Jeune v. City University of New York et al

Filing 28

MEMORANDUM & ORDER granting 22 Defendants' Motions to Dismiss for Failure to State a Claim. The Court consolidates the Jeune, Wright and Fulcher actions for purposes of deciding these motions. For the reasons discussed in the attached Memora ndum and Order, the Court grants Defendants' motions to dismiss. The Jeune and Wright Second Amended Complaints are dismissed with prejudice, and the Fulcher Amended Complaint is dismissed without prejudice. Ordered by Judge Margo K. Brodie on 9/29/2017. (Hawkins, Salah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------JEAN JEUNE,
Plaintiff,

MEMORANDUM & ORDER
16-CV-1107 (MKB)

v.
RUDOLPH F. CREW, JERALD POSMAN,
DONOVAN ALLEN and BRIAN CLARKE,
Defendants.
--------------------------------------------------------------CORY WRIGHT,
Plaintiff,
16-CV-1108 (MKB)

v.
RUDOLPH F. CREW, JERALD POSMAN and
ESTHER HUNDLEY,
Defendants.
--------------------------------------------------------------WILLIAM FULCHER,
Plaintiff,

16-CV-2437 (MKB)

v.
RUDOLPH F. CREW, GARY JOHNSON,
SYLVIA KINARD, TANYA E. ISAACS, JERALD
POSMAN, DONOVAN ALLEN, BRIAN
CLARKE and ESTHER HUNDLEY,
Defendants.
---------------------------------------------------------------

MARGO K. BRODIE, United States District Judge:
On March 5, 2016, Plaintiffs Jean Jeune and Cory Wright commenced the abovecaptioned actions with almost identical allegations against Defendants Rudolph F. Crew, Jerald
Posman and Brian Clarke (the “Jeune Defendants”) and Defendants Crew, Posman and Esther
Hundley (the “Wright Defendants”), respectively. (Jeune Compl., Docket Entry No. 1; Wright
Compl., Docket Entry No. 1.) Several months later, on May 12, 2016, Plaintiff William Fulcher
commenced a similar action against Defendants Crew, Posman, Allen, Clarke, Hundley, Gary
Johnson, Sylvia Kinard and Tanya E. Isaacs (the “Fulcher Defendants”). (Fulcher Compl.,
Docket Entry No. 1.)1 Plaintiffs, current and former employees of the City University of New
York (“CUNY”), bring their respective actions pursuant to 42 U.S.C. § 1983, alleging that
Defendants, employees of CUNY during the relevant period, retaliated against Plaintiffs for
exercising their First Amendment rights when they complained about defects in the construction
of a building on CUNY’s Medgar Evers College campus. (See generally Jeune Compl., Wright
Compl, Fulcher Compl.) On March 20, 2016, Plaintiffs Jeune and Wright filed Amended
Complaints. (Jeune Am. Compl., Docket Entry No. 5; Wright Am. Compl., Docket Entry
No. 5.) After a pre-motion conference on June 17, 2016, Plaintiffs Jeune and Wright each filed a
Second Amended Complaint (“SAC”) and Plaintiff Fulcher filed an Amended Complaint. (Min.
Entry dated June 17, 2016; Fulcher Am. Compl., Docket Entry No. 17; Jeune SAC, Docket Entry
No. 18; Wright SAC, Docket Entry No. 16.)

1

The Court refers to all three plaintiffs collectively as “Plaintiffs” and likewise refers to
the Jeune Defendants, Wright Defendants and Fulcher Defendants collectively as “Defendants.”

2

Defendants move to dismiss2 the Jeune SAC with prejudice pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure and move to dismiss the Wright SAC and the Fulcher
Amended Complaint with prejudice pursuant to Rules 12(b)(2), 12(b)(5) and 12(b)(6) of the
Federal Rules of Civil Procedure.3 For the reasons discussed below, the Court: (1) grants the
motion to dismiss the Jeune SAC with prejudice, (2) grants the motion to dismiss the Wright
SAC with prejudice, and (3) grants the motion to dismiss the Fulcher Amended Complaint
without prejudice as described further below.
I.

Background
The facts alleged in the Jeune SAC, Wright SAC and Fulcher Amended Complaint are

assumed to be true for the purpose of deciding these motions, and, to the extent the facts between
the complaints overlap, the Court cites to the Jeune SAC for ease of reference.

2

The Court consolidates the Jeune, Wright and Fulcher actions solely for purposes of
deciding these motions.
3

(Jeune Defs. Mot. to Dismiss (“Jeune Defs. Mot.”), Docket Entry No. 22; Jeune Defs.
Mem. in Supp. of Jeune Defs. Mot. (“Jeune Defs. Mem.”), Docket Entry No. 24; Decl. of
William Taylor in Supp. of Jeune Defs. Mot. (“Jeune Defs. Taylor Decl.”), Docket Entry No. 23;
Jeune Defs. Reply in Further Supp. of Jeune Defs. Mot. (“Jeune Defs. Reply”), Docket Entry
No. 25; Wright Defs. Mot. to Dismiss (“Wright Defs. Mot.”), Docket Entry No. 20; Wright Defs.
Mem. in Supp. of Wright Defs. Mot. (“Wright Defs. Mem.”), Docket Entry No. 22; Decl. of
William Taylor in Supp. of Wright Defs. Mot. (“Wright Defs. Taylor Decl.”), Docket Entry
No. 21; Wright Defs. Reply in Further Supp. of Wright Defs. Mot. (“Wright Defs. Reply”),
Docket Entry No. 23; Fulcher Defs. Mot. to Dismiss (“Fulcher Defs. Mot.”), Docket Entry
No. 21; Fulcher Defs. Mem. in Supp. of Fulcher Defs. Mot. (“Fulcher Defs. Mem.”), Docket
Entry No. 23; Decl. of William Taylor in Supp. of Fulcher Defs. Mot. (“Fulcher Defs. Taylor
Decl.”), Docket Entry No. 22; Fulcher Defs. Reply in Further Supp. of Fulcher Defs. Mot.
(“Fulcher Defs. Reply”), Docket Entry No. 24.)

3

a.

Construction of the Administrative Building at Medgar Evers

In or around 2007, CUNY and the Dormitory Authority of the State of New York
(“DASNY”) began construction on a 190,000 square foot, five-story administrative building on
Medgar Evers campus in Brooklyn, New York (the “Administrative Building”).4 (Jeune SAC
¶ 14.) CUNY financed the construction with City and State funds, at a final cost of
approximately $247 million. (Id. ¶ 17.) In or around the spring of 2009, CUNY and DASNY
hired Hudson Meridian (“Meridian”), a professional construction management firm, at a cost of
more than one million dollars “to oversee the construction and turnover certification” of the
Administrative Building. (Id. ¶¶ 18–19.)5 The Administrative Building was completed and
“fully commissioned” sometime in the fall of 2010. (Wright SAC ¶ 37.)
According to Plaintiffs, Meridian:
intentionally covered up fraud, corruption and waste of taxpayers’
monies creating dangerous conditions within the life safety systems
and other systems of the Administrative Building compromising the
physical safety of employees, students and other stakeholders of the
community . . . to increase profit for themselves and agents’ of
CUNY and DASNY.
(Jeune SAC ¶¶ 19–20.) Defendant Hundley, a Public Safety Officer at Medgar Evers, was
assigned to oversee Meridian, and, according to Plaintiffs, was “fully aware of the fraud,
corruption and waste of taxpayers’ monies and the serious safety deficiencies” within the
Administrative Building. (Jeune SAC ¶ 18; Wright SAC ¶ 36; Fulcher Am. Compl. ¶ 23.)
Plaintiffs allege that the Administrative Building is constructed in an “unsafe manner” and that
4

Although the parties quibble over the name of the building, (Jeune Defs. Mem. 3 n.4.;
Wright Defs. Mem. 3 n.4; Fulcher Defs. Mem. 3 n.4; Jeune SAC ¶ 1; Wright SAC ¶ 1; Fulcher
Am. Compl. ¶ 1), the Court refers to the building as identified by Plaintiffs.
5

The Jeune SAC contains two consecutive paragraphs numbered nineteen. The Court
construes the separate paragraphs as a single paragraph and refers to “¶ 19” when citing one or
both of the paragraphs.
4

DASNY and CUNY must “shut it down for immediate repairs to its life safety systems and other
systems.” (Jeune SAC ¶ 21.)
Plaintiffs made “complaints” and “reports” to some unknown person or entity that
“CUNY and DASNY, their agents and [their] vendor partners intentionally covered up fraud,
corruption and waste of taxpayers’ monies,” which resulted in “dangerous conditions within the
life safety system and other systems” of the Administrative Building.6 (Jeune SAC ¶¶ 1, 13;
Wright SAC ¶¶ 1, 13; Fulcher Am. Compl. ¶¶ 1, 13, 35.)
b.

Plaintiffs’ job descriptions

From 2009 until 2015, Wright served as Chief Administrative Superintendent in the
Facilities Management Department at Medgar Evers. (Wright SAC ¶¶ 1, 22, 112–13.) Wright’s
responsibilities included “overall management” of the personnel assigned to buildings and
grounds as well as the maintenance of all Medgar Evers facilities. (Id. ¶ 23.)
Jeune was a Senior Stationary Engineer7 in the Facilities Management Department at
Medgar Evers until he was demoted in or around late 2015. (Jeune SAC ¶¶ 1, 11, 51–52.) The

6

The complaints include many allegations regarding the deficiencies in the construction
of the Administrative Building that are not related to Plaintiffs’ alleged protected speech. The
Court only includes the relevant allegations.
7

Although Jeune indicates that he was a “Chief Engineer,” (Jeune SAC ¶ 51), the Jeune
Defendants argue that CUNY does not have a “Chief Engineer” position. (Jeune Defs. Mem. 3
n.2.) The Court takes judicial notice of the CUNY Classified Civil Service Position Description
available online which states that the position of Senior Stationary Engineer is the highest engine
ering position available at a CUNY school as it provides no direct line of promotion. The City
University of New York Classified Civil Service Position Description, Senior Stationary Enginee
r (“Senior Stationary Engineer Position Description”), (Oct. 9, 2015), http://www2.cuny.edu/wpcontent/uploads/sites/4/page-assets/about/administration/offices/hr/classified-civil-service/ccsjob
s/ST_Sen_Station_Eng_04916-rev-10-9-15-002.pdf; see Blue Tree Hotels Inv. (Canada), Ltd. v.
Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (noting that, in
deciding a motion to dismiss for failure to state a claim, the court “may also look to public
records”); Lefebvre v. Morgan (Lefebvre I), --- F. Supp. 3d ---, ---, 2016 WL 1274584, at *13

5

responsibilities of a Senior Stationary Engineer include operating, maintaining, testing and
repairing “all utilities in public buildings . . . , plant equipment such as . . . electrical equipment,
heating and ventilating equipment, . . . mechanical, electrical, and plumbing equipment in
University buildings;” as well as participating “in the review of DASNY plans for new and/or
rehabilitation construction projects [by] providing comments and recommendations,” training
staff as to “the operation, maintenance and use of equipment and systems,” and ensuring
“compliance with all jurisdictional codes.”8
Apart from the one-month period between March and April of 2015 when Fulcher held
the position of Senior Stationary Engineer, Fulcher worked as a Stationary Engineer until CUNY
terminated his employment on January 21, 2016. (Fulcher Am. Compl. ¶¶ 1, 11, 37–38, 58.)
The responsibilities of a Stationary Engineer include operating, maintaining, adjusting, testing

n.17 (S.D.N.Y. Mar. 31, 2016) (taking judicial notice of the New York State Department of Civil
Service website for purposes of determining the employment classification of certain positions).
In addition, because Jeune and Fulcher, have not alleged details regarding their respective job
descriptions, the Court takes judicial notice of the CUNY Classified Civil Service Position
Description of Senior Stationary Engineer as well as Stationary Engineer to determine the job
duties for both positions. See, e.g., Rissetto v. County of Clinton, No. 15-CV-720, 2016 WL
4530473, at *20 n.88 (W.D.N.Y. Aug. 29, 2016) (taking judicial notice of the lieutenant job
description posted on the Clinton County government’s website for purposes of adjudicating a
Rule 12(b)(6) motion as to the plaintiff’s First Amendment retaliation claim where both parties
appeared to have relied on the job description and the plaintiff did not object to the defendants’
use of the job description or dispute its accuracy); Hommel v. City of Long Beach, No. 13-CV3261, 2014 WL 1010654, at *3–4 (E.D.N.Y. Mar. 14, 2014) (taking judicial notice of the job
description of Assistant Corporation Counsel for the City of Long Beach for purposes of
adjudicating a Rule 12(b)(6) motion to dismiss the plaintiff’s First Amendment retaliation
claim).
8

See Senior Stationary Engineer Position Description, supra note 7. This description of
the job duties is consistent with Jeune’s description in a letter opposing the Jeune Defendants’
request for a pre-motion conference. (Jeune Letter dated June 17, 2016, Docket Entry No. 23-3.)
Jeune explained that he was “responsible for the operation, maintenance, and repair of all utilities
within campus facilitates.” (Id.)

6

and repairing “fire protection systems, electro-mechanical building equipment and related
auxiliary systems in public buildings,” performing “periodic inspections of equipment and
repairs of such equipment” and overseeing “preventive maintenance.”9
c.

Wright’s complaints and his termination

Prior to 2010, while the Administrative Building was under construction, Wright
requested and was granted permission to access the Administrative Building. (Wright
SAC ¶¶ 23, 37.) While inspecting the construction, “based on his training, education and
experience,” Wright noted “serious deficiencies within the mechanical, electrical, and plumbing
systems that [could] only be explained as fraud, corruption and waste of taxpayers’ monies,”
which deficiencies included missing air dampers, duct work, dedicated electrical services lines
and dissimilar metal throughout the building. (Id. ¶¶ 24–25.) Wright “immediately forwarded
these serious deficiencies” to the Medgar Evers Campus Planning Director at the time, Frank
Tumminello, and Tumminello notified both CUNY and DASNY agents. (Id. ¶¶ 28–29.) After
Wright shared the deficiencies with Tumminello, he was no longer allowed access to the
construction site. (Id. ¶ 30.)
Separately, at an unidentified time, Wright became aware of “constant backups in the
Franklin Avenue cellar ladies restroom” and “significant overflow problems.” (Id. ¶¶ 76, 80.)
He purchased a pipe camera and discovered a breach. (Id. ¶ 79.) Wright alleges the breach
resulted from Richards Plumbing, the vendor partner hired by CUNY and DASNY, improperly
connecting pipes “as a cost saving measure.” (Id. ¶ 80.) Wright “raised” concerns regarding the

9

The City University of New York Classified Civil Service Position Description, Station
ary Engineer (“Stationary Engineer Position Description”), (July 8, 2003), http://www2.cuny.edu
/wp-content/uploads/sites/4/page-assets/about/administration/offices/hr/classified-civilservice/classified-civil-service-job-descriptions/ST_Stationary_Engineer_04915.pdf.

7

overflow of water to CUNY and DASNY agents, and explained that “the flow of water will
eventually erode the gas vapor barrier and cause gas to enter [the Administrative Building]
compromising the health and safety of the occupants and other stakeholders.” (Id. ¶ 81.)
On or about February 10, 2015, Wright went to the office of Defendant Crew, President
of Medgar Evers, to “request a personal meeting with him to report fraud, corruption and waste
of taxpayers’ monies.” (Id. ¶ 112.) Wright does not allege that he met with Crew or made any
statements to Crew. “[S]hortly thereafter,” Defendant Posman, the Senior Vice President and
Chief Operating Officer, terminated Wright and told him that it was the “President’s decision.”10
(Id. ¶¶ 12, 113.)
d.

Jeune’s and Fulcher’s complaints and the subsequent employment actions
against them
i.

Complaints
1.

Jeune’s and Fulcher’s gas valve and carbon monoxide detector
complaints

Jeune and Fulcher allege that the Administrative Building contained an “unsafe and
volatile condition of leaking undetectable natural gas and carbon monoxide” because the “vendor
partners intentionally installed defective gas valves within the laboratories” as well as “expired
and defective gas sensors to increase . . . profits.” (Jeune SAC ¶¶ 25, 34; Fulcher Am.
Compl. ¶¶ 27, 41.) On May 1, 2015, CUNY hired an outside contractor from “R&D Group,”
who found that “numerous laboratory research and classrooms were equipped with expired and
defective gas sensors.” (Jeune SAC ¶ 33; Fulcher Am. Compl. ¶ 40.)

10

Wright also alleges that Defendant Hundley “frequently complained” to Crew, about
Wright and his Medgar Evers staff “in a concerted effort to have his employment terminated for
exposing fraud, corruption, [and] waste of taxpayers’ monies.” (Wright SAC ¶¶ 12, 106.)
Wright provides no further information about these complaints.
8

On or around June of 2015, Jeune and Fulcher informed Defendant Allen, the Assistant
Vice President of Facilities Management, Campus Planning and Operations, “of the natural gas
problem and the necessity to immediately repair the gas valve controls and gas sensors.” (Jeune
SAC ¶ 35; Fulcher Am. Compl. ¶ 43.) At an unidentified time, Jeune and Fulcher informed
Allen and Defendant Clark, the Chief Administrative Superintendent of Buildings and Grounds,
“about the defective natural gas and carbon monoxide sensors because these deficiencies pose a
direct danger for the students, occupants and other stakeholders.” (Jeune SAC ¶ 37; Fulcher Am.
Compl. ¶ 45.) On July 1, 2015, CUNY hired a second contractor, ASCO, and ASCO “confirmed
[that] there was a problem with the natural gas valves.” (Jeune SAC ¶ 36; Fulcher Am.
Compl. ¶ 44.) Despite the warnings from Jeune and Fulcher, on or around September 1, 2015,
Allen ordered Jeune to “open the natural gas valves for classes.” (Jeune SAC ¶ 38.)
2.

Fulcher’s DOL complaint

In or around August or September of 2015, Fulcher reported his “serious safety concerns
about the defective gas valves” to DOL employee Kwo Iam.11 (Fulcher Am. Compl. ¶ 46.)
3.

Jeune’s cooling tower complaint

On September 10, 2015, Jeune expressed “serious safety concerns” to Allen regarding the
condition of the Administrative Building’s cooling tower. (Jeune SAC ¶ 39.) On or about
September 21, 2015, CUNY and DASNY hired a vendor partner “to test for the presence of
Legionella bacteria[,] which was detected in one of the campus cooling towers.” (Id. ¶ 40.)

11

Fulcher fails to specify Iam’s title or whether Iam worked for the New York State or
federal department of labor. (See Fulcher Am. Comp. ¶ 46.)

9

ii.

Employment actions against Jeune and Fulcher

Sometime “shortly” after late September of 2015, the Jeune Defendants “abruptly
demoted” Jeune from the Senior Stationary Engineer position and “charged him with misconduct
after he allegedly performed a ‘mutual’[12] without authorization” from Allen. (Id. ¶¶ 48, 51–52.)
In or around September of 2015, the Fulcher Defendants, with the exception of Hundley,
changed Fulcher’s work hours and denied his request for a reasonable accommodation to take
care of his spouse. (Fulcher Am. Compl. ¶¶ 56–57.) Several months later, on January 21, 2016,
the Fulcher Defendants, with the exception of Hundley, terminated Fulcher’s employment due to
“unsatisfactory job performance” even though Fulcher had a satisfactory evaluation. (Id. ¶ 58.)
At some unidentified time, Fulcher alleges that Isaacs, the Director of Human
Resources/Labor Designee, did not “hire him from the established Engineers Examination list
although he received a passing grade.” (Id. ¶¶ 12, 35.) Fulcher does not specify the title of the
position that he sought nor the date on which Isaacs failed to hire him.13 According to Fulcher,
Isaacs failed to hire him in retaliation for his complaints about “fraud, corruption, waste of
monies and safety violation[s].” (Id. ¶ 35.) Fulcher wrote a letter to CUNY “in regards to being
denied promotion to Senior Stationary Engineer.”14 (Id. ¶ 36.) Fulcher also alleges that he was
denied overtime pay from in or around May of 2015 to July of 2015 in retaliation for “reporting”
Isaacs to CUNY. (Id. ¶ 42.)

12

Neither side explains a “mutual.”

13

It is unclear whether these allegations pertain to the failure to promote Fulcher to
Senior Stationary Engineer or to some other position. (Fulcher Am. Compl. ¶¶ 36–38.)
14

In or around March of 2015, Plaintiff was promoted to Senior Stationary Engineer but
approximately one month later, in or around April of 2015, Plaintiff was demoted from the
position and “his probation was extended until March 2016.” (Id. ¶¶ 37–39.)

10

II. Discussion
a.

Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the
complaint as true and drawing all reasonable inferences in the plaintiff’s favor.” Concord
Assocs., L.P. v. Entm’t Prop. Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time
Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313
(2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997)).
A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St.
Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717–18
(2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this
principle is “inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.
b.

Service of process as to Hundley

The Wright and Fulcher Defendants argue that the Court lacks jurisdiction over
Defendant Hundley because Plaintiffs have not served Hundley with the summons and the
individuals served were not appointed or authorized to accept service on her behalf. (Wright
Defs. Mem. 21–22; Fulcher Defs. Mem. 22–23.) Defendants also argue that Plaintiffs fail to
state a claim against Hundley. (Wright Defs. Mem. 20–21; Fulcher Defs. Mem. 21–22.) Wright

11

and Fulcher do not address whether service was proper under federal or state law and instead
argue that the service comported with due process because it was “reasonably calculated, under
all circumstances, to apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.” (Wright Opp’n 1 n.1; Fulcher Opp’n 1 n.1.)
The Court finds it unnecessary to decide the jurisdictional issue of whether service of
process was proper because, as discussed below, Plaintiffs’ claims fail on the merits against all
Defendants, including Hundley. See Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979)
(“[P]ersonal jurisdiction . . . is [not] fundamentally preliminary in the sense that subject-matter
jurisdiction is, for [it is a] personal privilege[] of the defendant, rather than [an] absolute
stricture[] on the court.”); United States v. Vazquez, 145 F.3d 74, 80 & n.3 (2d Cir. 1998)
(addressing the merits of the claims even though personal jurisdiction was not established due to
lack of proper service because “the failure timely to serve a summons and complaint on the
opposing party is excusable,” and therefore it was “not an exercise of the hypothetical
jurisdiction of the sort disapproved of by the Supreme Court” (citing Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 92–102 (1998))); Taylor v. Westor Capital Grp., 943 F. Supp. 2d 397,
400 (S.D.N.Y. 2013) (“[D]ismissal under Rule 12(b)(6) renders unnecessary any further
consideration of the parties’ dispute over service of process under Rule 12(b)(5).” (collecting
cases)); see also Jessamy v. City of New Rochelle, 292 F. Supp. 2d 498, 503 n.4 (S.D.N.Y. 2003)
(addressing Rule 12(b)(5) motion first by noting that courts “may assume without deciding that
the plaintiff properly has served the defendants in a timely manner” and then dismissing the case
on the merits).

12

c.

First Amendment retaliation claims

Plaintiffs allege that because they reported safety concerns regarding defects in the
construction of the Administrative Building, Defendants took adverse employment actions
against them by, among other things, demoting Jeune and terminating Wright’s and Fulcher’s
employment. (See generally Jeune SAC, Wright SAC, Fulcher Am. Compl.)
Defendants argue that Plaintiffs fail to state First Amendment retaliation claims because:
(1) Plaintiffs did not speak as private citizens but rather, as public employees in the course of
their regular job duties; and (2) even if their speech was protected speech, Plaintiffs fail to
plausibly allege that there was a causal connection between the adverse actions they allege and
any protected speech.15 (Fulcher Defs. Mem. 9–19; Jeune Defs. Mem. 7–18; Wright Defs. Mem.
11–18.)
To state a First Amendment retaliation claim, a plaintiff must establish that: “(1) his
speech or conduct was protected by the First Amendment; (2) the defendant took adverse action
against him; and (3) there was a causal connection between this adverse action and the protected
speech.” Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015) (quoting Cox v.

15

Defendants alternatively argue that they are entitled to qualified immunity. (Fulcher
Defs. Mem. 19–21; Jeune Defs. Mem. 18–20; Wright Defs. Mem. 18–20.) Because the Court
finds that Plaintiffs fail to allege that they engaged in protected speech, the Court does not
consider whether Defendants are entitled to qualified immunity. See Walczyk v. Rio, 496 F.3d
139, 154 (2d Cir. 2007) (“When a defendant officer . . . invokes qualified immunity . . . , a court
must first consider [whether] . . . the facts, viewed in the light most favorable to the plaintiff,
show that the officer’s conduct violate[d] a constitutional right[.] If the answer to this question is
no, there is no necessity for further inquiries concerning qualified immunity.” (internal quotation
marks omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001))); see also Powell v. City of
New York, No. 14-CV-9937, 2016 WL 4159897, at *11 (S.D.N.Y. July 14, 2016) (“There is no
need to linger on the qualified immunity analysis in this case, since, as shown above, no
constitutional violation can be made out, even on a favorable view of the parties’ submissions.”
(internal quotation marks omitted) (quoting Saucier, 533 U.S. at 201)).

13

Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011)); see also Eyshinskiy v.
Kendall, --- F. App’x ---, ---, 2017 WL 2829682, at *1 (2d Cir. June 30, 2017); Singh v. City of
New York, 524 F.3d 361, 372 (2d Cir. 2008).
The Supreme Court has instructed courts to conduct a two-step inquiry into whether a
public employee’s speech is entitled to protection:
The first [step] requires determining whether the employee spoke as
a citizen on a matter of public concern. If the answer is no, the
employee has no First Amendment cause of action based on his or
her employer’s reaction to the speech. If the answer is yes, then the
possibility of a First Amendment claim arises. The question [then]
becomes whether the relevant government entity had an adequate
justification for treating the employee differently from any other
member of the general public.
Lane v. Franks, 573 U.S. ---, ---, 134 S. Ct. 2369, 2378 (June 19, 2014) (quoting Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006)).
Thus, the First Amendment protects a public employee from retaliation by his or her
employer for the employee’s speech only if the employee speaks “[1] as a citizen [2] on a matter
of public concern.’” Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013) (alterations in original)
(quoting Garcetti, 547 U.S. at 418); see also Eyshinskiy, --- F. App’x at ---, 2017 WL 2829682,
at *1 (“The first inquiry encompasses two separate questions: ‘(1) whether the subject of the
employee’s speech was a matter of public concern and (2) whether the employee spoke as a
citizen rather than solely as an employee. If the answer to either question is no, that is the end of
the matter.’” (quoting Matthews, 779 F.3d at 172)); Garcia v. Hartford Police Dep’t, 706 F.3d
120, 129–30 (2d Cir. 2013) (“[T]he plaintiff must show that . . . the speech at issue was made as

14

a citizen on matters of public concern rather than as an employee on matters of personal
interest . . . .” (citation and internal quotation marks omitted)).16
Courts consider two sub-questions to determine whether an employee spoke as a citizen
rather than an employee: (1) whether the speech falls outside of the employee’s official
responsibilities or duties and (2) whether a civilian analogue to the speech exists. Matthews, 779
F.3d at 173 (citation omitted). “[W]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First Amendment purposes.” Lane,
573 U.S. at ---, 134 S. Ct. at 2376 (quoting Garcetti, 547 U.S. at 421). “The critical question . . .
is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not
whether it merely concerns those duties.” Id. at 2379; see Monz v. Rocky Point Fire Dist., 519
F. App’x 724, 727 (2d Cir. 2013) (holding that expressions made pursuant to employee’s official
duties as captain of fire company were not constitutionally protected).
“Although a ‘civilian analogue’ to a government employee’s speech militates in favor of
an inference that the employee’s speech is protected by the First Amendment, the presence of an
unofficial analogue does not necessarily mean the speech is protected.” Cohn v. N.Y.C. Dep’t of
Educ., --- F. App’x ---, ---, 2017 WL 4162234, at *2 (2d Cir. Sept. 20, 2017) (citations omitted)
(holding that even “if private citizens [could] complain to [the New York State Department of
Education and the Board of Regents] in the same way [the plaintiff] did, it would not change [the
Court’s] conclusion that [the plaintiff’s] speech was made pursuant to his official duties, and
therefore unprotected by the First Amendment”); Weintraub v. Bd. of Educ. of City Sch. Dist. of
N.Y., 593 F.3d 196, 204 (2d Cir. 2010) (Although the lack of a civilian analogue is “not

16

The relevant inquiry in this case is whether Plaintiffs’ speech was entitled to First
Amendment protection because Plaintiffs spoke as a citizens, and, therefore, the Court does not
discuss the applicable standard for determining whether speech is a matter of public concern.
15

dispositive,” “it does bear on the perspective of the speaker — whether the public employee is
speaking as a citizen — which is the central issue.”); Montero v. City of Yonkers, 224 F. Supp.
3d 257, 269–70 (S.D.N.Y. 2016) (discussing that after Matthews, courts in the Second Circuit
“are split” about whether the civilian analogue is a prerequisite to finding an employee’s speech
protected but concluding that the civilian analogue is not dispositive (collecting cases)).
In evaluating whether speech falls outside of an employee’s official duties, courts utilize
a functional approach. Matthews, 779 F.3d at 173; Weintraub, 593 F.3d at 202 (“The objective
inquiry into whether a public employee spoke ‘pursuant to’ his or her official duties is ‘a
practical one.’” (quoting Garcetti, 547 U.S. at 424)). The court must consider the “nature of the
plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.
Other contextual factors, such as whether the complaint was also conveyed to the public, may
properly influence a court’s decision.” Ross v. Breslin, 693 F.3d 300, 306–07 (2d Cir. 2012)
(holding that a payroll clerk’s complaint to her supervisors and further “up the chain of
command” regarding pay discrepancies was pursuant to her job responsibilities, which included
“processing the payroll and making sure pay rates were correct”).
Even if speech is not “required by, or included in, the employee’s job description, or in
response to a request by the employer,” it may still be unprotected employee speech if the speech
is “part-and-parcel of [the employee’s] concerns about his ability to properly execute his duties.”
Weintraub, 593 F.3d at 203 (citation and internal quotation marks omitted) (holding that a
teacher’s complaint that a school administrator failed to discipline a student who had thrown a
book at the teacher was “part-and-parcel” of the execution of his job duties “as a public school
teacher — namely, to maintain classroom discipline, which is an indispensable prerequisite to
effective teaching and classroom learning”); see also Matthews, 779 F.3d at 174–75 (holding the

16

plaintiff’s speech was protected where it expressed an opinion on a “precinct-wide policy,”
rather than a “specific violation[] of law,” and it was “neither part of his job description nor part
of the practical reality of his everyday work” to speak about or consider such policies); Looney v.
Black, 702 F.3d 701, 712–13 (2d Cir. 2012) (holding that the plaintiff’s “vague
allegations . . . that, as the town employee who oversaw the entire ‘organization and conduct of
the building advisory, inspection and enforcement programs,’ the alleged speech [to a town
resident and the public regarding a wood burning boiler/stove and smoke discharge as public
health concerns and his opinion regarding an outside agency enforcing a cease and desist order
against [t]own residents] was closely related to his work as [b]uilding [o]fficial”); Klaes v.
Jamestown Bd. of Pub. Util., No. 11-CV-606, 2013 WL 1337188, at *16 (W.D.N.Y. Mar. 29,
2013) (finding that the engineer-plaintiff’s complaints regarding safety violations were not
protected speech where his complaints to his supervisors and other employees were “exclusively
dedicated” to the division he was charged with monitoring and his duties included “enforc[ing]
safety regulations”).
A civilian analogue exists if the speech “is made through channels available to citizens
generally.” Matthews, 779 F.3d at 175; Eyshinskiy, --- F. App’x at ---, 2017 WL 2829682, at *1
(quoting Matthews, 779 F.3d at 175)). “[A]n indicium that speech by a public employee has a
civilian analogue is that the employee’s speech was to an independent state agency responsible
for entertaining complaints by any citizen in a democratic society regardless of his status as a
public employee.” Matthews, 779 F.3d at 175 (citation omitted); Weintraub, 593 F.3d at 204
(The traditional examples of forms of speech with a civilian analogue are a “letter to an editor or
a complaint to an elected representative or inspector general.”); see, e.g., Eyshinskiy, --- F. App’x
at ---, 2017 WL 2829682, at *1 (holding that an assistant principal’s complaints made through

17

the Department of Education’s web application or directly to his supervisors did not have a
relevant civilian analogue); Matthews, 779 F.3d at 175–76 (finding a civilian analogue where a
police officer complained to precinct commanders who “regularly heard civilian complaints
about [p]recinct policing issues”); Weintraub, 593 F.3d at 204 (holding that “lodging of a union
grievance is not a form or channel of discourse available to non-employee citizens” because the
“internal communication” was made “pursuant to an existing dispute-resolution policy
established by [the plaintiff’s] employer” rather than by “voicing his grievance through channels
available to citizens generally”); Montero, 224 F. Supp. 3d at 269 (finding that where the
plaintiff spoke at a meeting that did not allow “public access” and the complaint did not include
allegations “suggesting that public citizens could have aired their grievances” at the meeting, the
plaintiff’s speech did not have a civilian analogue); Ross v. N.Y.C. Dep’t of Educ. (Ross Dep’t of
Educ.), 935 F. Supp. 2d 508, 519–22, 521 n.12 (E.D.N.Y. 2013) (noting that “the court is not
convinced that there is a civilian analogue” to a teacher’s OSHA complaint because he engaged
in a form of complaint only available to employees).
i.

Plaintiffs fail to state a First Amendment retaliation claim

Despite drawing all inferences in Plaintiffs’ favor, with the exception of Fulcher’s
complaint to a DOL employee, Plaintiffs’ respective complaints fail to allege “more than a vague
set of circumstances regarding speech which necessarily owed its existence to” their respective
roles at Medgar Evers, and therefore Plaintiffs have not adequately alleged that they spoke as
citizens rather than as public employees. Looney, 702 F.3d at 713 (citation and internal
quotation marks omitted). The Court first addresses Plaintiffs’ allegations that they complained

18

of “fraud, corruption and waste of taxpayers’ monies,” and then addresses each Plaintiff’s
individual allegations.17
1.

Unspecified “fraud, corruption and waste of taxpayers’
monies”

Plaintiffs each allege that they “report[ed]” to some unknown person or entity that
“CUNY and DASNY, their agents’ and [their] vendor partners intentionally covered up fraud,
corruption and waste of taxpayers’ monies.” (Jeune SAC ¶¶ 1, 13; Wright SAC ¶¶ 1, 13; Fulcher
Am. Compl. ¶¶ 1, 13, 35.)
These allegations are too conclusory to allege protected speech. There are no alleged
facts to substantiate the complaints regarding “fraud, corruption and waste of taxpayers’ monies”

17

Wright and Fulcher fail to state a claim against Hundley. Wright and Fulcher allege
that Hundley was “fully aware of the fraud, corruption and waste of taxpayers’ monies and the
serious safety deficiencies” within the Administrative Building. (Wright SAC ¶ 36; Fulcher Am.
Compl. ¶ 23.) Wright also alleges that Hundley “frequently complained” to Crew about Wright
and his Medgar Evers staff “in a concerted effort to have his employment terminated for
exposing fraud, corruption, waste of taxpayers’ monies.” (Wright SAC ¶ 106.) These
allegations are insufficient to allege Hundley’s personal involvement — the allegation that
Hundley was aware of complaints by Fulcher and Wright relating to “fraud, corruption and waste
of taxpayers’ monies” is conclusory, and similarly, the allegation that Hundley’s complaint to
Crew evidences Hundley’s “concerted effort to have [Wright’s] employment terminated” is mere
speculation without any supporting facts. See Doe v. City of New York, No. 11-CV-3978, 2011
WL 3876990, at *2 (E.D.N.Y. Sept. 1, 2011) (“[A]ny complaint under [s]ection 1983 must plead
specific facts that allege the personal involvement of each individual charged with violating [the
plaintiff’s] civil rights.” (emphasis added) (citation omitted)). Moreover, Fulcher specifically
excludes Hundley when listing the Defendants who allegedly retaliated against him. (See, e.g.,
Fulcher Am. Compl. ¶¶ 56–57.) Accordingly, because there are no allegations in the Complaints
that Hundley took any retaliatory action against Plaintiffs, the Court dismisses the claims against
Hundley. See Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016); Costello v. City of Burlington,
632 F.3d 41, 48–49 (2d Cir. 2011) (affirming the district court’s dismissal of a First Amendment
claim brought under section 1983 against certain defendants because the plaintiff failed to
“allege facts establishing the personal involvement” of those defendants); Holmes v. Poskanzer,
342 F. App’x 651, 653 (2d Cir. 2009) (affirming the district court’s decision dismissing a First
Amendment retaliation claim because the plaintiffs did not allege “personal involvement of any
of the defendants”).

19

and there are no alleged facts to support the inference that Plaintiffs actually made these
complaints, or to whom Plaintiffs made the complaints. See Iqbal, 556 U.S. at 678 (holding that
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements” are insufficient to defeat a motion to dismiss); Irwin v. W. Irondequoit Cent. Sch.
Dist., No. 16-CV-6028, 2017 WL 881850, at *6 (W.D.N.Y. Mar. 2, 2017) (denying a motion to
amend a complaint to add a First Amendment retaliation claim because the facts were “too vague
and speculative” as the plaintiffs “did not identif[y] the protected speech . . . let alone any speech
or conduct at all”); Clark v. Dominique, 798 F. Supp. 2d 390, 403 (N.D.N.Y. 2011) (dismissing a
First Amendment retaliation claim consisting of only “vague factual predicates and conclusory
labels” where the plaintiff “without any meaningful detail” alleged that “she was terminated in
‘retaliation for whistleblowing, and reporting and documenting what [she] believed were illegal
acts on the part of the employer’”); Thomas v. N.Y.C. Dep’t of Educ., No. 09-CV-5167, 2011 WL
1225972, at *13 (E.D.N.Y. Mar. 29, 2011) (dismissing a First Amendment retaliation claim for
failure to state a claim where the plaintiffs alleged that they exercised their First Amendment
rights “to oppose defendants’ illegal acts of creating false reports and covering up other
wrongdoing in their school” but did not describe any statements made by the plaintiffs or specify
to whom any statements were made); Winters v. Meyer, 442 F. Supp. 2d 82, 87 (S.D.N.Y. 2006)
(dismissing a First Amendment retaliation claim where the plaintiff failed to plead any facts to
support her claim that her speech was protected).
Plaintiffs’ argument that their speech is protected under Matthews is unavailing. In
Matthews, the police officer plaintiff made detailed allegations that the NYPD retaliated against
him because he complained to several NYPD captains and an unnamed precinct executive officer

20

about an arrest, summons, and stop-and-frisk quota system implemented in his precinct.18
Matthews, 779 F.3d at 169. The Second Circuit held that Matthews spoke as a private citizen
because: (1) Matthews’ speech expressed an opinion on a “precinct-wide policy,” rather than a
“specific violation[] of law,” and it was “neither part of his job description nor part of the
practical reality of his everyday work” to speak about or consider such policies; and (2)
Matthews “chose a path that was available to ordinary citizens who are regularly provided the
opportunity to raise issues with the precinct commanders.” Matthews, 779 F.3d at 174–176.
Plaintiffs’ conclusory allegations that they complained of “fraud, corruption and waste of
taxpayers’ monies” does not transform their otherwise unprotected employee speech into speech
protected under Matthews. Unlike in Matthews, where the plaintiff complained of a precise
precinct-wide policy even though it was not part of his job duties or everyday work to comment
on such a policy, id. at 169 (the plaintiff complained that police officers were “under pressure to
comply with” “a quota system mandating the number of arrests, summons, and stop-and-frisks
that police officers must conduct” and “a point system that awarded points to police officers for
issuing . . . good summonses and subtracted points for less desirable summonses” (internal
quotation marks omitted)), Plaintiffs’ only non-conclusory allegations are that they made
complaints about specific Administrative Building deficiencies, for example, the gas valves, gas
and carbon monoxide detectors, the water cooling towers and plumbing, (Jeune SAC ¶¶ 35, 37,
39; Fulcher Am. Compl. ¶¶ 43, 45–46; Wright SAC ¶¶ 28–29, 81), which complaints, as
discussed in detail below, were part-and-parcel of their job duties and responsibilities in their

18

The Second Circuit initially reversed the district court’s order dismissing the case on a
12(b)(6) motion, holding that the record in the case was not sufficiently developed “to determine
as a matter of law whether Officer Matthews spoke pursuant to his official duties when he voiced
the complaints.” Matthews v. City of New York, 488 F. App’x 532, 533 (2d Cir. 2012).
21

respective roles as Senior Stationary Engineer, Stationary Engineer and Chief Administrative
Superintendent. Cf. Matthews, 779 F.3d at 174–75 (Matthews’ speech expressed an opinion on a
“precinct-wide policy,” rather than a “specific violation[] of law,” and it was “neither part of his
job description nor part of the practical reality of his everyday work” to speak about or consider
such policies); see also Harisch v. Goldberg, No. 14-CV-9503, 2016 WL 1181711, at *8
(S.D.N.Y. Mar. 25, 2016) (distinguishing Matthews in part because the plaintiff “was flagging
specific violations of law and rules,” which was part of his duty as a police lieutenant, “rather
than discussing a department-wide policy” as the plaintiff in Matthews); Micillo v. N.Y.C. Dep’t
of Educ., No. 14-CV-943, 2015 WL 915270, at *2 (S.D.N.Y. Mar. 3, 2015) (finding that the
plaintiff’s claim fell “well outside Matthews’ ambit” because the alleged speech “did not
implicate the implementation or formulation of any policy that transcended the scope of [the
plaintiff’s] duties” but only included speech about “specific wrongdoing by specific individuals
related to his official job responsibility”) (adopting report and recommendation).
2.

Wright’s complaints

Wright alleges that he engaged in protected speech when he requested a meeting with
Crew and when he complained about the Administrative Building’s construction deficiencies.
(Wright SAC ¶¶ 28–29, 37, 81, 112.) During the relevant period, Wright was the Chief
Administrative Superintendent at Medgar Evers and in that role he was responsible for “the
overall management of the personnel assigned to buildings and grounds as well as the
maintenance of all [Medgar Evers] facilities.” (Wright SAC ¶ 22.)
A.

Meeting with Crew

Wright alleges that he went to Crew’s office to request a personal meeting with Crew, the
president of Medgar Evers, to complain about fraud, corruption and waste of taxpayers’ money,

22

(Wright SAC ¶ 112), but he does not allege that he met or spoke with Crew. See, e.g., Davis v.
N.Y.C. Dep’t/Bd. of Educ., No. 14-CV-2281, 2015 WL 5772204, at *9 (E.D.N.Y. Aug. 19, 2015)
(recommending dismissal of a First Amendment retaliation claim where the plaintiff “d[id] not
describe any specific statements, nor specify to whom any statements were made or under what
circumstances”), report and recommendation adopted, 2015 WL 5772204 (E.D.N.Y. Sept. 29,
2015); Anand v. N.Y. State Dep’t of Taxation and Fin., No. 10-CV-5142, 2012 WL 2357720, at
*9 (E.D.N.Y. June 18, 2012) (dismissing a First Amendment retaliation claim because the
“amended complaint d[id] not adequately describe the speech at issue, the subsequent adverse
employment decision, or the individuals involved in that decision”). Even if such a meeting did
occur, Wright fails to establish that his speech was protected because he does not specify the
content of his speech and instead only alleges vague and conclusory statements that he intended
to report “fraud, corruption and waste of taxpayers’ monies.” See Iqbal, 556 U.S. at 678; see,
e.g., Irwin, 2017 WL 881850, at *6; Clark, 798 F. Supp. 2d at 403; Thomas, 2011 WL 1225972,
at *13.
B.

Complaints about construction deficiencies

Wright’s complaints about construction deficiencies at the Administrative Building are
unprotected speech because the complaints were made pursuant to his job duties and
responsibilities, or, at the very least, were “part-and-parcel of his concerns about his ability to
properly execute his duties.” Weintraub, 593 F.3d at 203 (citations omitted).
At some time prior to the completion of the Administrative Building in 2010, Wright
alleges that he noticed “serious deficiencies within the mechanical, electrical, and plumbing
systems that [could] only be explained as fraud, corruption and waste of taxpayers’ monies,”
which deficiencies included missing air dampers, duct work, dedicated electrical services lines

23

and dissimilar metal throughout the building. (Id. ¶¶ 23–25, 37.) Wright “immediately
forwarded these serious deficiencies” to the former Medgar Evers Campus Planning Director,
Tumminello, who in turn shared the concerns with agents of CUNY and DASNY. (Id. ¶¶ 28–
29.) Wright also alleges that he discovered a breach in plumbing caused by a construction
shortcut taken as “a cost saving measure,” which caused an overflow of water. (Id. ¶¶ 79–80.)
At an unidentified time, Wright reported to agents of CUNY and DASNY his concern that the
overflow of water resulting from the breach might result in “gas contamination” in the
Administrative Building, which posed a safety and health right to students. (Id. ¶ 81.)
Wright was responsible for “the overall management of the personnel assigned to
buildings and grounds as well as the maintenance of all [Medgar Evers] facilities,” (Wright SAC
¶ 22), and reporting the structural facility deficiencies is precisely the type of complaint that falls
within Wright’s duty to maintain Medgar Evers’ facilities. See, e.g., Looney, 702 F.3d at 713
(“[T]he listing of a given task in an employee’s written job description is neither necessary nor
sufficient to demonstrate that conducting the task is within the scope of the employee’s
professional duties for First Amendment purposes.” (quoting Garcetti, 547 U.S. at 424–25));
Langton v. Town of Chester, 168 F. Supp. 3d 597, 605 (S.D.N.Y. 2016) (dismissing a First
Amendment retaliation claim where the alleged protected speech “squarely concern[ed] the
management, or mismanagement, of the library, and it is precisely these type of critiques and
analyses that [the] [p]laintiff was charged with generating as a library trustee”); Micillo, 2015
WL 915270, at *2 (rejecting the argument that because a job description did not include
reporting time-card fraud, the plaintiff who was responsible for “collecting and submitting
payroll” spoke as a private citizen when reporting such fraud).

24

In addition, to the extent the allegations identify to whom Wright made his complaints, he
exclusively identifies fellow CUNY employees and/or agents of DASNY, which further
demonstrates that his complaints were made pursuant to his duties and responsibilities as the
manager of the facilities at Medgar Evers.19 See Ross, 693 F.3d at 307 (“Taking a complaint up
the chain of command to find someone who will take it seriously does not, without more,
transform [the] speech into protected speech made as a private citizen.” (citation and internal
quotation marks omitted)); Harisch, 2016 WL 1181711, at *7–8 (finding that the secrecy of a

19

Even if Wright’s speech is protected speech, his First Amendment claim nevertheless
fails because he fails to allege that the Wright Defendants had any knowledge of the speech such
that the Court could infer retaliatory animus. Wright’s allegation regarding his concern that the
overflow of water resulting from the breach might result in “gas contamination” in the
Administrative Building, which posed a safety and health risk to students, (Wright SAC ¶ 81),
does not specify when or to whom he raised these concerns. Similarly, Wright’s allegation that
he forwarded various deficiencies he noticed during the construction of the Administrative
Building to former Medgar Evers Campus Planning Director, Tumminello, and that Tumminello
forwarded the concerns to agents of CUNY and DASNY, fails to identify any of the CUNY or
DASNY agents as any of the Wright Defendants and fails to allege that any of the Wright
Defendants had knowledge of the forwarded concerns. See Wrobel v. County of Erie, 692 F.3d
22, 32 (2d Cir. 2012) (“[I]t is only intuitive that for protected conduct to be a substantial or
motiving factor in a decision, the decisionmakers must be aware of the protected conduct.”
(internal quotation marks omitted)); see, e.g., Cresci v. Mohawk Valley Cmty. Coll., --- F. App’x
---, ---, 2017 WL 2392470, at *2 (2d Cir. June 2, 2017) (affirming a district court’s dismissal of a
First Amendment retaliation claim where the plaintiff “failed to allege facts from which the court
could infer that [the defendant] was aware of any such protected speech”); Wu v. Metro-North
Commuter R.R., No. 14-CV-7015, 2015 WL 5567043, at *7 (S.D.N.Y. Sept. 22, 2015) (“[The]
[p]laintiff has not pleaded any facts that would suggest that [the] [d]efendant [] even had any
knowledge of these complaints, rendering baseless any inference that he might have been
motivated to retaliate for them.”); Ehrlich v. Dep’t of Educ. of City of N.Y., No. 11-CV-4114,
2012 WL 424991, at *4 (S.D.N.Y. Feb. 6, 2012) (dismissing a First Amendment retaliation
claim for failure to allege causation where the plaintiff did “not specify where, when, or how any
of the alleged speech (complaints) or adverse actions took place, or whether [the individual
defendants] even knew of [the plaintiff’s] complaints”).

25

meeting where the plaintiff’s speech occurred “further indicate[d] that the speakers at the
meeting were not speaking as citizens”).20
Accordingly, Wright’s speech was not protected because he spoke pursuant to his official
duties and responsibilities as the manager of facilities.
3.

Jeune and Fulcher complaints

Jeune and Fulcher allege that Defendants retaliated against them because: (1) Fulcher
complained about CUNY’s failure to hire or promote him; (2) they both complained to Allen and
Clarke that the Administrative Building had faulty gas valves and carbon monoxide detectors
and Jeune complained to Allen about issues with the Administrative Building’s cooling tower;
and (3) Fulcher complained to a DOL employee about the faulty gas valves. (Jeune SAC ¶¶ 35,
39; Fulcher Am. Compl. ¶¶ 12, 36, 43, 46.) At the time of the alleged protected speech, Jeune
and Fulcher held positions as Senior Stationary Engineer and Stationary Engineer, respectively.
(Jeune SAC ¶ 51; Fulcher Am. Compl. ¶¶ 37–39.)
A.

Fulcher’s claims against Isaacs

Fulcher alleges that after he was denied the promotion to Senior Stationary Engineer,
presumably by Isaacs, he wrote a letter to CUNY regarding the denial and he was subsequently

20

In addition, there is no civilian analogue to Wright’s speech. Even though there are
insufficient allegations to determine with whom Wright shared his complaints, he appears to
have made complaints only to individuals employed by CUNY or DASNY and there are no
allegations that the individuals to whom he complained were tasked with accepting civilian
complaints. See Eyshinskiy v. Kendall, --- F. App’x ---, ---, 2017 WL 2829682, at *2 (2d Cir.
June 30, 2017) (holding an assistant principal’s complaints made through the Department of
Education’s web application or directly to his supervisors did not have a relevant civilian
analogue); Medina v. Dep’t of Educ. of City of N.Y., No. 10-CV-1180, 2011 WL 280800, at *3
(S.D.N.Y. Jan. 14, 2011) (“Plaintiff was only in a position to raise these concerns to [the school
principal, his union representatives and parents of the students] as a direct result of his position
as a guidance counselor.”); cf. Matthews v. City of New York, 779 F.3d 167, 176 (2d Cir. 2015)
(finding a civilian analogue to the plaintiff’s speech where he spoke to police precinct
commanders who were regularly available to the public to hear citizen complaints).
26

denied overtime pay from in or about May of 2015 to July of 2015 in retaliation for “reporting”
Isaacs to CUNY. (Id. ¶¶ 36–39, 42.)
The Court dismisses this allegation because Fulcher’s complaint to CUNY that Isaacs
failed to hire him was a personal grievance about the denial of his promotion request, and is
therefore not protected speech. See Gordon v. City of New York, 612 F. App’x 629, 631 (2d Cir.
2015) (“Among the relevant considerations in deciding if speech addresses a matter of public
concern ‘is whether the speech was calculated to redress personal grievances or whether it had a
broader public purpose.’” (quoting Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013)));
Golodner v. Berliner, 770 F.3d 196, 204 (2d Cir. 2014) (“[T]he ‘First Amendment does not
protect all private ventings of disgruntled public employees.’” (quoting Singer, 711 F.3d at
340)); Lefebvre v. Morgan (Lefebvre II), 234 F. Supp. 3d 445, 454 n.3 (S.D.N.Y. 2017)
(explaining that allegations based on the filling of multiple “grievance reports” relating to the
conditions of the plaintiff’s employment cannot form the basis of a First Amendment retaliation
claim). In addition, because Fulcher fails to allege whether it was Isaacs or any other Fulcher
Defendant who denied his request for overtime pay, Fulcher has not shown that Isaacs engaged
in retaliatory conduct. See Richard v. Fischer, 38 F. Supp. 3d 340, 358 (W.D.N.Y. 2014)
(dismissing a First Amendment retaliation claim against certain defendants for failure to allege
that they engaged in the retaliatory acts of filing false disciplinary reports).
B.

Jeune’s and Fulcher’ complaints to Allen and Clarke

Jeune and Fulcher allege that in or around June of 2015, they reported to Allen that a
“natural gas problem” with the Administrative Building required immediate repair of the gas
valves, (Jeune SAC ¶ 35, Fulcher Am. Compl. ¶ 43), and at an unidentified time, they reported
deficiencies with the natural gas and carbon monoxide sensors to Allen and Clarke, (Jeune SAC

27

¶ 37; Fulcher Am. Compl. ¶ 45). Separately, Jeune alleges that on September 10, 2015, he
expressed new safety concerns to Allen regarding the condition of the Administrative Building’s
cooling tower. (Jeune SAC ¶ 39.)
As Senior Stationary Engineer, Jeune’s responsibilities included operating, maintaining,
testing and repairing “all utilities in public buildings . . . [and] plant equipment such
as . . . electrical equipment, heating and ventilating equipment, . . . mechanical, electrical, and
plumbing equipment in University buildings;” and ensuring “compliance with all jurisdictional
codes.” Similarly, Fulcher’s responsibilities as Stationary Engineer included operating,
maintaining, adjusting, testing and repairing “fire protection systems, electro-mechanical
building equipment and related auxiliary systems in public buildings,” performing “periodic
inspections of equipment and repairs of such equipment” and performing and overseeing
“preventive maintenance.”21
Jeune’s and Fulcher’s complaints about the “natural gas problem” requiring immediate
repair of the gas valves and the deficiencies with the natural gas and carbon monoxide sensors
fall squarely within their duties and responsibilities; the complaints concern maintaining and
repairing “equipment and systems,” ensuring “compliance with all jurisdictional codes,”
completing “periodic inspections of equipment and repairs of such equipment” and performing
“preventive maintenance.”22 Indeed, Jeune’s and Fulcher’s complaints to Allen regarding the

21

See Senior Stationary Engineer Position Description, supra note 7; Stationary
Engineer Position Description, supra note 9.
22

See Senior Stationary Engineer Position Description, supra note 7; Stationary
Engineer Position Description, supra note 9.

28

gas valves asked for a particular remedy — the immediate repair of the valves, (Jeune SAC ¶ 35;
Fulcher Am. Compl. ¶ 43), a task that they were responsible for overseeing.
Jeune’s complaint to Allen regarding the Administrative Building’s cooling tower is
similar in nature to Jeune’s and Fulcher’s complaints about the gas valves and gas and carbon
monoxide sensors and also falls within his duties and responsibilities. Jeune had supervisory
authority over “the operation, maintenance and use of equipment and systems,” and ensuring
“compliance with all jurisdictional codes,” which compliance would necessarily include ensuring
that unspecified “serious safety concerns” about the Administrative Building’s cooling tower are
addressed.23 See, e.g., Langton, 168 F. Supp. 3d at 605 (dismissing a First Amendment
retaliation claim where the alleged protected speech “squarely concern[ed] the management, or
mismanagement, of the library, and it is precisely these type of critiques and analyses that [the]
[p]laintiff was charged with generating as a library trustee”).
The public employee nature of Jeune’s and Fulcher’s complaints is further demonstrated
by the fact that they complained to employees with similar or supervisory duties and
responsibilities. Jeune and Fulcher shared their complaints exclusively with Defendants Allen
and Clarke, both of whom worked in facilities and building management at Medgar Evers.
(Jeune SAC ¶¶ 35, 37, 39; Fulcher Am. Compl. ¶¶ 43, 45.) Allen, the Assistance Vice President
of Facilities Management, Campus Planning and Operations, and Clarke, the Chief
Administrative Superintendent of Buildings and Grounds, both of whom appear to have been

23

See Senior Stationary Engineer Position Description, supra note 7.

29

senior to Jeune24 and Fulcher, in their respective roles as Senior Stationary Engineer and
Stationary Engineer.25 Therefore, Jeune and Fulcher only reported up the chain of command,
and as such, their complaints were public employee speech. See Cohn, --- F. App’x at ---, 2017
WL 4162234, at *2 (holding that speech by a teacher to his “immediate supervisors (the principal
and assistance principal)” and to state educational officials was speech as a public employee
because taking a complaint “up the chain of command,” without more, does not transform public
employee speech into private citizen speech (quoting Ross, 693 F.3d at 307)); see, e.g., Klaes,
2013 WL 1337188, at *16 (finding that the engineer-plaintiff’s complaints regarding safety
violations were not protected speech where his complaints to his supervisors and other
employees were “exclusively dedicated” to the division he was charged with monitoring and his
duties included “enforc[ing] safety regulations”). The “only sensible way to interpret” Jeune’s
and Fulcher’s speech is that they spoke to Allen and Clarke about the gas valves and gas and
carbon monoxide sensors and the cooling tower “because [they were] in an official position that

24

(Jeune SAC ¶ 38 (“[O]n or about September 1, 2015 [D]efendant [] Allen ordered
[Jeune] to manually open the natural gas values for classes.”); id. ¶ 52 (alleging that Jeune was
disciplined for performing “a ‘mutual’ without authorization [] Allen”).)
25

As Chief Administrative Superintendent of Building and Grounds, Clarke, held a
“management class” position under executive direction, “with the widest latitude for the exercise
of independent judgment and action.” His responsibilities include directing the work of the
Administrative Superintendents of Campus Buildings and Grounds which is also a management
class position that is responsible for directing “buildings and grounds staff in all repair,
maintenance, and improvements involving major and minor alterations.” See The City
University of New York Classified Civil Service Position Description, Chief Administrative
Superintendent of Building and Grounds, (July 20, 2000), http://www2.cuny.edu/wp-content/upl
oads/sites/4/page-assets/about/administration/offices/hr/classified-civil-service/classified-civil-se
rvice-job-descriptions/BNG_Chief_Adm_Sup_Build_Grounds_04984.pdf; The City University
of New York Classified Civil Service Position Description, Administrative Superintendent of
Building and Grounds, (Aug. 26, 2013), https://www.cuny.edu/about/administration/offices/ohr
m/hros/classification/ccsjobs/04975AdministrativeSuperintendentofBuildingandGrounds.pdf.

30

required, or at least allowed, [them] to do so,” Looney, 702 F.3d at 712, and accordingly, their
speech was “part-and-parcel of [their] concerns about [their] ability to properly execute [their]
duties,” Weintraub, 593 F.3d at 203 (citations omitted).26
C.

Fulcher’s DOL complaint

Fulcher alleges that in or around August or September of 2015, he met with DOL
employee Kwo Iam to express “serious safety concerns about the defective gas valves,” (Fulcher
Am. Compl. ¶ 46). Fulcher does not include any additional allegations regarding the substance
or context of his speech to Iam or Iam’s duties and responsibilities. Fulcher also alleges that the
Fulcher Defendants retaliated against him in September of 2015 when they collectively, with the
exception of Hundley, changed his work hours and denied his request for a reasonable
accommodation to take care of his spouse, (id. ¶¶ 56–57), and on January 21, 2016, the same

26

In addition, there is no civilian analogue to Jeune’s and Fulcher’s complaints to Allen
and Clarke, both of whom are Medgar Evers employees, and, like Plaintiffs, work in facilities
management and buildings and grounds, respectively. See Eyshinskiy, --- F. App’x at ---, 2017
WL 2829682, at *2; Rissetto v. County of Clinton, No. 15-CV-720, 2016 WL 4530473, at *20
(W.D.N.Y. Aug. 29, 2016) (“[The plaintiff] ‘voiced’ his ‘concerns’ to two individuals in his
chain of command [], but [p]laintiffs do not allege facts plausibly suggesting that he directed
those concerns to any other channels, outside agencies, or public officials.”); Harisch v.
Goldberg, No. 14-CV-9503, 2016 WL 1181711, at *7–8 (S.D.N.Y. Mar. 25, 2016) (finding that
speech regarding “illegal accounting for time” when the plaintiff was in charge of scheduling
was unprotected, even though it was made to the town administrator in a “secret” meeting rather
than to his immediate supervisors); cf. Matthews, 779 F.3d at 176 (holding that a police officer’s
complaints to precinct commanders satisfied the civilian analogue because the commanders were
regularly available to the public to hear citizen complaints). Plaintiffs do not allege that Allen
and Clarke regularly “met with members of the community” or otherwise engaged with citizens
about matters concerning construction on the Medgar Evers campus. See, e.g., Montero v. City
of Yonkers, 224 F. Supp. 3d 257, 269 (S.D.N.Y. 2016) (finding that where the plaintiff spoke at a
meeting that did not allow “public access” and the complaint did not include allegations
“suggesting that public citizens could have aired their grievances” at the meeting, the plaintiff’s
speech did not have a civilian analogue).

31

group of Defendants terminated his employment due to “unsatisfactory job performance” even
though Fulcher had a satisfactory evaluation, (id. ¶ 58).
(1) Protected speech
Although the subject-matter of Fulcher’s speech to the DOL employee is the same as his
speech to Allen, (see Fulcher Am. Compl. ¶¶ 1, 11, 37–38, 58), because the complaint was made
to an employee of an outside agency, here the DOL,27 rather than to a CUNY employee, the
nature of his speech is not necessarily the same as his complaints to Allen and Clarke.28
Choosing to complain through a channel outside of the work place does not automatically
transform Fulcher’s speech that is otherwise part-and-parcel of his job duties and responsibilities

27

The DOL, whether state or federal, is tasked with the protection of worker wages and
safety and the assistance of the unemployed. See Our Services, New York State Department of
Labor, https://labor.ny.gov/about/services.shtm (last visited Sept. 16, 2017) (“The mission of the
New York State Department of Labor is to protect workers, assist the unemployed, and connect
job seekers to jobs.”); Our Mission, United States Department of Labor, https://www.dol.gov/gen
eral/aboutdol/mission (last visited Sept. 16, 2017) (“To foster, promote, and develop the welfare
of the wage earners, job seekers, and retirees of the United States; improve working conditions;
advance opportunities for profitable employment; and assure work-related benefits and rights.”).
The Court takes judicial notice of the mission statements of the New York and United States
Departments of Labor. See Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC,
No. 14-CV-9783, 2015 WL 5122590, at *7 (S.D.N.Y. Aug. 31, 2015) (stating that it is “clearly
proper for to take judicial notice” of “documents retrieved from official government websites”
and that “[c]ourts routinely take judicial notice of such governmental records”).
28

See Stationary Engineer Position Description, supra note 9.

32

into private-citizen speech,29 but it does make the speech more citizen-like.30 Courts that have
considered complaints made to an entity charged with the protection of worker’s safety have
reached varying conclusions as to whether the speech was protected; the courts considered it
relevant whether the complaints were made as part or in furtherance of the employee’s duties and
whether only employees, as opposed to private citizens, could make similar complaints to the
agency. See Catanzaro v. City of New York, 486 F. App’x 899, 902 (2d Cir. 2012) (declining to
decide if the complaint to PESH made by the plaintiffs, who were employees of the City of New
York’s Division of Emergency Response and Technical Assistance Unit, was made pursuant to

29

See e.g., Looney v. Black, 702 F.3d 701, 713 (2d Cir. 2012) (holding that vague
allegations of speech by a town building official to a town resident regarding an issue within the
scope of his responsibilities was made within the course of his official duties); Ross v. Breslin,
693 F.3d 300, 307 (2d Cir. 2012) (whether “speech was unprotected does not rest on the fact that
[the] speech was made in the workplace as opposed to elsewhere . . . [c]ourts must focus their
inquiry on the nature of the speech itself and its relationship to the plaintiff’s job
responsibilities”); Ross v. New York City Dep’t of Educ. (Ross Dep’t of Educ.), 935 F. Supp. 2d
508, 519–22 (E.D.N.Y. 2013) (granting summary judgment to the defendants on a teacher’s
claim that his OSHA complaint was protected speech, in part because, “even if there is a civilian
analogue,” the plaintiff clearly complained as an employee rather than a citizen and the plaintiff
was speaking “pursuant to his official duties as a physical education teacher”).
30

See Eyshinskiy, --- F. App’x at ---, 2017 WL 2829682, at *1 (holding that a complaint
“to an independent state agency responsible for entertaining complaints by any citizen in a
democratic society” is an “indicium that speech by a public employee has a civilian analogue”
(quoting Matthews, 779 F.3d at 175)); Catanzaro v. City of New York, 486 F. App’x 899, 902
(2d Cir. 2012) (holding that “external complaints” to Public Employee Safety and Health Bureau
(“PESH”) as opposed to “internal complaints” raised “different questions about the scope of [the
plaintiffs’] official duties” and declining to decide whether the speech was protected because the
plaintiffs failed to establish causation); Carter v. Inc. Village of Ocean Beach, 693 F. Supp. 2d
203, 211 (E.D.N.Y. 2010) (When a “public employee takes his job concerns to persons outside
the work place in addition to raising them up the chain of command at his workplace, [] those
external communications are ordinarily not made as an employee, but as a citizen.” (emphasis
added) (citation omitted)); see, e.g., Murray v. Coleman, No. 08-CV-6383, 2014 WL 2993748, at
*4 (W.D.N.Y. July 2, 2014) (“[The] [p]laintiff did not just direct his complaints to his supervisor
s, up the chain of command. He also wrote to the New York State governor, and to his represent
atives in the state legislature and in Congress. Though that alone is not dispositive of whether
his speech was protected, it is some indication that it is entitled to First Amendment
protection.”).
33

their official duties, and noting that the PESH complaint “rais[ed] different questions about the
scope” of their official duties than their internal complaints to supervisors); Krzesaj v. N.Y.C.
Dep’t of Educ., No. 16-CV-2926, 2017 WL 1031278, at *8 n.13 (S.D.N.Y. Mar. 15, 2017)
(finding that a physical education teacher failed to state a First Amendment retaliation claim
based on his PESH and Occupational Safety and Health Administration (“OSHA”) complaints,
which the court found were made pursuant to his role as a teacher because those agencies
provide “a vehicle specifically for public employees to report health and safety violations, and
[the p]laintiff alleges no facts that would allow the [c]ourt to find otherwise” but noting that there
is not a clear consensus within the Circuit regarding whether such complaints can be made as a
private citizen (collecting cases)); Manon v. Pons, 131 F. Supp. 3d 219, 231 (S.D.N.Y.
2015) (finding that complaints made to PESH by the plaintiff, a clerical associate, that her
worksite operated by the City Taxi and Limousine Commission had only one exit, which caused
a substantial risk to safety and the air quality in the facility and was a health hazard, fell outside
of the “purview of her responsibilities” because speech that extends “beyond [the employee’s]
ability to perform her functions on a day-to-day basis into the realm of how the agency of which
she is a part should be run” is often protected); see generally Ross Dep’t of Educ., 935 F. Supp.
2d at 520–21, 521 n.12 (considering the following factors on a summary judgment motion in
deciding that a teacher’s OSHA complaint was not protected speech: (1) he testified that he made
the complaint “because of his duties as an educator;” (2) he stressed his identity as a teacher in
the OSHA complaint, which “one would imagine that he would not have stressed” if he spoke as
a private citizen; and (3) he clearly invoked OSHA’s employee-complaint channels rather than
non-employee channels).

34

Where, as here, the Court has no details regarding the nature or context of the complaint
to the DOL employee, the DOL employee’s title or responsibilities, or more facts regarding
Fulcher’s ordinary safety reporting responsibilities, the Court cannot determine whether
reporting to the DOL was part of Fulcher’s duties, and therefore, cannot determine the nature of
Fulcher’s speech.31 See Matthews v. City of New York, 488 F. App’x 532, 533 (2d Cir. 2012)
(holding that the record in the case was not sufficiently developed “to determine as a matter of
law whether Officer Matthews spoke pursuant to his official duties when he voiced the
complaints,” and allowing the case to proceed to discovery); Taylor v. N.Y.C. Dep’t of Educ.,
No. 11-CV-7833, 2012 WL 3890599, at *4–8 (S.D.N.Y. Sept. 6, 2012) (“Absent a more detailed
record of the content and circumstances of [the plaintiff’s] speech, the [c]ourt cannot say, as a
matter of law, that her speech was as an employee rather than a citizen and that Defendants are
entitled to prevail as a matter of law on her First Amendment claim.”).32

31

The Fulcher Defendants’ reliance on Gwozdz v. Genesis Physician Services,
No. 13-CV-317, 2014 WL 943116 (D. Conn. Mar. 11, 2014), to argue that the complaint to the
DOL is not protected speech is misplaced because the plaintiff’s complaint in Gwozdz “owed
[its] existence to her job duties and [was] made in furtherance of those duties.” Gwozdz, 2014
WL 943116, at *3–4. In contrast, the facts alleged in Fulcher’s Amended Complaint are
insufficiently developed to allow the Court to determine whether it was part of his job duties to
report unsafe working conditions to the DOL, or the content of the speech shared with the DOL.
32

Because the Fulcher Defendants do not appear to challenge that Fulcher’s speech
relates to a matter of public concern, the Court does not consider whether Fulcher spoke on a
matter of public concern. In addition, the Court cannot determine at this preliminary stage
whether the Fulcher Defendants are entitled to qualified immunity based on Fulcher’s complaint
to the DOL employee because of the unknown facts and circumstances surrounding Fulcher’s
complaint. See Johnson v. Perry, 859 F.3d 156, 170 (2d Cir. 2017) (“[W]hen a defendant
official invokes qualified immunity as a defense in order to support a motion for summary
judgment, a court must consider two questions: (1) whether the evidence, viewed in the light
most favorable to the plaintiff, makes out a violation of a statutory or constitutional right, and
(2) whether that right was clearly established at the time of the alleged violation.” (quoting Tracy
v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010))); Birch v. City of New York, 184 F. Supp. 3d 21,
28 (E.D.N.Y. 2016) (“[T]he availability of qualified immunity is often fact-intensive, and if facts

35

(2) Causation
While it is unclear whether Fulcher’s complaint to the DOL employee was speech made
as a private citizen, Fulcher’s claim nevertheless fails because Fulcher fails to allege the
necessary causal relationship between the DOL complaint and any retaliatory acts by the Fulcher
Defendants.
Fulcher made the DOL complaint in August or September of 2015. (Fulcher Am.
Compl. ¶ 46.) At the end of September of 2015, approximately one month after Fulcher’s
allegedly protected speech, certain of the Fulcher Defendants changed Fulcher’s work hours and
denied his request for a reasonable accommodation to take care of his spouse, and approximately
four months later, on January 21, 2016, terminated his employment. (Fulcher Am. Compl. ¶¶ 46,
56–58.)
Although Fulcher’s allegation as to the timing of his DOL complaint, as it relates to the
denial of his request for reasonable accommodation, change in work hours and termination,
suggests that there may be a causal connection based on temporal proximity, because Fulcher
does not allege that any of the Defendants were aware of his complaint to the DOL, the Court
cannot infer that these actions were motivated even in part by retaliatory animus. Fulcher
therefore fails to state a First Amendment retaliation claim regarding his complaint to the DOL.
See Wrobel v. County of Erie, 692 F.3d 22, 32 (2d Cir. 2012) (“[I]t is only intuitive that for
protected conduct to be a substantial or motiving factor in a decision, the decisionmakers must be

are in dispute, a court may need to have a jury resolve them before it can decide whether
qualified immunity bars a plaintiff’s claim, or, at least, it may require a full record on a motion
for summary judgment to determine if there is a factual issue.” (first citing Southerland v. City of
New York, 680 F.3d 127, 161 (2d Cir. 2012); and then citing Bendel v. Westchester Cty. Health
Care Corp., 112 F. Supp. 2d 324, 329 (S.D.N.Y. 2000))).

36

aware of the protected conduct.” (internal quotation marks omitted)); see, e.g., Cresci v. Mohawk
Valley Cmty. Coll., --- F. App’x ---, ---, 2017 WL 2392470, at *2 (2d Cir. June 2, 2017)
(affirming a district court’s dismissal of a First Amendment retaliation claim where the plaintiff
“failed to allege facts from which the court could infer that [the defendant] was aware of any
such protected speech”); Wu v. Metro-North Commuter R.R., No. 14-CV-7015, 2015 WL
5567043, at *6–7 (S.D.N.Y. Sept. 22, 2015) (dismissing claims on a Rule 12(b)(6) motion
because the plaintiff had “not pleaded any facts that would suggest that [the] [d]efendant [] even
had any knowledge of these complaints, rendering baseless any inference that he might have
been motivated to retaliate for them”); Ehrlich v. Dep’t of Educ. of City of N.Y.,
No. 11-CV-4114, 2012 WL 424991, at *4 (S.D.N.Y. Feb. 6, 2012) (dismissing a First
Amendment retaliation claim for failure to allege causation where the plaintiff did “not specify
where, when, or how any of the alleged speech (complaints) or adverse actions took place, or
whether [the individual defendants] even knew of [the plaintiff’s] complaints”); cf. Odermatt v.
N.Y.C. Dep’t of Educ., --- F. App’x ---, ---, 2017 WL 2378196, at *2 (2d Cir. June 1, 2017)
(holding that the plaintiff sufficiently alleged causation because it was “at least plausible” that
the defendant “was aware of the email [containing the allegedly protected speech] and that
removing [the plaintiff] was motivated by [the speech]” as the email was sent to the same
address that defendant used to notify the plaintiff of the adverse action two days later).
Accordingly, for the reasons discussed above, Plaintiffs fail to state a First Amendment
retaliation claim.

37

ii.

Dismissal with prejudice

Defendants argue that the Court should dismiss the complaints with prejudice. (Jeune
Defs. Mem. 1; Wright Defs. Mem. 1; Fulcher Defs. Mem. 1.) Plaintiffs have not requested the
opportunity to amend their complaints.
“When a motion to dismiss is granted, the usual practice is to grant leave to amend the
complaint.” Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999); see also Caren v.
Collins, --- F. App’x ---, ---, 2017 WL 3587488, at *3 (2d Cir. Aug. 21, 2017) (“[D]ismissal for
insufficient pleadings are ordinarily with leave to replead . . . .” (quotation omitted)). “However,
where the plaintiff is unable to demonstrate that he would be able to amend his complaint in a
manner which would survive dismissal, opportunity to replead is rightfully denied.”
Hayden, 180 F.3d at 53; see also TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir.
2014) (“A plaintiff need not be given leave to amend if it fails to specify either to the district
court or to the court of appeals how amendment would cure the pleading deficiencies in its
complaint.”); Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (holding that the district court
did not err in dismissing the claims with prejudice “[i]n the absence of any indication that [the
plaintiff] could — or would — provide additional allegations that might lead to a different
result”).
Courts are especially cautious of allowing a plaintiff multiple attempts to amend a
complaint. See, e.g., Neal v. Town of E. Haven, --- F. App’x ---, ---, 2017 WL 3225638, at *2
(2d Cir. July 31, 2017) (“We further conclude that the [d]istrict [c]ourt acted within its discretion
in dismissing the amended complaint with prejudice, in view of the fact that, after [the
plaintiff’s] original complaint was dismissed, he received leave to amend and failed to cure the
original complaint’s inadequacies.”); Offor v. Mercy Med. Ctr., 676 F. App’x 51, 54 (2d Cir.

38

2017) (“[The plaintiff] amended her original complaint once, and moved to amend the complaint
again after [the] defendants had filed a motion to dismiss. The district court did not abuse its
discretion in dismissing the complaint with prejudice and denying her a fourth attempt.”);
Montero, 224 F. Supp. at 274–75 (dismissing a complaint with prejudice where the plaintiff had
already amended the complaint and there “is no reason to suspect that, given another opportunity
to amend, [the] [p]laintiff will be able to cure the substantive deficiencies”); Anthony v.
Brockway, No. 15-CV-451, 2015 WL 5773402, at *3 (N.D.N.Y. Sept. 30, 2015) (“[The]
[p]laintiff has already been given one opportunity to amend his complaint . . . , and there is
nothing in his second amended complaint suggesting that [he] could do better given another
opportunity.”).
Here, allowing Fulcher a third attempt, and Jeune and Wright a fourth attempt, to plead a
First Amendment retaliation claim as to all of their allegations would be a waste of judicial
resources, and accordingly all but one of Plaintiffs’ claims are dismissed with prejudice.
Plaintiffs previously amended their complaints after a pre-motion conference where the Court
discussed the deficiencies in Plaintiffs’ complaints, (Min. Entry dated June 17, 2016), but as
discussed above, they failed to cure the deficiencies.
The Court is not convinced based on the various iterations of the complaints that, if given
another chance to amend, Plaintiffs would be able to cure the substantive deficiency of their First
Amendment retaliation claims. Allowing an additional amendment, to parties that are and have
been represented by counsel since the inception of this litigation, would be too generous. See,
e.g., Lefebvre II, 234 F. Supp. 3d at 461 (granting a motion to dismiss with prejudice where the
plaintiff had already benefited from two amended complaints, the first in response to a decision
on the merits, and still failed to state a claim); see, e.g., Panzella v. City of Newburgh, 231

39

F. Supp. 3d 1, 10 n.4 (S.D.N.Y. 2017) (dismissing claims with prejudice where the plaintiffs had
already amended their complaint once in response to the defendant’s pre-motion conference
letter).
Moreover, Plaintiffs have not requested leave to amend their respective complaints, nor
have they argued that any dismissal should be without prejudice, and the Court need not grant
unsolicited leave to amend. See, e.g., Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 125–26
(2d Cir. 2013) (“While leave to amend under the Federal Rules of Civil Procedure is freely
granted, no court can be said to have erred in failing to grant a request that was not made.”
(citations and internal quotation marks omitted)); see also Bastuk v. County of Monroe, 628
F. App’x 4, 7 (2d Cir. 2015) (“While represented by counsel in the district court, [the plaintiff]
never requested leave to amend his complaint” and “the district court did not abuse its discretion
here” by dismissing the complaint with prejudice. (citation omitted)); cf. Cresci, --- F. App’x at
---, 2017 WL 2392470, at *3 (holding that the district court erred in dismissing the initial
complaint with prejudice because the plaintiff requested leave to amend and the plaintiff should
not have been required to file a proposed amended complaint until the court granted the motion
to dismiss).
However, the Court denies without prejudice Fulcher’s First Amendment retaliation
claim based on the allegation that he complained to a DOL representative and allegedly was
retaliated against as a result of that complaint.33 Fulcher must allege the personal involvement of
any Defendant named in any amended pleading.

33

Fulcher specifically alleges that Crew, Johnson, Kinard Isaacs, Posman, Allen and
Clarke made the adverse employment decisions to change his work hours, deny his request for a
reasonable accommodation and terminate his employment but Fulcher excludes Hundley from
this list, (see, e.g., Fulcher Am. Compl. ¶¶ 56–57), and for that reason there is no basis for any
amended complaint by Fulcher against Hundley.
40

III. Conclusion
For the foregoing reasons, the Court grants Defendants’ motions to dismiss the Jeune and
Wright SACs and Fulcher Amended Complaint with prejudice as to all claims except Fulcher’s
claim that Fulcher Defendants retaliated against him for speaking to a DOL employee. Fulcher
shall file a second amended complaint within thirty (30) days of this Memorandum and Order. If
Fulcher fails to file a second amended complaint within the time specified, the Court will dismiss
Fulcher’s action with prejudice for the reasons set forth above.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: September 29, 2017
Brooklyn, New York

41