Martinez v. O'Leary et al
MEMORANDUM AND ORDER. The claims against the Department of Correction are dismissed and summary judgment is granted in favor of the City of New York and all of the individual defendants. The Clerk of Court is directed to enter Judgment accordingly and to close thecase. Ordered by Judge Eric N. Vitaliano on 6/28/2013. Forwarded for judgment. (Siegfried, Evan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
-againstI :11-CV-1405 (ENV)(JO)
ROBERT M. O'LEARY, Assistant Commissioner,
Trials &Litigation Division for the New York City
Department of Correction, JOHN ANTONELLI,
Deputy Commissioner for the New York City
Department of Correction, ALAN VENGERSKY,
Deputy Commissioner, Department of Personnel for
the Department of Correction, LARRY DAVIS, Chief:
of the Department for the New York City Department:
of Correction, THE NEW YORK CITY
DEPARTMENT OF CORRECTION, and DORA
SCHRIRO, Commissioner For the New York City
Department of Correction,
Plaintiff Katherine Martinez brings claims pursuant to 42 U.S.C. § 1983 and state
law alleging that defendants the New York City Department of Correction ("DOC") 1 and five of
its employees-Assistant Commissioner Robert O'Leary, Deputy Commissioner John Antonelli,
Deputy Commissioner Alan Vengersky, Chief of Department Larry Davis, and Commissioner
Dora Schriro-violated her rights by causing her to enter into a "constitutionally defective"
contract and terminating her employment without a hearing. Defendants now move for summary
judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the
motion is granted.
For the reasons discussed infra, the Clerk of Court is directed to amend the c~ption to substitute
the City of New York (the "City") for the New York City Department of Correction as
Martinez joined DOC as a correction officer in 2001. (P. Rule 56.1 Strnt. '1[1.)
The parties do not dispute that she achieved tenured status, nor do they disagree that Martinez
was often battling with those in supervision, accumulating several Command Disciplines as well
as other Charges and Specifications, during her nine years of employment. 2 (P. Rule 56.1 Stmt.
'1['1[7-9, 13, 16, 22, 27-28, 35.) Martinez was not without remedy. Hearings were held to
adjudicate the allegations giving rise to the Command Disciplines, but plaintiff entered into two
''Negotiated Plea Agreements" ("NPAs") to settle the more formal Charges and Specifications
without a final adjudication. (P. Rule 56.1 Stmt. '1['1[11, 14, 17, 23, 29, 36.)
At issue in this action is the fallout from an NPA that Martinez signed, with the
advice of counsel, on January 21,2009 ("2009 NPA"). (Seacord Dec., Ex. 0.) In accordance
with its terms, Martinez agreed to the "forfeiture of sixty (60) vacation days plus two (2) years
limited probation, limited to false statements, reports and testimony and limited to sick leave
rules, regulations, and directives." (Seacord Dec., Ex. 0.) In addition, she signed a statement
indicating her understanding that she "[had] waived [her] rights as a tenured employee for this
probationary period and [subjected herself] to termination as any other probationary employee."
(Seacord Dec., Ex. 0.)
Martinez continued to work for DOC until August 25, 2010, when she was
terminated without notice or hearing. 3 (P. Rule 56.1 Stmt. '1[46.) Defendants justify the
Defendants describe Command Discipline as an "informal, nonadversarial form of punishment
that is used to adjudicate minor violations of DOC Rules and Regulations." (D. Rule 56.1 Strnt.
'1[1 0. Charges and Specifications constitute more formalized charges, for which tenured DOC
employees were entitled to a hearing pursuant to state law. See N.Y. Civ. Serv. Law§ 75
The record reflects that DOC resolved the only disciplinary charge directed at Martinez in the
intervening 20 months. On March 12,2009, plaintiff received a Command Discipline for four
decision to proceed without a hearing by citing two alleged transgressions that they claim fall
within the four corners of the limited probation created by the 2009 NPA. (D. Rule 56.1 Strnt. ~
44.) First, they rely on a purported false report, in which Martinez represented that she had not
taken a meal break during her tour on December 15, 2009 when she allegedly did take such a
break. (D. Rule 56.1 Stmt. ~ 37-41.) Second, defendants claim that Martinez violated the sick
leave rules and regulations by missing a scheduled appointment at DOC's Health Management
Division ("HMO") and failing to inform anyone that she would not be able to attend. (D. Rule
Plaintiff challenges her termination on due process grounds, contending that,
notwithstanding the 2009 NPA, she had a constitutionally protected property interest in her job
that entitled her to a hearing in advance of being fired. In addition, she claims that the 2009
NPA was "constitutionally defective," because it contained conflicting material terms, or,
alternatively, that, by merely permitting her to enter into the 2009 NPA, as distinguished from
being terminated in accordance with its terms, a constitutionally-protected interest was violated.
On top of her federal claims, Martinez advances state law claims, namely breach of contract and
three causes of action for intentional, negligent, and reckless infliction of emotional distress.
Standard of Review
A motion for summary judgment is granted only if "the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
alleged offenses, including submitting a false report. (P. Rule 56.1 Strnt. ~ 35; D. Rule 56.1
Stmt., Ex. P.) Upon investigation, DOC determined that it could substantiate only two
allegations: leaving an assigned post and failing to comply with a directive concerning the
Emergency Health Care log. (D. Rule 56.1 Strnt., Ex. P.) As a penalty, Martinez was required to
forfeit two vacation days. (P. Rule 56.1 Strnt. ~ 35.)
56( c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A court's responsibility in
assessing the merits of a summary judgment motion is thus not to try issues of fact, but rather to
"determine whether there are issues of fact to be tried." Sutera v. Schering Corp., 73 F .3d 13, 16
(2d Cir. 1995). Accordingly, the moving party bears the burden of demonstrating that there is no
genuine issue as to any material fact, see, e.g., Jeffreys v. City ofN.Y, 426 F.3d 549, 554 (2d Cir.
2005), and the motion court must resolve all ambiguities in the evidence and draw all permissible
factual inferences in favor of the party opposing the motion, see, e.g., Sec. Ins. Co. of Hartford v.
Old Dominion Freight Line. Inc., 391 F.3d 77,83 (2d Cir. 2004); Hetchkop v. Woodlawn at
Grassmere, Inc., 116 F .3d 28, 33 (2d Cir. 1997) ("If, as to the issue on which summary judgment
is sought, there is any evidence in the record from which a reasonable inference could be drawn
in favor of the opposing party, summary judgment is improper.").
I. Department of Correction
Martinez's claims against DOC must be dismissed as a matter of law, because a
City agency cannot be sued. N.Y. City Charter ch. 17, § 396; see Brewton v. City ofNew York,
550 F.Supp.2d 355, 368 (E.D.N.Y.2008); Echevarria v. Dep't ofCorr. Servs., 48 F.Supp.2d 388,
391 (S.D.N.Y.l999). Furthermore, there being a clear identity of interest between the two,
pursuant to Rule 21, the City is substituted sua sponte for DOC, and the Clerk of Court is
directed to amend the caption accordingly.
2. Individual Defendants
Martinez does not specify in her Complaint whether she has sued O'Leary,
Antonelli, Vengersky, David, Schriro in their individual or official capacities. Defendants
consistently have interpreted the complaint to name the individually-named defendants only in
their official capacity, see, e.g., Martinez v. 0 'Leary, I: 11-CV-1405 (Docket No. 2), without
documented objection from Martinez. They now urge the Court to adopt their interpretation,
citing primarily Martinez's failure to affect service upon the individually-named defendants in
their individual capacity.
When a suit is brought "against a governmental officer as an individual, rather
than as an official, then service of the papers on the chief executive officer of the governmental
entity will be insufficient to confer jurisdiction over the individual, who must be served as would
any other individual defendant." C. Wright & A. Miller, Federal Practice and Procedure § 1109
at 45-46; see also Norwoodv. Salvatore, 2013 WL 1499599 (N.D.N.Y. 2013); Polite v. Town of
Clarkstown, 60 F. Supp. 2d 214 (S.D.N.Y. 1999). Martinez has not filed proof of service upon
the individually-named defendants in their individual capacity as is required by Rule 4(1)(1). 4
Nor has she in any way contested defendants' argument, fortified by the absence of individual
service, that the individual defendants have been sued solely in their official capacity. Therefore,
for all of these reasons, including the absence of individual service of process, the Court
interprets Martinez's complaint to state claims against the individually-named defendants only in
their official capacity.
That decision has consequences. "[T]he real party in interest in an officialcapacity suit is the governmental entity and not the named official." Hafer v. Melo, 502 U.S. 21,
25 (1991). As such, "official-capacity suits generally represent only another way of pleading an
action against an entity of which an officer is an agent." Hafer v. Melo, 502 U.S. 21, 25 (1991).
"Courts routinely dismiss official capacity claims where the plaintiff also sues the municipality.
Plaintiff also failed to file affidavits providing service upon DOC or the individually-named
defendants in their official capacity. However, defendants have acknowledged service by
appearing in this action.
See, e.g., Nabatkhorian v. County ofNassau, 2013 WL 1233247 at *5 (E.D.N.Y. 2013); Thomas
v. Venditto, 2013 WL 653962 at *9 (E.D.N.Y. 2013); Volpe v. Nassau Cnty., 2013 WL 28561 at
*13 (E.D.N.Y. 2013). Accordingly, the§ 1983 claims against the individually-named defendants
in their official capacity are hereby dismissed.
3. Section 1983
To establish a valid claim for deprivation of due process under 42 U.S.C. § 1983,
a plaintiff must first demonstrate that defendant deprived her of a constitutionally protected
liberty or property interest. See Finley v. Giacobbe, 79 F.3d 1285, 1269 (2d Cir. 1996).
Martinez proffers sufficient evidence to demonstrate that she was not afforded process in
advance of her termination. However, "[t]here is no constitutional violation, and thus no
available § 1983 action, when a plaintiff has access to an adequate state post-deprivation
procedure to remedy a random, arbitrary deprivation of property or liberty." David v. City of
New York, No. 06 CV 3323, 2007 WL 2973695 (E.D.N.Y. Sept. 28, 2007) (internal citations
The Second Circuit has endorsed state court Article 78 review as a sufficient postdeprivation remedy in the context of a deprivation claim based on a change in employment
status. 5 See Byrne v. Ceresia, 503 F. App'x 68, 69 (2d Cir. 2012). Indeed, numerous similarly
While the Second Circuit has found post-deprivation relief to be insufficient "where the
deprivation was caused by high-ranking officials who had final authority over the decisionmaking process," the exception does not apply to Martinez's claim. New Windsor Volunteer
Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 116 (2d Cir. 2006). Martinez does not proffer
an iota of evidence suggesting that any of the individuals involved in her termination were
imbued-statutorily or otherwise-with policy-making authority. Moreover, even if she had, the
exception would not be appropriate in this instance. Martinez does not deny that she signed the
2009 NDA. Even a high-ranking official should have had the right to rely on the executed
agreement. At the time DOC officials exercised DOC's rights under the 2009 NPA, plaintiffs
employee records reflected that she had entered into the contract knowingly with the advice of
counsel in the course of settling an earlier disciplinary matter. Bluntly, those records showed
situated aggrieved public employees have availed themselves of the remedy following
termination pursuant to a limited probation agreement. See e.g., Bradfordv. New York City
Dep't of Correction, 867 N.Y.S.2d 403 (lst Dep't 2008); Tankard v. Abate, 624 N.Y.S.2d 161
(1st Dep't 1995).
Accordingly, because Martinez could have challenged her termination
through an Article 78 proceeding, fully vindicating her constitutional right to due process, she
was not deprived of that right by any act or omission of the City, and her claim to the contrary
4. Breach of Contract
Martinez alleges that defendants breached the 2009 NPA by terminating her
without a hearing, even though she did not violate the terms of her limited probation.
Defendants argue that the nature ofthe conduct giving rise to Martinez's claim limits her to relief
under Article 78 of the New York Civil Practice Law and Rules. Further, they contend that the
four-month statute of limitations for Article 78 proceedings elapsed months before Martinez
initiated the instant action, and, that, therefore, her claim must be dismissed as untimely.
As the Court observed supra, in New York, there is absolutely no doubt that
regardless of how the claim may be styled or identified in the complaint, Article 78 applies to
claims, like those of Martinez, asserting a grievance arising out of a public employment
that she signed a document clearly stating that she "subject[ed] [herself] to termination as any
other probationary employee." Indeed, requiring a pre-deprivation hearing even though the
aggrieved employee signed a NP A waiving the right to a hearing would render NP As a nullity.
There is no plausibly pleaded fact, much less evidence of it, that the City intentionally enters into
involuntary or defective NPAs as part of a policy to defeat the due process rights of employees.
Plaintiffs principal claim of constitutional invalidity in her executing the 2009 NP A was that her
lawyer told her that in doing so she would not waive her hearing rights, a totally post-hoc naked
assertion. At the time of plaintiffs termination on charges within the bounds of her limited
probationary status and in the complete absence of any objective fact suggesting the 2009 NPA
was anything but knowing and voluntary, DOC was entitled to rely, for due process purposes, on
its terms, which accorded DOC the right to terminate Martinez on the charges alleged without a
relationship. Whether the public employee's claim is that a statute or contract right has been
breached, an "Article 78 proceeding is the proper vehicle to determine whether the law has been
lawfully applied, or [whether] ... certain government acts [are valid]." Bldg. Indus. Elec.
Contractors Ass'n v. City ofNew York, 2011 WL 3427138 (S.D.N.Y. 2011) aff'd, 678 F.3d 184
(2d Cir. 2012). A "contract" claim used as a vehicle for challenging the termination of a civil
servant on limited probation pursuant to the "contract" is "fundamentally premised upon the
contention that the administrative determination terminating  employment was wrongful."
Pagan v. Board of Educ. of City School Dist. of City ofNew York, 56 A.D.3d 330, 330 (1st Dep't
2008) (emphasis added). Consequently, the claim Martinez styles as a breach of contract action
"should [have been] brought in a proceeding pursuant to CPLR article 78" within the applicable
four-month limitations period. Todras v. City ofNew York, 11 A.D.3d 383, 384 (1st Dep't
2004). Martinez did not initiate the instant action until March 23, 2011, nearly seven months
after she was terminated. Her claim is, therefore, untimely, and the Court exercises supplemental
jurisdiction solely for the purpose of dismissing it.
5. Infliction of Emotional Distress
Finally, Martinez claims that, by terminating her without a hearing, defendants
intentionally, recklessly, and/or negligently inflicted emotional distress. 6 New York law sets
very strict pleading standards for these torts. Ahmed v. Gelfand, 160 F. Supp. 2d 408, 416
(E.D.N.Y. 2001). Liability lies only where conduct is "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." Bender v. City ofNew York, 78 F.3d
Martinez's first two claims reduce to a single cause of action, because "reckless conduct is
encompassed within the tort denominated intentional infliction of emotional distress." Dana v.
Oak Park Marina, Inc., 230 A.D.2d 204, 208-09 (4th Dep't 1997).
787, 790--91 (2d Cir.l996). The record does not reflect that defendants engaged in any conduct
that comes close to rising to the level necessary to support claims for intentional or negligent
infliction of emotional distress. Accordingly, summary judgment is granted in the exercise of the
Court's supplemental jurisdiction.
For the foregoing reasons, the claims against the Department of Correction are
dismissed and summary judgment is granted in favor of the City of New York and all of the
The Clerk of Court is directed to enter Judgment accordingly and to close the
Dated: Brooklyn, New York
June 28, 2013
ERIC N. VITALIANO
United States District Judge
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