Moriates v. NYC Dept. of Environmental Protection et al
Filing
55
MEMORANDUM AND ORDER, For the foregoing reasons, Moriates has failed to state a sec. 1983 claim for First Amendment retaliation upon which relief could be granted. The amended complaint is dismissed in its entirety, with prejudice. The Clerk of Court is directed to enter judgment accordingly and to close this case. (Granting Defts 38 Motion to Dismiss for Failure to State a Claim) Ordered by Judge Eric N. Vitaliano on 6/15/2016. c/m Fwd. for Judgment. (Galeano, Sonia)
I
FiLEJJ
us oi~r~T2:~souOFrtcT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------x
STACEY MORIATES,
*
ATE.DNY
JUN 2~ 2016 -~
""
BROOKLYN OFFICE
Plaintiff,
MEMORANDUM & ORDER
-against13-cv-4845 (ENV) (LB)
THE CITY OF NEW YORK, NEW YORK CITY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION, EMILY LLOYD, CARTER
STRICKLAND, JR., STEVEN LA WITTS, ZOE
ANN CAMPELL, CARLA LOWENHEIM, PERSIS
LUKE, and MICHAEL GILSENAN,
Defendants.
-----------------------------------------------------------------x
VITALIANO, DJ.,
Plaintiff Stacey Moriates brings this suit against the City of New York (the "City"), its
Department of Environmental Protection ("DEP"), and various of its employees and agents,
pursuant to 42 U.S.C. § 1983, alleging violations of her First Amendment rights. Moriates
initially proceeded pro se on a Title VII and New York City Human Rights Law ("HRL") theory.
That initial complaint was dismissed with leave to replead. She then secured counsel, who filed
an amended complaint on February 18, 2014, adding new defendants and changing her theory of
liability. ECF Dkt. No. 26. Defendants now move to dismiss on the grounds that: (1) Moriates
failed to comply with the order on repleading; (2) her new allegations, which added new
defendants, are time-barred and the relation-back doctrine is inapplicable; and (3) she fails to
state a claim upon which relief could be granted. For the reasons that follow, the motion is
granted.
Background
Moriates has been a DEP employee for over 35 years. Amended Complaint ("Compl.") ~
1
6. She strings together a slew of allegedly adverse employment actions dating back to February
20, 1986, when she was subpoenaed to appear at a New York State Division of Human Rights
hearing on behalf of another DEP employee. Id. at 7. She was, she says, removed from her
agency position two weeks later, and "felt and believed that she was blacklisted" from other
opportunities. Id. at 9. She goes on to catalogue other ancient slings and arrows: in March 1991,
her office was vandalized; in December of2007, she was falsely implicated in an incident
involving lewd photos; in March of2008, an e-mail circulated wrongly accusing her of criminal
conduct; and in December 2008, she applied for a position as Executive Director of the Division
of Emergency Response and Technical Assessment, but was never interviewed. Id. at 10-13.
More recently, Moriates claims that, on May 18, 2010, she testified at a hearing held by
the Office of Administrative Trials and Hearings ("OATH") on behalf of DEP employee Viktor
Berlyavsky, who was charged with violating haz.ardous materials regulations. Id. at 14. On May
26, 20 I 0, plaintiff says she testified at a second OATH hearing, this time on behalf of coworker
Olga Zubkova, regarding alleged bullying by Zubkova's supervisor. Id. at 15. Retaliatory
behavior, she claims, followed. Two days after Zubkova's hearing, Moriates applied for the
position of Assistant Commissioner of Environmental Health & Safety, but was not interviewed.
Id. at 16. In October of 2010, Mori ates was interviewed for a different position, Assistant
Commissioner for Green Infrastructure, but was informed all applicants needed a particular
license, and was told to "go get a PE license!" Id at 17. She claims that, in March of the
following year, she discovered two-thirds of her personnel file was missing. Id. at 18. Then, in
August of 2011, she was "uncharacteristically ordered to report to a high crime area during a
hurricane, and denied use of a DEP vehicle by numerous supervisors, including Lawitts." Id. at
19. In November 2011, a supervisor, Luke, allegedly "made false statements about the
2
circumstances regarding the failure to authorize said vehicle to Moriates." Id at 20.
Moriates testified once more on behalf of Berlyavsky, this time at a disciplinary hearing,
on August 21, 2013, regarding an alleged violation of agency policy that DEP employees could
not remain at DEP facilities after work hours. Id. at 22. On August 28, 2013, supervisor
Gilsenan instructed Moriates that, pursuant to the same policy, she could no longer remain in the
office after work hours, "though said policy was not enforced as against any other DEP
employee." Id
Standard of Review
Federal Rule of Civil Procedure 8(a)(2) requires a "short and plain statement of the claim
showing that the pleader is entitled to retie£" A litigant need not supply "detailed factual
allegations" in support of his claims, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007), but she must provide more "than an unadorned, thedefendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009). "A pleading that offers 'labels and conclusions' ... will not
do." Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked
assertion[s]' devoid of 'further factual enhancement."' Id. at 678 (quoting Twombly, 550 U.S. at
557).
To survive a Rule 12(b) motion, the complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face."' Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). This "plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Id. (quotations omitted). On a Rule 12(b)(6) motion, the trial court must accept as true all factual
statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving
3
party. Vietnam Ass 'nfor Victims ofAgent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.
2008) (quotation omitted). In addition, the district court "may consider any written instrument
attached to the complaint, statements or documents incorporated into the complaint by reference
... and documents possessed by or known to the plaintiff and upon which [he] relied in bringing
the suit." ATS! Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation
omitted).
Discussion
I.
The Scope of Repleading
As a doorstep matter, defendants argue the amended complaint should be dismissed in its
entirety because, in changing her entire theory of liability and dropping all prior Title VII and
HRL claims, she exceeded the scope of leave given to replead. The Memorandum and Order
granting leave stated the "complaint is dismissed with prejudice as to [plaintiffs] Title VII
claims against the individual defendants and as to all claims against the Department of
Correction[], but otherwise without prejudice, and with leave to amend should she be able to do
so in good faith." Mem. & Order, p. 10 (dated Dec. 18, 2014), ECF Dkt. No. 23. Yet, in their
microscopic parsing of the leave grant, defendants fail to come to grips with the reality that
Moriates proceeded pro se at the time. For pro se litigants, broad leave to replead is generally
appropriate, since they lack the legal acumen and experience to differentiate successful claims
from unsuccessful ones. See Cruz v. Gomez, 202 F.3d 593, 597-98 (2d Cir. 2000) (holding that
pro se plaintiff should be afforded opportunity to amend "unless the court can rule out any
possibility, however unlikely it might be, that an amended complaint would succeed in stating a
claim.") (quoting Gomez v. USAA Fed Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)).
Moriates has since acquired counsel, who, it seems, strategically chose to abandon her
4
original claims and, instead, pursue a theory of§ 1983 First Amendment whistleblower liability.
It would be needlessly punitive to prevent Moriates, whose prose complaint failed to identify
relevant legal violations, from setting forth a viable legal theory rooted in precisely the same set
of facts and circumstances. That being the case, moreover, the legal support for defendants'
doorstep argument is inapposite. To the point, Palm Beach Strategic Income, L.P. v. Salzman,
457 F. App'x 40, 43 (2d Cir. 2012), Bravo v. Established Burger One, LLC, No. 12-CV-9044
(CM), 2013 WL 5549495, at *5 (S.D.N.Y. Oct. 8, 2013), and Pagan v. New York Stale Div. of
Parole, No. 98 CIV. 5840 (FM), 2002 WL 398682, at *3 (S.D.N.Y. Mar. 13, 2002) 1 do not
involve prose plaintiffs. Grimes v. Fremont Gen. Corp., 933 F. Supp. 2d 584, 595, 597 n.5
(S.D.N.Y. 2013) is the only case cited by defendants that involved prose plaintiffs, but in that
case, plaintiffs were on their third amended complaint, which was over 300 pages and included
over 1000 numbered paragraphs. The facts are hardly similar, and each of those cases involved a
specific limiting instruction from the court-an instruction that is absent here. At bottom, any
repleading violations by plaintiff do not warrant dismissal.
II.
The Newly Added Defendants
Defendants next press that the amendments, particularly the claims against the newly
added defendants, 2 are time-barred, because the new allegations do not relate back to the original
complaint. The statute of limitations period for a § 1983 claim is the same as for a personal
1
Pagan was represented by counsel when granted limited leave to amend, though the attorney
eventually withdrew.
2
Notice is taken that the new defendants have not appeared in the action, and the amended
complaint does not appear to have been served upon them. The failure of plaintiff's counsel to
serve the amended complaint on the new defendants would ordinarily and independently warrant
Rule 12(b)(5) dismissal. Given that the complaint will be ordered dismissed with prejudice on
other grounds, there is no need to reach this issue.
s
injury action, which, as provided in New York C.P.L.R. § 214, is three years. See Owens v.
Okure, 488 U.S. 235, 250 (1989); Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997) (applying
New York's three-year statute of limitations to § 1983 claim). Moriates's initial complaint was
filed on August 28, 2013, while the amended complaint was filed on February 18, 2015. ECF
Dkt. Nos. 1, 26. At the very least, Moriates's grievances, to the extent they might be
characterized as First Amendment violations, predating August 28, 2010-particularly those
from 30 years ago-are, on their face, time-barred. 3
The remaining claims need not be subjected to a relation-back examination because, even
if they did relate back, Moriates fails to plead that any of the newly added defendants were
personally involved in any alleged adverse employment actions that violated her constitutional
rights. A plaintiffs failure to make any allegations against a defendant she has named is fatal to
her claims against that defendant. Fed. R. Civ. P. 8. Moriates has, assuredly, failed to allege
facts sufficient to allow the defendants to have a fair understanding of what she is complaining
about and to enable them to determine whether there is a possible legal basis for recovery. See
Bell Atlantic Corp., 550 U.S. at 555 (Rule 8 imposes the requirement that a plaintiffs pleadings
3
Moriates contends in sur-reply that she is subject to continued retaliation, and that all taken
together, the 30 years of discrete actions toll the statute of limitations as continuing violations.
Pl. Sur-Reply, p. 2, ECF Dkt. No. 49. This has no plausible basis in fact. Moriates attaches a
hefty stack of exhibits (referred to only as "additional evidence"). The first, a partial email
thread, shows only that her supervisor needed more information before certifying union release
time. The second is a proposed third amended complaint from an entirely different action-a
complaint, it is noted, that was never accepted for filing because that plaintiff was denied leave
to amend yet again. See Berlyvasky v. New York City, et al., 14-CV-3217 (KAM) (RER), ECF
Dkt. No. 100 (reconsideration denied, ECF Dkt. No. 118). The third is discovery disclosures
from this action. The fourth is a copy of documents related to a union grievance and request for
arbitration. It is puzzling, on any objective basis, why or how these documents should be
construed as advancing the tolling argument. In any case, the Court has, certainly, reviewed the
documents, which merely confirm the conclusion that the tolling argument is without merit, and
that further leave to amend would be futile.
6
"give the defendant fair notice of what the . . . claim is and the grounds on which it rests"
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); Ricciuti v. NYC Trans. Auth., 941F.2d 119,
123 (2d Cir. 1991).
Defendants Emily Lloyd, Steven La Witts, Carla Lowenheim, Persis Luke, and Michael
Gilsenan are not identified in any of the factual allegations beyond stating that they were
supervisors at various relevant times. The only references to Luke are his selection for a position
that Moriates applied for, and an allegation that he had made (unidentified) false statements
regarding a failure to authorize a vehicle. Compl. ,,16, 20. Gilsenan is only referenced in that
he instructed Moriates she could not stay at work past her shift. Id , 22. LaWitts appears once,
as one of "several" supervisors who denied her use of a D EP vehicle. Id. , 19. Lowenheim is
mentioned as a cross-examiner at the 1986 DEP hearing. Id. ~ 7. Lloyd is not mentioned at al.
There is no indication of how any of the new defendants knew of the alleged protected speech or,
more critically, were involved, or responsible for, any adverse employment action taken in
violation of her First Amendment rights. Having failed to plead a connection between these
individuals and the alleged retaliatory conduct, Moriates's claims against them must be
dismissed.
Finally, because the Department of Environmental Protection and the City of New York
are not "persons" within the meaning of§ 1983, all § 1983 claims against those entities are
dismissed. See Reynolds v. Darrah, No. 1 l-CV-5885 (JGK), 2011 WL 4582430, at *I
(S.D.N.Y. Sept. 30, 2011) ("Jails, courts, corporations and law firms are not "persons" within the
meaning of§ 1983."). 4
4
Additionally, DEP is not an independently suable entity under the New York City Charter.
N.Y.C. Charter§ 396 (2009), available at
7
III.
First Amendment Claim
Only the claims against Campbell and Strickland, both defendants in the original
complaint, now survive. To state aprimafacie First Amendment retaliation claim, a complaint
must plausibly plead that a public employee, like plaintiff, must show that (1) she engaged in
constitutionally protected speech by speaking as a citizen on a matter of public concern; (2) she
suffered an adverse employment action; and (3) there was sufficient causal connection such that
the speech was a motivating factor in the employment decision. Cobb v. Pozzi, 363 F.3d 89, 102
(2d Cir. 2003). Moriates stumbles at the first step of the analysis. 5
Stepping up her game, Moriates pleads that she engaged in protected activity when she
appeared for two OATH hearings6 on behalf of fellow DEP employees, Berlyavsky and
http://www.nyc.gov/html/charter/downloads/pdf/citycharter2009 .pdf. In the absence of any
plausible argument as to the existence of any relevant City custom or policy, liability against the
City cannot be stated. See Monell v. Department o/Social Services, 436 U.S. 658, 691, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978).
5
Even if Moriates had identified protected speech, she has not adequately pied adverse
employment actions or causality. She accuses Strickland of "inappropriately yell[ing] at her" to
acquire a license she would need to be eligible for a sought-after position. Compl. ~ 17. "To
qualify as an adverse employment action, the employer's action toward the plaintiff must be
materially adverse with respect to the terms and conditions of employment. It must be more
disruptive than a mere inconvenience or an alteration of job responsibilities." Davis v. New York
City Dep 't of Educ., 804 F.3d 231, 235 (2d Cir. 2015) (internal quotation marks and citations
omitted). Yelling amounts, at best, to "those petty slights or minor annoyances that often take
place at work and that all employees experience." Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 (2006). To the extent Moriates pleads
that she was denied promotions, and notes that she believed Campbell had some ownership of
the personnel process, Compl. ~ 23, she fails to plead causality. The complaint does not accuse
Campbell of being personally involved in denying her any promotion, nor does it indicate that
Campbell knew, or had any reason to know, that Moriates had engaged in alleged protected
speech, let alone had any reason to discriminate against her for it.
6
Defendants argue, with supporting exhibits, that Moriates was never subpoenaed and testified
at only one OATH hearing, on behalf of Berlavsky. Def. Mem. of Law, pp. 4-6, ECF Dkt. No.
40. The OATH hearings in May of2010 relating to Berlavsky and Zubkova were, defendants
8
Zubkova. Id. at 14-15. But by her own pleadings, she also acknowledged that she did not
engage in protected activity. Moriates explains that the first hearing, on May 18, 2010, was in
support ofBerlavsky, "who was charged with violating hazardous materials regulations based on
perjured testimony of Luke and his colleagues." Compl. ~ 14. Similarly, the May 26, 2010
hearing was in regards to "bullying by [Zubkova's] supervisor and Deputy Commissioner
Angela Licata." Id. at 15. Lastly, on August 21, 2012, Moriates says she testified again on
behalf of Berlyavsky "at a disciplinary hearing regarding the violation of a policy that DEP
employees were not permitted to remain at DEP facilities after work hours." Id at 22.
What plaintiff said at these hearings, why she appeared at all, or why anyone would want
to retaliate against her for that speech, is left to the imagination. The totally untethered nature of
these snippets of facts is fatal, especially since not all public employee speech is protected by the
First Amendment. To be protected, speech must ''advance a public purpose," not merely
"redress a personal grievance." Ruotolo v. City ofNew York, 514 F.3d 184, 189 (2d Cir. 2008).
There is not the slightest hint in the pleadings of how testimony in a disciplinary hearing
"relat[es] to any matter of political, social, or other concern to the community." Connick v.
Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708 (1983). As the Supreme
Court held, "government officials should enjoy wide latitude in managing their offices, without
intrusive oversight by the judiciary in the name of the First Amendment." Id. Similarly, "speech
on a purely private matter, such as an employee's dissatisfaction with the conditions of his
employment, does not pertain to a matter of public concern." Lewis v. Cowen, 16,5 F.3d 154, 164
(2d Cir. 1999). Indeed, even ifMoriates spoke out on unlawful discriminatory conduct against
claim, actually internal DEP Step II disciplinary grievance hearings. Id Plaintiff concedes that
this is the case. See Pl. Opp., p. 5, ECF Dkt. No. 42. The disputed distinctions are of no import.
Regardless of whether the hearings were Step II or OATH proceedings, the result is the same.
9
her coworkers, objecting to individualized discrimination is not protected First Amendment
speech because it is "not connected to any broader policy or practice and thus, do[ es] not raise a
public concern of systemic discrimination." Norton v. Breslin, 565 F. App'x 31, 34 (2d Cir.
2014).
Plaintiffs reliance on Lane v. Franks, 573 U.S.---, 134 S. Ct. 2369, 2378, 189 L. Ed. 2d
312 (2014) is woefully misplaced. The plaintiff in Lane provided sworn testimony in open court,
compelled by subpoena, at a criminal proceeding against a corrupt government official. Nothing
of the sort is, or, the record suggests, could be, pied here. All that can be gleaned from these
bare allegations is that Moriates appeared on behalf of coworkers at disciplinary hearings
relating to workplace policy violations. Given the complete failure to identify what Moriates
said at these hearings or why, it is impossible to know if she spoke on a matter of public concern.
Plaintiffs characterization of these hearings, and that they were internal disciplinary actions,
make it deeply improbable that these episodes involved matters of public concern. The short of
it is that plaintiffs conclusory allegations about matters which are not of "public concern" do not
plausibly plead a§ 1983 First Amendment retaliation claim. 7
IV.
Amendment Would Be Futile
Reaching for the blunderbuss, Moriates attempts to cure some of these deficiencies in her
opposition, by explaining that the OATH hearings were, as noted by defendants, internal Step II
disciplinary proceedings, and that she appeared at these proceedings on behalf of her coworkers
as a union representative. 8 Pl. Opp., p. 5. She contends further that, because Berlyavsky's
7
Truly, if all of the claims interposed in the amended complaint had survived other defects, they
all would have failed here.
8
The new facts and details still fail to articulate how being a union representative converts her
10
0
disciplinary action related to hazardous materials, her testimony related to public safety and was
of public concern. This argument is meritless. The subject of the hearing was that Berlyavsky
had endangered public safety by violating regulations, and Moriates spoke in support of him, not
the public. The documents attached to plaintiffs sur-reply are similarly unavailing.
Lamely, plaintiff seeks a third bite out of the apple. Leave to amend to add the sur-reply
allegations would not, however, cure the complaint's deficiencies. To extent it appears plaintiff
moves to amend again, that motion is denied.
Conclusion
For the foregoing reasons, Moriates has failed to state a § 1983 claim for First
Amendment retaliation upon which relief could be granted. The amended complaint is dismissed
in its entirety, with prejudice.
The Clerk of Court is directed to enter judgment accordingly and so close this case.
So Ordered.
Dated: Brooklyn, New York
June 15, 2016
-
-~-------
/31
/
us DJ erq c ~.
----------
11 tffri.t tnSD
ERIC N. VITALIANO
United States District Judge
speech, whatever it may have been, into that of public import. See Nielsen v. Rabin, 146 F.3d
58, 62 (2d Cir. 2014) (denying leave to amend where it would be futile) (quoting Tocker v. Philip
Morris Cos., 470 F.3d 481, 491 (2d Cir. 2006)).
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?