Loguidice v. McTiernan et al

Filing 90

DECISION AND ORDER denying Defts' 82 Motion for Summary Judgment. Signed by Senior Judge Thomas J. McAvoy on 9/5/19. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
ANDREA D. LOGUIDICE,
Plaintiff,
v.

1:14-CV-1323
(TJM/CFH)

EDWARD MCTIERNAN, et al.,
Defendants.
___________________________________________
Thomas J. McAvoy,
Sr. U.S. District Judge

DECISION & ORDER
Before the Court is Defendants’ motion for summary judgment in this case involving
Plaintiff’s claim that Defendants violated her constitutional rights by firing her from her
position as an attorney with the New York State Department of Environmental
Conservation because she had pursued a lawsuit against the State. See dkt. # 82.
Plaintiff’s lawsuit challenged denial of a permit a food truck in which Plaintiff had a
financial interest. The denial came, at least in part, because of the truck’s name: “The
Wandering Dago.” The parties have briefed the issues and the Court has determined to
decide the matter without oral argument.
I.

BACKGROUND
Plaintiff is an attorney licensed to practice in New York. Defendants’ Statement of

1

Material Facts (“Defendants’ Statement”), dkt. # 82-1, at ¶ 1. 1 At the times relevant to this
lawsuit, Plaintiff was in a relationship with and resided with Brandon Snooks. Id. at ¶ 2.
Plaintiff had an ownership interest in Wandering Dago, Inc., a food truck that operated in
the New York capital district. Id. at ¶ 3.
Wandering Dago, Inc., commenced an action in the United States District Court f or
the Northern District of New York on August 27, 2013. Id. at ¶ 4. W andering Dago sued
the State of New York, New York State Office of General Services (“OGS”), four
individuals employed by OGS, the New York Racing Association, Inc., Christopher Kay,
and Stephen Travers. Id. at 4; Plaintiff’s Response to Defendants’ Statement of Material
Facts (“Plaintiff’s Response”), dkt. # 85-1, at ¶ 4. Plaintiff settled with the New York
Racing Association, Kay, and Travers in January 2015. Id.
The parties dispute the role that Plaintiff played in the Wandering Dago. Compare
Defendants’ Statement at ¶ 5 to Plaintiff’s Response at ¶ 5. Defendants contend that
Plaintiff took charge of “the business aspects of the business,” which involved sending
emails, social media posts, website development, bookkeeping, shopping, cleaning, and
cooking. Defendants’ Statement at ¶ 5. Plaintiff admits that she engaged in these tasks,
but contends that Snooks shared the work with her. Plaintiff’s Response at ¶ 5.
The New York State Department of Environmental Conservation (“DEC”) advertised
a position for Natural Resources Damages (“NRD”) Senior Attorney in DEC’s Office of
General Counsel (“OGC”) in the fall of 2013. Defendant’s Statement at ¶ 6. That position

1

Both parties submitted the statement of material facts with citations to the record
required by Local Rule 7.1(3). The Court will cite to the Defendants’ statement for facts
which are undisputed and note where the parties disagree about a fact.
2

was a civil service position. Id. at ¶ 7. The candidates selected for interviews were
candidates “reachable” on the civil service list. Id. Plaintiff applied for the job and was
selected for an interview. Id. at ¶ 8.
The parties disagree about who conducted the initial interview. Defendants
contend that Defendant Benjamin Condon and DEC attorney Andrew Gugliemi conducted
the interview. Defendants’ Statement at ¶ 9. Plaintiff insists that Christian Dowd was also
part of the interview. Id. at ¶ 9. She also insists that the NRD position included w orking
with the Division of Fish & Wildlife, the remediation departments, and Indian Nations.
Plaintiff’s Response at ¶ 9. Plaintiff also contends that the parties did not discuss specif ic
cases on which Plaintiff would be working. Id.
Conlon and Gugliemi recommended that plaintiff advance in the application process
after the first interview. Defendants’ Statement at ¶ 10. She should, they concluded,
receive a second interview. Id. Defendants contend that Conlon and Deputy Counsel
Thomas Berkman conducted Plaintiff’s second interview, while Plaintiff insists that
Guglielmi and McTiernan were also present. Plaintiff’s Response at ¶ 11. She notes that
she wrote McTiernan on October 22, 2013 to thank him for the opportunity to interview,
and that Berkman phoned Plaintiff before October 28, 2013 and offered her the position.
Id. She accepted. Id. During that second interview, Plaintiff did not mention any outside
employment or her ownership of the food truck. Defendants’ Statement at ¶ 12. Plaintiff
contends that no one asked her any questions about outside employment. Plaintiff’s
Response at ¶ 12.
Based on recommendations from Conlon and Berkman, as well as his review of
Plaintiff’s application, McTiernan endorsed hiring Plaintiff. Defendants’ Statement at ¶ 13.
3

He forwarded it to DEC’s Office of Personnel so that Plaintiff could be offered a contingent
position as a probationary employee in the NRD Senior Attorney position. Id.
The parties dispute whether Defendants made the decision to hire Plaintiff before
or after they learned of her role with the food truck and in the Wandering Dago lawsuit.
Defendants contend that they did not officially hire Plaintiff until after they learned of her
connection to the lawsuit, while Plaintiff insists that evidence exists to show that
Defendants had already hired her before they learned that she had sued the State of New
York. Compare Defendants’ Statement at ¶¶ 14-16; Plaintiff’s Response at ¶¶ 14-16.
The parties disagree about whether McTiernan and Conlon knew of the Wandering Dago
lawsuit before various Bureau Chiefs informed them of the suit at an October 2013
meeting and suggested Plaintiff’s involvement in it. Plaintiff claims contradictions exist
between McTiernan’s declaration and his deposition. See Plaintif f’s Response at ¶ 15.
While McTiernan claimed in his declaration that he heard of the lawsuit at the meeting or
shortly thereafter, he testified in his deposition that he learned of Plaintiff’s lawsuit “when
‘some of the bureau chiefs approached [him] to tell [him] about it,” informing him “‘[t]hat we
had hired or we had extended an offer to a potential provisional lawyer who had a lawsuit
against the Office of General Services.’” Id. Likewise, Conlon stated at his deposition that
he could not remember whether the meeting occurred before or after Plaintiff’s hiring. Id.
Christian testified that Maglienti had googled Plaintiff’s name after seeing it on a list of
candidates, and found out that she had been involved in the lawsuit. Id. Conlon testified
that “‘nobody that interviewed [Plaintiff] had picked up on’” her involvement in the lawsuit.
Id. at ¶ 16.
Defendants point out that McTiernan and Conlon both claimed that their knowledge
4

about the lawsuit had no impact on their decision to hire the Plaintiff. Defendants’
Statement at ¶¶ 17-18. Plaintiff responds by quoting portions of their depositions.
McTiernan stated that “he ‘certainly had no legal opinion. It was my impression that that
should not be an impediment to her joining the department.’” Plaintiff’s Response at ¶ 17.
Conlon, Plaintiff points out, claimed “that he ‘didn’t see anything that as, you know,
involving the food truck that was involving the ability or inability of somebody to do legal
practice in relation to it. And that based on the interv iew process, we believe that Andrea
was the best person for the job.’” Id. at ¶ 18.
Defendants claim that after the October 2013 Bureau Chiefs meeting but before
Plaintiff started her work with DEC, McTiernan told Executive Deputy Commissioner Marc
Gerstman that the attorney DEC had hired owned the Wandering Dago food truck.
Defendants’ Statement at ¶ 19. Plaintiff contends that the testimony on this subject was
not as clear as Defendants claim. At his deposition, McTiernan stated that “‘I don’t
remember informing anyone, but it’s likely I apprised Marc Grestman, the executive
deputy.’” Plaintiff’s Response at ¶ 19. He later testified that he “‘did not recall that
discussion at all.’” Id. The parties dispute Grestman’s reaction to hearing about Plaintiff’s
involvement with the Wandering Dago food truck. Defendants claim that Grestman did not
object to hiring Plaintiff after learning of her involvement with the lawsuit. Defendants’
Statement at ¶ 21. Plaintiff, citing deposition testimony, contends that Grestman could not
recall whether he had an objection to Plaintiff’s hiring, but testified that he thought
McTiernan would have informed him of the hiring “because Grestman asked ‘all of the
executive staff to keep me apprized of any issues that may be notorious in the press’
because he ‘wanted to know what the agency was facing’ and for that reason he ‘would
5

have been concerned’ about Loguidice’s hiring.” Plaitniff’s Response at ¶ 21. The parties
also dispute whether Philip Lodico and Deborah Christian were aware of the lawsuit at the
time of Plaintiff’s hiring. Defendants’ Statement at ¶¶ 23-24; Plaintiff’s Response at ¶¶ 2324.
DEC Deputy Counsel Thomas Berkman offered Plaintiff a position as Natural
Resources Damages Attorney in the OGC’s Remediation Brueau on or about October 28,
2013. Defendants’ Statement at ¶ 25. Plaintiff adds that she accepted the position, and
that Berkman sent her a letter stating that “‘we have offered, and you have accepted, the
position of Senior Attorney (item 80136) in this agency’s Office of General Counsel. As
discussed, your start date is November 7, 2013. Congratulations on your appointment.’”
Plaintiff’s Response at ¶ 25. She starting working in that position on November 7, 2013.
Defendants’ Statement at ¶ 27.
Plaintiff received a contingent appointed position of Senior Attorney, effective
November 7, 2013. Id. at ¶ 28. The letter of appointment notes that:
As a contingent permanent employee, you must serve a probationary period of 26
to 52 weeks. This probationary period began on November 7, 2013. If your
services are not satisfactory, your appointment may be terminated at any time
duing the probationary period after the first eight weeks. Your probationary period
will continue for the maximum period, unless you are advised to the contary.
Id. at ¶ 29. 2 Defendants claim that Plaintiff understood this language to mean that her was
job was “probationary,” and that the probationary period would last 52 weeks, unless
Plaintiff was told that the period would be shortened. Id. at ¶ 30. Plaintif f claims she

2

Plaintiff correctly points out that Defendants’ quotation of this language omits
the word “permanent” from the prhase “contingent permanent employee” in the quoted
language. See Plaintiff’s Response at ¶ 29. The Court has supplied a corrected
quotation.
6

understood the language to mean “‘that if you performed your job satisfactorily beyond the
26- or 52-week period, you would then be a permanent employee.’” Plaintiff’s Response at
¶ 30. The parties agree that no one told Plaintiff her probationary period would be less
than 52 weeks. Id. at ¶ 31. Plaintiff applied the same logic to the provision in the letter
that stated she could be terminated if she did not meet standards after eight weeks on the
job. Compare Defendants’ Statement at ¶ 32; Plaintiff’s Response at ¶ 32.
Plaintiff received a copy of DEC’s Conflict of Interest Policy at the time of her
appointment. Id. at ¶ 33. The policy, as quoted by Defendants, states:
The purpose of the DEC’s Conflict of Interest Policy is to prevent conflict of interest
situations from occurring as a result of private interests, outside employment or
activities of employees outside of their official job capacity with the Department . . .
(p. 1)
[T]he public has a right to expect that the Department’s employees will be objective
and unbiased in carrying out their responsibilities. This places an added burden or
responsibility upon Department employees to avoid actual, apparent, or
potential conflicts of interest in situations concerning outside activities.’” (p. 2.)
(emphasis added) [emphasis added by Defendants; lack of open quotation mark in
original].
[A] Potential Conflict of Interest [is a] situation where a conflict could arise[, and an]
Apparent Conflict of Interest [is a] situation where the public may reasonably
perceive a conflict which does not necessarily exist (p. 2) (emphasis in original)
[notation by Defendants].
Failure to comply with the policy and/or laws of DEC and the State of New York
may result in sanctions . . . [which may include] termination (p. 9).
Id. at ¶ 34. Defendants claim that Plaintiff understood this policy to require her to get
permission before engaging in outside employment. Id. at ¶ 35. Plaintiff responds that
the DEC’s ethics officer concluded that she did not need to obtain perm ission to continue
the employment, since she began the outside activities before she started working for

7

DEC. Plaintiff’s Response at ¶ 35.
DEC Ethics Counsel Stuart Brody met with Plaintiff on November 20, 2013.
Defendants’ Statement at ¶ 36. Defendants claim the purpose of the meeting was “to
discuss the nature of her outside activities and counsel her with regard to the application
of DEC’s Conflict of Interest Policy and the Public Officers Law.” Id. Plaintiff claims the
meeting focused on the “food truck and the litigation,” not any ethical issues. Plaintiff’s
Response at ¶ 36. She contends that Brody “gathered information” about the New York
Racing Association’s actions to force Wandering Dago to leave the Saratoga Race Track
in summer 2013 because of the “‘offensive nature of the Company name on the truck.’”
Id. Brody also obtained information on OGS’s decision to deny the company a permit. Id.
He also questioned Plaintiff about her relationship with Brandon Snooks and her role with
the company. Id. Plaintiff alleges that Brody asked her “why [Plaintiff] would sue the
government if [she] wanted to get a job’ with the government” Id. According to Plaintiff,
Brody claimed that they “‘were trying to get to a point where the relationship could work
without the distraction of a lawsuit and a provocative name.’” Id. (emphasis added by
Plaintiff).
At the meeting, Plaintiff told Brody that she and Snooks lived together and owned
the business together. Defendants’ Statement at ¶ 37. According to Defendants, Brody
further explained to Plaintiff that employees were prohibited from “outside activities that
raise a conflict or an appearance of conflict of interest with any regulatory function of DEC,
or with entities with which DEC regularly interacts[.]” Id. at ¶ 38. Moreover, Brody
allegedly told Plaintiff, her responsibilities to the people of New York required to her to

8

make sure “that her personal business does not overlap with any of the natural resources
damages (NRD) matters which are part of her official duties.” Id. Plaintiff disputes that
the conversation covered these topics, insisting that Brody’s interest was in her business
and the litigation that surrounded it. Plaintiff’s Response at ¶ 38. Defendants also
contend that Brody provided counseling on the DEC’s Outside Activities Policy, noting that
the required inquiry into “‘whether the proposed outside employment is in a position of
high public visibility’” meant that the press coverage of the Wandering Dago lawsuit had
“raised the profile of the fast food truck and made plaintiff’s connection to it more publicly
visible.” Defendant’s Statement at ¶ 39. Plaintiff counters that Brody found that she did
not need permission to continue with an outside activity that began before she started her
employment with DEC. Plaintiffs’ Response at ¶ 39. She admits that Brody informed her
that the litigation and the food truck represented “‘a unique circumstance’” which required
her to “‘limit my involvement with the company, predominantly like public aspects of it.
And it was explained to me that, you know, we just didn’t want to draw attention to the
DEC [and] it shouldn’t become known that the owner of Wandering Dago was working at
the DEC.’” Id.
Brody prepared a memorandum for McTiernan on or about November 28, 2013,
that addressed Plaintiff’s involvement with the food truck. Defendants’ Statement at ¶ 40.
Brody concluded that no conflict of interest presently existed, “‘[i]n the absence of any
foreseeable interactions between the company and Andrea’s official duties[.]’” Id. Plaintiff
points out that the memorandum included further discussion of requirements that Plaintiff

9

limit her public visibility in operating the food truck. Plaintiff’s Response at ¶ 40. 3
McTiernan did not object to Plaintiff continuing to operate the food truck. Defendants’
Statement at ¶ 41. Plaintiff does not disagree, but argues that the restrictions that Brody
proposed were “onerous.” Plaintiff’s Response at ¶ 41. Plaintiff received Brody’s

3

The memorandum states:

As an attorney, she is subject to the Memorandum of April 26, 2012 entitled Outside
Employment Requiring Prior General Counsel Approval. The Memorandum requires that
all outside activities of attorneys must be approved in advance, and sets out certain
criteria applied to that approval process, including “whether the proposed outside
employment is a position of high public visibility.”
While nothing in the Public Officers Law requires that she curb her involvement with the
public features of the Company, and the Memorandum appears to apply to employees
contemplating outside employment, not job applicants already engaged in them, Andrea
and I discussed at length the steps she might voluntarily undertake to minimize her public
visibility with the Company, and consequentially, diminish the risk of subjecting the DEC
(and the issue of employment with it) to controversy.
Accordingly, Andrea is willing, for the foreseeable future, to withdraw from all public
aspects of Company business operations including retail delivery and distribution and
marketing. While retaining her position as President and principal stockholder, her
activities would be confined to behind the scenes financial management. Her name and
photos would be removed from the website. She would participate in the lawsuit as
necessary to advance the case but refrain from any public comment on it. Further, she
will not make any reference to her DEC employment in any marketing information utilized
by the Company, including social media. This voluntary withdrawal from the more visible
aspects of the Company is subject to adjustment as Andrea’s need to actively participate
in the Company, and the goal of maintaining low “public visibility” are, from time to time,
revaluated. [sic] Further, in accordance with DEC policy regarding the conduct of outside
activities, she will not use state equipment, including the telephone to conduct any
business related to the company.
Moreover, I have counseled Andrea with regard to CP-7 Section 73 and 74 of the Public
Officers law in order to anticipate any potential argument that Andrea’s involvement with
the Company, including the maintenance of a highly visible lawsuit and provocative
business name, might interfere with or otherwise diminish her credibility as a public officer.
Exh. C to Declaration of Stuart Brody, dkt. # 82-4.
10

memorandum. Defendants’ Statement at ¶ 42.
The parties disagree about whether Plaintiff observed the restrictions set out in
Brody’s memorandum. Defendant alleges that “[d]espite being advised that her closely
held corporation should not engage in business with any entity regulated by the DEC,
plaintiff took no steps to avoid such interactions. Id. at ¶ 43. Plaintiff does not address
whether she engaged in any business with regulated entities, but she does contend that,
“[a]s a result of her conversation with Brody, Plaintiff continued to shift responsibilities for
the operation of the food truck to her business partner, Brandon Snooks[.]” Plaintif f’s
Response at ¶ 43. She alleges that Snooks took over “pretty much all the daily activities
of the company” and that she removed her name from “the automatic signature on
Wandering Dago emails.” Id. Defendants further allege that Plaintiff did not inform
Snooks “to avoid doing business with DEC regulated entities or discuss any precautions
Wandering Dago should take to avoid creating a situation where its business overlapped
with plaintiff’s official DEC duties.” Id. at ¶ 44. Plaintiff claims that she informed Snooks
that she would not do any work in the business once she started at DEC, and she “did not
handle Wandering Dago’s finances or social media, and did not discuss events or clients
with Snooks.” Plaintiff’s Response at ¶ 44. Plaintiff insists that she met the requirements
outlined by Brody: she “ceased involvement in all aspects of the truck’s public events to
‘minimize the risk of subjecting the DEC (and the issue of employment with it) to
controversy.’” Id. Defendants also contend that Plaintiff did not discuss with Snooks the
need to avoid real, apparent, or potential conflicts of interest between the business and
Plaintiff’s DEC duties. Defendants’ Statement at ¶ 45. Plaintiff disputes that she failed to

11

do so, but does not point to any specific statements or conduct that indicate she explained
the need for avoiding such conflicts to Snooks. Plaintiff’s Response at ¶ 45.
DEC assigned Plaintiff to provide legal support on a number of matters for which
the General Electric Company was the party from which DEC “intended to seek
compensation for damages to natural resources.” Defendants’ Statement at ¶ 46. Plaintiff
agrees that she worked on matters related to contamination of the Hudson River by
General Electric. Plaintiff’s Response at ¶ 46. She points out, however, that such work
did not occupy the majority of her time at DEC. Id. She worked with the Division of Fish &
Wildlife, remediation departments, and Indian nations. Id. The people who interviewed
her for the job did not discuss specific assignments. Id.
Conlon supervised Plaintiff when she worked at DEC. Defendants’ Statement at ¶
47. As an NRD attorney, Plaintiff’s job was to recover damages from entities that caused
damage to New York’s natural resources. Id. at ¶ 48. The State uses the money
recovered to remediate habitats harmed by the offenders’ conduct. Id. at ¶ 49.
Defendants contend that recovering damages related to cleanup of Polychlorinated BiPhenyls (PCBs) in the Hudson River represented “[b]y far the most significant NRD matter
ever prosecuted by the department[.]” Id. at ¶ 50. General Electric was the primary party
responsible for contaminating the Hudson River with PCBs. Id. at ¶ 51. General Electric’s
conduct represented more than half of the natural resource damages for which Plaintiff
sought recovery. Id. at ¶ 52.
Defendants allege that Plaintiff “had frequent and direct involvement” with these
efforts to recover damages from General Electric.” Id. at ¶ 53. Plaintiff disputes this claim,
contending that “she never had any direct contact or correspondence with GE” and that
12

her work on the claim was “only [occasional][.]” Plaintiff’s Response at ¶ 53. Plaintiff
contends that “she had little participation in the Hudson Riv er cleanup[.]” Id. Andrew
Guglielmi took care of this matter, Plaintiff insists. Id. DEC’s involvement with the Hudson
River was a subject in local and national media and a matter of interests to environmental
groups like Riverkeepers, Scenic Hudson, and the National Resources Def ense Counsel.
Defendants’ Statement at ¶ 54.
Plaintiff received a positive performance review from her supervisor, Bureau Chief
Ben Conlon, and her Unit Supervisor, Andrew Guglielmi, on or about May 29, 2014. Id. at
¶ 55. Conlon and Guglielmi met with Plaintiff to review the evaluation on May 29, 2014.
Id. at ¶ 56. At that meeting, Conlon told Plaintiff he was pleased with her performance.
Id. at ¶ 57. Defendants assert that Conlon did have complaints about Plaintiff participating
in “office gossip,” but chose to address the matter at the meeting rather than to place the
issue in the written evaluation. Id. at ¶ 58. Defendants contend that Conlon did so
“because he valued plaintiff as an employee and hoped that she would correct this
behavior without the need to officially document it as a deficiency on her evaluation.” Id.
Plaintiff acknowledges that Conlon complained in general about office gossip, but
contends that he never stated or suggested that her “social contacts” merited official
documentation. Plaintiff’s Response at ¶ 58.
Conlon also informed Plaintiff that he could not shorten her probationary period
from 52 weeks. Defendants’ Statement at ¶ 59. He explained that shortening a
probationary period was “extremely rare.” Id. Plaintiff stated that she hoped to shorten
that period because “‘since the day I started, [ ], I’ve always been concerned about the
litigation I’m involved with.’” Id. at ¶ 60.
13

Defendants contend that Conlon told Plaintif f that DEC was not concerned about
the food-truck litigation. Id. at ¶ 61. They assert that he told Plaintiff that he “was aware of
the litigation when you were hired,” as was Guglielmi. Id. “It’s been discussed,” he told
her, “and it is as far as I’m concerned not an issue unless you become directly involved in
the legal work related to that.” Id. Plaintiff responds by pointing to evidence she contends
demonstrates that Conlon was unaware of the litigation at the time of her hiring, but
learned of it only at a bureau chief’s meeting. Plaintiff’s Response at ¶ 61.
Defendants contend that on July 1, 2014, Wandering Dago, Inc. signed a contract
to cater lunch at General Electric Headquarters at One Research Circle, Nickayuna, New
York. Defendant’s Statement at ¶ 62. The lunch was scheduled for July 9, 2014. Id.
Plaintiff contends that the contract was with Holly McAlpine of Wind River, and did not
mention General Electric. Plaintiff’s Response at ¶ 62. She contends that she was not
involved in and not even aware of the event until July 14, 2014, when Conlon and Lodico
informed her about it in a meeting. Id. Wandering Dago provided a lunch on July 9, 2014.
Defendants’ Statement at ¶ 63. The parties dispute whether Wandering Dago provided
the lunch for General Electric or Wind River employees. Compare Defendants’ Statement
at ¶ 63 and Plaintiff’s Response at ¶ 63.
Though the parties dispute how Conlon came to learn of Wandering Dago’s
catering of the event, Conlon became concerned that Plaintiff’s business’ involvement at
an event that involved General Electric “had created an appearance of impropriety and
violated DEC’s Conflict of Interest Policy.” Defendants’ Statement at ¶¶ 64-66; Plaintiff’s
Response at ¶¶ 64-65. Plaintiff disputes that there was any reason for concern about a
conflict of interest. Plaintiff’s Response at ¶ 66. Conlon informed McTiernan that
14

Wandering Dago had catered a lunchtime event at the General Electric facility in
Niskayuna. Defendants’ Statement at ¶ 68. McTiernan asked Conlon and Philip Lodico,
an attorney in the Office of the General Counsel, to speak to Plaintiff about the issue. Id.
at ¶ 69.
Plaintiff denied knowing about the event when she met with Conlon and Lodico on
July 14, 2014. Id. at ¶ 70. Neither Conlon nor Lodico f ound the denial believable. Id.
Defendants contend that after this meeting Plaintiff stopped focusing on her NRD work but
instead spent her time attempting to rally coworkers to defend her. Defendants’
Statement at ¶ 72. Defendants contend that “she had stopped handling ” much of her work
“because it involved GE[.]” Id. Plaintiff denies this statement, arguing that “she never had
any direct contact or correspondence” with the company, and had not done much work on
matters involving General Electric. Plaintiff’s Response at ¶ 72. She also denies that
evidence of any disruptive conduct exists. Id.
McTiernan contends that he concluded that the ev ent at General Electric
represented either Plaintiff’s bad judgment or her lack of control over her outside
employment, or perhaps both. Defendants’ Statement at ¶ 73. Plaintiff, he concluded,
“had created a difficult situation,” by failing to avoid potential conflicts or interest or
appearances of impropriety. Id. McTiernan informed Gerstman of the event shortly
thereafter. Id. at ¶ 74.
On August 5, 2014, McTiernan sent an email to DEC Personnel Director Agnew
informing him that “it is necessary” to terminate the Plaintiff. Id. at ¶ 76. McTiernan cited
Plaintiff’s outside activities, which he contended had “created the appearance of a conflict
of interest.” Id. Agnew approved Plaintiff’s termination. Id. at ¶ 77. He advised that
15

Plaintiff’s supervisor would need to prepare a final evaluation that recommended
termination. Id. Conlon learned that Plaintiff was being terminated that day, and was
assigned to provide a final performance evaluation. Id. at ¶ 78. The Personnel Office
drafted two letters, one advising of the termination and the other acknowledging Plaintiff’s
resignation. Id. at ¶ 79. McTiernan and Christian gave Plaintiff the choice of resigning or
being fired that same day. Id. at ¶ 80. On August 12, 2014, counsel for Plaintiff informed
DEC that she would not resign. Id. at ¶ 83. DEC terminated Plaintiff’s employment
effective August 13, 2014. Id. at ¶ 84.
Plaintiff filed a Complaint in this action on October 29, 2014. See dkt. # 1. Count
1, brought pursuant to 42 U.S.C. § 1983, alleges that Defendants violated Plaintiff’s First
Amendment rights by retaliating against her for her speech on a public matter. Count 2,
also brought pursuant to Section 1983, alleges that Defendants violated Plaintiff’s right to
petition the government by retaliating against her for filing a claim in Court. Counts 3 and
4 are the same claims brought under New York law.
The parties engaged in discovery. At the end of the discovery period, Defendants
filed the instant motion. The parties have briefed the motion and the matter is now ripe for
decision.
II.

LEGAL STANDARD
Defendants have filed a motion for summary judgment pursuant to Federal Rule of

Civil Procedure 56. It is well settled that on a motion for summary judgment, the Court
must construe the evidence in the light most favorable to the non-moving party, see
Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and m ay grant summary

16

judgment only where "there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are
those that ?might affect the outcome of the suit under the governing law.” Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986). An issue is genuine if the relevant evidence is
such that a reasonable jury could return a verdict for the nonmoving party. Id.
A party seeking summary judgment bears the burden of informing the court of the
basis for the motion and of identifying those portions of the record that the moving party
believes demonstrate the absence of a genuine issue of material fact as to a dispositive
issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to
establish a prima facie basis for summary judgment, the burden of production shifts to the
party opposing summary judgment who must produce evidence establishing the existence
of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly
supported motion for summary judgment may not rest upon "mere allegations or denials"
asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d
Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v.
Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Evidence must exist to support each element
of the non-movant’s claim; “where there is an absence of sufficient proof as to one
essential element of a claim, any factual disputes with respect to other elements are
immaterial and cannot defeat a motion for summary judgment.” Salhuddin v. Goord, 467
F.3d 263, 281 (2d Cir. 2006).
III.

DISCUSSION

17

Though Plaintiff raises four separate claims, and Defendants seek judgment and
dismissal of the entire case, both sides argue only that the question in this case is whether
evidence supports Plaintiff’s claim of First Amendment retaliation. The parties thus
appear to agree that the same standard covers each of Plaintiff’s claims. The Court will
therefore address all claims using the same standards.
A.

First Amendment Retaliation

Plaintiff contends that she was fired for exercising her First Amendment rights while
she was employed by DEC. “‘To survive a motion for summary judgment on a First
Amendment retaliation claim’ in the public employment context, ‘the plaintiff must present
evidence which shows ‘[1] that the speech at issue was protected, [2] that [s]he suffered
an adverse employment action, and [3] that there was a causal connection between the
protected speech and the adverse employment action.’” Nagle v. Marron, 663 F.3d 100,
105 (2d Cir. 2011) (quoting Cotarelo v. Vill. of Sleepy Hollow Police Dept., 460 F.3d 247,
251 (2d Cir. 2006)). “‘To demonstrate a causal connection a plaintiff must show that the
protected sppech [or conduct] was a substantial motivating factor in the adverse action.’”
Kiernan v. Town of Southampton, 734 Fed. Appx. 37, 42 (2d Cir. 2018) (quoting Smith v.
County of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015)). Once the plaintiff presents such
evidence, “the defendant has an opportunity to show by a preponderance of the evidence
that it would have taken the same adverse employment action even in the absence of
protected conduct.’” Id. (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)).
The Court concludes that the dispositive question here is whether Plaintiff, in filing
suit when regulators denied her food truck access to public venues, spoke on a matter of
public concern. Plaintiff certainly suffered an adverse employment action, since
18

Defendants terminated her from her NRD Attorney position. Plaintiff has produced
sufficient evidence to support her claim in this respect.
A reasonable juror could also conclude that Plaintif f’s speech was a substantial
motivating factor in her termination. While, as explained above, the parties vigorously
dispute the meaning and existence of the evidence of that causation, the Court finds that
a question of fact exists on that issue. “Causation can be established either indirectly by
means of circumstantial evidence, for example, by showing that the protected activity was
followed by adverse treatment in employment, or directly by evidence of retaliatory
animus.” Morris, 196 F.3d at 110. “Summary judgment is precluded where questions
regarding an employer’s motive predominate in the inquiry regarding how important a role
the protected speech played in the adverse employment decision.” Id.
Circumstantial evidence exists to support Plaintiff’s claim. A reasonable juror could
conclude that Defendants were not aware of Plaintiff’s lawsuit when they hired her. That
same juror could conclude that when Plaintiff’s supervisors learned of her involvement in a
lawsuit against the State of New York, they began to have second thoughts about her
employment and began to place restrictions on her participation in the f ood-truck business
that did not apply to other workers. Plaintiff’s counseling session with Brody could, for
such a juror, be evidence that DEC saw her involvement with the business as problematic,
and also that the Agency sought a way to force Plaintiff to abandon her speech or
abandon her job. Plaintiff’s supervisors allegedly imposed restrictions on her that
Defendants’ own experts did not agree were necessary. These restrictions, a juror could
find, provided a pretext to fire her when she continued to operate her business. W hen
Plaintiff still continued to pursue her lawsuit, a reasonable juror could conclude,
19

Defendants mischaracterized the catered luncheon as a pretext to terminate her. While
an equally reasonable juror could conclude that DEC simply enforced its rules on conflicts
in terminating Plaintiff, a question of fact exists as to the reasons for the termination, and
summary judgment is not appropriate on that basis. 4
The question for the Court here is whether Plaintiff spoke on a matter of public
concern. Since this is a question of law, the Court must determine whether the evidence
supports a finding that Plaintiff has made out the first element of her prima facie case.
“The Court has made clear that public employees do not surrender all their First
Amendment rights by reason of their employment. Rather, the First Amendment protects
a public employee’s right, in certain circumstances, to speak as a citizen addressing
matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “The First
Amendment limits the ability of a public employer to leverage the employment relationship

4

Courts have described three ways to show causation in the First Amendment
retaliation context: “showing either (1) the retaliatory action occurred close in time to the
protected activities; (2) disparate treatment of similarly situated employees or (3) direct
proof of retaliatory animus against the plaitniff.” Gilligan v. Town of Moreau, No. 00-7109,
2000 U.S. Appx. LEXIS 27198 at *8 (2d Cir. Oct. 25, 2000). Plaintif f does not offer an
argument about temporal proximity, but does argue that she has sufficient evidence to
demonstrate that Defendants treated Plaintiff differently from other similarly situated
employees in firing her for an alleged conflict of interest. Evidence of such disparate
treatment can also support a First Amendment retaliation claim. See Sumner v. U.S.
Postal Service, 203, 209 (2d Cir. 1990) (causation in Title VII retaliation claim can be
supported by “evidence of disparate treatment of employees who engaged in similar
conduct or directly through evidence of retaliatory animus.”); Figueroa v. Weisenfreund,
255 Fed. Appx. 595, 597 (2d Cir. 2007) (applying that standard to First Amendment
retaliation claim)). Plaintiff points to a number of other DEC employees she claims were
similarly situated and did not experience similar discipline for their outside activities. The
Defendants dispute that these individuals are similarly situated and treated differently than
Plaintiff. The Court finds a question of fact exists in this area as well, as there are
questions about the timing of Defendants’ knowledge of Plaintiff’s activities, the nature of
the restrictions on Plaintiff and others, and the similarity of the comparator’s activities.
20

to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as
private citizens.” Id. at 419. “So long as employees are speaking as citizens about
matters of public concern, they must face only those speech restrictions that are
necessary for their employers to operate efficiently and effectively.” Id.
“Whether public employee speech is protected from retaliation under the First
Amendment entails two inquiries: (1) ‘whether the employee spoke as a citizen on a
matter of public concern’ and, if so, (2) ‘whether the relevant government entity had an
adequate justification for treating the employee differently from any other member of the
general public.’” Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting
Garcetti, 547 U.S. at 418). “Whether an employee’s speech addresses a matter of public
concern is a question of law for the court to decide, taking into account the content, form,
and context of a given statement as revealed by the whole record.” Lewis v. Cowen, 165
F.3d 154, 163 (2d Cir. 1999). A court is to “focus on the motive of the speaker and
attempt to determine whether the speech was calculated to redress personal grievances
or whether it had a broader public purpose.” Id. at 163-64.
“‘To constitute speech on a matter of public concern, an employee’s expression
must ‘be fairly considered as relating to any matter of political, social, or other concern to
the community.’” Gorman v. Rensselaer Cty., 910 F.3d 40, 45 (2d Cir. 2018)(quoting
Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011)). If the “speech . . . ‘primarily concerns
an issue that is personal in nature and generally related to the speaker’s own situation,
such as his or her assignments, promotion, or salary’” then the speech “‘does not address
matters of public concern.’” Id. (quoting Jackler, 658 F.3d at 236). The speech in
question might “[hint] at some broader public purpose[,]” but “retaliation against the airing
21

of generally personal grievances is not brought within the protection of the First
Amendment by ‘the mere fact that one or two of [a public employee’s] comments could be
construed broadly to implicate matters of public concern.’” Ruotolo v. City of New York,
514 F.3d 184, 190 (2d Cir. 2008) (quoting Ezekwo v. New York City Health & Hosp. Corp.,
940 F.2d 775, 781 (2d Cir. 1991)). As such “‘[a] public em ployee may not transform a
personal grievance into a matter of public concern by invoking a supposed popular
interest in the way institutions are run.’” Id. (quoting Boyce v. Andrew, 510 F.3d 1333,
1343 (11th Cir. 2007)). “The speaker’s motive is a factor to consider but ‘is not dispositive
in determining whether his speech addresses a matter of public concern.’” Golodner v.
Berliner, 770 F.3d 196, 202 (2d Cir. 2014) (quoting Sousa v. Roque, 578 F.3d 164, 173
(2d Cir. 2009)).
The Court finds that the Plaintiff spoke on a matter of public concern when she filed
and continued to litigate her suit against regulators who denied her permits to operate the
Wandering Dago food truck. The parties have not pointed the Court to any cases where a
public employee began her speech while a private citizen, continued the matter as a
public employee, and then suffered an adverse employment action allegedly motivated by
her speech while working as a public employee. The Court has likewise not discovered
such a case. The Court concludes that Plaintiff spoke as a private citizen when she filed
her lawsuit. There can be no doubt as to that f act, since she was not a public employee at
that point. Even as she continued to litigate the matter after she became a public
employee, she continued to speak on matters unrelated to her public employment. See,
e.g., City of San Diego v. Rose, 543 U.S. 77, 82 (2004) (“the Court has held that w hen
government employees speak or write on their own time on topics unrelated to their
22

employment, the speech can have First Amendment protection, absent some
governmental justification ‘far stronger than mere speculation’ in regulating it.”) (quoting
United States v. Treasury Employees, 513 U.S. 454, 465 (1995)). Moreover, Plaintiff’s
speech raised an element of public concern when she argued that the government’s
regulation of her speech limited her First Amendment rights, even if she sought a permit to
operate a business. See, e.g., Matal v. Tam, 137 (2017) (rock band improperly denied
trademark for racially sensitive name because a provision in trademark law prohibiting
registration for marks that “‘disparage . . . or bring . . . into contemp[t] or disrepute’ any
‘persons, living or dead’ . . . offends a bedrock First Amendment principle: Speech may
not be banned on the ground that it expresses ideas that offend.”) (quoting 15 U.S.C. §
1052(a)). The Plaintiff’s speech also addressed an issue that gained public interest and
notoriety. Under those circumstances, the Court concludes that Plaintiff spoke on a
matter of public concern.
The Court therefore finds that Plaintiff spoke on a matter of public concern, and
that questions of fact exist as to whether Defendants terminated Plaintiff’s employment in
retaliation for that speech. As such, the Defendants’ motion will be denied.
IV.

CONCLUSION
For the reasons stated above, the Court Defendants’ motion for summary

judgment, dkt. # 82, is hereby DENIED.

IT IS SO ORDERED.
Dated: September 5, 2019

23