Kelly v. New York City Department of Environmental Protection

Filing 21

MEMORANDUM-DECISION & ORDER: Ordered that Defendant's # 10 Motion to Dismiss for Failure to State a Claim is GRANTED. Plaintiff's # 16 Cross Motion for leave to Amend/Correct is DENIED. The # 1 Complaint is hereby DISMISSED. The Clerk is directed to enter Judgment and close this case. Signed by Judge David N. Hurd on 3/4/2014. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------KEVIN M. KELLY,
Plaintiff,
-v-

3:13-CV-1110

NEW YORK CITY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,

Defendant.
----------------------------------APPEARANCES:

OF COUNSEL:

LEVINE, BLIT LAW FIRM
Attorneys for Plaintiff
499 South Warren Street
Suite 500B
Syracuse, NY 13202

LEWIS G. SPICER, ESQ.

NEW YORK CITY LAW DEPARTMENT
Attorneys for Defendant
100 Church Street
New York, NY 10007

ERIC J. EICHENHOLTZ, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
On September 9, 2013, plaintiff Kevin M. Kelly ("plaintiff" or "Kelly") filed this 42
U.S.C. § 1983 action against his former employer, defendant New York City Department of
Environmental Protection ("defendant" or the "DEP"), alleging a violation of his Fourteenth

Amendment right to procedural due process. Plaintiff seeks injunctive relief, lost wages,
compensatory damages, and attorney's fees.
On December 4, 2013, the DEP filed a motion to dismiss Kelly's complaint in its
entirety for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule")
12(b)(6). Plaintiff opposed and in the alternative requested leave to amend his complaint
pursuant to Rule 15(a)(2). Defendant replied. Oral argument was heard on Tuesday,
February 4, 2014, in Utica, New York. Decision was reserved.
II. FACTUAL BACKGROUND
For reasons explained in more detail below, the pertinent factual allegations are taken
from Kelly's Proposed Amended Complaint ("Amended Complaint") and are assumed true
for purposes of the DEP's motion to dismiss.
Kelly was employed by the DEP as a Project Manager when he was arrested for
possession of a controlled substance. Am. Compl. ¶¶ 5, 9. Based on this arrest, defendant
initiated disciplinary proceedings against plaintiff for "conduct prejudicial to good order and
discipline." On February 16, 2012, the parties entered into a "Settlement and Waiver" (the
"Last Chance Agreement").1 Id. ¶ 11. The Last Chance Agreement advised plaintiff of his
rights to a formal hearing and appeal under §§ 75 and 76 of New York's Civil Service Law
and indicated, in relevant part, that the following penalty had been recommended:
A thirty (30) calendar day suspension without pay (to be credited
against time already served as a pre-hearing suspension);
unannounced controlled substances and/or alcohol testing by the
1

The factual scenario presented in Kelly's Amended Complaint relies heavily on the terms and effect
of this Last Chance Agreement. The DEP provided a copy of this document in support of its motion to
dismiss. See Traverse Decl., Ex. A, ECF No. 10-2. Plaintiff has reproduced the Agreement's relevant
language in his opposition papers. Pl's Mem. Opp'n 11. Accordingly, it will be considered in resolving this
motion. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citations omitted).
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Agency, at the total discretion of the Agency, for one (1) year from
the effective date of this settlement, with automatic termination
upon a positive test result . . . . (emphasis added).
The Last Chance Agreement further stated:
I accept said decision, and as a condition of accepting such
decision, I hereby waive any and all rights granted to me under
Sections 75 and 76 of the Civil Service Law and acknowledge that
this acceptance is the same as a finding of guilt after a hearing. I
am fully aware that this waiver of my right to a Section 75 hearing is
final and irrevocable.
On April 16, 2012, approximately two months after signing the Last Chance
Agreement, Kelly arrived at work and was informed by his supervisor, Tom DeJohn
("DeJohn"), that he was going to be drug tested that morning. Id. ¶¶ 15-16. DeJohn drove
plaintiff to the Sunrise Laboratory Office ("Sunrise Lab") in Kingston, New York, where the
drug test was administered by two Sunrise Lab employees. See id. ¶¶ 13, 17-20. Plaintiff
alleges that this drug test was negligently performed in violation of 49 C.F.R. Part 40. See id.
¶¶ 17-20. The very next day, plaintiff provided a urine specimen for an independent testing
laboratory pursuant to the terms of a separate drug treatment plan of which he was enrolled.
Id. ¶ 22. This drug test was negative. Id. ¶ 22.
Nevertheless, the urine specimen Kelly supplied to Sunrise Lab as a condition of the
Last Chance Agreement later tested positive for cocaine. Am. Compl. ¶ 21. On May 3,
2012, the DEP terminated plaintiff in reliance on this positive test result. Id. ¶ 23. Sixteen
months later, plaintiff filed this lawsuit.

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III. LEGAL STANDARDS
A. Leave to Amend
Leave to amend a pleading should be freely given "when justice so requires." FED. R.
CIV. P. 15(A)(2). Where, as here, a party seeks leave to amend while a motion to dismiss is
pending, a court "has a variety of ways in which it may deal with the pending motion [to
dismiss], from denying the motion as moot to considering the merits of the motion in light of
the amended [pleading]." Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F. Supp.
2d 376, 384 (D. Conn. 2008) (internal quotation marks and alteration omitted).
Kelly seeks to amend his complaint to set forth further allegations in support of his
claims. See Spicer Decl., ECF No. 16-1, ¶ 3. The DEP has had sufficient opportunity to
respond to this cross-motion and asserts in its reply memorandum of law that these
amendments would be futile. See Def.'s Reply Mem. 2. Therefore, the merits of defendant's
motion to dismiss will be considered in light of plaintiff's Amended Complaint. If the
proposed Amended Complaint cannot survive a motion to dismiss, then plaintiff's motion to
amend will be denied as futile. See Dougherty v. Town of N. Hempstead Bd. of Zoning
Appeals, 282 F.3d 83, 88 (2d Cir. 2002).
B. Motion to Dismiss
To survive a Rule 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough
to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Although a complaint need only contain "a short and plain statement of the
claim showing that the pleader is entitled to relief" (FED. R. CIV. P. 8(A)(2)), more than mere
conclusions are required. Indeed, "[w]hile legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662,
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679 (2009). Dismissal is appropriate only where plaintiff has failed to provide some basis for
the allegations that support the elements of his claims. See Twombly, 550 U.S. at 570
(requiring "only enough facts to state a claim to relief that is plausible on its face"). When
considering a motion to dismiss, the pleading is to be construed liberally, all factual
allegations are deemed to be true, and all reasonable inferences must be drawn in the
plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
IV. DISCUSSION
Kelly's § 1983 claim is based on an alleged violation of his Fourteenth Amendment
right to procedural due process. Specifically, he alleges that he was entitled to a pretermination hearing to contest the results of the April 16, 2012, positive drug test. The DEP
argues plaintiff's complaint must be dismissed because: (1) an adequate post-deprivation
remedy was available; (2) plaintiff waived his constitutionally protected property interest in
employment by signing the Last Chance Agreement; and (3) the factual allegations in the
Amended Complaint fail to plausibly establish municipal liability.
"It is well-settled that Section 1983 itself 'creates no substantive rights' but rather
'provides only a procedure for redress for the deprivation of rights established elsewhere.'"
Reed v. Medford Fire Dep't, Inc., 806 F. Supp. 2d 594, 609 (E.D.N.Y. 2011) (quoting Sykes v.
James, 13 F.3d 515, 519 (2d Cir. 1993)). The procedural component of the Fourteenth
Amendment's Due Process Clause bars "the deprivation by state action of a constitutionally
protected interest in life, liberty, or property . . . without due process of law." Castine v. Zurlo,
938 F. Supp. 2d 302, 309 (N.D.N.Y. 2013) (Hurd, J.) (quoting Zinermon v. Burch, 494 U.S.
113, 125 (1990)). A procedural due process inquiry entails two issues: (1) "whether there
exists a . . . property interest of which a person has been deprived," and if so, (2) "whether
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the procedures followed by the State were constitutionally sufficient." Id. (quoting Oneida
Indian Nation of N.Y. v. Madison Cnty., 665 F.3d 408, 428 (2d Cir.2011) (internal quotations
omitted).
A. Article 78 Proceeding
The DEP first argues that Kelly could have adequately contested his termination in a
post-deprivation Article 78 proceeding and his failure to do so precludes the assertion of
a § 1983 claim in federal court. Kelly responds that a public employee is entitled to a pretermination hearing regardless of whether post-deprivation remedies are available.
Generally, "there can be no procedural due process violation when the state provides
apparently adequate procedural remedies and the plaintiff has not availed himself of those
remedies." Reed, 806 F. Supp. 2d at 610 (quoting N.Y. State Nat'l Org. for Women v. Pataki,
261 F.3d 156, 168 (2d Cir. 2001)) (internal quotation marks omitted); see also Lipson v.
Snyder, 701 F. Supp. 541, 543 (E.D. Pa. 1988) (noting that the Supreme Court has limited
the scope of procedural due process protection "because creative attorneys began to dress
up common law torts as procedural due process violations").
But the mere availability of an Article 78 proceeding does not always satisfy the
requirements of procedural due process. The Supreme Court has distinguished between
violations based on (a) established state procedures and (b) random, unauthorized acts by
state employees. Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d
877, 880 (2d Cir. 1996) (citing Hudson v. Palmer, 468 U.S. 517, 532 (1984) and Parratt v.
Taylor, 451 U.S. 527, 541 (1981), overruled on other grounds by Daniels v. Williams, 474
U.S. 327 (1986)). As the Second Circuit has explained, the rationale for this distinction is
plain: "[if] the challenged misconduct is random and unauthorized, it is impossible for the
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government to anticipate and prevent the wrongful loss . . . in advance, and it has no realistic
alternative other than to adopt remedies capable of righting the wrong after the deprivation."
Locurto v. Safir, 264 F.3d 154, 172 (2d Cir. 2001) (citations omitted).
Counsel for both parties at oral argument strenuously asserted that each was entitled
to prevail on the basis of this case law alone. The DEP suggests that its decision to
terminate Kelly pursuant to the Last Chance Agreement was a random and unauthorized act.
Assuming the truth of that proposition, it is absolutely correct in further asserting that the
availability of an Article 78 proceeding "constitutes a wholly adequate post-deprivation
remedy for due process purposes." Id. at 175. However, the Last Chance Agreement at
issue here was the product of a settlement between the parties to end disciplinary
proceedings related to plaintiff's underlying arrest. This Agreement was also signed and
witnessed by both plaintiff and the DEP Commissioner (or his designee).
As the Second Circuit has noted, "[t]he distinction between random and unauthorized
conduct and established state procedures . . . is not clear-cut." Rivera-Powell v. N.Y. City
Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006); see also Locurto, 264 F.3d at 173 ("Given
the uncertainty of this area of the law . . . we decline to resolve whether defendants' alleged
misconduct was 'random and unauthorized.'"). Drawing all reasonable inferences in Kelly's
favor, it would be improper to definitively declare that his termination under these
circumstances was a "random and unauthorized act." Accordingly, the DEP's motion to
dismiss on this basis will not be granted.
B. Property Interest
The DEP next argues that Kelly "waived his right to challenge any subsequent positive
drug test, whether through . . . arbitration proceedings, a hearing under N.Y. Civil Service
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Law [ ], or constitutional claims such as this one." Def.'s Mem. Supp. Mot. to Dismiss 5.
Plaintiff did not directly contest the validity of the release in either his opposition papers or at
oral argument. Rather, he suggests that it would be "the height of unconscionability for
[p]laintiff to have waived or released [d]efendant from its own or failure to properly undertake
the April 16, 2012 drug test and the ability to contest the results." Pl.'s Mem. Opp'n 12-13.
Property interests "are not created by the Constitution, 'they are created and their
dimensions are defined by existing rules or understandings that stem from an independent
source such as state law.'" O'Neill v. City of Auburn, 23 F.3d 685, 688 (2d Cir. 1994)
(quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985)). "In order to have
an interest protectable under the Constitution, a person must have a 'legitimate claim of
entitlement to it.'" Abramson v. Pataki, 278 F.3d 93, 99 (2d Cir.2002) (quoting Bd. of
Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972)).
In the employment context, such an interest is typically established by showing that
under the provisions of a statute or collective bargaining agreement, the employee cannot be
terminated or demoted without a hearing. Ciambriello v. Cnty. of Nassau, 292 F.3d 307,
313–14 (2d Cir.2002). New York Civil Service Law § 75 gives covered employees a property
interest in their employment, "so that they may not be terminated without notice and hearing."
O'Neill, 23 F.3d at 688; see also N.Y. CIV. SERV. LAW § 75(1). This state-law property interest
is a constitutionally protected property interest for purposes of the Fourteenth Amendment.
See Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir 2010).
Both parties misconstrue the scope of the Last Chance Agreement. The DEP
correctly cites Taddeo v. County of Niagara and Marrero v. City of New York for the broad

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proposition that a knowing and voluntarily waiver of constitutional claims is enforceable when
given as consideration in exchange for the settlement of pending disciplinary charges.
The Taddeo court granted summary judgment in favor of the defendant municipality
where the plaintiff had signed a "last chance agreement" that included a waiver of the
plaintiff's right to "a grievance, arbitration and any other legal process" to challenge his
termination following a positive drug test. Taddeo v. Cnty. of Niagara, No. 06-CV-832C,
2010 WL 980260, at *8 (W.D.N.Y. Mar. 15, 20102), aff'd, 413 Fed. Appx. 397 (2011).
Similarly, the Marrero court granted a motion to dismiss in favor of the defendant municipality
where the plaintiff signed a "last chance agreement" waiving his right to "any hearing or right
to be heard for the purpose of contesting this agreement." Marrero v. City of New York, No.
10-Civ-4471(GBD), 2011 WL 167847, at *3 (S.D.N.Y. Jan. 13, 2011).
In both cases, the court upheld an expansive waiver of rights that effectively precluded
the employee from subsequently asserting any claims based on their termination. But the
Last Chance Agreement at issue here is far less expansive. It does not contain sweeping
language that purports to bar Kelly from pursuing any remedies related to his termination.
Rather, it merely provides for a specific, straightforward consequence as a result of any
positive drug test. In other words, the Agreement contains a simple waiver of precisely the
intermediate step to which plaintiff alleges he is entitled—a pre-termination hearing.
It is settled law in New York that "[p]rovided the waiver is freely, knowingly, and openly
arrived at, without taint of coercion or duress, a party may, by stipulation, waive [his] right to
the procedural due process to which [he] is otherwise entitled under New York State Civil
Service Law . . . and any cause of action pursuant to 42 U.S.C. § 1983." Wilson v. Jackson,
161 A.D.2d 652, 653 (N.Y. App. Div. 2d Dep't 1990) (collecting cases); see also Whitehead
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v. State of New York, Dep't of Mental Hygiene, 71 A.D.2d 653, 654 (N.Y. App. Div. 2d Dep't
1979) (noting same), aff'd, 412 N.E.2d 1323 (1980). Indeed, New York Courts have
repeatedly approved of "last chance agreements" containing waivers of an employee's pretermination hearing rights. See Presti v. Farrell, 23 A.D.3d 211 (N.Y. App. Div. 1st Dep't
2005) (approving a pre-termination waiver where the last chance agreement involved
"automatic resignation" language); Dominguez v. O'Flynn, 99 A.D.3d 1250, 1251 (N.Y. App.
Div. 4th Dep't 2012), leave to appeal denied, 983 N.E.2d 771 (2013) (collecting cases and
noting that "a public employee may give up rights that [he] would otherwise have").
The allegations in Kelly's Amended Complaint confirm that the Last Chance
Agreement was "freely, knowingly, and openly arrived at, without taint of coercion or duress."
First, Kelly readily acknowledges that he signed the Agreement when he was employed by
defendant as a Project Manager—a managerial role within the agency. Am. Compl. ¶¶ 5, 11.
Courts have routinely held that supervisory employees are able to understand a
straightforward waiver such as the one at issue here. Cf. Marrero, 2011 WL 167847, at *3
("Plaintiff was a supervisor in the [City of New York's] department of sanitation and
understood the straightforward release."); Campbell v. Alliance Nat'l Inc., 107 F. Supp. 2d
234, 240 (S.D.N.Y. 2000) ("This Court has held that 'a plaintiff with a high school education
and management experience [is] capable of understanding a straightforward release.'").
Plaintiff further alleges that he signed the Last Chance Agreement to resolve pending
disciplinary charges against him. See Am. Compl. ¶ 11; Faillace v. Port Auth. of N.Y. & N.J.,
130 A.D.2d 34, 41 (N.Y. App. Div. 1st Dep't 1987) (noting that a waiver can serve "as the
quid pro quo for countervailing benefits" such as a cessation of disciplinary proceedings).
Finally, the Agreement itself is a mere two pages of text that clearly indicates plaintiff agreed
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to unannounced drug testing "at the total discretion of the [DEP]" and that he would suffer
"automatic termination upon a positive test result."
A construction of the Last Chance Agreement as having any other effect than waiving
Kelly's pre-termination hearing rights would be illogical—if he had retained his right to a pretermination challenge of the positive drug test, it would render the "automatic termination"
language meaningless and place him in the same position as if he had never even signed it.
"Determining whether a complaint states a plausible claim for relief . . . requires the
reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at
679. While the Last Chance Agreement at issue here certainly did not have the broad
preclusive effect of the releases contemplated in Taddeo and Marrero, the DEP's decision to
"automatically" terminate plaintiff cannot form the basis of a § 1983 procedural due process
claim because he clearly waived his state-created interest in such a hearing. Accordingly,
defendant's motion to dismiss on this basis will be granted.
C. Monell Liability
The DEP also argues that, even if Kelly retained a constitutionally protected property
interest, the Amended Complaint fails to state a viable § 1983 municipal liability claim.
Plaintiff does not directly respond to this argument.2
Municipal liability under § 1983 requires a plaintiff to show that the "municipality
violated a federally protected right through (1) municipal policy, (2) municipal custom or

2

Kelly's Amended Complaint adds four individual defendants to the caption: Carter H. Strickland,
Jr., Steven W. Lawitts, Robert Groppe, and Thomas DeJohn. Presumably, these are individuals somehow
responsible for the alleged violation of his procedural due process rights. However, with the exception of a
single reference to Thomas DeJohn as being the individual who drove him to Sunrise Lab, plaintiff has given
absolutely no indication of how these individual defendants were involved in the factual scenario presented in
the Amended Complaint or what actions they took to deprive plaintiff of his rights.
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practice, or (3) the decision of a municipal policymaker with final policymaking authority."
Zherka v. DiFiore, 412 Fed. Appx. 345, 348 (2d Cir. 2011). It is insufficient to merely allege
conduct attributable to the municipality. Rather, a plaintiff must demonstrate that "through its
deliberate conduct, the municipality was the 'moving force' behind the injury alleged." Id.
"[A] single incident alleged in a complaint, especially if it involved only actors below the
policy-making level, does not suffice to show a municipal policy." DeCarlo v. Fry, 141 F.3d
56, 61 (2d Cir. 1998).
As a threshold matter, Kelly has incorrectly named the DEP as the defendant in this
action. The Charter of the City of New York provides that "[a]ll actions and proceedings for
the recovery of penalties for the violation of any law shall be brought in the name of the city
of New York and not in that of any other agency, except where otherwise provided by law."
N.Y. CITY CHARTER § 396. At least two other federal courts have dismissed § 1983 claims
against the DEP because they were improperly named as a defendant. See Bissinger v. City
of New York, Nos. 06-Civ-2325(WHP), 06-Civ-2326(WHP), 2007 WL 2826756, at *5
(S.D.N.Y. Sept. 24, 2007); Russell Pipe & Foundry Co. v. City of New York, No. 94-CIV8642(JFK), 1997 WL 80601, at *6 (S.D.N.Y. Feb. 25, 1997). Because neither party has
addressed this deficiency, the Amended Complaint is construed as against the City of New
York for purposes of this analysis.
Here, Kelly alleges that the DEP's "unwillingness to abide by the constraints of due
process arises out of a customary practice." Am. Compl. ¶ 31. But a viable Monell claim
requires more than a sweeping, generalized reference to allegedly unlawful conduct. See
Nicholas v. City of Binghamton, No. 10-CV-1565, 2012 WL 3261409, at *15 (N.D.N.Y. Aug.
8, 2012) (McAvoy, S.J.) ("The 'mere assertion . . . that a municipality has such a custom or
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policy is insufficient in the absence of allegations of fact tending to support, at least
circumstantially, such an inference.'"). Even assuming arguendo that the actions of the two
Sunrise Lab employees are attributable to the DEP, Kelly consistently refers to their conduct
as "negligent" and does not identify how their actions were part of an overarching custom or
policy.3 The improper conduct related to the drug test at Sunrise Lab alleged in the
Amended Complaint merely describes a single incident involving actors below the policymaking level.
Simply put, Kelly's Amended Complaint is devoid of factual allegations that would
even circumstantially support an inference of Monell liability. It neither alleges any sort of
directive from the DEP that may have guided the conduct of the individuals involved nor
indicates whether defendant was somehow directly responsible for the events that caused
the allegedly improper drug testing procedure at Sunrise Lab. It references no pattern of
behavior or prevailing policy that worked against him. It is even unclear whether the Last
Chance Agreement was a routine arrangement, or for that matter, a form of special
punishment (or, perhaps, solicitude) given exclusively to him. Because the Amended
Complaint has not plausibly alleged Monell liability, plaintiff has failed to state a claim for
relief. Accordingly, this is a second basis to grant defendant's motion to dismiss.
V. CONCLUSION
While the Last Chance Agreement does not completely preclude Kelly from
challenging the positive drug test result, he clearly waived his pre-termination hearing rights
and cannot now claim such an entitlement as the basis of a § 1983 procedural due process

3

Negligence is, of course, not sufficient to sustain a § 1983 action.
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claim in federal court. Even if this were not the case, the allegations in the Amended
Complaint are insufficient to establish Monell liability. Insofar as Kelly seeks to challenge the
reasonableness of the DEP's reliance on the positive drug test result obtained from the urine
specimen he gave to Sunrise Lab, such a claim could have been raised in an Article 78
proceeding, which authorizes state courts to determine whether the actions of an
administrative agency, such as the one here, were arbitrary and capricious. A state court
negligence action against Sunrise Lab, its employees, and the defendant might also be a
possibility. Because plaintiff's § 1983 claim will be dismissed, his cross-motion to amend
must be denied as futile.
Therefore, it is
ORDERED that
1. Defendant DEP's motion to dismiss is GRANTED;
2. Plaintiff Kelly's cross-motion for leave to amend is DENIED; and
3. The Complaint is DISMISSED.
The Clerk of the Court is directed to close the file.
IT IS SO ORDERED.

Dated: March 4, 2014.
Utica, New York.

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