Frankel v. New York State Office of Children & Family Services et al
Filing
49
REPORT AND RECOMMENDATION re: 2 Complaint, filed by Harlan Frankel. For the foregoing reasons, I recommend that Defendants' Motion to Dismiss be GRANTED, and that Frankel's Complaint be DISMISSED. Pursuant to Rule 72, Federal Rules of Ci vil Procedure, the parties shall have fourteen (14) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. Objections to R&R due by 5/16/2013. Respectfully Submitted. (Signed by Magistrate Judge Ronald L. Ellis on 4/29/2013) Copies Sent By Chambers. (rsh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
91
HARLAN FRANKEL,
Plaintiff,
REPORT AND
RECOMMENDATION
- against
11 Civ. 7973 (DAB) (RLE)
NEW YORK STATE OFFICE OF CHILDREN &
F AMIL Y SERVICES, GLADYS CARRION,
RICHARD TRUDEAU, POLA EISENSTEIN-ROSAN, :
KEITH BERGMANN, MICHAEL DECELLE,
BERNETT MARION, EMMILINE MURPHY, and
LOIS SHAPIRO,
Defendants.
.
-----------------91
To the HONORABLE DEBORAH A. BATTS, U.S.D.J.:
I. INTRODUCTION
Pro se Plaintiff Harlan Frankel ("Frankel") filed this Complaint on November 3, 2011,
against the New York State Office of Children & Family Services ("OCFS"), Gladys Carrion
(Commissioner of OCFS), Richard Trudeau (former Facility Director at OCFS Pyramid
Reception Center, now retired), Pola Eisenstein-Rosan (an employee with the New York State
Office of Mental Health and Frankel's former supervisor), Keith Bergmann (a senior investigator
with the OCFS Special Investigations Unit), Michael DeCelle (a former OCFS Special
Investigations Unit employee), Bernett Marion (OCFS Acting Director of Equal Opportunity &
Diversity Development), Emmiline Murphy (Chief Diversity Officer for the New York State
Office of Mental Health), and Lois Shapiro (former OCFS Director of Behavioral Services, now
retired) (collectively, the "Defendants"). Frankel, a former OCFS employee, brings this action
under 42 U.S.C. § 1983 for purported retaliation in violation of the First Amendment to the
United States Constitution, and Article I, § 8 of the New York State Constitution. (CompI.,
77.) He also claims that his rights were violated under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, and Article 1, § 6 of the New York State
Constitution. (Id at' 84.) Lastly, Frankel asserts a state common law claim for intentional
infliction of emotional distress. (Id at, 91.) He seeks reinstatement at OCFS with all the
privileges and seniority he held at the time he resigned, plus backpay, (id at'l 92(b », as well as
compensatory and punitive damages, (id at" 92(d), (e).)
On March 23, 2012, Defendants filed a motion to dismiss all claims for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim
upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). On August 31,
2012, Frankel submitted a Memorandum of Law in Response to Defendants' Motion to Dismiss
("PI. Mem.") (Doc. No. 41).1 On October 5,2012, Defendants filed a Memorandum of Law in
Reply to Plaintiff's Response ("Defs. Mem.") (Doc. No. 44). For the reasons that follow, I
recommend that Defendants' motion to dismiss (Doc. No. 21) be GRANTED, and that judgment
be entered for Defendants. Specifically, I recommend that: 1) Frankel's federal claims against
OCFS and the individual Defendants sued in their official capacities be DISMISSED because
they are barred by the Eleventh Amendment; 2) Frankel's § 1983 claims that occurred before
November 4,2008, be DISMISSED because they are time-barred by the three-year statute of
limitations; 3) Frankel's intentional infliction of emotional distress claim be DISMISSED
because it is barred by New York's one-year statute of limitations; 4) Frankel's First Amendment
retaliation claims be DISMISSED because the allegations in the Complaint do not establish that
he engaged in constitutionally protected speech and was subjected to an adverse employment
I On August 31, 2012, Frankel submitted papers noting his response to Defendants' Motion to Dismiss as an
"Affirmation in Opposition to Defendant's Motion to Dismiss Complaint" (Doc. No. 41). The Court reads Plaintiffs
submission as Plaintiffs Response in Opposition to Defendant's Motion to Dismiss.
2
action as a result; 4) Frankel's due process claims be DISMISSED because he failed to pursue a
New York Civil Practice Law and Rules Article 78 proceeding as an adequate post-resignation
remedy; 5) Frankel's claims against Defendants Carrion and Murphy be DISMISSED because
he fails to allege that they were directly or personally responsible for the relevant events; and 6)
Frankel's claims against the individually named Defendants be DISMISSED because they are
entitled to qualified immunity.
II. BACKGROUND
Frankel was employed as a psychologist with OCFS for over eleven years until he
resigned on November 5,2008. (Compl. at ~~ 1, 61.) In January 2008, Defendant Carrion
announced plans to close the Pyramid Reception Center ("Pyramid") OCFS facility, where
Frankel worked in the Bronx, and to relocate certain services to the Ella McQueen Residential
Center in Brooklyn. (Id. at pp. 4-5 ("Statement of the Facts").) Between February 7 and 11,
2008, Frankel wrote two letters to members of the State legislature in support of keeping
Pyramid open. (Id. at ~ 19.) Frankel asserts that the Public Employee Federation ("PEF") union
and the staff at Pyramid came to rely on his letters when they met with members of the
legislature in their campaign to keep Pyramid open. (Id. at ~~ 18,24.) He claims that he was
acting as a public citizen exercising his First Amendment right when he submitted the two letters
to maintain Pyramid. (PI. Mem. at ~ 26.) Frankel argues that OCFS retaliated against him for
the submission of his letters, although no formal action or meetings occurred between Frankel
and Defendants regarding these two letters.
As part of his employment at OCFS, Frankel planned to attend a sex offender training
conference that all OCFS employees were required to attend in Saratoga Springs, New York.
(Id. at ~ 21.) The conference was scheduled for two days, but Frankel planned to take a week off
3
by using his vacation credits. (Id. at" 21-22.) On May 9, 2008, before Frankel left for the
conference, his supervisors, Defendants Trudeau and Eisenstein-Rosan, asked him why he
planned to be out of the office the entire week, while a fellow OCFS employee attending the
conference only planned to be out two days. (ld. at" 22, 25.) Frankel believed that Trudeau
and Rosan's questions were unnecessary because his leave had been previously approved by
Deputy Commissioner Burrell, but he gave them a copy of the approval. (Id. at ~ 25.) This
discussion with Trudeau and Rosan caused Frankel "a lot of stress and anxiety." (Id.) When he
returned from the conference, Trudeau and Rosan again asked Frankel about his attendance at
the conference and his absence from the office during that week. (ld. at '128.) Although no
formal action was taken by OCFS, Frankel "experienced many days of stress" regarding these
events. (ld. at '1 30.)
On May 23,2008, Frankel sent an email complaint to various OCFS and State Office of
Medical Health employees, including Defendant Shapiro, claiming that he experienced so much
stress from his encounters with Trudeau and Rosan that he had developed cardiac arrithymias
and had been "outfitted with a 30 day heart monitor." (ld. at pp. 9, 11.) In his email, Frankel
stated that he suspected OCFS had "retaliated against [him] given the agency's history with [his]
previous complaints." (Id. at p. 10.) On June 5,2008, Frankel met with Defendant Marion and
another OCFS employee not named in the Complaint to discuss these issues. (ld. at,1 36.)
Marion gave him the impression that he had concerns about Frankel's issues, but gave Frankel
no recommendations or orders, and did not promise that any actions would be taken by OCFS.
(ld.) Frankel asked for information from OCFS regarding this meeting under the Freedom of
Information Law ("FOIL"),2 but his request was denied. (ld.) Frankel argues that OCFS is
N.Y. Pub. Officers Law §§ 85-89, N.Y. Sess. Laws ch. 578, §§ 85-89 (McKinney 1974), as amended, N.Y. Sess.
Laws chs. 579-80 (McKinney 1974).
2
4
withholding case-related material, and believes there exists an ongoing conspiracy to deny him
due process, including a cover-up of these events. (PI. Mem. at ~ 36.)
On June 17,2008, Frankel filed a grievance with PEF regarding actions taken by Rosan
and Trudeau. (ld. at ~ 37.) On June 18, he was summoned without advance notice to a meeting
about his email complaint. He did not get an opportunity to have union representation. (ld.at
~
38,) Defendants Shapiro, Trudeau, and Marion accused him of sending the email complaint to
others, including Defendant Carrion. (ld.) They told him "that the sending of any future
complaints by [him] is not recommended" and they wanted to know if he had sent copies to
others outside of OCFS. (Id.) Frankel's "stress levels increased" as a result of this meeting.
(Id.) He requested information from OCFS regarding this meeting under FOIL, but the request
was denied. (ld.)
On June 23, Frankel was given notice that he would be subject to a formal
"Interrogation" on June 26 (rescheduled to July 1,2008). (Jd. at ~ 39.) Trudeau refused to
explain why Frankel was subject to this action, and no one told Frankel why the Interrogation
had been requested. (Jd.) On June 30, Frankel met with Defendant Murphy and an employee
from the Equal Employment Opportunity and Diversity Office ("EEOD") of OCFS, and they
agreed to work on a mediation agreement, but there was never any follow-up. (ld. at ~ 41.)
Frankel requested information from OCFS regarding this meeting under FOIL, but his request
was denied. (ld.)
On July 1, 2008, with PEF representatives present, OCFS Special Investigations Unit
("SIU") staff member Bergmann interviewed Frankel about his attendance at the work
conference and an anonymous letter that circulated in the office defaming Rosan. (ld. at ~~ 30,
43.) He "immediately got the impression that someone figured" that because he had made earlier
5
complaints, that "this letter must have been written by [him]." (Jd. at ~ 43.) Frankel told
Bergmann that he had not seen the letter. (Jd.) He requested information from OCFS regarding
this interview under FOIL, but his request was denied. (Jd.)
On July 24,2008, the SIU confiscated Frankel's OCFS computer to conduct a forensic
analysis of the contents. (Jd. at ~ 45.) Frankel asserts that his computer was seized because
Rosan had convinced Trudeau that Frankel was using his office and computer at Pyramid to run
his own mental health private practice. Rosan and Trudeau also believed that Frankel was the
author of the negative document about Rosan, and that they could find it by seizing his computer.
(Jd. at ~ 46.) Because of the "overwhelming" stress Frankel experienced, he took the rest of the
day off. (Jd.) Trudeau "proceeded to lecture [him]" about the proper way to request time off.
(Jd.) Because he lacked any explanation for the series of events on July 24, 2008, his "sleep as
well as his physical and emotional well-being" were negatively impacted. (ld.) Frankel asked
for information from OCFS regarding the July 24,2008 meeting under FOIL, but his request was
denied. On July 30, Frankel was prescribed anti-anxiety medication by his doctor. (Jd. at ~ 47.)
On July 31, Frankel was given a replacement computer but despite his request, the case files on
the computer that he needed to complete his mental health evaluations were not provided. (Jd. at
~~
46-49.)
In October 2008, Rosan approached Frankel about inconsistencies between two different
time monitoring systems, a daily sign-in book, and a "key log," which reflects the time an
employee enters the Pyramid facility and exchanges his personal keys for the facility keys. (Jd.
at ~ 54.) Rosan asked Frankel to edit his time sheet to reflect the time recorded in the key log.
(Jd.) Frankel alleges that Rosan harassed and retaliated against him after Rosan considered
Frankel's revisions to be incomplete and asked him to round each time entry to the nearest
6
quarter hour. (Id at ~~ 54-55.) On November 4, Frankel emailed "various PEF union officials,"
but none of the Defendants, to complain that Rosan and Trudeau's actions impacted his health by
causing emotional distress. (Id at ~ 60.) In the summer of201 0, Frankel's request for copies of
time sheets from OCFS under FOIL was denied. (Id at ~ 57.)
On November 5, 2008, Bergmann, Trudeau, and DeCelle (another SIU staff member)
interviewed Frankel about evidence of inappropriate and illegal activities ("searching the web for
boys, having porno that could be child porn, going to MySpace") found on his old OCFS
computer. (Id at p. 24.) At the interview, Frankel had no prior notice, and was not informed
that he had the right to union representation or legal counsel. (Idat
~
61.) He asserts that he
utilized MySpace to verify if residents in custody had inappropriate information on the website,
which he notes in their Psychological Reports. (Id at p. 25.) Bergmann showed Frankel two
pages of inappropriate photos taken from Frankel's computer, one of which Frankel
"recognized" as a "female, non-nude model over age 21." (Id) Bergmann stated that SIU had
found photos that could constitute child pornography and evidence that Frankel searched the web
for "15-year-old males." (Id. at p. 25.) Bergmann informed Frankel that he could not continue
to work at OCFS but could continue working at other state agencies. (Id at pp. 25,28.) Frankel
persistently denied the allegations. (Id. at p. 26.) Bergmann asked Frankel to resign or OCFS
would file charges to have Frankel's license revoked. (Id at p. 28.) Frankel signed a resignation
form "under duress," which he claims constituted constructive discharge. (Jd. at pp. 2, 30.)
Frankel made a FOIL request for documents relating to the events that transpired on the date of
his resignation, but the request was denied. (ld. at p. 31.)
7
III. DISCUSSION
A. Standard for Dismissal Under 12(b)(1)
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a complaint may be dismissed
when the federal court "lacks jurisdiction over the subject matter." See Fed. R. Civ. P. 12(b)(1).
In most cases, the court will consider a 12(b)( 1) motion before ruling on any other motions to
dismiss, since dismissal of an action for lack of subject matter jurisdiction will render all other
accompanying defenses and motions moot. See United States ex rei Kreindler & Kreindler v.
United Technologies Corp., 985 F.2d 1148, 1155-56 (2d Cir. 1993), cert. denied sub nom.
Kreindler & Kreindler v. United Technologies Corp., 508 U.S. 973 (1993); see also Rhulen
Agency, Inc. v. Alabama Ins. Guar. Ass 'n, 896 F.2d 674, 678 (2d Cir. 1990). Thus, a court
confronted with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) should decide
the jurisdictional question first because "a disposition of a Rule 12(b)( 6) motion is a decision on
the merits, and therefore, an exercise ofjurisdiction." Magee v. Nassau Cnty. Medical Center,
27 F. Supp. 2d 154,158 (E.D.N.Y. 1998); see also Rhulen, 896 F.2d at 678.
In considering a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a court
must assume as true factual allegations in the complaint. Shipping Fin. Servs. Corp. v. Drakos,
140 F.3d 129,131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974»; Serrano
v. 900 5th Ave. Corp., 4 F. Supp. 2d 315, 316 (S.D.N.Y. 1998). Where jurisdictional issues are
in dispute, the court may look to "evidence outside the pleadings, such as affidavits." Filetech
S.A. v. France Telecom, SA., 157 F.3d 922, 932 (2d Cir. 1998) (quoting Antares A ircrqft v. Fed
Republic o.lNigeria, 948 F.2d 90,96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215
(1992».
8
1. Frankel's Federal Claims Against OCFS and Individual Defendants Are Barred
by the Eleventh Amendment to the U.S. Constitution
a.
Frankel's Claims Under Section 1983 Against OCFS
To prevail in a § 1983 action, a plaintiff must prove: 1) that the challenged practices are
attributable, at least in part, to a person acting under color of state law; and 2) that the challenged
practices deprive the plaintiff of a right, privilege, or immunity secured by the Constitution or
laws of the United States. Wimmer v. Suffolk Cnty. Police Dep't, 176 F.3d 125, 136-37 (2d Cir.
1999). Congress did not abrogate the States' Eleventh Amendment immunity in enacting §
1983. Quern v. Jordan, 440 U.S. 332,341-42 (1979). Moreover, a state is not a "person" for
purposes of § 1983, and neither a state nor a state agency can be sued under § 1983. Will v.
Mich. Dep 't o/State Police, 491 U.S. 58 (1981); see, e.g., Feingold v. New York, 366 F.3d 138,
149 (2d Cir. 2004) (§ 1983 claim barred because the DMV is a state agency).
OCFS is a state agency, and Frankel has cited no authority that OCFS waived its
immunity under the Eleventh Amendment for claims pursuant to § 1983. Frankel's bare
assertion that sovereign immunity should not apply in this case is insufficient as a matter of law
to allow his claims to survive dismissal under Rule 12(b)( 1).
b. Frankel's Claims Under Section 1983 Against the Individual Defendants
Because the Eleventh Amendment bars a § 1983 claim against a state, it also bars the
action against a state employee sued in his official capacity. Berman Enter .. Inc. v. Joriing, 3
F.3d 602, 606 (2d Cir. 1993) ("a suit against a state official in his official capacity is, in effect, a
suit against the state itself'). As such, each of Frankel's § 1983 claims against individual
Defendants in their official capacities are barred under the Eleventh Amendment and must be
dismissed pursuant to Rule 12(b)( 1).
9
2. An Article 78 Proceeding is the Proper Forum to Adjudicate an Alleged
Deprivation of Due Process
The federal court is a tribunal oflimited jurisdiction. Yale Auto Parts, Inc. v. Johnson,
758 F.2d 54,58 (2d Cir. 1985) (section 1983 ... does not guarantee a person the right to bring a
federal suit for denial of due process in every proceeding in which he is denied a license). A due
process claim for the deprivation of a property interest is not cognizable in a federal district court
if state courts provide a remedy for the deprivation of that property interest. Hudson v. Palmer,
468 U.S. 517,533 (1984); A1arino v. Ameruso, 837 F.2d 25, 47 (2d Cir. 1988»). New York State
courts provide such a remedy through Article 78 proceedings. N.Y. C.P.L.R. §§ 7801, 7803
(McKinney 2008). An Article 78 proceeding "provides the mechanism for challenging a specific
decision of a state [or municipal] administrative agency." Campo v. LV Y. City Employees) Ret.
Sys., 843 F.2d 96,101 (2d Cir. 1988) (alteration in original). The proceeding "permits a
petitioner to submit affidavits and other written evidence; and where a material issue of fact is
raised, have a trial ofthe disputed issue, including constitutional claims." Locurto v. Safir,264
F.3d 154, 174 (2d Cir. 2001).
Here, Frankel cannot claim that he was deprived of due process since he did not allege
that he had availed himself of available state remedies. Gabris v. TLC, 2005 U.S. Dist. Lexis
23391, at *9 (S.D.N.Y. Oct. 6,2005). Frankel asserts, however, that filing a New York Civil
Practice Law and Rules Article 78 proceeding was not "appropriate" because he was seeking a
pre-deprivation hearing for the November 5 events comprising his due process claim ~ not a
post-deprivation remedy. (See PI. Mem. at ~ 89). His position is meritless. "Due process
requires only that a hearing be held at a meaningful time and in a meaningful manner. Giglio v.
Dunn, 732 F.2d 1133, 1135 (2d Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 540 (1981)
(emphasis added)). Where a pre-deprivation hearing is impractical and a post-deprivation
10
hearing is meaningful, the State satisfies its constitutional obligations by providing the latter. Id
As an alleged coerced resignation does not involve a showing of cause, but rather, the
submission by an employee to pressure exerted by a superior, "the only possible dispute is
whether the resignation was voluntary or involuntary, and this cannot be determined in advance."
Id Under these circumstances, Frankel was not entitled to a pre-deprivation hearing.
"An Article 78 proceeding... constitutes a wholly adequate post-deprivation hearing for
due process purposes." Spinelli v. City olN. Y, 579 F.3d 160, 170 (2d Cir. 2009) (citing
Catanzaro v. Weiden, 188 F.3d 56, 61 (2d Cir. 1999»; Campo v. N. Y City Employees Ret. Sys.,
I
843 F .2d 96, 101-02 (2d Cir. 1988) (dismissing procedural due process claim based on the
availability of Article 78 review of administrative determination); Nnebe v. Daus, 665 F. Supp.
2d 311, 330 (S.D.N.Y. 2009). Assuming that an Article 78 hearing had been held, "the court,
with all the facts before it, could have determined whether [Frankel's] resignation was coerced
and, avoiding the constitutional thicket, could have ordered such reinstatement and monetary
relief as was appropriate." Giglio, 732 F.2d at 1135. Additionally, Frankel cannot claim that an
Article 78 proceeding is no longer available because he has missed the four-month limitations
period. Due process is satisfied if he had the opportunity to challenge the adverse action. Giglio,
732 F.2d at 1135. Because Frankel failed to commence an Article 78 proceeding, his due
process claims are not cognizable, and I recommend that such claims be dismissed pursuant to
Rule 12(b)(1).
B. Standard for Dismissal Under 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a party may assert a motion to dismiss
for failure to state a claim on which relief can be granted. In deciding a motion to dismiss, the
court must "constru[ e] the complaint liberally, accepting all factual allegations in the complaint
11
as true, and drawing all reasonable inferences in the plaintiffs favor." Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). A court, however, is not bound to accept as true
a legal conclusion couched as a factual allegation. Aschcroft v. Iqbal, 555 U.S. 662, 678 (2009).
A pleading that offers "labels and conclusions" or a "formulaic recitation of the elements of a
cause of action will not do." Id. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Similarly, a plaintiff may not maintain a complaint which offers "naked assertion(s]"
devoid of "further factual enhancement." Id. (citing Twombly, 550 U.S. at 557).
Under Twombly, the court must also apply a "flexible 'plausibility standard,' which
obliges a pleader to amplify a claim with some factual allegations in those contexts where such
amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d
Cir. 2007); see Elektra Entm 't Group, Inc. v. Santangelo, No. 06 Civ. 11520 (SCR)(MDF), 2008
WL 4452393, at *2 (S.D.N.Y. Oct 1,2008). A claim is plausible when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged. Twombly, 550 U.S. 544 at 556. Only a complaint that states a
plausible claim for relief survives a motion to dismiss. Id.
Where a plaintiff is pro se, the court should apply "less stringent standards than formal
pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Moreover, in
deciding a motion to dismiss involving a pro se plaintiff, the court can look beyond the "four
corners of the complaint" to all the pleadings before the court, including the plaintiffs
opposition papers. Mayo v. Federal Government, No. ] 1 Civ. 2828,2012 WL 4474589, at 5*
(S.D.N. Y. Sept. 28, 2012); Gonzalez v. Allied Barton Securities Sen.'s., No.8 Civ. 9291, 2010
WL 428058, at 3* (S.D,N.Y. Feb. 2, 2010).
12
1.
Frankel's § 1983 Claims are Time Barred
a. The Three-Year Statute of Limitations Under § 1983
For claims arising under § 1983 in New York, a three-year statute oflimitations applies.
See Rodriguez v. City o/New York, No. 10 Civ. 4404, 2012 WL 234380, at *3 (S.D.N.Y. Jan. 24,
2012) (citing Patterson v. Cnty. o/Oneida, 375 F.3d 206, 225 (2d Cir. 2004». Frankel
commenced this action on November 4,2011. Therefore, he may seek relief for events occurring
on or after November 4,2008. Except for his resignation on November 5, 2008, none of the
events which form the basis of Frankel's complaint occurred within the relevant timeframe.
Frankel nevertheless argues that the continuing violation doctrine applies, and events leading up
to his resignation must be viewed cumulatively, so that the date of the cause of action first
accrued on November
2008, the last day the last component act occurred. (PI. Mem. at ~ 87.)
Frankel notes that the ongoing nature of the actions by OCFS, such as its continuous refusal to
provide documents under FOIL, defeats the statutory bar. (PI. Mem. at ~ 26; Ex. 5.) He also
asserts that actions of OCFS in denying his multiple FOIL requests constitute a conspiracy to
deprive him of his due process rights. Id. at ~ 26. Neither argument has merit. As for the
assertion that the FOIL denials serve to revive claims that would have otherwise expired, the
continuing violation doctrine does not apply to "discrete discriminatory acts" which are not
actionable if time-barred, even when related to acts alleged in timely claims, regardless of their
ongoing effect on an employee. Nat 'I R.R. Passenger Corp. v. Morgan, 536 U.S. 110, 113-15
(2002). "When ... a plaintiffs allegations of discrimination extend beyond [the statute of
limitations], the nature of the claim determines what consideration will be given to the earlier
conduct [outside of the statute oflimitations period]." Petrosino v. Bell Atl., 385 F .3d 210, 220
(2004). Frankel cannot show that his claims come within this limited doctrine, and each of the
13
alleged instances of discrete retaliatory action prior to November 4, 2008, is time-barred. With
respect to any claimed conspiracy and the FOIL requests, Frankel offers nothing more than
speculation.
b. The One Year Statute of Limitations for Frankel's Intentional Infliction
of Emotional Distress Claim
Frankel's claim for intentional inf1iction of emotional distress is time-barred and must be
dismissed. It is well-established under New York law that a claim of intentional infliction of
emotional distress has a one-year statute of limitations. See Tovar v. KLM Royal Dutch Airlines,
2000 WL 1273841, at *2 (S.D.N.Y. Sept. 6,2000); Stordeur v. Computer Associates 1m'!, Inc"
995 F. Supp. 94,98 (E.D.N.Y.1998); Brown v. Bronx Cross Cnty. Medical GrouP. 834 F. Supp.
105, 110 (S.D.N.Y.1993). Here, Frankel alleges that Defendants engaged in conduct that caused
him "severe emotion distress" beginning in May 2008 through the date of his resignation on
November 5, 2008. (Compl at~,-r 25-63.) As Frankel commenced this suit on November 4,
2011, however, each alleged incident of conduct by Defendants occurred beyond the one-year
statute of limitations.
In addition, in order to state a claim for intentional inf1iction of emotional distress, a
plaintiff must plead: "( I) extreme and outrageous conduct; (2) intent to cause, or reckless
disregard of a substantial probability of causing, severe emotional distress; (3) a causal
connection between the conduct and the injury; and (4) severe emotional distress." Stuto v.
Fleishman, 164 F.3d 820, 827 (2d Cir.1999). Extreme and outrageous conduct is understood as
conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society."
1d. Some of Frankel's complaints in support of this claim are that his supervisors questioned him
about his time away from the office, his supervisors told him on November 5 that ifhe did not
14
resign, the "consequences could be serious and life-long," and that he felt like a "common
criminal" when he was escorted to his office by two investigators to retrieve his belongings.
(Compi. at ~~ 39,61,63.) As these incidents do not indicate that Frankel was publicly
humiliated, physically threatened, or verbally abused in any manner, Conboy v. AT&T Corp.,
241 F.3d 242, 258-59 (2d Cir. 2001), they fail to rise to the level of "extreme and outrageous
conduct" New York courts require, see, e.g., Stuto, 164 F.3d at 828 (noting that in Murphy v.
American Home Prods. Corp., 58 N. Y.2d 293 (1983), plaintiff's complaint that he was publicly
escorted from his work building fell short of the strict standard for outrageous conduct).
Additionally, extreme and outrageous conduct must be "intentionally directed at plaintiff
and lack any reasonable justification." Jones v. Trump, 971 F. Supp. 783, 787 (S.D.N.Y. 1997).
Frankel presents no facts showing that the conduct he complains of was especially calculated to
cause serious mental distress or that the conduct lacked any reasonable justification. For
instance, Frankel notes a June 25, 2008 incident where he emailed Shapiro to explain that he
"expect[ed] to be terminated" after he received a letter informing him of a July 1 "interrogation."
Frankel notes that Shapiro responded with, "Harlan, No one has told me you're being terminated.
Try to calm down. It will be okay. Just take care of the kids, and don't catstrophize [sic].
Please take care of yourself as welL" (CompI. at ~ 40.) In response, Frankel writes back, "PS.
always take care of the kids, that u don't have to worry about." (Id.) In another incident,
Frankel explains that Trudeau informed him on July 24 that he had to remain in the
administrative area in the office while the SIU removed his computer from his office. (Id. at,
45.) Frankel perceived this instruction as him "being held in the administration area against his
will," and became "extremely depressed." These incidents fail to demonstrate conduct likely to
cause serious mental distress or that there were no reasonable bases upon which Defendants took
15
certain actions. See, e.g., Three Crown Ltd. Partnership v. Caxton Corp., 817 F. Supp. 1033,
1048-49 (S.D.N.Y. 1993) (noting that fraudulent purchase and sale of securities is calculated to
cause profits for the manipulators as opposed to emotional distress for particular individuals).
Indeed, certain incidents Frankel cites as having caused him distress do not demonstrate that
there was any other intent by Defendants other than to communicate policy. Because there is a
complet absence of factual content to support Frankel's claim, r recommend that Frankel's cause
of action for intentional infliction of emotional distress be DISMISSED.
2.
Frankel's First Amendment Retaliation Claim Does Not Demonstrate
Protected Speech
Even if Frankel's First Amendment claim under § 1983 were not time-barred, the
instances of speech are not protected under the First Amendment. To survive a motion to
dismiss on a First Amendment retaliation claim, a plaintiff must allege that: "( 1) the speech at
issue was made as a citizen on matters of public concern rather than as an employee on matters
of personal interest (2) he suffered an adverse employment action, ... and (3) the speech was at
least a substantial or motivating factor in the [adverse employment action]." Zelnik v. Fashion
inst. ofTech., 464 F.3d 217, 225 (2d Cir. 2006). "[I]fan employee has raised an issue solely in
order to further his own employment interest, his First Amendment right to comment on that
issue is entitled to little weight." White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1058
(2d Cir.), cert. denied, 510 U.S. 865 (1993). Thus, "retaliation against the airing of 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 ofN Y 514 F .3d 184, 190 (2d Cir. 2008).
Frankel alleges that when he complained about Rosan and Trudeau to OCFS staff
members and later to PEF, this constituted protected speech, which led to retaliation. Frankel's
16
complaints about Rosan and Trudeau, however, convey that he was not speaking as a citizen on a
matter of public concern, but instead describing internal grievances with his supervisors. See
Lewis v. Cowen, 165 F.3d 154, 164 (2d Cir. 1999), cert. denied, 528 U.S. 823 (1999). As such,
Frankel wrote the documents not as a private citizen, but as an employee to protect his own self
interest. See Garcetti v. Ceballos, 547 U.S. 410,421 (2006).
Frankel also claims that in his two letters to the members of the State legislature, he
wrote that Pyramid provided much needed services to the Bronx community, and relocation of
this facility would place the general health of residents at risk because of less than ideal facilities
at Ella McQueen (no gym or recreation room for residents). (CompI. at 5.) In speaking out
against the closing of Pyramid, Frankel concedes that "for current employees of Pyramid to
move to Brooklyn would be devastating, and [would] take its toll on the financial and emotional
well-being of the employees." (PI. Mem. at Ex. 38). Frankel stated that "the additional financial
burden on employees driving from north of New York City [to Brooklyn] will be in the range of
$2500 to $3500 a year. .. " Id. Although Frankel claimed that the new location might be less
than ideal because there was no gym or recreation room for residents (CompI. at 5), taking into
account the "content, form, and context of [his] statement, as revealed by the whole record,"
Connick v. Myers, 461 U.S. 138, 147-48, (1983) (internal quotation mark omitted), he was
primarily motivated by a personal interest in maintaining his job at Pyramid and not motivated
by a desire to "advance a public purpose." See Ruotolo v. City ofNew York, 514 F.3d 184, 189
(2d Cir. 2008). In writing the two letters in support of keeping Pyramid open, Frankel spoke
neither as a private citizen nor on matters of public concern, and these incidents of speech are not
protected by the First Amendment.
17
In addition, assuming Frankel's speech were protected by the First Amendment, he fails
to show how his speech was at least a substantial or motivating factor in the adverse employment
action. See Zelnik, 464 F.3d at 225. Frankel concedes that Rosan and Trudeau began
questioning him about his attendance before he complained via email on May 23,2008 (CompI.
at ~~ 25-37). He states that as a result of the stress he felt from their questioning, he wrote the
email complaint, which was sent to various employees atOCFS, including Shapiro. (ld.at ~ 30.)
Even if these administrators expressed verbal disapproval of Frankel's conduct in this
conversation, which did not carry formal discipline, it is not an adverse employment action.
Malgieri v. Ehrennberg, No. 12 Civ. 2517, 2012 WL 6647515, at *6 (S.D.N.Y. Dec. 21,2012)
(quoting Campanella v. Cnty. OfMonroe, 853 F. Supp. 2d 225, 233-34 n. 6 (W.D.N.Y. 2012)).
Frankel also cites the two letters he sent in support of keeping Pyramid open to members
of the State Legislature in February 2008. (CompI. at ~ 19.) He claims that he was forced to
resign on November 5,2008. (ld. at ~ 63.) He relies on the "temporal" proximity between his
purportedly protected speech and subsequent adverse employment actions. (PI. Mem. at ~ 70.)
While there is no bright line to define the outer limits beyond which a temporal relationship is
too attenuated to establish a causal relationship, Gorman-Bakos v. Cornell Coop. Extension, 252
F.3d 545, 554 (2d Cir. 2001), a district court must exercise its judgment about permissible
inferences that can be drawn from temporal proximity in the context of a particular case. Espinal
v. Goord, 558 F.3d 119, 129 (2d Cir. 2009).
Without other evidence tending to show causation,
see Hayes v. Kerik, 414 F. Supp. 2d 193,206 (E.D.N.Y. 2006), the date of the email complaint
(May 23,2008) and the dates of the two letters (February 7-11,2008) are too attenuated from the
date of resignation (November 5,2008), see Clark County Sch. Dist. v. Breeden, 532 U.S. 268,
273 (2001) (noting that two events must be "very close," and that a proximity of three months or
18
more is insufficient); Dixon v. Int" Fed'n ofAccountants, 416 Fed. Appx. 107, (2d Cir. 2011)
(holding that a four-month temporal proximity between employee's complaints of discrimination
and her termination was insufficient, without more, to suggest that employer's reason was
pre textual). Therefore, the Court does not find that the alleged incidents of free speech and the
alleged adverse action to be within sufficient temporal proximity to support an inference of
causal connection.
Even if the Court were to assume that both incidents of the alleged speech (the email
complaint and two letters) were protected and that OCFS was responsible for Frankel's
resignation, this case alleges only minor and infrequent incidents that would not suffice to tie
Frankel's resignation to his earlier speech. Petty slights or minor annoyances that often take
place at work and that all employees experience do not constitute actionable retaliation. Hicks v.
Baines, 593 F.3d 159, 165 (2d. Cir. 2010) (quoting Burlington Northern & Santa Fe Ry. Co. v.
White, 48 U.S. 53,68 (2006).
3.
Frankel's Claims against Defendants Carrion and Murphy Lack Any Basis
Frankel claims that Carrion and Murphy should be held vicariously liable for the alleged
wrongs of other subordinate Defendants. (PI. Mem. at ~~ 36, 41, 70.) Claims alleging vicarious
liability, however, cannot be brought under § 1983. See, e.g., Taylor v. Keen, No. 11 Civ. 5221,
2012 WL 3835383, at *4 (E.D.N.Y. Sept. 5,2012). A supervisor can only be held liable for the
wrongful action of her subordinate under the limited doctrine of supervisory liability. Id To
make a claim for supervisory liability, a plaintiff must demonstrate that the supervisor was
personally involved through: "(1) actual direct participation in the constitutional violation, (2)
failure to remedy a wrong after being informed through a report or appeal, (3) creation of a
policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing
19
such a policy or custom to continue, (4) grossly negligent supervision of subordinates who
committed a violation, or (5) failure to act on information indicating that unconstitutional acts
were occurring." Hernandez v. Keane, 341 FJd 137, 144 (2d Cir. 2003).
Frankel claims that "Carrion ... is responsible for all actions by all departments within
OCFS." (PI. Mem. at ~ 36.) He further alleges that Carrion must have known about the alleged
wrongs he endured. Id. at ~ 70. Frankel fails to cite any facts which indicate that Carrion knew
anything about these alleged events, nor does he allege that Carrion had any personal
involvement. In addition, with regard to Murphy, Frankel claims only that on May 23, 2008,
when he emailed several staff at OCFS to complain about Rosan and Trudeau, Commissioner
Ines Nieves responded in an email saying, "I will pass your concerns on to Director of EODD
Emy Muphy." (CompI. at ~31.) Murphy was also copied on an email from Marion to Frankel on
June 5, 2008. (Id. at ~ 35.) These minimal references fail to demonstrate that Murphy was
directly or personally involved in the alleged retaliation or forced resignation. The claims
against Carrion and Murphy cannot meet the threshold pleading standard, and should be
dismissed in their entirety.
4.
Defendants are Entitled to Qualified Immunity in Their Individual Capacities
Qualified immunity shields public officials from liability for their discretionary acts
"insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982); Saucier v. Katz, 533 U.S. 194,200-202 (2001); Poe v. Leonard, 282 F.3d 123,131 (2d
Cir.2002). In determining whether qualified immunity applies, "the first inquiry must be
whether a constitutional right would have been violated on the facts alleged." Saucier, 533 U.S.
at 200. If there is a violation, the Court must proceed to determine whether the right in question
20
was "clearly established" at the time of the violation. Jd. at 201. In this regard, the right must be
established with a level of speeificity that is beyond the statement of a general proposition. Jd. at
201-02; Poe v. Leonard, 282 F.3d at 135. In essence, the court must inquire "whether it would
be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."
Saucier, 533 U.S. at 202. This test does not require a defendant to have understood the
complexities of the case law. Young v. Cnty. ofFulton, 160 F.3d 899, 903 (2d Cir. 1998). On
the other hand, "[q]ualified immunity does not protect those who are plainly incompetent or
those who knowingly violate the law." Weyant v. Oks!, 101 F.3d 845, 858 (2d Cir. 1996).
In the instant case, Frankel has not alleged facts which would constitute a constitutional
violation. Further, because Frankel's internal grievances about Rosan and Trudeau are not
protected under the First Amendment, no constitutional right could have been clearly established
when he alleges adverse employment actions were taken against him. Frankel has failed to
present facts to defeat the qualified immunity defense because no constitutional rights were
clearly established at the time and the alleged actions of each individual Defendant were
objectively reasonable. As a result, each Defendant sued in his or her individual capacity
remains protected by qualified immunity and is not liable for money damages.
V. CONCLUSION
For the foregoing reasons, I recommend that Defendants' Motion to Dismiss be
GRANTED, and that Frankel's Complaint be DISMISSED.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14)
days after being served with a copy of the recommended disposition to file written objections to
this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and
served on all adversaries, with extra copies delivered to the chambers of the Honorable Deborah
21
A. Batts, 500 Pearl Street, Room 2510, and to the chambers of the undersigned, 500 Pearl Street,
Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in
the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn,
474 U.S. 140, 150 (1985); Small v. Sec 'y ofHealth & Human Servs., 892 F.2d 15, 16 (2d Cir.
1989) (per curiam); 28 U.S.C. § 636(b)(l) (West Supp. 1995); FED. R. CIv. P. 72, 6(a), 6(d).
Dated: April 29, 2013
New York, New York
Respectfully Submitted,
CZ~~
The Honorable Ronald L. Ellis
United States Magistrate Judge
Copies of this Report and Recommendation were sent to:
Pro Se PlaintiiI
Harlan Frankel
12-13 Granada Crescent
White Plains, New York 10603
Counsel for Defendants
Eric T. Schneiderman
Attorney General of the State of New York
Bonita S. Gutierrez
Assistant Attorney General
120 Broadway, New York, New York 10271
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