Pierce wrote a letter to Rev. Ferrell apologizing for alleged false charges Netzel made against Rev. Ferrell to coerce Rev. Ferrell's resignation), a hearsay statement made by one Will Brown that Gorski had asked for Pierce's resignation following some unspecified allegations implicating Pierce, Pierce Deposition at 156-57, a conversation Pierce had with County Executive Joel Giambra following Giambra's election in which Giambra stated he had intended to appoint Pierce to a county position, but was hesitant to do so because Giambra had heard that Pierce was involved in a sexual scandal at the Facility, id. at 161-63, and that Netzel remarked during a meeting with Pierce and Rev. Johnson that Netzel had videotape showing Rev. Ferrell and unspecified others were involved in sexual activities, but that it was Rev. Ferrell who later stated that Pierce was one of the "others" involved. Id. at 181-83. Significantly, nowhere within the transcript of Pierce's deposition testimony does Pierce himself state that Netzel made defamatory statements against Pierce.

Absent any evidence supporting Pierce's conclusory assertions in the Amended Complaint that Netzel published defamatory statements about Pierce, summary judgment should be granted in favor of Defendants on the Sixth Claim for Relief. Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996) ("[M]ere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment."); See Byrnie v. Town of Cromwell, Board of Education, 243 F.3d 93, 100 (2d Cir. 2001) (to defeat summary judgment where facts are disputed, the nonmoving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor).

Defendants assert in the alternative that if Pierce had presented any evidence establishing that Netzel published to third parties statements that defamed Pierce, such statements would qualify as privileged communications and shielded from litigation because the statements would have been made in furtherance of an investigation into conduct at the ECCF in which both Pierce and Netzel, as employees of the Facility, had an interest. Defendants' Memorandum at 24-28. According to Defendants, Pierce's allegations relative to the slander per se claim all pertain to an investigation Netzel undertook in connection with complaints regarding improper conduct by certain Facility employees. Id. Pierce argues in opposition to summary judgment that Defendants' privilege argument is without basis as no privilege shield the dissemination of false statements to the public. Plaintiff's Response at 15.

New York law shields from litigation certain communications, though possibly defamatory, where such communications serve the public interest, rather than risk stifling such communications altogether. Liberman v. Gelstein, 605 N.E.2d 344, 349 (N.Y. 1992). The so-called "common interest privilege" applies to "a communication made by one person to another upon a subject in which both have an interest." Id. The privilege will be upheld provided that the flow of information shielded is between persons sharing a common interest. Id.

In the instant case, the alleged defamatory statements would be shielded under the common interest privilege provided Netzel made such statements only in the course of investigating allegations of misconduct within the Facility and only to such persona having a common interest in the fruits of the investigation. Insofar as such statements are alleged to have been communicated by Netzel to those who did not share an interest in such investigation, such as Rev. Johnson and Assemblyman Eve, Defendants have not explained how such communications were in furtherance of any investigation and to persons having a common interest in the investigation and, as such, the communications would not be shielded from the instant litigation.

Accordingly, summary judgment should be GRANTED in favor of Defendants on Pierce's Sixth Claim for Relief alleging slander per se as Pierce has failed to offer any evidence establishing that Netzel published defamatory statements. Alternatively, Defendants' assertion that any alleged defamatory statements published by Netzel regarding Pierce should not be considered as privileged insofar as such alleged statements were published to others who did not share any interest in the outcome of the investigation into sexual misconduct at the Facility.

3. Seventh Claim for Relief — Intentional Infliction of Emotional Distress

The record is also devoid of any evidence supporting Pierce's Seventh Claim for Relief against Netzel alleging intentional infliction of emotional distress by maliciously devising and disseminating false accusations against Pierce, supported by fabricated evidence to ruin Pierce's reputation. Amended Complaint ¶ 183. Pierce maintains that such conduct was "grossly dishonest, shocking to the conscience, unconscionable and outrageous," was without justification and caused Pierce to sustain "severe and permanent emotional and psychological injuries, and resultant physical injuries and manifestations." Id. ¶¶ 184-86. Defendants maintain that the only evidence that Pierce has submitted regarding Netzel's conduct concerns actions undertaken by Netzel in investigating allegations made against Pierce and which cannot "shock the conscience." Defendants' Memorandum at 28. Pierce argues in opposition to summary judgment that Netzel is alleged to have abused his power as ECCF Superintendent, thereby rendering Netzel's actions sufficient to intentionally inflict emotional distress against Pierce. Plaintiff's Response at 28. 20-22.

A cause of action for intentional infliction of emotional distress must allege conduct "`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.'" Murphy v. American Home Prods. Corp., 448 N.E.2d 86, 90 (N.Y. 1983) (quoting Restatement [Second] of Torts § 46, comment d). To establish a claim for intentional infliction of emotional distress under New York law, a plaintiff must prove: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. Howell v. New York Post Co., 612 N.E.2d 699, 702 (N.Y. 1993).

As discussed in connection with Pierce's slander per se claim, Pierce has failed to submit any evidence attributing any statements defaming Pierce to Netzel. Accordingly, there is no basis for an intentional infliction of emotional distress claim based on Netzel's alleged slanderous statements. Further, insofar as Pierce maintains that Netzel concocted false allegations against Rev. Ferrell and Durham, abused the commissary account fund, discontinued certain programs and practices at the Facility that were popular with minority inmates, such as forbidding the use of certain hair care methods favored by African-American females, curtailing Protestant religious services which were more popular with African-American inmates than with white inmates, suppressing African-Americans' participation in the Protestant church services choir, and discontinuing the observation of Black History Month and Martin Luther King Jr.'s birthday, such actions, even if true, do not support Pierce's intentional infliction of emotional distress claim as the conduct was not directed toward Pierce. Accordingly, summary judgment in favor of Defendants should be GRANTED with regard to Pierce's Seventh Claim for Relief alleging intentional infliction of emotional distress.

CONCLUSION

Based on the foregoing, Defendants' motion for summary judgment (Doc. No. 60) should be GRANTED, and the Clerk of the Court should be directed to close the file.

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

ORDERED that this Report and Recommendation be filed with the Clerk of the Court.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of service of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.

Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).

Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiffs and the Defendants.

SO ORDERED.


Summaries of

Pierce v. Netzel

United States District Court, W.D. New York
May 10, 2004
98-CV-532A(F) (W.D.N.Y. May. 10, 2004)
Case details for

Pierce v. Netzel

Case Details

Full title:EUGENE L. PIERCE, Plaintiff, v. FREDERICK NETZEL, Individually, and as…

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

Date published: May 10, 2004

Citations

98-CV-532A(F) (W.D.N.Y. May. 10, 2004)

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