Lozada v. County of Nassau et al
MEMORANDUM & ORDER granting 43 Motion for Summary Judgment; IT IS HEREBY ORDERED that the Defendants' Summary Judgment Motion is GRANTED; and the Clerk of Court is directed to dismiss with prejudice all Plaintiff's causes of action against the Defendants; enter judgment in the Defendants' favor; and, thereafter, close this case. So Ordered by Judge Joanna Seybert on 3/31/2021. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
OF NASSAU, and
MANGANO, individually and
Jonathan A. Tand, Esq.
Morris Duffy Alonso & Faley
101 Greenwich Street, 22nd Floor
New York, New York 10006
Jennean R. Rogers, Esq., for
Jared A. Kasschau, Nassau County Attorney
One West Street
Mineola, New York 11501
SEYBERT, District Judge:
commenced this § 1983 action alleging she has been illegally
speech and petition.
(See Compl. ECF No. 1, ¶3.) The County of
Nassau (“County”) and Edward Mangano, individually and in his
capacity as former Nassau County Executive (“Mangano”; together
with the County, the “County Defendants”) move, pursuant to Rule
56 of the Federal Rules of Civil Procedure, for summary judgment
in their favor, seeking to have Plaintiff’s claims dismissed with
“Motion”); see also Support Memo., ECF No. 43-20.)
(See Opp’n, ECF No. 47.)
For the reasons that follow,
the Motion is GRANTED.
A. Factual Background 1
1. General Information
From at least 2006 until sometime in 2013, Plaintiff
volunteered with the Elmont Fire Department (“EFD”) as an emergency
medical technician and firefighter.
(See Compl. ¶9.)
volunteer with the EFD, Plaintiff became an employee of the County
in January 2010, when she was hired as an Administrative Aide for
Unless otherwise indicated, the facts are taken from the
County Defendants’ Rule 56. 1 Statement in support of their Motion
(hereafter, “D-56.1 Stmt.”)(see ECF No. 43-19), and Plaintiff’s
Rule 56.1 Counterstatement (hereafter, “P-56.1 Stmt.”)(see ECF No.
47-1). Unless otherwise stated, a standalone citation to a Rule
56.1 Statement or Counterstatement denotes that either the parties
agree, or the Court has determined, that the underlying factual
allegation(s) is(are) undisputed. Citation to a party’s Rule 56.1
Statement or Counterstatement incorporates by reference the
document(s) cited therein.
The County Defendants’ exhibits, which are attached to the
Declaration of Attorney Jennean R. Rodgers (see ECF No. 43-1), are
identified by letters. For ease of citation, the Court will simply
cite to the lettered exhibits. Plaintiff has not submitted any
exhibits in support of her Opposition.
(See D-56.1 Stmt., ¶¶3, 73.)
Director of CASA in July 2010.
She was promoted to Deputy
(See id., ¶5.)
Plaintiff was a
non-union, ordinance employee of the County; as such, she was
(See id., ¶¶71-73; see also Ex. M, Hubber
2. The First Incident:
The 2011 EFD Discrimination
Sometime in 2011, Plaintiff filed a complaint with the
New York State Division of Human Rights alleging she was subjected
(hereafter, the “2011 Complaint”).
(See Compl., ¶¶11-12.)
County did not become aware of the 2011 Complaint until March 2013.
(Id. at ¶¶13-14, 19; see also D-56.1 Stmt., ¶20.)
contends that once the County became aware of the 2011 Complaint,
it “did everything in [its] collective power to freeze [her] out
of the workplace.”
3. The January 2013 Job Inquiry
Three years after becoming a County employee, in January
2013, Plaintiff inquired with the Comptroller’s Office whether it
had an available position matching her qualifications.
56.1 Stmt., ¶¶13-14.) While Comptroller Maragos met with Plaintiff
“to discuss the possibility of a position, . . . no formal offer
of employment was made.”
(Id. at ¶15; see also id. at ¶16.)
Indeed, “[t]he Comptroller never offered Ms. Lozada any position.”
(Id. at ¶18.)
Moreover, “Maragos had no knowledge of” the 2011
Complaint “until the present suit was filed.”
(Id. at ¶20.)
However, Plaintiff apparently informed her supervisor at
CASA, Elidia Lowery (“Lowery”), that she “had been offered a
position in the Comptroller’s Office and would be leaving CASA.”
(Id. at ¶21.)
Despite Plaintiff’s allegations, Lowery denies (i)
telling Plaintiff that Plaintiff was not going to be promoted
“because she ‘pissed off’ the administration” or (ii) threatening
Plaintiff “with a ‘blind transfer.’”
(Id. at ¶¶22, 23.)
Plaintiff was not transferred from CASA.
(See Ex. J, Lowery Depo,
Further, Lowery contends she was unaware of Plaintiff’s
2011 Complaint until Plaintiff showed Lowery a newspaper article
(See D-56.1 Stmt., ¶24; see also Ex. J, 42 (Lowery
Plaintiff showed Lowery a newspaper article).)
the Deputy Director of CASA until her termination in February 2016.
4. The Second Incident:
The 2013 EFD Fraud Complaint
Nassau County employee Ann Demichael worked for the
Constituent Affairs Department, a County department not associated
(See D-56.1 Stmt., ¶30.)
She did not work with
Plaintiff; their departments did not interact; and, Demichael had
no supervisory control over CASA or Plaintiff.
Plaintiff met in early March 2013 while preparing for a fundraiser
(Id. at ¶32; see also Ex. 0, N.C. Bates No. 000321.)
During their meeting, and in response to Demichael’s alleged
attempt to recruit Plaintiff to campaign in Elmont and at the EFD
on behalf of the then-current County administration, Plaintiff
explained that she could not be involved in those efforts due to
her 2011 Complaint.
(See Ex. 0, N.C. Bates No. 000321-22.)
Plaintiff also contends she told Demichael about an allegedly
fraudulent pension fund scheme engaged in by EFD officers, i.e.,
violating federal law.
(See id. at N.C. Bates No. 00032.)
(See D-56.1 Stmt., ¶40.)
response to informing Demichael about the alleged pension fraud at
the EFD, Demichael instructed Plaintiff to “shut her mouth” and
threatened her well-being and that of her family.
(Ex. G, 71:4-
That led to Plaintiff lodging a verbal complaint against
Employment Office (“EEO”).
(See Ex. O, N.C. Bates No. 000321-23.)
However, Plaintiff was advised that her complaint was not an EEO
matter since her complaint of pension theft by the EFD was not
“protected activity” “that relates to any protected classification
identified in the EEO policy (i.e., race, religion, national
(Id. at N.C. Bates No. 000323.)
was informed that she could make a formal workplace violence claim,
which Plaintiff declined to do.
The matter was referred
Plaintiff’s allegations, and HR discussed the County’s standards
of behavior for employees with Demichael.
(See id. at ¶38.)
5. The Third Incident: The 2014 Discrimination Complaint
discrimination complaint with the New York State Division of Human
discriminatory employment practices, including retaliation.
56.1 Stmt., ¶25; see also Ex. E; Ex. O at N.C. Bates No. 000446
(“[Plaintiff] contends that she was denied a promotion/transfer
with an accompanying $80k annual salary by [the County] as a result
of her . . . having opposed discrimination/retaliation.”).)
investigating Plaintiff’s 2014 Discrimination Complaint, NYS-DHR
“found that no information was provided to support [Plaintiff’s]
claim of her having opposed discrimination/retaliation as provided
in the definition for such under the New York State Human Rights
(Ex. O, NYS-DHR “Final Investigation Report and Basis of
Determination, at N.C. Bates No. 000446; see also id. at N.C. Bates
No. 000445-46 (“Despite [Plaintiff]’s assertions that she was
promised a promotion/transfer with an accompanying salary of $80k
annually[,] she was unable to provide any information as to the
[Plaintiff] was unable to provide any specifics or documentations
NYS-DHR determined that “the investigation
does not support [Plaintiff]’s charging [the County] with unlawful
discriminatory practices in retaliation to employment because of
race/color, sex, opposed discrimination/retaliation.”
also Ex. F, NYS-DHR “Determination and Order After Investigation”
(“After investigation, and following opportunity for review of
related information and evidence by the named parties, [NYS-DHR]
has determined that there is NO PROBBLE CAUSE to believe that the
discriminatory practice complained of.”).)
6. Other Incidents
In March 2014, Plaintiff lodged a Workplace Violence
volunteer who worked at CASA.
(See Ex. O at N.C. Bates No. 000376-
The incident was investigated, with the investigator noting:
Plaintiff claimed the volunteer “yelled and screamed at her after
she stated that she would help [a CASA] client,” but that the
volunteer “did not curse at her”; the volunteer acknowledged
approaching Plaintiff, “but denie[d] yelling or cursing at her”;
and, “[t]he witnesses who were working on that day did not hear
Thereafter, the case was closed.
Plaintiff alleges that on or about December 18, 2015,
(hereafter, the “Notice of Claim”). 2
(See Compl., ¶43.)
“claim is based upon the [EFD’s, Town of Hempstead’s, and County’s]
violation of [Plaintiff]’s statutory and constitutional rights by
means of unlawful retaliation based upon [Plaintiff]’s lawful
origin, and marital status.”
(Ex. C, Notice of Claim, at 1-2.)
In her Notice of Claim, Plaintiff contends that, as a result of
making her 2011 Complaint, she has suffered retaliation by, inter
alia: being denied a promotion to the Comptroller’s Office; no
longer being invited to participate in certain County events; and,
being denied applications to several civil service positions. (See
id. at 3.)
There is no evidence that Plaintiff’s supervisor,
Lowery, was aware of the Notice of Claim.
Plaintiff made two more workplace violence complaints,
both on February 22, 2016.
The first February 22 complaint
involved an interaction with a volunteer worker.
(See Ex. O at
While the Notice of Claim is dated November 30, 2015, it was
received by the Nassau County Attorney’s Office on December 17,
2015. (See Ex. C at 4; cf. id. at 1.)
volunteer “was yelling and blocking her office doorway so she could
not exit her cubicle”).)
Plaintiff asserted that the volunteer
“came to the doorway of her office and yelled[,] ‘Do you have a
problem with me,’” to which she responded, “‘please step away from
(Id. at N.C. Bates No. 000390.)
However, the volunteer
[Plaintiff] state[d] she remained sitting at her desk until [the
Attorney “determined that the actions of [the volunteer] did not
violate the County’s Workplace Violence Policy.”
(Id. at N.C.
Bates No. 000397.)
Plaintiff based her second February 22, 2016 workplace
violence complaint on the contention that while she was taking her
lunch break at 11:00 a.m., a co-worker “yelled at her to help
clients,” and then “crossed out her name in a log book and wrote
that clients waited an hour.”
(Id. at N.C. Bates No. 000401.)
The County investigated this second February 22 complaint and
determined that Plaintiff’s co-worker did not violate the County’s
Workplace Violence Policy.
(See id. at N.C. Bates No. 000406.)
7. Plaintiff’s Termination
While Plaintiff’s boss, Lowery, testified that Plaintiff
initially was an excellent employee, that assessment changed at
the end of 2015. 3
(See Ex. J at 22.)
For example, Plaintiff would
leave the office without informing Lowery.
(D-56.1 Stmt., ¶58.)
Similarly, she would leave early for the day, but fail to clock
out or request the time off.
When asked by Lowery to
properly request time off, Plaintiff failed to do so.
(See id. at
Apparently to defuse tension in the office, on December
9, 2015, Lowery “issued different memos regarding job duties for
each CASA employee.”
(D-56.1 Stmt., ¶42; see also id. at ¶¶49-
50; Ex. J, 13:19-14:6.)
Per the memo regarding Plaintiff’s job
duties, she was: responsible for the oversight and processing of
all contracts; required to “collaborat[e] with other CASA coworkers and maintain positive productive working relationships
to manage the workload”; and, to assist constituents with various
(Id. at ¶¶44-46.)
While Plaintiff’s co-workers signed
off on their respective memos, Plaintiff refused to sign hers.
(See id. at ¶¶43, 47-48.)
Primarily because of her time and leave abuse, Plaintiff
was terminated on February 26, 2016.
(See D-56.1 Stmt. ¶74; see
also Ex. M, Huber Depo., 8:13-9:5, 15:14-21; Ex. J at 13:16-14:6,
Although Lowery testified that matters worsened at the end of
2016, having reviewed the entirety of her deposition testimony and
since Plaintiff was terminated on February 26, 2016, it is apparent
Lowery misspoke and meant the end of 2015.
B. Procedural Background
On November 14, 2016, Plaintiff commenced this action by
retaliation for engaging in constitutionally protected free speech
constitutionally protected petitioning (Second Cause of Action).
The crux of Plaintiff’s Complaint is that, in
retaliation for engaging in her right to free speech and free
County’”, with Defendants “d[oing] everything in their collective
power to freeze Plaintiff out of the workplace.”
the close of discovery, the County Defendants moved for summary
judgment, requesting that all of Plaintiff’s claims be dismissed
with prejudice, asserting, inter alia:
based upon speech or activities made prior to November 14, 2013
are time-barred; Plaintiff’s claims are precluded by collateral
estoppel; there is no individual liability as to Mangano; Plaintiff
cannot make out a claim of municipal liability because she cannot
establish a municipal policy, practice or custom that caused the
alleged violations of her constitutional rights; and, Plaintiff
has failed to establish a causal connection between either her not
Plaintiff opposed the Summary Judgment Motion
contending, inter alia: questions of material fact exist as to
each element of her First Amendment claims; her claims are not
time-barred because of they are subject to the continuing violation
establish municipal liability.
A. Applicable Law
1. The Summary Judgment Standard
“Summary judgment is proper ‘if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’”
ING Bank N.V. v.
M/V TEMARA, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018)
(quoting FED. R. CIV. P. 56(a)); accord Jaffer v. Hirji, 887 F.3d
111, 114 (2d Cir. 2018).
In ruling on a summary judgment motion,
the district court must first “determine whether there is a genuine
dispute as to a material fact, raising an issue for trial.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.
2007) (internal quotations and citations omitted); see also Ricci
v. DeStefano, 557 U.S. 557, 586 (2009) (“On a motion for summary
judgment, facts must be viewed in the light most favorable to the
nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” (internal quotations and citation omitted)).
In reviewing the record to determine whether there is a
genuine issue for trial, the court must “construe the evidence in
the light most favorable to the non-moving party,” Centro de la
Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d
104, 109 (2d Cir. 2017) (quotations, alterations and citation
omitted), and “resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party
opposing summary judgment.”
Davis-Garett v. Urban Outfitters,
Inc., 921 F.3d 30, 45 (2d Cir. 2019) (quotations and citation
omitted); see also Hancock v. County of Rensselaer, 823 F.3d 58,
64 (2d Cir. 2018) (“In determining whether there is a genuine
dispute as to a material fact, we must resolve all ambiguities and
draw all inferences against the moving party.”). “Where the record
taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.”
Ricci, 557 U.S. at 586 (quoting Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986));
accord Baez v. JetBlue Airways Corp., 793 F.3d 269, 274 (2d Cir.
“The moving party bears the initial burden of showing
that there is no genuine dispute as to a material fact.”
Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123
(2d Cir. 2013) (quotations, brackets and citation omitted); accord
Jaffer, 887 F.3d at 114.
“[W]hen the moving party has carried its
burden[,] . . . its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts . . .
[,]” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita
Elec., 475 U.S. at 586-87), and must offer “some hard evidence
showing that its version of the events is not wholly fanciful[.]”
Miner v. Clinton County, N.Y., 541 F.3d 464, 471 (2d Cir. 2008)
(quotations and citation omitted).
The nonmoving party can only
defeat summary judgment “by adduc[ing] evidence on which the jury
could reasonably find for that party.”
Lyons v. Lancer Ins. Co.,
681 F.3d 50, 56 (2d Cir. 2012) (quotations, brackets and citation
Since “there is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party[,] . . . [i]f the evidence is
merely colorable, . . . or is not significantly probative, . . .
summary judgment may be granted.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986)(quotations and citations omitted).
2. First Amendment Retaliation Claims Standards
“Where, as here, a plaintiff claims that he or she was
retaliated against in violation of the First Amendment, he or she
must plausibly allege that ‘(1) his [or her] speech or conduct was
protected by the First Amendment; (2) the defendant took an adverse
action against him [or her]; and (3) there was a causal connection
between this adverse action and the protected speech.’”
v. City of Yonkers, N.Y., 890 F.3d 386, 394 (2d Cir. 2018)(quoting
Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir.
First Amendment retaliation claims brought pursuant to §
1983 in New York State are subject to the State’s three-year
statute of limitation.
See Pearl v. City of Long Beach, 296 F.3d
76, 79 (2d Cir. 2002) (three-year statute of limitations applies
to claims arising in New York under 42 U.S.C. § 1983).
Speech by a Public Employee
Where a public employee speaks in the workplace “as a
citizen . . . upon matters of public concern,” he “may be protected
Pickering v. Bd. of Educ., 391 U.S. 563, 568
(1968); see also Montero, 890 F.3d at 395.
When presented with a
First Amendment Retaliation claim by a public employee, a court
must first determine whether the plaintiff/employee’s speech was
undertaken as a citizen regarding a matter of public concern and,
if so, assess whether the defendant/employer can establish that it
differently [based on his or her speech] from any other member of
the general public.”
Garcetti v. Ceballos, 574 U.S. 410, 418
(2006) (citing Pickering, 391 U.S. at 568).
If, however, a public
employee makes a statement pursuant to his official duties, he is
not speaking as a public citizen for First Amendment purposes,
and, under such a scenario, “the Constitution does not insulate
Montero, 890 F.3d at 395 (quoting Garcetti, 574 U.S. at 421).
determining whether an employee’s speech addresses a matter of
public concern, a court must examine the “content, form, and
context of a given statement, as revealed by the whole record.”
Connick v. Myers, 461 U.S. 138, 147-48 (1983).
“The inquiry into
the protected status of speech is one of law, not fact.”
Petitioning by a Public Employee
When a public employee raises a claim of retaliation
based upon an alleged First Amendment right-to-petition, it is
analyzed under the same rubric as a Speech Clause claim.
Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 398 (2011) (“The
framework used to govern Speech Clause claims by public employees,
interests of the government and the First Amendment right.”).
If a public employee petitions as an employee
on a matter of purely private concern, the
employee’s First Amendment interest must give
way, as it does in speech cases. [But, w]hen
a public employee petitions as a citizen on a
matter of public concern, the employee’s First
Amendment interest must be balanced against
the countervailing interest of the government
in the effective and efficient management of
its internal affairs.
Thus, as with a First Amendment speech claim, deciding
“[w]hether First Amendment activity addresses a matter of public
concern is an issue of law,” Lakner v. Lantz, No. 3:08-CV-0887,
2011 WL 4572673, at *2 (D. Conn. Sept. 30, 2011)(citing Johnson v.
determination requires a court to consider the “content, form, and
context” of the given activity “as revealed by the whole record.”
Guarnieri, 564 U.S. at 398 (quoting Connick, 461 U.S. at 147-48;
internal quotations omitted).
B. The Instant Case
As an initial matter, while Plaintiff’s Complaint is not
the exemplar of clarity, it appears that her First Amendment
retaliation claims are based upon the following adverse actions: 4
(i) the County’s alleged failure to promote Plaintiff in 2013, and
(ii) Plaintiff’s February 26, 2016 termination. 5
“An adverse employment action is ‘a materially adverse change
in the terms and conditions of employment.’” Fahrenkrug v. Verizon
Srvs. Corp., 652 F. App’x 54, 56 (2d Cir. 2016)(quoting Sanders v.
N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)); accord
Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231, 235 (2d Cir. 2015).
It “‘must be more disruptive than a mere inconvenience or an
alteration of job responsibilities and might be indicated by a
termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or
other indices  unique to a particular situation.’” Fox v. Costco
Wholesale Corp., 918 F.3d 65, 71-72 (2d Cir. 2019)(quoting
Patrolmen’s Benevolent Ass’n of City of N.Y. v. City of N.Y., 310
F.3d 43, 51 (2d Cir. 2002)). Rather, it is “any action that ‘could
well dissuade a reasonable worker from making or supporting a
charge of discrimination.’”
Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 90 (2d Cir. 2015)(quoting Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
To the extent Plaintiff alleged other “adverse action”
incidents, in addition to said incidents being woefully vague and
conclusory, in opposing Defendants’ Summary Judgment Motion,
Plaintiff has failed to advance or discuss them in any meaningful
way. (See Opp’n, in passim.) Accordingly, Plaintiff is deemed to
have abandoned any other incident as a bases for finding unlawful
retaliation. See, e.g., Jackson v. Fed. Express, 766 F.3d 189,
discussed, upon the summary judgment record presented, 6 Plaintiff
cannot maintain her retaliation action.
198 (2d Cir. 2014)(“[I]n the case of a counseled party, a court
may, when appropriate, infer from a party’s partial opposition
that relevant claims or defenses that are not defended have been
abandoned.”); Camarda v. Selover, 673 F. App’x 26, 30 (2d Cir.
2016)(“Even where abandonment by a counseled party is not explicit,
a court may infer abandonment from the papers and circumstances
viewed as a whole.” (internal quotation marks and citation
The Second Circuit has recently stated, “Plaintiffs who ignore
their obligations under Local Rule 56.1 do so at their own peril.”
Genova v. County of Nassau, No. 20-1049-CV, -- F. App’x --, 2021
WL 1115607, at *2 (2d Cir. Mar. 24, 2021)(summary order). Here,
Plaintiff has ignored those obligations since, with one exception
(see Plaintiff’s “Response” to Defendants’ Rule 56.1 Statement at
paragraph 62), she fails to specifically controvert the
Defendants’ Rule 56.1 Statements, thereby flouting the requirement
of Local Civil Rule 56.1(d) that “[e]ach statement by the movant
or opponent pursuant to Rule 56.1(a) and (b), including each
statement controverting any statement of material fact, must be
followed by citation to evidence which would be admissible, set
forth as required by Fed. R. Civ. P. 56(c).” (emphasis added).
Moreover, Plaintiff’s disputes are conclusory in nature, which
contradicts the Second Circuit’s instruction that conclusory
denials “‘cannot by themselves create a genuine issue of material
fact where none would otherwise exist,’ nor can ‘mere speculation
or conjecture as to the true nature of the facts.’”
Keenan v. Hoffman-Rosenfeld, 833 F. App’x 489, 491 (2d Cir. Nov.
5, 2020) (quoting Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010)
(internal quotation marks omitted))(concluding district court did
not abuse its discretion in deeming admitted movants’ statements
of facts where nonmovant responded with conclusory statements).
Hence, Defendants’ Rule 56.1 Statements are deemed admitted for
the purpose of deciding the instant Motion, with the exception of
paragraph 62 of Defendants’ Rule 56.1 Statement, based upon
Plaintiff’s failure to comply with Local Rule 56.1(d) by not
specifically controverting Defendants’ Rule 56.1 Statements. See
Skates v. Inc. Vill. of Freeport, 265 F. Supp. 3d 222, 233
(E.D.N.Y. 2017) (“As Plaintiff failed to specifically controvert
the facts in [the County] Defendant[s’] Local Rule 56.1 Statement,
the facts contained therein that are supported by record evidence
are deemed admitted for purposes of the instant [M]otion.” (citing
1. Claims of Retaliation Based Upon The 2013 Failure-toPromote are Time-Barred
protected First Amendment speech and activities, her claims that
retaliation in response to her 2011 Complaint and other vague
Verlus v. Liberty Mut. Ins. Co., No. 14-CV-2493, 2015 WL 7170484,
at *1 (S.D.N.Y. Nov. 12, 2015) (“Plaintiffs’ failure to
specifically controvert Defendant’s Local Civil Rule 56.1
Statement requires this Court to deem Defendant’s version of the
facts admitted for purposes of this motion.”))); Taylor & Fulton
Packing, LLC v. Marco Intern. Foods, LLC, No. 09-CV-2614, 2011 WL
6329194, at *4 (E.D.N.Y. Dec. 16, 2011)(“Where a nonmovant . . .
files a deficient statement, courts frequently deem all supported
assertions in the movant’s statement admitted and find summary
judgment appropriate.” (footnote omitted)); see also Ezagui v.
City of N.Y., 726 F. Supp. 2d 275, 285 n.8 (S.D.N.Y. 2010)(noting
statements which a nonmovant does “not specifically deny–with
citations to supporting evidence–are deemed admitted for purposes
of [movant’s] summary judgment motion”) (collecting cases);
Universal Calvary Church v. City of N.Y., No. 96-CV-4606, 2000 WL
1745048, at *2 n.5 (S.D.N.Y. Nov. 28, 2000)(discussing Local Rule
56.1(d)’s requirement and collecting cases deeming as admitted
denied statements of fact where the denials were conclusory and/or
not properly supported by evidence).
Further, the Court finds
that paragraph 62, while disputed, does not address a material
fact that must be addressed to resolve this Motion.
Local Rule 56.1(b) also permits a nonmovant to include “if
necessary, additional paragraphs containing a separate, short and
concise statement of additional material facts as to which it is
contended that there exists a genuine issue to be tried.” Pursuant
to Local Rule 56.1(b), Plaintiff has submitted “ADDITIONAL FACTS”
in her Rule 56.1 Counterstatement. (See P-56.1 Stmt., ECF No. 471, at pp.11-12, ¶¶1-17; hereafter, the “Additional Facts”.)
Defendants filed a responsive statement admitting some of the
Additional Facts and denying others. (See Resp. Add’l Facts, ECF
However, the Court need not address the Additional
Facts because they relate to Plaintiff’s claims which are timebarred. (See infra.)
complaints are time-barred. 7
As the Defendants assert, “it is
uncontested that Plaintiff was aware that she was not being hired
to the position in the Comptroller’s Office as early as September
2013 – at least two months outside the statute of limitations
(Reply, ECF No. 50, at 2 (citing Ex. E, Plaintiff’s 2014
Discrimination Complaint (indicating Plaintiff believed for nine
months that she would be promoted)); see also Compl. (dated,
verified, and filed Nov. 14, 2016).)
In opposition, Plaintiff
The Court notes Plaintiff’s Second Cause of Action, alleging
petitioning, is premised upon her “petitioning the government for
redress against the Town of Elmont Fire Department.” (See Compl.
¶56(e).) However, even if not considered time-barred for the same
reasons discussed infra, this claim would be deemed waived. “Where
. . . a public employee brings a retaliation claim based on the
First Amendment, a plaintiff must put forth evidence . . .
demonstrate[ing] . . . a prima facie case.” Frisenda v. Inc. Vill.
Of Malverne, 775 F. Supp. 2d 486, 503 (E.D.N.Y. 2011)(emphasis
added). Although Plaintiff contends to have “raised questions of
material fact as to each element of his [sic] claims of violation
of Plaintiff’s First Amendment Right to petition the government”
(Opp’n at 12-13 (vaguely alluding to “foregoing reasons”)), she
cites to none. (See id. at 13.) Moreover, other than generally
stating the applicable law, Plaintiff has not advanced any argument
supporting her retaliation-for-petitioning claim. (See id. at 1213.) Since Plaintiff has failed to specifically or meaningfully
address this argument, her Second Cause of Action would be deemed
waived. See, e.g., Jackson, 766 F.3d at 198; Camarda, 673 F. App’x
at 30; Neurological Surgery, P.C. v. Travelers Co., 243 F. Supp.
3d 318, 329 (E.D.N.Y. 2017)(deeming an argument waived because it
was not addressed in a party’s opposition brief); see also Patacca
v. CSC Hldgs., LLC, No. 16-CV-0679, 2019 WL 1676001, at *13
(E.D.N.Y. Apr. 17, 2019)(deeming waived claims which are not fully
addressed in opposition papers)(collecting cases); Petrisch v.
HSBC Bank USA, Inc., No. 07-CV-3303, 2013 WL 1316712, at *17
(E.D.N.Y. Mar. 28, 2013)(collecting cases holding that where party
fails to address arguments in opposition papers on summary judgment
motion, the claim is deemed abandoned).
contends she “endured a pattern of ongoing harassment that began
statutorily prescribed time period” as she was “ultimately . . .
denied her job transfer due to the Mangano administration looking
to retaliate against [her] for speaking about Mangano’s political
ally at the Elmont Fire Department.”
(Opp’n at 13 (emphasis
To the extent Plaintiff relies upon the “continuing
incident as an adverse action, said reliance is misplaced.
as the Defendants observe:
“Plaintiff supports Defendant’s [sic]
argument in rejecting the continuing violations applicability to
this case” when she stated “that ‘because plaintiff has only
alleged private civil torts, the continuing violation doctrine is
(Reply at 1 (quoting Opp’n at 13).)
“doctrine applies only to harassment claims.
to discrimination and retaliation claims.”
It is inapplicable
Harris v. Bd. Of Educ.
Of the City Sch. Dist., 230 F. Supp. 3d 88, 98 (E.D.N.Y. 2017)
(citing Dimitracopoulos v. City of N.Y., 26 F. Supp. 3d 200, 212
Moreover, “[t]he ‘mere fact that the effects of
retaliation are continuing does not make the retaliatory act itself
a continuing one.’”
Gonzalez v. Hasty, 802 F.3d 212, 222-23 (2d
Cir. 2015)(quoting Deters v. City of Poughkeepsie, 150 F. App’x
10, 12 (2d Cir. 2005) (summary order)). Indeed, the Second Circuit
has held that “[a] refusal to hire is a ‘discrete act[ ]’ that
‘constitutes a separate actionable ‘unlawful employment practice,’
such that the applicable statute of limitations begins to run from
the date of the adverse hiring decision.”
Rodriguez v. County of
Nassau, 547 F. App’x 79, 81 (2d Cir. 2013)(quoting
Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)).
she is vague throughout with dates, in her verified Complaint,
Plaintiff avers that the County became aware of her 2011 Complaint
in March 2013, after which Defendants rescinded her promotion.
(See Compl. ¶¶19, 33.)
Thus, by her own admission, Plaintiff was
aware of the Defendants’ adverse hiring decision well outside the
applicable statute of limitation.
Third, even if Plaintiff had
doctrine, she has failed to present evidence that the County’s
alleged 2013 failure-to-promote decision was part of an ongoing
there is no basis for tolling the limitations period.
Laurent v. City of N.Y., No. 17-CV-5740, 2019 WL 1364230, at *5-6
(E.D.N.Y. Mar. 26, 2019)(relying upon Rodriguez, 547 F. App’x 79,
for concluding no continuing violation is established in the
absence of showing an ongoing discriminatory policy).
occurred beyond the three-year statute of limitations (see Opp’n
at 13) and finding that the continuing violation doctrine is
inapplicable in this instance, as a matter of law, the Defendants
are entitled to summary judgment in their favor as to Plaintiff’s
claims of retaliation based upon her engagement in the alleged
free speech and free petition activities prior to November 14,
Even if that were not the case and continuing to assume,
Plaintiff could not make out a prima facie case of First Amendment
retaliation since she is unable to establish the requisite adverse
See Montero, 890 F.3d at 394.
As noted, an
adverse employment action is one that has a materially adverse
change in the terms and conditions of employment.
(See supra note
Upon the record presented, Plaintiff is unable to establish
such a change in 2013 for the simple reason that, in the first
instance, she is unable to prove she was offered a new position in
the Comptroller’s Office.
(See D-56.1 Stmt., ¶¶15-18; see also
Ex. K, Maragos Depo., 18 (testifying that that no formal or
informal offer of a position was made to Plaintiff), 21-22 (same).)
Plaintiff “was unable to provide any specifics or documentations
promotion/transfer with an accompanying salary of $80k annually”
(Ex O at N.C. Bates Nos. 000445-46), leading to its determination
that the County did not engage in discriminatory retaliation. (See
Ex. F at 1; see also id. at 2 (stating that despite Plaintiff
allegedly being told she would be transferred, “she continues to
work in the same department and no such transfer has occurred or
Plaintiff is collaterally estopped from rearguing
a denial of promotion in the face of the NYS-DHR’s investigation
to the contrary and its subsequent determination. 8
See Kosakow v.
New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 728 (2d Cir.
2001)(“[I]n § 1983 actions, the factual determinations of a state
administrative agency, acting in a judicial capacity, are entitled
to the same issue and claim preclusive effect in federal court
that the agency’s determinations would receive in the State’s
courts.”); id. at 730 (instructing “that there must be an identity
of issue which has necessarily been decided in the prior action
and is decisive of the present action, and [that] the party to be
estopped must have had a full and fair opportunity to contest the
decision now said to be controlling” (internal quotation marks and
Moreover, Plaintiff has failed to advance
Plaintiff does not argue the absence of a full and fair
opportunity to litigate the failure-to-promote issue; instead, she
contends that the NYS-DHR’s decision “in no part cites first
amendment retaliation, free speech, corruption, or any of the
allegations in the instant matter.”
(See Opp’n at 13-14); cf.
Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 730
(2d Cir. 2001) (“the opponent bears the burden of proving that he
or she did not have a full and fair opportunity to litigate the
issue” (citation omitted)).
admissible evidence of a job offer that was later reneged which
would create a disputed fact necessitating a jury trial.
given the dearth of evidence that Plaintiff suffered actionable
adverse employment action by being denied a promotion, she would
be unable to carry her prima facie burden of establishing First
Amendment retaliation, 9 thereby warranting summary judgment in
Defendants’ favor as a matter of law.
2. As to Her 2016 Termination, Plaintiff Cannot Establish
a Prima Facie Case of First Amendment Retaliation
Upon the record presented, Plaintiff is unable to make
out a prima facie case that her February 26, 2016 termination was
in retaliation for engaging in protected First Amendment speech or
activity since none of the conduct she puts forth is protected
careful examination of the content, form, and context of said
Complaint, as revealed by the whole record, see Connick, 461 U.S.
at 147-48, demonstrates that the complaint was personal in nature,
dissatisfaction with the conditions of her employment.
For substantially the same reason, to the extent Plaintiff
contends she suffered an adverse employment action because of an
alleged threatened transfer, since the record evidence establishes
Plaintiff maintained her Deputy Director position with CASA until
her February 2016 termination, she cannot rely on said transfer
threat to carry her First Amendment retaliation prima facie burden.
v. Cowen, 165 F.3d 154, 164 (2d Cir. 1999)(“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”); Volpe v. Ryder, No. 19-CV-2236, 2020 WL 7699949,
at *9 (E.D.N.Y. Oct. 16, 2020)(recommending dismissal of First
Amendment retaliation claim “on the basis of a lack of protected
speech” where speech addressed plaintiff’s “own situation and
viewed, in context, was certainly of a purely private nature”),
report & recommendation adopted, 2020 WL 7041091 (E.D.N.Y. Nov.
As such, the 2014 Complaint did not address a matter
of public concern and, therefore, cannot support a prima facie
case of First Amendment retaliation. Yet, even assuming, arguendo,
that were not the case, in the absence of any other evidence
expanse of time between the 2014 Discrimination Complaint and her
requisite causal connection in this instance.
See Montero, 890
F.3d at 394 (instructing that to maintain a First Amendment Free
Speech retaliation claim, there must be a causal connection between
the adverse action and protected speech); Morgan v. Dep’t of Motor
Vehicles, No. 3:17-CV-2091, 2020 WL 1322834, at *10 (D. Conn. Mar.
20, 2020) (“[W]hile the Second Circuit has at times found evidence
of causation despite gaps of several months between the protected
activity and the adverse action, those cases involved either a
plausible or additional evidence of causation.
Neither is present
in this case.” (referring to Espinol v. Goord, 558 F.3d 119, 129
(2d Cir. 2009))).
Nor can Plaintiff rely upon her 2015 Notice of Claim as
protected First Amendment speech or activity because it does not
address matters of public concern.
Cf. Pickering, 391 U.S. at 568
(instructing that where a public employee speaks in the “workplace
as a citizen . . . upon matters of public concern,” she “may be
Notice of Claim shows it related to her employment, in which she
had a personal stake, and that by said Claim, Plaintiff sought
relief solely for herself.
See, e.g., Sousa v. Roque, 578 F.3d
164, 174 (2d Cir. 2009)(“An employee who complains solely about
his own dissatisfaction with the conditions of his own employment
is speaking upon matters only of personal interest.” (internal
quotation marks omitted)).
There is no evidence here that the
Notice of Claim was made to address some public concern or to be
disseminated in furtherance of public discourse.
Frisenda v. Inc. Village of Malverne, 775 F. Supp.2d 486, 507
(E.D.N.Y. 2011) (finding employee’s speech not protected because,
inter alia, it was not concerning a matter of public concern and
was not intended to be publicly disseminated in furtherance of
civic discourse (quoting Garcetti, 547 U.S. at 422)).
there is no evidence that Plaintiff’s superior, Lowery, had any
knowledge of the Notice of Claim.
Similarly, Plaintiff’s three workplace violence reports,
including those lodged days before Plaintiff’s termination, were
personal in nature, regarding unwelcomed interactions with work
colleagues, for which Plaintiff sought redress.
It is apparent
these reports did not address matters of public concern nor were
they disseminated in furtherance of public discourse.
Plaintiff’s “complaints addressed h[er] own situation and viewed,
in context, were certainly of a purely private nature.”
2020 WL 7699949, at *9 (recommending dismissal of First Amendment
retaliation claim “on the basis of a lack of protected speech”),
report & recommendation adopted, 2020 WL 7041091 (E.D.N.Y. Nov.
30, 2020); see also Montero, 890 F.3d at 399 (instructing speech
that “principally focuses on an issue that is personal in nature
and generally related to the speaker’s own situation” or that is
“calculated to redress personal grievances” does not qualify for
First Amendment protection)(citations omitted)).
Hence, none of
those reports are entitled to First Amendment protection; nor can
any of them serve as the basis for Plaintiff’s First Amendment
The Court’s determination that this action does not
address a matter of public concern or warrant First Amendment
protection is buttressed by the fact that Plaintiff complains
predominantly of personal damages to her income, and emotional and
psychological well-being, seeking relief that is personal to her.
(See Compl., Pray for Relief, at 12 13); cf. Storman v. Klein, 395
“complain[ed] solely of personal damages to his income, retirement
benefits, reputation, and physical and emotion well-being” in
addresse[d] solely personal grievances . . . and s[ought] relief
only for himself,” and, therefore “d[id] not address a matter of
public concern or warrant First Amendment protection”)(quoting
Storman v. Klein, No. 09-CV-0338, 2009 WL 10740175, at *2 (S.D.N.Y.
Aug. 17, 2009))(cleaned up)).
3. The Absence of Municipal Liability
Because Plaintiff has not put forth evidence supporting
a valid underlying constitutional deprivation, her claims against
the County pursuant to Monell v. Department of Social Services,
436 U.S. 658 (1978), are untenable.
See City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986) (observing that Monell liability
does not lie where a municipality’s officer does not inflict
constitutional harm); Segal v. City of N.Y., 459 F.3d 207, 219 (2d
underlying constitutional violation, its decision not to address
the municipal defendants’ liability under Monell [in the summary
judgment context] was entirely correct.”); cf. Johnson v. City of
N.Y., 551 F. App’x 14, 15 (2d Cir. 2014)(affirming dismissal of
complaint where plaintiff failed to allege a valid underlying
Moreover, even if Plaintiff could maintain such claims,
no municipal liability would lie in this instance as Plaintiff has
failed to establish the alleged adverse employment actions were
the result of a County policy.
See, e.g., Torraco v. Port Auth.
of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir. 2010) (instructing that
to prove a Monell claim, a plaintiff must show “(1) an official
policy or custom that (2) causes the plaintiff to be subjected to
(3) a denial of a constitutional right”) (citations omitted).
way to establish a policy or custom is to show “actions taken or
decisions made by municipal officials with final decision-making
authority, which caused the alleged violation of the plaintiff’s
Naples v. Stefanelli, 972 F. Supp. 2d 373, 387
Here, Plaintiff argues that Mangano was “a final
policyholder” who “himself nixed Plaintiff’s potential transfer to
the comptroller’s office.”
(Opp’n at 15.)
However, as Defendants
aptly counter, and as confirmed by the Court’s review of the
“Plaintiff has not offered even a scintilla evidence to
demonstrate that Mangano either denied her a transfer to the
Comptroller’s office or terminated her employment due to any
speech that she made,” including “her speech pertaining to [the]
Elmont Fire Department.”
(Reply at 8.)
4. No Basis to Find Mangano Liable
Plaintiff has sued Mangano both in his individual and
(See Compl, Caption.)
Even if not time barred
or waived, Plaintiff’s claims against Mangano would be unavailing.
First, it is well-settled that “an official-capacity
suit is, in all respects other than name, to be treated as a suit
against the [municipal] entity [of which the officer is an agent].”
Kentucky v. Graham, 473 U.S. 159, 166 (1985); accord Castanza v.
Town of Brookhaven, 700 F. Supp. 2d 277, 283-84 (E.D.N.Y. 2010)
(“Official-capacity suits generally represent only another way of
pleading an action against an entity of which an officer is an
agent.” (brackets omitted; internal quotation marks and citation
Hence, “[w]ithin the Second Circuit, where a plaintiff
names both the municipal entity and an official in his or her
official capacity, district courts have consistently dismissed the
official capacity claims as redundant.”
Phillips v. County of
Orange, 894 F. Supp. 2d 345, 385 (S.D.N.Y. 2012)(collecting cases).
Because the County is named in the Complaint (see Compl. ¶7), the
claims against Mangano in his official capacity are duplicative
and properly dismissed.
See, e.g., Field Day, LLC v. County of
Suffolk, 799 F. Supp. 2d, 205, 214 (E.D.N.Y. 2011)(dismissing, on
motion for summary judgment, claims against individual sued in his
official capacity, because real party in interest was the co-
defendant County)(citing Hafer v. Melo, 502 U.S. 21, 25-26 (1991);
Graham, 473 U.S. at 167 n.14).
Second, Plaintiff has failed to show that Mangano was
incident or in her 2016 termination.
Instead, the record evidence
demonstrates Mangano had a general knowledge of Plaintiff, e.g.,
that she was a possible supporter, had an interest in mixed martial
arts (“MMA”), and worked for CASA and may have been at County
(See Ex. I., Mangano Depo., at 15 (general supporter),
13, 21 (MMA interest), 14 (worked for CASA), 14, 16 (may have
prerequisite to an award of damages under § 1983.”
See Victory v.
Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (internal quotations and
citation omitted); see also Grullon v. City of New Haven, 720 F.3d
133, 138–39 (2d Cir. 2013)(“[I]n order to establish a defendant’s
individual liability in a suit brought under § 1983, a plaintiff
must show, inter alia, the defendant’s personal involvement in the
alleged constitutional deprivation.”); Spavone v. N.Y.S. Dep’t of
involvement of defendants in alleged constitutional deprivations
is a prerequisite to an award of damages under § 1983.”) (quoting
quotation marks omitted).
Thus, upon the record presented, no
reasonable juror could find that Mangano was personally involved
in the constitutional deprivations of which Plaintiff complains.
To the extent not expressly addressed, the Court has
considered Plaintiff’s remaining arguments and finds they are
without merit and/or fail to raise triable issues of fact that
would warrant denying summary judgment in Defendants’ favor.
Accordingly, IT IS HEREBY ORDERED that:
A. The Defendants’ Summary Judgment Motion is GRANTED; and
B. The Clerk of Court is directed to
1. dismiss with prejudice all Plaintiff’s causes of
action against the Defendants;
2. enter judgment in the Defendants’ favor; and,
3. thereafter, close this case.
March 31, 2021
Central Islip, New York
/s/ JOANNA SEYBERT
JOANNA SEYBERT, U.S.D.J
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