Stajic v. The City Of New York , et al

Filing 139

MEMORANDUM OPINION AND ORDER re: 94 MOTION for Summary Judgment filed by Barbara Sampson, The City Of New York, Timothy Kupferschmid. For the foregoing reasons, summary judgment is DENIED as to the Monell claim, the retaliation claims with respect to the CFS Statements and the CFS Votes, and the age discrimination claim. Summary judgment is GRANTED as to the § 995-a claim and the retaliation claim concerning the 2013 Statement to Dr. Sampson. The Clerk of Court is directed to terminate the motion pending at Dkt. No. 94. SO ORDERED. (Signed by Judge Gregory H. Woods on 9/27/2018) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MARINA STAJIC,
:
:
Plaintiff, :
:
-against:
:
THE CITY OF NEW YORK, BARBARA
:
SAMPSON, in her individual capacity, and TIMOTHY :
KUPFERSCHMID, in his individual capacity,
:
:
Defendants. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 9/27/2018

1:16-cv-1258-GHW
MEMORANDUM OPINION
AND ORDER

GREGORY H. WOODS, United States District Judge:
I.

INTRODUCTION

Plaintiff Marina Stajic is an accomplished forensic scientist. For over 29 years, she served as
the Director of the Forensic Toxicology Laboratory (the “FTL”) for the New York City Office of
the Chief Medical Examiner (“OCME”). In 2004, Plaintiff was independently appointed by the
Governor to serve on the New York State Commission on Forensic Science (“CFS” or the
“Commission”). The CFS is a fourteen-member body charged with, among other things, developing
minimum standards and a program of accreditation for all forensic laboratories in New York State.
During a series of CFS meetings in 2014, Plaintiff took positions that were perceived by
Barbara Sampson and Timothy Kupferschmid, two of her superiors at the OCME, to be critical of
or adverse to the OCME. Shortly thereafter, Plaintiff was fired. She alleges that her termination
was in retaliation for the statements she made as a member of the CFS.
Plaintiff filed this lawsuit against the City of New York, Dr. Sampson, and Mr.
Kupferschmid, asserting claims for First Amendment retaliation, retaliation under the New York
State Constitution, violation of New York Executive Law § 995-a(6), and age discrimination under

the New York City Human Rights Law. Defendants now move for summary judgment on each of
those claims. For the reasons set forth below, the motion is granted in part and denied in part.
II.

BACKGROUND1

A. Structure and Function of the OCME
The OCME is an independent office within the New York City Department of Health and
Mental Hygiene. Pl.’s Response to Defs.’ Rule 56.1 Statement (Dkt. No. 112) (“Pl.’s 56.1”), ¶¶ 1, 2.2
It is led by the Chief Medical Examiner of the City of New York (the “CME”), who is appointed by
the mayor. Id. ¶ 3. Among other things, the CME has the authority to appoint and remove OCME
employees, including medical examiners and scientific experts. Id. ¶ 6.
The OCME’s Division of Laboratories comprises four forensic laboratories: Forensic
Biology, Forensic Toxicology, Histology, and Molecular Genetics. Id. ¶ 8. Each laboratory conducts
a different type of testing. The FTL, of which Plaintiff was the Director, primarily performs postmortem analysis to determine the cause and manner of death. Id. ¶ 10.
In 2007, the CME began holding weekly executive team meetings with members of the
OCME’s senior leadership. Defendants’ Response to Plaintiff’s 56.1(b) Statement of Additional
Material Facts (Dkt. No. 117) (“Defs.’ 56.1”), ¶ 233.3 The purpose of the executive team meetings
was to develop and institute policy and procedures for the agency, to make management decisions,
to review progress of major projects, to find solutions to problematic areas, and to develop new
initiatives for the agency. Id. ¶ 234. Attendees included the CME and the deputy commissioner of

1

The following facts are drawn from the parties’ Local Civil Rule 56.1 Statements in connection
with the instant motion and are undisputed or taken in the light most favorable to Plaintiff, unless
otherwise noted.
2

Plaintiff’s Response to Defendants’ Rule 56.1 Statement contains both the assertions of the
moving party and the responses of the non-moving party.
3

Defendants’ Response to Plaintiff’s Rule 56.1 Statement contains both the assertions of the
moving party and the responses of the non-moving party.
2

administration and finance, Dina Maniotis. Id. ¶ 236. Plaintiff was never a member of the executive
team. Id. ¶ 237.
B. Plaintiff’s Background and Career at OCME
Plaintiff was born in 1950. She obtained her Ph.D. in Forensic Toxicology in 1977. Pl.’s
56.1 ¶¶ 13, 14. She was appointed Director of the FTL on April 1, 1986, when she was 36 years old
and had approximately nine years of post-Ph.D. forensic toxicology experience. Id. ¶¶ 15, 16, 18.
As the Director of the FTL, Plaintiff’s responsibilities included: providing administrative, scientific,
and technical operational management of the laboratory; overseeing training of personnel in the
laboratory; supervising all FTL analyses in connection with deaths under investigation; supervising
casework and evaluation of toxicological findings; implementing analytical methodologies related to
forensic toxicology; coordinating the activities of the FTL with OCME medical examiners, the New
York City Police Department, and the District Attorneys’ Offices of the five counties composing the
City of New York; and serving as an expert witness in the area of forensic toxicology. Id. ¶ 17.
According to Plaintiff, she was also responsible for formulating and implementing the FTL’s
operational policies, goals, and objectives, though she did not have any responsibility for formulating
OCME policy outside of the FTL and she did not have any responsibility for formulating or
enforcing OCME’s conflict of interest policies. Id.; Defs.’ 56.1, ¶¶ 223, 225. The parties agree that
Plaintiff did not have any responsibilities related to the OCME’s Forensic Biology Laboratory (the
“FBL”), which is a separate laboratory, in a different building, with different leadership and staff.
Defs.’ 56.1 ¶ 224.
Plaintiff had several immediate supervisors during her tenure as Director of the FTL,
culminating with defendant Dr. Sampson. Pl.’s 56.1 ¶¶ 19-33. Plaintiff’s last performance
evaluation before her termination took place nearly 18 years earlier, in February 1997. Id. ¶ 227. At
the time, her supervisor was then-CME Dr. Charles Hirsch. Id. ¶¶ 226, 227. The rating assigned to
Plaintiff in that review was “fully meets requirements.” Id. ¶ 227. According to Defendants, the
3

“fully meets requirements” rating corresponded to a “3” and the highest rating available was a “5
(Exceptional)”. Id. ¶ 227. According to Plaintiff, Dr. Hirsch never told her that he was dissatisfied
with any aspect of her performance. Id. ¶ 228.
C. The Structure and Function of the CFS, and Plaintiff’s Appointment to the CFS
In addition to her role at the OCME, Plaintiff served as a commissioner on the CFS. The
CFS is tasked with, among other things, developing minimum standards and a program of
accreditation for all forensic laboratories in New York State, including establishing minimum
qualifications for forensic laboratory directors and other personnel, and approving forensic
laboratories for the performance of specific forensic methodologies. Pl.’s 56.1 ¶ 35. Of the
fourteen members of the CFS, twelve are appointed by the Governor. Id. ¶ 37. Of those twelve
appointees, at least five must be public employees or officials, and one of those members is required
to be the director of a forensic laboratory located in New York State. Id. ¶ 38. The Governor’s
appointees serve a three-year term and may be reappointed for additional three-year terms. Id. ¶ 39.
Plaintiff was appointed to the CFS by Governor George Pataki in 2004 as the member of
the CFS required to be the director of a forensic laboratory in New York State, and she was
reappointed three times thereafter. Id. ¶¶ 43, 44. Plaintiff’s appointment and reappointments to the
CFS were neither sponsored nor endorsed by the OCME. Defs.’ 56.1 ¶ 241. In fact, no one at the
OCME had any role in Plaintiff’s becoming a member of the CFS or in any of her reappointments.
Id. ¶¶ 241, 242. Furthermore, no one from the OCME ever suggested to Plaintiff that she should
recuse herself from participating in all CFS matters concerning the OCME. Id. ¶ 248.
D. Dr. Sampson’s Background and Career at OCME
Dr. Sampson, the CME responsible for the decision to terminate Plaintiff, began her career
at OCME in 1998. Pl.’s 56.1 ¶ 24. By 2007, Dr. Hirsch had promoted Dr. Sampson to the position
of First Deputy Chief Medical Examiner. Id. ¶ 27. At that time, Dr. Sampson became Plaintiff’s
immediate supervisor. Id. ¶ 28.
4

After Dr. Hirsch retired in February 2013, Dr. Sampson was appointed Acting Chief Medical
Examiner of the City of New York, a position which became permanent in 2014. Id. ¶¶ 29, 30, 33.
As CME, Dr. Sampson, like Dr. Hirsch before her, has been available to discuss concerns about
OCME’s operations with members of the community. Defs.’ 56.1 ¶ 238. In addition, Defendants
maintain that the City’s website allows any person or entity in the world to send a message to Dr.
Sampson; Plaintiff agrees that any “citizen” can do so. Id. ¶ 239.
E. Errors Discovered at the OCME’s Forensic Biology Laboratory
On July 7, 2011, the OCME made the first of four reports to the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board and other entities, concerning errors made by
a technician in the Department of Forensic Biology’s DNA laboratory, Serrita Mitchell. Pl.’s 56.1
¶ 49. The OCME removed Ms. Mitchell from casework and eventually suspended her. The OCME
also initiated disciplinary proceedings against Ms. Mitchell, who resigned in November 2011. Id.
¶ 50. The OCME has reported that between July 2011 and January 2013, it re-examined and/or reinventoried a total of 877 of Ms. Mitchell’s cases. Id. ¶¶ 52, 53. The investigation was the subject of
a January 10, 2013 New York Times front-page article bearing the headline, “New York Examines
Over 800 Rape Cases for Possible Mishandling of Evidence.” Defs.’ 56.1 ¶ 249. Also in January
2013, the New York State Inspector General’s Office opened an investigation into the matter,
culminating in a report issued in December 2013. Pl.’s 56.1 ¶¶ 58, 59.
On January 24, 2013, then-CME Dr. Hirsch suspended the director of the OCME’s
Department of Forensic Biology, Dr. Mechthild Prinz, and one of that department’s two Deputy
Directors, Patricia Wojtowicz, who had served as a Deputy Director since 2008. Id. ¶ 55. OCME

5

Chief of Staff Barbara Butcher became the Interim Director of the Department of Forensic Biology.
Id. ¶ 56. On January 28, 2013, Dr. Hirsch terminated Wojtowicz’s employment. Id. ¶ 57.4
The following month, in February 2013, the OCME solicited proposals for consultation
services to review and evaluate the Department of Forensic Biology’s management and operational
structure, quality assurance practices, and administrative policies. Id. ¶ 60. The OCME accepted a
bid from Sorenson Forensics, LLC, a private forensic DNA laboratory (“Sorenson Forensics”), of
which Mr. Kupferschmid was a “scientific founder”; he had been employed by Sorenson Forensics
since 2007. Id. ¶¶ 61-63. This was not the first time that the OCME had engaged Sorenson
Forensics. The firm had conducted a favorable accreditation audit of the FBL in 2010. Defs.’ 56.1,
¶ 252.
In March and April 2013, a three-person team from Sorenson Forensics, led by Mr.
Kupferschmid, conducted a review and evaluation of the FBL. Pl.’s 56.1 ¶ 65. During the
investigation, in March 2013, Ms. Butcher asked Mr. Kupferschmid if he had any recommendations
in the event that OCME needed to hire a new director for the FBL. Defs.’ 56.1 ¶ 253. Mr.
Kupferschmid replied, “Besides me?” and listed several other potential candidates. Id.
On May 2, 2013, Sorenson Forensics issued a final report, which recommended, among
other things, that the “[l]eadership [of the FBL] must change, and a new management team with
appropriate management skills should be appointed.” Pl.’s 56.1 ¶¶ 67, 68. The “leadership”
included Dr. Prinz, the Director of the FBL. Defs.’ 56.1 ¶ 254. The next day, Dr. Prinz resigned.

4

On April 19, 2013, the remaining Deputy Director of the FBL, Dr. Theresa Caragine, resigned in
connection with the OCME’s determination that she had failed to follow laboratory protocol
regarding the resolution of disagreements between analysts in two separate cases. Pl.’s 56.1 ¶ 66. As
a result, the New York State Inspector General expanded its investigation to include Dr. Caragine’s
conduct as well. Id.

6

Pl.’s 56.1 ¶ 69. If she had not resigned, Dr. Sampson would have terminated her employment. Id. ¶
70.
After Dr. Prinz resigned, the OCME issued a job posting for the position of Director of the
FBL. Id. ¶ 71. Mr. Kupferschmid formally applied for the position approximately one week after
Dr. Prinz resigned. Defs.’ 56.1, ¶ 256. In late May or early June 2013, Mr. Kupferschmid
interviewed for the position with a panel from OCME; he also met with Dr. Sampson. Pl.’s 56.1 ¶¶
73, 74. Dr. Sampson consulted with the OCME General Counsel and Deputy Mayor Linda Gibbs
regarding any potential conflict of interest in hiring Mr. Kupferschmid. Id. ¶ 76. In June 2013, the
OCME offered Mr. Kupferschmid the position of Director of OCME’s FBL, and he began working
at OCME in that capacity in late July 2013. Id. ¶ 77.
F. Plaintiff’s 2013 Statement to Dr. Sampson Regarding Hiring of Mr. Kupferschmid
Between the date on which the decision was made to offer Mr. Kupferschmid the position
of Director of the FBL and the date that he actually started working at OCME, Plaintiff had a
conversation with Dr. Sampson in Dr. Sampson’s office. Pl.’s 56.1 ¶ 78. Plaintiff characterizes the
meeting with Dr. Sampson as a “private conversation”; she testified: “In these days, I was often just
walking into Dr. Sampson’s office and we would have informal meetings and chats. So, I didn’t go
there specifically to discuss [Mr. Kupferschmid], but while we were talking, she told me that they
offered the job to Mr. Kupferschmid.” Id. ¶¶ 79, 80. In response, Plaintiff asked whether there was
a conflict of interest in hiring Mr. Kupferschmid shortly after he authored a report calling for new
management in the FBL (the “2013 Statement to Dr. Sampson” or the “2013 Statement”). Id. ¶ 78.
According to Plaintiff, she believed that there was a conflict of interest in hiring Mr. Kupferschmid,
and she believed that other members of the CFS would share her concern. Id. Defendants agree
that Plaintiff told Dr. Sampson that she thought there might be a conflict of interest in hiring Mr.
Kupferschmid. Id. The parties dispute whether Dr. Sampson told Plaintiff that she had consulted
with the OCME’s general counsel about the potential conflict. Defs.’ 56.1 ¶ 260.
7

G. August 22, 2013 CFS Executive Session
That summer, the CFS requested that Dr. Sampson, Mr. Kupferschmid, and Ms. Butcher
attend a meeting of the CFS on August 22, 2013. Defs.’ 56.1 ¶ 261. On August 20, 2013, in an
email sent to Mr. Kupferschmid, Ms. Butcher, and two other OCME employees, Dr. Sampson
advised, “[w]e must answer their questions fully and honestly while remaining sweet (the last point is
a tip from Dr. Hirsch on testifying in general).” Id. ¶ 262.
On August 22, 2013, a meeting of the CFS was held during which the Chair of the CFS
requested “a motion to enter Executive Session to discuss information relating to a specific
investigation which could jeopardize the investigation if disclosed or that may lead to promotion,
demotion, discipline, suspension dismissal [sic] or removal of a particular person.” Pl.’s 56.1 ¶ 83.
New York Public Officer Law § 102(3) provides that an “Executive Session” is “that portion of a
meeting not open to the general public. Id. ¶ 84. A motion was made, seconded by Plaintiff, and
unanimously approved. Id. ¶ 83. The CFS then entered into an executive session (the “Executive
Session”). Id.
As part of the CFS Chair’s introduction to the Executive Session, he explained that the CFS
had “receive[d] correspondences [sic] indicating serious concerns regarding the [OCME], specifically
the [FBL],” and that the CFS meeting was called to address those communications and “personnel
actions involving Laboratory Management that occurred at that Laboratory recently.” Id. ¶ 85.
During the Executive Session, four people appeared: Dr. Sampson, Ms. Butcher, Dr. Prinz,
and Mr. Kupferschmid. Id. ¶ 87. During the Executive Session, the commissioners asked questions
concerning, among other things, the circumstances of Dr. Prinz’s suspension and resignation; Mr.
Kupferschmid’s authorship of a critical report about the management of the FBL when he had only
a few years before been part of a team that approved the accreditation of that laboratory; and the
selection of Mr. Kupferschmid as the Director of the FBL. Defs.’ 56.1 ¶ 263. According to
Plaintiff, during the Executive Session, the CFS was seeking information about, among other
8

subjects, the reason why the OCME leadership suspended and “forced out” Dr. Prinz, including any
connection to the New York Times article. Pl.’s 56.1 ¶ 92.
Plaintiff maintains that during the Executive Session, Ms. Butcher characterized Dr. Prinz as
a “weak manager” and said that, as a result, the OCME had to hire a deputy “to run the
department,” which led to the hiring of Patricia Wojtowicz. Id. In response, Plaintiff made the
following five statements:
i.

ii.
iii.
iv.

v.

“What I remember is this, Mecki did have a Deputy Director position before Pat. So Pat
was hired to replace her [sic] but my question was because I didn’t have this knowledge
before. If Dr. Hirsch was so unhappy with Mecki, MEcki [sic] was given additional
responsibilities, she was put in charge of the evidence department which is one of the busiest
departments. She was also given a significant raise. Why would all that happen if he were
unhappy with her as a manager?” Pl.’s 56.1 ¶ 92.
“But he was reporting to Mecki.” Pl.’s 56.1 ¶ 95.
“I was just wondering why if you feel that somebody is not a good manager, add on more
managerial duties. I mean, evidence is a lot of, it’s a big responsibility.” Pl.’s 56.1 ¶ 97.
“Yeah but that was after Mecki was already.” (Plaintiff testified at her deposition that “there
seems to be a word missing at the end of the sentence [at page 157:21-22 of the transcript of
the CFS executive session]. I believe what I said was that was after Mecki was already [gone
or suspended].” Pl.’s 56.1 ¶¶ 101-02.
“No, I don’t remember, I’m not on the Executive Committee. I just know that it was
decided by the Executive Committee and then we were told at the Management meeting
where it was announced.” Pl.’s 56.1 ¶ 104.

The Court will refer to these statements, collectively, and together with the statements identified
below, as the “CFS Statements.” According to Plaintiff, the CFS Statements “cast doubt on the
truthfulness of Butcher’s statement by pointing out that Hirsch had assigned Prinz additional
responsibilities and a raise” and “contrary to Butcher’s statement that she and Hirsch had required
Prinz to hire a deputy for the department, Prinz already had a deputy before Wojtowicz joined
OCME.” Id. In addition, the parties agree that Plaintiff’s final statement, that she was not on the
Executive Committee, prompted the Chair of the CFS to ask Ms. Butcher a follow-up question,
which cast further doubt on Ms. Butcher’s statements to the CFS. Id. ¶ 106. According to Plaintiff,
this undermined Ms. Butcher, and contributed to the decision to terminate Plaintiff in April 2015.
Id. ¶¶ 106, 107.
9

Plaintiff also made the following three statements during the appearance of Dr. Prinz at the
Executive Session:
i.
ii.
iii.

“I would just like to say that I miss you very much. I feel that I’m in a different position
form [sic] from the rest of the Commission and find it scary because what you and Theresa
were doing I don’t think that is a reason to dismiss somebody.” Pl.’s 56.1 ¶ 109.
“So you were actually told why?” Pl.’s 56.1 ¶ 112.
“So when you were suspended, your [sic] being suspended because?” Pl.’s 56.1 ¶ 114.

According to Plaintiff, these expressions of disagreement with the dismissal of Dr. Prinz and Dr.
Caragine were also reasons for Plaintiff’s termination. Id. ¶ 111.
Plaintiff did not make any statements when Dr. Sampson appeared. During her deposition
in this case, Dr. Sampson testified that the CFS commissioners “asked a lot of tough questions
regarding my judgment and I felt also questioning my integrity to some degree.” Defs.’ 56.1 ¶ 267.
Mr. Kupferschmid testified during his deposition in this case that a “couple of hours after”
the Executive Session he sent an email to Dr. Sampson, Ms. Butcher, and other colleagues with the
subject heading, “Commish inquisition,” which stated: “At best they [the Commission] painted me
to be an incompetent buffoon who does not know how to conduct a management review. At worst
I am an unethical, immoral ass who schemed with OCME to oust Mecki [Dr. Prinz] and get her
job.” Id. ¶ 268. He followed up several minutes later with another email that read, “I’m sure the
two Barbaras [Sampson and Butcher] seem even worse than I do.” Id. Mr. Kupferschmid further
testified during his deposition in this case that he was “deeply upset” following the August 22, 2013
Executive Session and viewed it as an “inquisition” and “a distraction,” and that Dr. Sampson and
Ms. Butcher were “unhappy with the entire process. [Plaintiff] was part of the process. So by the
transitive property they were upset with her as well.” Id. ¶¶ 269, 274. He further testified that
within a week after the August 22, 2013 CFS Executive Session, either Dr. Sampson or Ms. Butcher
told him about Plaintiff’s 2013 Statement to Dr. Sampson. Id. ¶ 275. Dr. Sampson and Ms. Butcher
told Mr. Kupferschmid that Plaintiff’s views about his appointment were contrary to one of
OCME’s core values, which is “agency first.” Id. ¶ 276.
10

Ms. Butcher responded to Mr. Kupferschmid’s post-Executive Session emails, referring to
the Executive Session as an “insane hearing.” Id. ¶ 270. Ms. Butcher felt she was treated
inappropriately during the Executive Session and that at times there was antipathy and hostility
towards her that she could not understand. Id. ¶ 271. The day after the Executive Hearing, Ms.
Butcher wrote to OCME attorney Mimi Mairs that Plaintiff had behaved “badly” during the
Executive Session. Id. ¶ 272. Ms. Butcher also told Dr. Sampson that Plaintiff had been hostile and
condescending to her at the Executive Session, and that Plaintiff should have recused herself from
participating. Id. ¶ 273.
After the Executive Session, the CFS sent letters to the New York Inspector General’s
Office concerning some of the issues that had been discussed. Id. ¶ 277. A similar letter was sent
on October 2, 2013 to then-Mayor Michael Bloomberg. Id. ¶ 279. Each of the commissioners’
names appeared on the letterhead, including Plaintiff’s. Id. The final paragraph of the letter to the
mayor was as follows:
While our review into these events will continue, we thought it important to inform
you of our concerns. We hope that the search for, and selection of, a permanent
Chief Medical Examiner will result in the merit-based selection of a first-rate
scientist. This is imperative since the Chief Medical Examiner will ultimately have to
review and resolve the controversy surrounding the sweeping personnel changes at
the OCME which appear, from our review, to have been made without sufficient
basis.
Id. ¶ 280. Dr. Sampson and Ms. Butcher received a copy of this letter. Id. ¶ 281. Dr.
Sampson was troubled by it and understood its final paragraph to be a suggestion that the
mayor appoint someone other than herself to be the permanent CME, which she found
“hurtful.” Id. ¶ 282. After Ms. Butcher received the CFS’s letter to the mayor, she sent an
email to Deputy Mayor Linda Gibbs, with a copy to Dr. Sampson, in which she described
the Executive Session as an “interrogation” and wrote that the CFS’s letter to the mayor
appeared to be a “retaliatory strike on our agency and leaders.” Id. ¶ 283. Plaintiff testified

11

at her deposition in this case that “at some point after this executive session in August, [Dr.
Sampson] became very cold and curt” towards Plaintiff. Id. ¶ 284.
H. October 24, 2014 CFS Votes
On October 24, 2014, the CFS held a meeting during which the Chair of the CFS asked
whether any members had comments concerning a September 16, 2014 letter from the CFS’s DNA
Subcommittee relating to certain issues surrounding DNA testing at the Department of Forensic
Biology. Pl.’s 56.1 ¶ 129; see also id. ¶¶ 120-123. One of the CFS Commissioners, Barry Scheck,
responded, asking, in relevant part, whether the OCME had “ever done a validation study on
samples, mixtures” in connection with the type of DNA testing discussed in the letter. Id. ¶ 130.
After Mr. Scheck was told by Eugene Lien, the DNA Technical Leader of OCME’s Department of
Forensic Biology, that the internal validation study existed, id. ¶ 131, Mr. Scheck moved to have the
OCME provide its internal validation studies to the CFS, with the studies being made public. Id. ¶
132. The parties dispute whether the motion related to all such studies, or the one study that had
been identified by Mr. Lien. Id. In any event, the motion did not pass. Id. Only three members
voted in favor of the motion, including Plaintiff. Id.
Mr. Scheck then made a second motion, this time to have the OCME provide its internal
validation studies to the CFS without making the studies public. Id. ¶ 133. Again the motion did
not pass, with only three members in favor, again including Plaintiff. Id. The Court will refer to
Plaintiff’s votes, collectively, as the “CFS Votes.”
Following the October 24, 2014 CFS meeting, senior employees of OCME communicated
about Plaintiff’s votes. Defs.’ 56.1 ¶ 296. Mr. Lien sent an email to Mr. Kupferschmid and Ms.
Mairs immediately after the meeting, writing: “Grilled for 30 minutes, it seemed. Had 2 motions to
produce validation for the Commission but was vote [sic] down. 3 members voted yes: the 2
defense lawyers and our own Marina [Stajic]. Gotta love it.” Id. ¶ 297. Mr. Kupferschmid
forwarded the email to Sampson, who replied: “Hold me down.” Id. ¶ 298. The parties dispute
12

whether this response referred only to Plaintiff’s votes. Id. Dr. Sampson testified at her deposition
that she “thought it was upsetting that three Commission members had voted to have this released
when we had fulfilled the process required by the Forensic Science Commission with the validation
studies, and you know, I was not happy about it.” Id. The parties agree, however, that Dr. Sampson
“felt disappointment that Stajic voted as she did.” Id. ¶ 304. Plaintiff asserts that Mr. Kupferschmid
was also upset by Plaintiff’s votes, though Defendants assert that he was only “briefly upset,”
meaning a “few days.” Id. ¶ 305
Ms. Mairs sent a response to Mr. Lien directly. Mr. Lien summarized the meeting for Ms.
Mairs, writing, in relevant part, “You would think that the 3 people FOR the motions would be the
defense lawyers, but only 2 were present . . . . Marina [Stajic] was the 3rd vote FOR us producing the
validation.” Id. ¶ 300. Ms. Mairs replied, referring to Plaintiff, “She sucks.” Id. ¶ 301. Mr. Lien
agreed. Id. ¶ 302.
According to Plaintiff, she voted in favor of the first motion because she did not believe that
the study to which Mr. Lien referred existed, Pl.’s 56.1 ¶ 134, and because she believed that if “any
kind of study exists in a public laboratory, it should be released to the public and in the interests of
criminal science.” Id.; see also id. ¶¶ 136-38.
I. Mr. Kupferschmid’s Appointment as OCME’s Chief of Laboratories
Dr. Sampson was appointed permanent CME in late December 2014. Shortly thereafter, she
promoted Mr. Kupferschmid to the newly-created position of Chief of Laboratories. Pl.’s 56.1 ¶
168; Defs.’ 56.1 ¶ 306. In that role, Mr. Kupferschmid became the supervisor of all four OCME
forensic laboratories. Pl.’s 56.1 ¶ 169. He also retained his position as the Director of the FBL. Id.
By virtue of his role as Chief of Laboratories, Mr. Kupferschmid became Plaintiff’s
immediate supervisor. Id. ¶ 170. During a meeting in early January 2015, Mr. Kupferschmid asked
Plaintiff and the two Deputy Directors of the FTL when they planned to retire. Id. ¶ 171.
According to Defendants, Mr. Kupferschmid wanted to “plan for the future” and know “who is in it
13

for the long term.” Id. ¶ 172. From December 2014 until April 9, 2015, when Mr. Kupferschmid
was Plaintiff’s supervisor, he did not express any concerns to Plaintiff about her job performance.
Defs.’ 56.1 ¶ 231.
J. The Decision to Terminate Plaintiff’s Employment
On April 9, 2015, Plaintiff attended a meeting in Mr. Kupferschmid’s office along with Dr.
Sampson, Mr. Kupferschmid, and OCME Human Resources Director Nancy Romero. Pl.’s 56.1 ¶
174. According to Defendants, Dr. Sampson “informed plaintiff that the direction of the agency
was changing and that plaintiff’s services would no longer be required.” Id. According to Plaintiff,
after Dr. Sampson told her “we are going in a different direction and your services are no longer
required” Plaintiff was given a form to sign reflecting that she resigned. Id. Plaintiff asked if she
would be permitted to retire and Dr. Sampson answered in the affirmative. Id. ¶¶ 174, 175. Plaintiff
returned to her office, in a different building, and, according to Plaintiff, about 15-20 minutes later,
the head of OCME’s security department arrived and asked her to leave. Id. ¶ 174. The following
day, Plaintiff filed retirement papers with the New York City Employees’ Retirement System. She is
receiving a pension. Id. ¶ 175.
The parties sharply dispute the reasons underlying the decision to terminate Plaintiff’s
employment. According to Defendants, “over a period of several years, Dr. Sampson became
increasingly dissatisfied with plaintiff’s management of the FTL.” Id. ¶ 176. One reason Dr.
Sampson gave at her deposition for her negative assessment of Plaintiff’s performance was that
“[w]e had very [sic] difficult time getting information from [Plaintiff] and her attitude was very,
bordering on hostile sometimes.” Id. ¶ 177. Next, according to Dr. Sampson, her predecessor, Dr.
Hirsch, had experienced a similar problem eliciting information from Plaintiff. Id. ¶ 178. Dr.
Sampson also testified at her deposition that there was a “major increase in the turnaround time” in
Plaintiff’s laboratory that occurred in 2011 or 2012. Id. ¶ 179. At Dr. Hirsch’s instruction, Dr.
Sampson told Plaintiff to “fix” the problem with the turnaround time, but there was no
14

improvement. Id. ¶ 181. Next, Dr. Sampson identified Plaintiff’s “poor working relationship with
the medical examiners” as another reason for her negative assessment of Plaintiff’s performance. Id.
¶ 183.
Defendants also point to the deposition testimony of Dr. Jason Graham, the First Deputy
Chief Medical Examiner and one of Plaintiff’s former supervisors, who testified that “the medical
examiners generally had a hesitation to approach [Plaintiff] with cases because of the interaction that
was involved and the function that she was playing was less of a forensic toxicology consultant than
that of a technician. There was - - it seemed an adversarial relationship with the lab being led by
[Plaintiff] amongst many of the medical examiners and this was affecting casework.” Id. ¶ 184.
Finally, Defendants point to Dr. Sampson’s testimony that “medical examiner fellows,
medical doctors participating in an advanced training program . . . reported a negative experience
with plaintiff.” Id. ¶ 186. Finally, an additional “factor” identified by Dr. Sampson was that, in Dr.
Sampson’s view, Plaintiff “failed to make the FTL more efficient,” including by failing to pursue a
specific grant. Id. ¶ 187.
Plaintiff denies each reason set forth by Defendants for Dr. Sampson’s negative assessment
of her performance. According to Plaintiff, the record shows, among other things, that Dr.
Sampson never told Plaintiff “that there was anything wrong with her performance or that she
needed to improve,” even though Dr. Sampson’s normal practice is to do so. Id. ¶ 176. In addition,
Plaintiff contends that Dr. Sampson “never consulted with OCME’s human resources department
about [Plaintiff’s] purported performance problems” and Dr. Sampson never told Plaintiff’s direct
supervisor to document Plaintiff’s performance problems or to counsel Plaintiff to improve. Id.
Further, Plaintiff maintains that she “never received a performance review, warning, memorandum,
email, or other writing reflecting that OCME’s leadership was dissatisfied with her management of
the laboratory,” and she was never told by her supervisors that they were “dissatisfied with her job
performance.” Id.
15

Additionally, even though Dr. Sampson testified at her deposition that Plaintiff’s “deficient
job performance was regularly discussed at executive team meetings,” Plaintiff points out that,
“according to Dina Maniotis, OCME’s executive deputy commissioner for administration and
finance, [Plaintiff’s] performance was not discussed at executive team meetings.” Id.; see also id. ¶¶
177, 178. Regarding the “major increase in the turnaround time” cited by Defendants, Plaintiff
maintains that she and OCME management “had for many years sought to improve the turnaround
time of the toxicology laboratory, but this issue had nothing to do with [Plaintiff’s] dismissal. For
approximately 10 years before OCME dismissed [Plaintiff], she had requested more resources for
the Toxicology Laboratory to reduce turnaround times. Sampson, Graham and Kupferschmid had
agreed with [Plaintiff] that the laboratory should be allocated more resources, but they said there was
not sufficient money in the budget to do so. Moreover, the turnaround times for the toxicology
laboratory had substantially improved well before [Plaintiff] was fired; indeed, Sampson regarded the
toxicology turnaround times in 2014 and 2015 as acceptable.” Id. ¶ 179.
K. The “Straw that Broke the Camel’s Back”
According to Defendants, Dr. Sampson’s view of Plaintiff was most affected by Plaintiff’s
reaction to one of the significant events that prompted a root cause analysis in the FTL. Pl.’s 56.1 ¶
189. A root cause analysis is a process for investigating the causal factors of significant events that
focuses primarily on systems and processes, not on individual performance or error, and identifies
appropriate corrective action, including strategies to prevent the reoccurrence of a significant event
or potential improvements in systems or processes that will decrease the likelihood of a significant
event occurring in the future. Id. ¶ 141. A “significant event” is “an occurrence in [the OCME]
involving the significant likelihood of an act, error or omission that affects the accuracy, reliability or
integrity of the reported results of evidence examination or reported results of analysis.” Id. ¶ 142.
When a non-conforming event, or error, occurred in any of the laboratories of the OCME,
the Quality Assurance Director would prepare a summary for the CME and make a
16

recommendation as to whether a root cause analysis was warranted. Id. ¶ 143. According to
Plaintiff, the CME had the ultimate authority to determine if an error rose to the level of being a
“significant event” warranting a root cause analysis. Id.
The parties agree that five significant events occurred in the OCME’s FTL that warranted
root cause analyses. Id. ¶ 144. They dispute, however, the relationship between those significant
events and the decision to terminate Plaintiff’s employment.
According to Defendants, one of these significant events, and, in particular, Plaintiff’s
reaction to it, constituted the “straw that broke the camel’s back” for Dr. Sampson. During her
deposition, Dr. Sampson testified as follows:
We had a root cause analysis that involved a case where there was clearly a white
powder at the scene, very suspicious for drugs, and the toxicology came back
essentially negative. The medical examiner questioned this because of the scene,
didn’t make sense. There was no other good cause of death. And when the lab
looked again indeed, there was cocaine in the specimen. So obviously, to me
obviously a root cause analysis had to be performed because we had a report that did
not contain the positive cocaine result when indeed subsequent testing showed that
there was cocaine in that specimen. I called Dr. Stajic about this and asked for an
explanation and she said well, you know that she didn’t really think this needed a
root cause analysis and I said what do you mean. This is clearly an incorrect report
went out and she said well, it is not really incorrect. I said what do you mean? There
was cocaine in his system. It is not in the report. And she said well, it doesn’t say
there is no cocaine in the system. It just doesn’t report the cocaine that that was in
fact there. And when I hear that my jaw dropped and it became absolutely clear to
me that with that kind of attitude to think that a report like that didn’t need a root
cause analysis, that I could not go forward with her as the head of the toxicology
laboratory. There was – I needed transparency there. I needed willingness to adhere
to this root cause analysis which was producing such great results in the forensic
biology lab and also in the toxicology lab. So much improvement in our system and
really that was what, you know, was like I said the straw that broke the camel’s back
that we could not work together and move the agency in the direction which I
needed it to go.
Declaration of Kevin Mintzer (Dkt. No. 108), Ex. B, at 49-50. According to Defendants,
“[a]lthough the errors made by the FTL that were the subject of the root cause analyses were not, in
and of themselves, the reason that defendant Sampson terminated plaintiff’s employment, defendant
Sampson testified that ‘[i]n the root cause analysis [sic] there are discussion [sic] of these problems
17

some of which are reflected in the – or reflect on the culture that existed between the toxicology lab
and the medical examiners themselves.” Pl.’s 56.1 ¶ 189. Dr. Sampson also testified that “[w]hat
bothered me so much was her telling me that that report was not really incorrect. You have a piece
of paper that doesn’t say that cocaine is present that would—if the medical examiner had not
questioned that that would have gone out incorrectly the cause of death would have been entirely
missed.” Id. ¶ 192.
According to Plaintiff, however, Dr. Sampson’s description of their conversation is “false[].”
Id. ¶ 176. Plaintiff maintains that the evidence shows that (i) the conversation described by Dr.
Sampson did not occur until after Dr. Sampson had already decided to fire Plaintiff; and (ii) that
Plaintiff did not suggest to Dr. Sampson during their conversation that the initial report was
accurate; rather, she only noted that the laboratory “did not make a scientific error because its initial
testing did find that cocaine was present in the sample” so the error was only in the laboratory’s
failure to schedule a confirmatory test for cocaine. Id. ¶ 191.5 Plaintiff further asserts that “the

5

Defendants argue that the Court should strike or disregard Plaintiff’s assertions at Pl.’s 56.1 ¶¶ 191192, which are based on Plaintiff’s declaration in opposition to summary judgment, under the “sham
issue of fact” doctrine. Reply (Dkt. No. 119), at 2. The sham issue of fact doctrine “prohibits a
party from defeating summary judgment simply by submitting an affidavit that contradicts the
party’s previous sworn testimony.” In re Fosamax Prod. Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013).
The Second Circuit has been clear that it does not “suggest that district courts should routinely
engage in searching, skeptical analyses of parties’ testimony in opposition to summary judgment.”
Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011). To apply the doctrine, the
contradiction must be “real, unequivocal, and inescapable.” Rivera v. Rochester Genesee Reg’l Transp.
Auth., 743 F.3d 11, 23 (2d Cir. 2014). “[I]f there is a plausible explanation for discrepancies in a
party’s testimony, the court considering a summary judgment motion should not disregard the later
testimony because an earlier account was ambiguous, confusing, or simply incomplete.” Jeffreys v.
City of New York, 426 F.3d 549, 554 (2d Cir. 2005). Here, Plaintiff offered an explanation in her
declaration for her deposition testimony that she did not recall the “straw that broke the camel’s
back” discussion with Dr. Sampson. According to Plaintiff’s declaration, she became aware after
her deposition that Dr. Sampson testified about the conversation and she “now recall[s] having a
telephone conversation about this issue with Dr. Sampson after the toxicology laboratory issued its
amended report, but it was not as Dr. Sampson described it.” Stajic Decl. (Dkt. No. 109), ¶ 22. She
then proceeds to give her version of the conversation, which Defendants contend should be stricken
or ignored by the Court. The Court declines to find that Plaintiff’s explanation for the discrepancy
is not plausible and will consider her version of the relevant facts, as appropriate.
18

missing cocaine finding was not reported out of the agency because the medical examiner had noted
the possible discrepancy and ordered re-testing.” Id. Finally, Plaintiff contends that Dr. Sampson
“did not express any concern with any of Stajic’s comments during the call” and was not “upset” or
“bothered” during this discussion. Id. ¶¶ 191-92.
L. The Aftermath of Plaintiff’s Termination
On April 10, 2015, Mr. Kupferschmid telephoned Brian Gestring of the CFS and advised
him that Plaintiff had retired. Pl.’s 56.1 ¶ 193. According to Mr. Gestring, Mr. Kupferschmid stated
that Plaintiff’s retirement “means [Plaintiff] is not on the Commission any more, right?” Id. ¶ 194.
Five days later, on April 15, 2015, Mr. Gestring called Mr. Kupferschmid and advised him
that the CFS wished to speak in Executive Session with representatives of the OCME about
Plaintiff. Id. ¶ 195. A CFS meeting was held on April 15, 2015, during which the CFS entered
Executive Session. Id. ¶ 196. Mr. Kupferschmid and Florence Hutner, the General Counsel of
OCME, attended the Executive Session on behalf of the OCME. Id. ¶ 197. Plaintiff, who remained
a CFS member until December 2015, also attended the April 15, 2015 Executive Session and spoke
about the termination of her employment. Id. ¶¶ 198, 203. She does not recall whether she told her
fellow CFS members her belief as to why her employment was terminated. Id. ¶ 199.
During the April 15, 2015 Executive Session, CFS members questioned Mr. Kupferschmid
and Ms. Hutner about the circumstances of Plaintiff’s termination. Id. ¶ 200. The OCME informed
the CFS that it was not going to discuss personnel matters and that the termination of Plaintiff’s
employment had nothing to do with the quality of the work product of FTL. Id. ¶ 201.
The next month, in May 2015, Dr. Gail Cooper applied for the position of Director of the
OCME’s FTL. Id. ¶ 204. She was one of four applicants that Mr. Kupferschmid interviewed for the
position. Id. ¶ 205. According to her resume, Dr. Cooper received a Ph.D. in Forensic Toxicology
in 1999. Id. ¶ 206. Her resume further reflects that she had approximately 15 years of post-Ph.D.
experience in forensic toxicology when she applied for the position, including experience in
19

International Organization for Standardization accreditation. Id. ¶ 207. According to Defendants,
Dr. Cooper was approximately 42 years old when she applied for the position; according to Plaintiff,
she was approximately 41 years old. Id. ¶ 208. Dr. Cooper was offered the position of Director of
the FTL on July 15, 2015. Id. ¶ 209. She accepted the offer on July 17, 2015, and started working at
the FTL in February 2016. Id. ¶¶ 209-10. According to Plaintiff, Dr. Cooper is qualified for the
position “on paper” but lacks “extensive experience in postmortem toxicology.” Id. ¶ 211.
III.

LEGAL STANDARD

Defendants are entitled to summary judgment on a claim if they can “show[ ] that there is no
genuine dispute as to any material fact and [they are] entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary judgment is
proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’” (quoting former Fed. R. Civ. P. 56(c))).
A genuine dispute exists where “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party,” while a fact is material if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are
irrelevant or unnecessary will not be counted.” Id.
To defeat a motion for summary judgment, a plaintiff “must come forward with ‘specific
facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting former Fed. R. Civ. P. 56(e)). “[M]ere speculation or
conjecture as to the true nature of the facts” will not suffice. Hicks v. Baines, 593 F.3d 159, 166 (2d
Cir. 2010) (internal quotation marks and citations omitted). A plaintiff “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.
In determining whether a genuine dispute as to a material fact exists, the Court is “required
to resolve all ambiguities and draw all permissible factual inferences in favor of the party against
20

whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (internal
quotation marks and citation omitted). The Court’s job is “not to weigh the evidence or resolve
issues of fact.” Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 254 (2d Cir. 2002); see also Hayes v. N.Y.
City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (“In applying th[e] [summary judgment] standard,
the court should not weigh evidence or assess the credibility of witnesses.”). “Assessments of
credibility and choices between conflicting versions of the events are matters for the jury, not for the
court on summary judgment.” Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir. 2005)
(citation omitted). “[T]he judge must ask . . . not whether . . . the evidence unmistakably favors one
side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the
evidence presented.” Id. at 553 (alterations in original) (quoting Anderson, 477 U.S. at 252); see also
Battino v. Cornelia Fifth Ave., LLC, 861 F. Supp. 2d 392, 400 (S.D.N.Y. 2012) (“To avoid summary
judgment, all that is required of the non-moving party is a showing of sufficient evidence supporting
the claimed factual dispute as to require a . . . jury’s resolution of the parties’ differing versions of the
truth.” (citing Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 206 (2d Cir. 2006))).
IV.

DISCUSSION

A. Federal Claims Against the City
It is well settled that “a municipality cannot be made liable [under § 1983] by application of
the doctrine of respondeat superior,” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986), but rather
the plaintiff must “demonstrate that, through its deliberate conduct, the municipality was the
moving force behind the alleged injury,” Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008)
(internal quotation marks omitted). Therefore, “[t]o hold a city liable under § 1983 for the
unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements:
(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a
constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (quoting Batista v.

21

Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)); see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91
(1978).
A plaintiff may satisfy the “policy or custom” prong in one of four ways: by proving the
existence of (1) a formal policy, see Monell, 436 U.S. at 690; (2) actions taken or decisions made by
final municipal policymakers that caused the violation of plaintiff’s rights, see Pembaur, 475 U.S. at
483-84; (3) a practice so persistent and widespread that it constitutes a “custom or usage” and
implies the constructive knowledge of policymakers, see Monell, 436 U.S. at 690-91; or (4) a failure to
properly train or supervise municipal employees that amounts to “deliberate indifference to the
rights of those with whom municipal employees will come into contact,” City of Canton v. Harris, 489
U.S. 378, 388 (1989); see also Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996).
Here, Plaintiff’s Monell claim is based on her contention that Dr. Sampson, as the CME, was
the final policymaker with respect to employment at the OCME. As set forth below, that
contention is supported by the record, and, therefore, summary judgment must be denied as to the
Monell claim.
Where the contention is not that the defendants’ actions were taken pursuant to a formal
policy, but rather that they were taken or caused by an official whose decisions represent official
policy, the court must determine whether that official had final policymaking authority in the
particular area involved. See Jeffes v. Barnes, 208 F.3d 49, 57-58 (2d Cir. 2000) (“Where a plaintiff
relies not on a formally declared or ratified policy, but rather on the theory that the conduct of a
given official represents official policy, it is incumbent on the plaintiff to establish that element as a
matter of law.”); see also Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989); City of St. Louis v.
Praprotnik, 485 U.S. 112, 123–25 (1988). It is not enough that the official has been granted
discretion in the performance of his duties. See, e.g., Praprotnik, 485 U.S. at 127. “[O]nly those
municipal officials who have ‘final policymaking authority’ may by their actions subject the
government to Section 1983 liability.” Id. at 123 (quoting Pembaur, 475 U.S. at 483).
22

Whether the official in question had final policymaking authority is a legal question, which is
to be answered on the basis of state law. McMillian v. Monroe County, 520 U.S. 781, 787 (1997)
(explaining a proper “understanding of the actual function of a governmental official, in a particular
area, will necessarily be dependent on the definition of the official’s functions under relevant state
law”); Jett, 491 U.S. at 737; Praprotnik, 485 U.S. at 123-24. “[T]he relevant legal materials[] includ[e]
state and local positive law, as well as custom or usage having the force of law.” Jett, 491 U.S. at 737
(quoting Praprotnik, 485 U.S. at 124 n.1) (internal quotation marks omitted). The determination of
whether the official is a final policymaker under state law is “to be resolved by the trial judge before
the case is submitted to the jury.” Id.
The relevant law in this case is the New York City Charter (the “Charter”), which provides
that the commissioner of the Department of Citywide Administrative Services (“DCAS”) is
“responsible for citywide personnel matters.” N.Y., Charter § 811, New York City, N.Y.
Nonetheless, the heads of city agencies retain “such powers, duties and responsibilities for personnel
management as they shall require to administer their agencies effectively,” including the power to
appoint and remove their employees, subject to the provisions of the civil service law. Id. § 812; see
also id. § 815(f). The CME is also authorized under a separate provision of the Charter to “appoint
and remove such deputy chief medical examiners, medical examiners, medical investigators, lay
medical investigators, scientific experts and other officers and employees as may be provided for in
the budget.” N.Y., Charter § 557(c), New York City, N.Y. The parties do not dispute that the CME
has the power to terminate Plaintiff’s employment under this provision. Reply, at 4 (“The parties
agree that as a matter of law, the Chief Medical Examiner of the City of New York has the authority
under New York City Charter § 557(b) to make certain employment decisions, including terminating
plaintiff’s employment.”). They dispute, however, whether the CME is a final policymaker.
“Where a city official ‘has final authority over significant matters involving the exercise of
discretion,’ his choices represent government policy.” Gronowski v. Spencer, 424 F.3d 285, 296 (2d
23

Cir. 2005) (quoting Rookard v. Health & Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)). As a result,
“municipal liability may be imposed for a single decision by municipal policymakers.” Pembaur, 475
U.S. at 480. Defendants argue that the CME’s authority to terminate Plaintiff’s employment is so
constrained by the Charter that she is not the final policymaker with respect to Plaintiff’s
termination. In making this argument, Defendants rely on two provisions of the Charter: § 818,
which provides that the DCAS has the power to investigate “all matters touching the enforcement
and effect of the provisions of the civil service law insofar as it applies to the city and the rules and
regulations prescribed thereunder” as well as “the actions of . . . any officer or employee of the city .
. . in respect to the execution of the civil service law”; and § 814(b)(4), which permits the DCAS
Commissioner “to reverse or rescind any agency personnel action or decision pursuant to an
assignment or delegation of authority in this chapter.” The chapter of the Charter to which this
refers is Chapter 35, in which § 814 appears. Significantly for purposes of this motion, however, the
CME’s power to terminate Plaintiff’s employment is derived from § 557(c), which is contained in
Chapter 22 of the Charter.
With respect to § 818, the power of the DCAS is clearly limited to matters implicating the
civil service law. Here, however, the unrebutted evidence shows that Plaintiff was not subject to the
civil service law. On March 30, 2015, Ms. Maniotis sent an email to Ms. Romero, the Assistant
Commissioner of Human Resources, asking, “What is Marina’s underlying civil service title?” Defs.’
56.1 ¶ 323. The following day, Ms. Romero responded, “[Plaintiff] has no underlying title. I
contacted DCAS. They said you can move forward with the plan. [Plaintiff] is a manager at will and
has no rights.” Defs.’ 56.1 ¶ 325. Consequently, on the record before the Court, the DCAS lacked
authority under § 818 of the Charter to “investigate” the decision to fire Plaintiff.
Furthermore, with respect to § 814(b)(4), the DCAS Commissioner’s authority “to reverse or
rescind any agency personnel action” is limited to personnel actions or decisions made “pursuant to
an assignment or delegation of authority in this chapter,” which was Chapter 35 of the Charter.
24

However, the CME’s power to terminate Plaintiff’s employment is derived from Chapter 22 of the
Charter (§ 557(c)), not Chapter 35. Accordingly, § 814(b)(4) also does not confer authority on the
DCAS to reverse the CME’s decision to terminate Plaintiff. As a result, the Court concludes that
the CME is the final policymaker with respect to Plaintiff’s employment.
This is consistent with other cases in this District in which courts have found that the heads
of city agencies enjoy final policymaking authority for purposes of municipal liability. See, e.g.,
Walton v. Safir, 122 F. Supp. 2d 466, 477 (S.D.N.Y. 2000) (internal citations omitted) (“Although the
New York City Charter also vests ‘general authority to make final City policy’ in the Mayor and City
Council and decision-making authority for personnel management in the Commissioner of the
[DCAS], these general provisions do not diminish the specific and authoritative responsibility of the
Police Commissioner as ‘chief executive’ of the Police Department, with ‘cognizance and control of
the government, administration, disposition and discipline of the department,’ to terminate the
employment of a police officer.”). Accordingly, summary judgment is denied as to Defendant City
of New York.
B. Retaliation Claims
To determine whether speech by a public employee is protected by the First Amendment,
courts in this Circuit conduct a two-step inquiry.6 First, the court determines “whether the [public]
employee spoke as a citizen on a matter of public concern.’” Matthews v. City of New York, 779 F.3d
167, 172 (2d Cir. 2015) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). “Speech involves
matters of public concern ‘when it can be fairly considered as relating to any matter of political,

6

Free speech retaliation claims asserted pursuant to Article I, § 8 of the New York State
Constitution are governed by the same principles applicable to federal First Amendment claims. See
Dotson v. Farrugia, No. 11CIV1126PAE, 2012 WL 996997, at *9 (S.D.N.Y. Mar. 26, 2012); Colandrea
v. Town of Orangetown, 490 F. Supp. 2d 342, 351 (S.D.N.Y. 2007).

25

social, or other concern to the community, or when it ‘is a subject of legitimate news interest; that is,
a subject of general interest and of value and concern to the public.’” Lane v. Franks, 134 S. Ct.
2369, 2380 (2014) (quoting Snyder v. Phelps, 562 U.S. 443, 444 (2011) (internal quotations and citation
omitted)). “The inquiry turns on the ‘content, form, and context’ of the speech. Id. at 2373 (quoting
Connick v. Myers, 461 U.S. 138, 147-48 (1983)). “This step one inquiry in turn encompasses two
separate subquestions: ‘(1) whether the subject of the employee’s speech was a matter of public
concern and (2) whether the employee spoke ‘as a citizen’ rather than solely as an employee.’”
Matthews¸779 F.3d at 172 (quoting Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011)). “If . . . both
questions are answered in the affirmative, the court then proceeds to the second step of the inquiry,
commonly referred to as the Pickering analysis: whether the relevant government entity ‘had an
adequate justification for treating the employee differently from any other member of the public
based on the government’s needs as an employer.’” Id. (quoting Lane, 134 S. Ct. at 2380).
With respect to the second step of the first question, there is “a tension in public
employment free speech cases between an employee’s First Amendment rights and the ‘common
sense realization that government offices could not function if every employment decision became a
constitutional matter.’” Id. (quoting Connick, 461 U.S. at 143). “Government employers, like private
employers, need a significant degree of control over their employees’ words and actions; without it,
there would be little chance for the efficient provision of public services.” Garcetti, 547 U.S. at 418.
Therefore, “[w]hen a citizen enters government service, the citizen by necessity must accept certain
limitations on his or her freedom.” Id. (citing Waters v. Churchill, 511 U.S. 661, 671(1994) (plurality
opinion)).
At the same time, however, “a citizen who works for the government is nonetheless a
citizen.” Id. at 419. Consequently, beginning with Pickering v. Board of Education, 391 U.S. 563 (1968),
the Supreme Court has “made clear that public employees do not automatically surrender all their
rights of free expression at the office door.” Montero v. City of Yonkers, New York, 890 F.3d 386, 395
26

(2d Cir. 2018); see also Garcetti, 547 U.S. at 417 (“Public employees do not surrender all their First
Amendment rights by reason of their employment.”). Instead, “[a]n employee may be protected
from retaliation even when speaking in the workplace” so long as “she is speaking ‘as a citizen . . .
upon matters of public concern.’” Montero, 890 F.3d at 395 (quoting Garcetti, 547 U.S. at 416).
Whether the employee spoke as an employee or as a citizen is “largely a question of law for the
court.” Jackler, 658 F.3d at 237; accord Connick, 461 U.S. at 148 n.7 (“The inquiry into the protected
status of speech is one of law, not fact.”) (citation omitted).
A public employee does not speak as an employee when her speech is not pursuant to her
official job duties. Garcetti, 547 U.S. at 422. However, “speech can be ‘pursuant to’ a public
employee’s official job duties even though it is not required by, or included in, the employee’s job
description, or in response to a request by the employer.” Weintraub v. Bd. of Educ. of City Sch. Dist. of
City of New York, 593 F.3d 196, 203 (2d Cir. 2010). “Ultimately, the question . . . is whether the
employee’s speech was ‘part-and-parcel of [the employee’s] concerns about his ability to properly
execute his duties.’” Montero, 890 F.3d at 398 (quoting Weintraub, 593 F.3d at 203).
Additionally, “[w]hen a public employee speaks pursuant to employment responsibilities . . .
there is no relevant analogue to speech by citizens who are not government employees.” Garcetti,
547 U.S. at 424. Such an analogue exists “if it is made through ‘channels available to citizens
generally.’” Matthews, 779 F.3d at 175 (quoting Jackler, 658 F. at 238). “Employees who make public
statements outside the course of performing their official duties retain some possibility of First
Amendment protection because that is the kind of activity engaged in by citizens who do not work
for the government. The same goes for writing a letter to a local newspaper, or discussing politics
with a co-worker.” Garcetti, 547 U.S. at 423-24 (internal citations omitted). “We do not consider the
relative degree of [citizen] access to be material; rather what matters is whether the same or a similar
channel exists for the ordinary citizen.” Matthews, 779 F.3d at 176. However, while “the presence or
lack of a civilian analogue may be of some help in determining whether one spoke as a citizen,” it is
27

not dispositive. Montero, 890 F.3d at 397 (citing Lane, 134 S.Ct. at 2379); Weintraub, 593 F.3d at 203,
204.
Here, Defendants do not contest, for purposes of this motion, that the 2013 Statement to
Dr. Sampson and the CFS Statements constitute speech on matters of public concern. The parties
dispute, however, whether Plaintiff spoke as a citizen with respect to both the 2013 Statement and
the CFS Statements.
i. 2013 Statement to Dr. Sampson7
To determine whether Plaintiff spoke as a citizen when she made the 2013 Statement to Dr.
Sampson, the Court must “examine the nature of the plaintiff’s job responsibilities, the nature of the
speech, and the relationship between the two.” Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012).
A public employee may engage in citizen speech in any number of contexts, including in a
private meeting with an employer. See Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16
(1979) (“Neither the Amendment itself nor our decisions indicate that this freedom is lost to the
public employee who arranges to communicate privately with his employer rather than to spread his
views before the public.”). Similarly, “the mere fact that a citizen’s speech concerns information
acquired by virtue of his public employment does not transform that speech into employee—rather
than citizen—speech.” Lane, 134 S.Ct. at 2379. Instead, the critical question is whether the speech
is within the scope of an employee’s job duties. See id. at 2373 (“The critical question under Garcetti
is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not
whether it merely concerns those duties.”); see also Montero, 890 F.3d at 395 (quoting Pickering, 391

7

Plaintiff argues that Defendants should be precluded from seeking summary judgment with respect
to the 2013 Statement to Dr. Sampson because “defendants previously stated in open court that
they do not dispute for purposes of summary judgment that Stajic’s comments were protected by
the First Amendment.” Plaintiff’s Mem. of Law in Opp. to Defs.’ Mot. for Summ. J. (Dkt. No. 111)
(“Pl.’s Br.”), at 11. This argument was advanced by Plaintiff in a separate motion, Dkt. No. 98, and
was rejected by the Court. Dkt. No. 131. The Court will not reconsider it here.
28

U.S. at 568) (“An employee may be protected from retaliation even when speaking in the workplace
when he or she is speaking ‘as a citizen . . . upon matters of public concern.’”). But “[t]he proper
inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an
employee actually is expected to perform, and the listing of a given task in an employee’s written job
description is neither necessary nor sufficient to demonstrate that conducting the task is within the
scope of the employee’s professional duties for First Amendment purposes.” Garcetti, 547 U.S. at
424-25. “[S]peech can be ‘pursuant to’ a public employee’s official job duties even though it is not
required by, or included in, the employee’s job description, or in response to a request by the
employer.” Weintraub, 593 F.3d at 203.
The Court recognizes the breadth of this rule, and that, Plaintiff, a senior-level official
engaged in discussions with the CME, could be expected to discuss and provide opinions regarding
important issues related to the management of the OCME. Here, however, the record does not
support an inference that office management was actually part of Plaintiff’s job. When considering a
motion for summary judgment, the Court is “required to resolve all ambiguities and draw all
permissible factual inferences in favor of the party against whom summary judgment is sought.”
Johnson, 680 F.3d at 236. Drawing all inferences in favor of Plaintiff, the record does not establish
that the 2013 Statement was “part and parcel” of Plaintiff’s job duties.
In addition, the record establishes that there was a “channel” through which civilians could
communicate with Dr. Sampson, which—although not dispositive—also weighs in favor of finding
that the 2013 Statement was not employee speech. In Matthews, a police officer raised concerns
about his precinct’s arrest quota system to commanding officers at the precinct. The Second Circuit
found that there was a civilian analogue for the plaintiff’s complaints because the precinct
commanders to whom the plaintiff complained had “an open door to community comments and
complaints.” Matthews, 779 F.3d at 176. The precinct held monthly “Community Council meetings”
in which the public “was invited to raise concerns about policing practices.” Id. at 171. In addition
29

to routinely attending those meetings, one of the captains to whom the plaintiff complained met
with members of the public “one to three times per month” to “discuss policing issues in the
Precinct.” Id. Therefore, the court concluded, the plaintiff “chose a path that was available to
ordinary citizens who are regularly provided the opportunity to raise issues with the Precinct
commanders.” Id. at 176; see also id. (“Matthews reported his concerns about the arrest quota system
to the same officers who regularly heard civilian complaints about Precinct policing issues.”).
Here, although civilians are unable to “freely enter” the CME’s office to discuss the
operation or practices of the OCME, Defs.’ Mem. of Law in Support of Mot. for Summ. J. (Dkt.
No. 97) (“Defs.’ Br.”), at 12, it is undisputed that Dr. Sampson “has been available to discuss
concerns about OCME’s operations with members of the community,” and any “citizen” or “any
person or entity in the world” may send Dr. Sampson a message through the City of New York’s
website. Defs.’ 56.1 ¶¶ 238, 239. As in Matthews, Plaintiff raised her concerns by communicating
with the CME—a “path” available to ordinary citizens, who also have the ability to raise issues with
the CME through meetings or by sending a message through the City’s website.
As a result, the Court concludes that, on this record, the 2013 Statement to Dr. Sampson
was not employee speech. Defendants raise no other bases on which summary judgment is
warranted with respect to this claim. Accordingly, the motion for summary judgment as to the
retaliation claim concerning Plaintiff’s 2013 Statement to Dr. Sampson is denied.
ii.

Statements made at CFS Executive Session

Plaintiff also alleges that she was retaliated against for the CFS Statements. The relevant
speech consists of the five statements Plaintiff made during the appearance by Ms. Butcher, and the
three statements she made during the appearance by Dr. Prinz. Again, Defendants assume that the
statements addressed matters of public concern. They argue, however, that the CFS Statements
“blend[ed]” Plaintiff’s “two sets of official duties, for OCME and for the CFS,” such that that the

30

CFS Statements are employee speech. Defs.’ Br. at 14. Defendants also argue that Plaintiff’s speech
is not citizen speech because, as a CFS commissioner, she was a “public official.” Id.
These arguments are misplaced. The relevant inquiry is whether Plaintiff’s statements were
made pursuant to her employment duties. It is undisputed that Plaintiff was employed by the
OCME, not the CFS. Furthermore, the fact that Plaintiff’s position at the OCME was a
qualification for her appointment to the CFS does not mean that the two roles were “blended.” In
fact, the record demonstrates otherwise. It is undisputed that Plaintiff’s appointment and
reappointment to the CFS occurred independently of the OCME. Defs.’ 56.1 ¶¶ 240-42. No one
from the OCME ever suggested to Plaintiff that she should recuse herself from participating in CFS
matters that concerned the OCME. Id. ¶ 248. There is also no evidence that Plaintiff’s CFS
Statements were made for, or on behalf of, the OCME. In fact, the CFS Statements were designed
to elicit information from OCME employees for the benefit of the CFS, in a manner that, the record
shows, was perceived by those OCME employees as adverse to the OCME’s interests.
Consequently, the evidence shows that Plaintiff’s role on the CFS was a separate and voluntary
undertaking, akin to participation in a labor union or bar association. See Montero, 890 F.3d at 398
(finding speech was not employee speech where, among other things, Plaintiff “made his remarks as
union vice president, a role in which he was not required to serve.”).
Similarly, the fact that Plaintiff’s statements were based on information she learned by virtue
of her position at the OCME is, without more, insufficient to connect Plaintiff’s separate roles or
otherwise render her speech employee speech. See Lane, 134 S. Ct. at 2379 (“the mere fact that a
citizen’s speech concerns information acquired by virtue of his public employment does not
transform that speech into employee . . . speech”).
Finally, the Court does not find that a clear civilian analogue exists with respect to the CFS
Statements. Under the New York Public Officers Law § 102(3), Executive Sessions are not open to
the general public. See Reply at 8. However, this fact is not dispositive; the law is clear that the
31

absence of a civilian analogue alone is not sufficient to establish that a plaintiff has engaged in
employee speech. Montero, 890 F.3d at 398. And although Defendants initially argued that the
tangential relationship between Plaintiff’s employment at the OCME and her role on the CFS,
combined with the absence of a civilian analogue, was sufficient to establish that Plaintiff’s
statements were unprotected, that argument was rejected in Montero and, as Defendants now
acknowledge, is no longer valid. See Dkt. No. 136, at 1. Therefore, the absence of a civilian
analogue further weighs in favor of finding that the CFS Statements constituted citizen speech.
Accordingly, the Court concludes that the CFS Statements constituted citizen speech.
Because Defendants raise no other bases on which summary judgment is warranted with respect to
this claim, Defendants’ motion for summary judgment as to the retaliation claim concerning
Plaintiff’s CFS Statements is denied.
C. Qualified Immunity
“Qualified immunity shields government officials from liability for civil damages as a result
of their performance of discretionary functions, and serves to protect government officials from the
burdens of costly, but insubstantial, lawsuits.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995).
Government actors are entitled to qualified immunity on a § 1983 claim if “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). “On summary judgment, the judge
appropriately may determine, not only the currently applicable law, but whether that law was clearly
established at the time an action occurred.” Id. “Qualified immunity is an affirmative defense on
which the defendant has the burden of proof, either at trial or on a motion for summary judgment.”
Johnson v. Perry, 859 F.3d 156, 170 (2d Cir. 2017).
Further, “[e]ven where the plaintiff’s federal rights and the scope of the official’s permissible
conduct are clearly established, the qualified immunity defense protects a government actor if it was
‘objectively reasonable’ for him to believe that his actions were lawful at the time of the challenged
32

act.” Lennon, 66 F.3d at 420 (quoting Anderson, 483 U.S. at 641); see also Weyant v. Okst, 101 F.3d 845,
857 (2d Cir. 1996) (“[P]ublic officials are entitled to qualified immunity if (1) their conduct does not
violate clearly established constitutional rights, or (2) it was objectively reasonable for them to
believe their acts did not violate those rights.”). “The objective reasonableness test is met—and the
defendant is entitled to immunity—if ‘officers of reasonable competence could disagree’ on the
legality of the defendant’s actions.” Lennon, 66 F.3d at 420 (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)).
“It is not necessary, of course, that ‘the very action in question has previously been held
unlawful.’” Ziglar v. Abbasi, 137 S. Ct. 1843, 1866-67 (2017) (quoting Anderson, 483 U.S. at 640).
Rather, “the need for ‘clearly established’ law is satisfied if the law on the subject was defined at the
time with reasonable clarity or clearly foreshadowed in rulings of the Supreme Court or the Second
Circuit, so that the defendant should have understood that her conduct was unlawful.” Montero, 890
F.3d at 402; see also Lynch v. Ackley, 811 F.3d 569, 578-79 (2d Cir. 2016).8
Defendants’ qualified immunity argument assumes that Plaintiff was terminated in retaliation
for the 2013 Statement to Sampson, the CFS Statements, and the CFS Votes.9 Thus, the relevant
questions for qualified immunity purposes are whether Dr. Sampson and Mr. Kupferschmid could
reasonably have believed, at the time Plaintiff was fired on April 9, 2015, that a government
employer could lawfully fire an employee on the basis of (i) her statement to a supervisor during a
private meeting regarding a potential conflict of interest with respect to a hiring decision; (ii)
statements made in her capacity as an appointed member of a separate and independent

8

Notably, unlike in Montero, where specific case law predating Garcetti called into question the status
of union speech, there is no such question here.
9

Defendants contest that they did not terminate her because of her statements. See supra § II (J).
33

governmental body; or (iii) votes cast in her capacity as an appointed member of a separate and
independent governmental body. Each question is addressed in turn below.
i.

2013 Statement to Dr. Sampson

Dr. Sampson and Mr. Kupferschmid are entitled to qualified immunity with respect to
Plaintiff’s 2013 Statement to Dr. Sampson because it was “objectively reasonable” for them to
believe that the 2013 Statement constituted employee speech and, therefore, that terminating
Plaintiff’s employment in response to the 2013 Statement was lawful.
As the Director of one of the OCME’s four laboratories, Plaintiff occupied a high-level
position at the OCME, which she had held for many years. And, although she was not part of the
executive committee, unlike in Matthews, she regularly met with the CME to discuss a variety of
topics. Indeed, the 2013 Statement was made during the course of one such meeting, in response to
information obtained directly from the CME. Given these facts, “officers of reasonable competence
could disagree” on the question of whether Plaintiff’s 2013 Statement to Dr. Sampson constituted
employee speech. Malley, 475 U.S. at 341. Consequently, Dr. Sampson and Mr. Kupferschmid are
entitled to qualified immunity with respect to the 2013 Statement.
ii.

CFS Statements

Defendants are not entitled to qualified immunity with respect to Plaintiff’s CFS Statements,
however. At the outset, Defendants formulate the issue too narrowly, arguing that “neither the
Supreme Court nor the Second Circuit had ruled in a case in which the speech at issue was made by
someone whose membership on a governmental body was dependent upon employment by a
separate governmental entity, and who spoke pursuant to her official duties for both entities, via a
channel for which no civilian analogue exists.” Defs.’ Br., at 17. “The operation of the ‘clearly
established’ standard ‘depends substantially upon the level of generality at which the relevant legal
rule is to be identified.’” Johnson, 859 F.3d at 170 (quoting Anderson v. Creighton, 483 U.S. 635, 639
(1987) (internal quotation omitted)).
34

“A right is ‘clearly established’ if ‘it would be clear to a reasonable [person in the position of
the defendant] that his conduct was unlawful in the situation he confronted.’” Colvin v. Keen, No. 163650, 2018 WL 3865295, at *8 (2d Cir. Aug. 15, 2018) (quoting Saucier v. Katz, 533 U.S. 194, 202
(2001)). “This inquiry turns on the objective legal reasonableness of the action, assessed in light of
the legal rules that were clearly established at the time it was taken.” Id. (quoting Pearson v. Callahan,
555 U.S. 223, 244) (internal quotation marks omitted). “We do not require a case directly on point,
but existing precedent must have placed the . . . constitutional question beyond debate.” Golodner v.
Berliner, 770 F.3d 196, 206 (2d Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
“Even if neither the Supreme Court nor this Court has explicitly held a course of conduct to be
unconstitutional, the law may still be considered ‘clearly established so long as this circuit’s decisions
clearly foreshadow a particular ruling on the issue.’” Spencer v. Philemy, 540 F. App’x 69, 71 (2d Cir.
2013) (quoting Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000) (internal quotation marks omitted)).
In Matthews, which was decided on February 26, 2015—just less than two months before
Plaintiff’s employment was terminated—the Second Circuit held that “when a public employee
whose duties do not involve formulating, implementing, or providing feedback on a policy that
implicates a matter of public concern engages in speech concerning that policy, and does so in a
manner in which ordinary citizens would be expected to engage, he or she speaks as a citizen, not as
a public employee.” 779 F.3d at 174. Here, as in Matthews, Plaintiff was a public employee whose
“duties d[id] not involve formulating, implementing, or providing feedback” on FBL employment
decisions or the OCME’s conflict of interest policies. Also like Matthews, Plaintiff engaged in speech
concerning those decisions and policies. Matthews, established Second Circuit law at the time of Dr.
Stajic’s termination, was on all fours with the situation presented to Defendants in this case.
Accordingly, they are not entitled to qualified immunity on the basis that the law was not clearly
established at the time.

35

Defendants suggest that Matthews established a carve-out for public employees engaged in
citizen speech, but who do not speak as “ordinary citizens.” This argument stems from the
following language in Matthews: “when a public employee whose duties do not involve formulating,
implementing, or providing feedback on a policy that implicates a matter of public concern engages
in speech concerning that policy, and does so in a manner in which ordinary citizens would be expected to
engage, he or she speaks as a citizen, not as a public employee.” Matthews, 779 F.3d at 174 (emphasis added).
Defendants construe this turn of phrase to mean that it was not clear at the time Plaintiff was fired
that a public employee, engaged in citizen speech, could not be terminated if she spoke not merely
as an “ordinary citizen,” but using the platform of a special role. Following the logic of this
argument, it was not clear at the time that a citizen running for public office would be entitled to the
same protection for comments made from the candidates’ podium as an “ordinary” citizen speaking
from her front yard. Or, as here, that Dr. Stajic, speaking in her role as a member of the
commission, was entitled to less protection than when speaking to her employer.
The Court appreciates Defendants’ nuanced reading of Matthews. However, the qualified
immunity inquiry “turns on the objective legal reasonableness of the action, assessed in light of the
legal rules that were clearly established at the time it was taken.” Colvin v. Keen, No. 16-3650, 2018
WL 3865295, at *8 (2d Cir. Aug. 15, 2018) (quoting Pearson v. Callahan, 555 U.S. 223, 244) (internal
quotation marks omitted). In light of the Circuit and Supreme Court precedent, it was not
objectively legally reasonable at the time to conclude that Dr. Stajic was entitled to less protection
because she spoke when wearing her hat as a commissioner, as opposed to speaking as an “ordinary
citizen.” 10

10

Although it was decided several years after Plaintiff’s termination, the Court sees support for the
fact that this language was not intended as a limitation in the Second Circuit’s opinion in Montero. In
Montero, the plaintiff was both a Yonkers police officer and a union official in the Yonkers Police
36

Defendants also argue that they are entitled to qualified immunity with respect to the CFS
Statements because the Second Circuit held in Montero that, between February 2015 and May 2018, it
was not clearly established that a public employee’s speech that lacks a civilian analogue may be
protected. Dkt. No. 136, at 2. But the confusion surrounding the question of the civilian analogue
was whether a civilian analogue was required in addition to speech pursuant to one’s job duties. As
described above, it was not objectively reasonable for Defendants to conclude that Plaintiff was not
speaking as a citizen. Therefore, regardless of any confusion surrounding the civilian analogue
requirement at the time Plaintiff was fired, Defendants are not entitled to qualified immunity with
respect to Plaintiff’s CFS Statements. Compare Montero, 890 F.3d at 390 (granting qualified immunity
where the law was unclear as to both the question of whether speech made in a union capacity is
citizen speech and as to the civilian analogue requirement).

Benevolent Association (the “Yonkers PBA”). 890 F.3d at 390. The plaintiff alleged that his First
Amendment rights were violated when the City of Yonkers retaliated against him for criticizing
management decisions by Yonkers police officials at two Yonkers PBA meetings. Id. The Second
Circuit concluded that the plaintiff’s remarks were citizen speech—even though he was speaking as
a PBA official and not as an “ordinary citizen.”
It seems likely that the language from Matthews discussed above describes a “manner” of engaging in
speech “in which ordinary citizens would be expected to engage.” Id. at 174. The court did not
discuss speech by ordinary citizens as opposed to citizens speaking using the platform of a unique
public role. In fact, the court did not use the term “ordinary citizens” again until the “Civilian
Analogue” section of the opinion, in which it explains that the plaintiff “chose a path that was
available to ordinary citizens who are regularly provided the opportunity to raise issues with the
Precinct commanders” and that “what matters is whether the same or a similar channel exists for the
ordinary citizen.” Id. at 176 (emphases added). Further, the Matthews court concluded that its finding
that the plaintiff spoke as a citizen, rather than as a public employee, was “reinforce[d]” because the
plaintiff had “pursued the same avenue to complain . . . as would a concerned civilian.” Id. As a
result, it appears that the Second Circuit in Matthews was not creating a carve-out for ordinary
citizens—it was simply describing the “civilian analogue” element of the analysis.

37

iii.

CFS Votes11

Finally, with respect to the CFS Votes, Defendants are not entitled to qualified immunity.
Here too Defendants raise several distinctions without a difference. First, they argue that it was not
clearly established that a vote by an appointed member of a government body is protected speech.
Defs.’ Br. at 17. Next, they argue that, in any event, the CFS Votes here are not “political
expression” and therefore are not entitled to constitutional protection. Id. at 17-18.12 Protected
speech does not lose its protection simply because it is expressed as a vote, however. See, e.g.,
Camacho v. Brandon, 317 F.3d 153, 160 (2d Cir. 2003) (“Voting on public policy matters coming
before a legislative body is an exercise of expression long protected by the First Amendment.”).
As the Second Circuit made clear in Matthews, only two inquiries govern whether a public
employee speaks as a citizen: “(A) did the speech fall outside of the employee’s ‘official
responsibilities,’ and (B) does a civilian analogue exist?” Id., 779 F.3d at 173 (citing Weintraub, 593
F.3d at 203-04). Notably, the Second Circuit did not consider whether the speech in question
constituted “political expression,” as Defendants ask the Court to do here.

11

Plaintiff argues that Defendants should be precluded from seeking summary judgment with
respect to the votes because “defendants previously represented to the Court that they would not be
moving for summary judgment with respect to plaintiff’s claims related to her votes on the
Commission.” Pl.’s Br., at 18. Again, this argument was advanced by Plaintiff in a separate motion,
Dkt. No. 98, and was rejected by the Court. Dkt. No. 131. The Court will not reconsider it here.
12

Defendants point to decisions in other circuits applying Garcetti to speech by public officials (or
not). However, “when neither the Supreme Court nor [the Second Circuit] has recognized a right,
the law of our sister circuits and the holdings of district courts cannot act to render that right clearly
established within the Second Circuit.” Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006) (citing
Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003)). In any event, as Plaintiff points out, only one of
those cases addressed a scenario similar to the one before the Court here—namely, whether a public
agency may retaliate against one of its employees on the basis of that employee’s expression in
performing separate duties for a different public entity. Santos v. Pabey, No. 2:10-CV-203 JVB, 2011
WL 6141115, at *2 (N.D. Ind. Dec. 9, 2011) (“The Court concludes that the speech for which
Plaintiffs claim protection—their votes in the Council—does constitute speech protected by the
First Amendment. Because their Council votes were not statements made pursuant to their official
duties as employees of the City of East Chicago or the East Chicago Public Library, they were
speaking as private citizens, albeit private citizens who are Common Council members.”).
38

As set forth above, the clearly established law at the time Plaintiff was fired, as articulated in
Matthews, was that speech that was not part of a public employee’s job description, or part of the
practical reality of her everyday work, was citizen speech, not employee speech. Here, Plaintiff’s
votes were in no way related to her job functions at the OCME. In fact, the votes were in favor of
positions that the OCME found objectionable. To the extent that the votes reflected knowledge
that Plaintiff gained in the course of her employment, the law was also clear at the time of her
termination that the fact that speech reflects knowledge gained through employment is not sufficient
to transform citizen speech into employee speech. See Lane, 134 S. Ct. at 2373. Accordingly,
Defendants are not entitled to qualified immunity with respect to the CFS Votes.
D. Age Discrimination Claim
Plaintiff’s age discrimination claim arises under the NYCHRL, which provides that it is an
unlawful discrimination practice for an employer to discharge a person from employment “because
of the actual or perceived age” of that person. New York City, N.Y., Code § 8-107, § 8-107(1)(a)(2).
Although NYCHRL claims had for many years “been treated as coextensive with state and federal
counterparts,” the New York City Council, in passing the Local Civil Rights Restoration Act of 2005
(the “Restoration Act”), “rejected such equivalence” in favor of a broader remedial scope. Loeffler v.
Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009). The Restoration Act established two new
rules of construction for the NYCHRL: (1) “a ‘one-way ratchet,’ by which interpretations of state
and federal civil rights statutes can serve only ‘as a floor below which the City’s Human Rights law
cannot fall’”; and (2) a requirement that the NYCHRL provisions “be construed liberally for the
accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal
or New York State civil and human rights laws, including those laws with provisions comparablyworded to provisions of this title[,] have been so construed.” Mihalik v. Credit Agricole Cheuvreux N.
Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (quoting Restoration Act §§ 1, 7). The Second Circuit has
clarified that these amendments to the Restoration Act require courts to analyze NYCHRL claims
39

“separately and independently from any federal and state law claims.” See id. Further, NYCHRL
must be construed “broadly in favor of discrimination plaintiffs, to the extent that such a
construction is reasonably possible.” Id. (quoting Albunio v. City of New York, 16 N.Y.3d 472, 477–78
(2011)).
The NYCHRL “does not require ‘a connection between the discriminatory conduct and a
materially adverse employment action.’” Garrigan v. Ruby Tuesday, Inc., No. 14-cv-155 (LGS), 2014
WL 2134613, at *3 (S.D.N.Y. May 22, 2014) (quoting Mihalik, 715 F.3d at 113). Instead, the proper
inquiry under the NYCHRL is whether the plaintiff “was treated ‘less well’ because of her
[membership in a protected class].” Pena-Barrero v. City of New York, No. 14-cv-9550 (VEC), 2017
WL 1194477, at *15 (S.D.N.Y. Mar. 30, 2017) (quoting Mihalik, 715 F.3d at 111).
Courts “must be mindful that the NYCHRL is not a ‘general civility code,’” however.
Mihalik, 715 F.3d at 110 (citing Williams v. N.Y.C. Housing Auth., 872 N.Y.S. 2d 27, 40-41 (1st Dep’t
2009)). “The plaintiff still bears the burden of showing that the conduct is caused by a
discriminatory motive. It is not enough that a plaintiff has an overbearing or obnoxious boss. [He]
must show that [he] has been treated less well at least in part ‘because of [his protected
characteristic].’” Id. (citing Williams, 872 N.Y.S. 2d at 39, 40 n.27).
In connection with motions for summary judgment concerning claims arising under the
NYCHRL, “the plaintiff must establish a prima facie case, and the defendant then has the
opportunity to offer legitimate reasons for its actions.” Ya-Chen Chen v. City Univ. of New York, 805
F.3d 59, 75–76 (2d Cir. 2015) (citing Bennett v. Health Mgmt. Sys., 936 N.Y.S.2d 112 (1st Dep’t 2011)).
“If the defendant satisfies that burden, summary judgment is appropriate if no reasonable jury could
conclude either that the defendant’s ‘reasons were pretextual,’ or that the defendant’s stated reasons
were not its sole basis for taking action, and that its conduct was based at least ‘in part on
discrimination.’” Id. (quoting Melman v. Montefiore Med. Ctr., 946 N.Y.S.2d 27, 35, 41 (1st Dep’t
2012)). In other words, “summary judgment is appropriate if no reasonable jury could conclude
40

either that the defendant’s reasons were pretextual, or that the defendant’s stated reasons were not
its sole basis for taking action, and that its conduct was based at least in part on discrimination.” Id.
(internal citations and quotations omitted); see also Thelwell v. City of New York, No. 17-1767, 2018 WL
2123242, at *1 (2d Cir. May 9, 2018) (quoting Mihalik, 715 F.3d at 110) (“[S]ummary judgment is
appropriate only if the record establishes as a matter of law that discrimination play[ed] no role in its
actions.”).
To determine whether an NYCHRL claim survives summary judgment, courts in this Circuit
reviewing discrimination claims arising under the NYCHRL consider the totality of circumstances
and “overall context” of the challenged conduct. Mihalik, 715 F.3d at 111, 113 (internal quotations
and citations omitted). “[E]ven a single comment may be actionable in the proper context.” Id. at
113; see also Seabrook v. New York City Health & Hosps. Corp., No. 13 CIV. 4164 NRB, 2015 WL
273652, at *9 (S.D.N.Y. Jan. 20, 2015) (“stray remarks are routinely dismissed unless accompanied
by further indicia of age-related animus”).
Here, there is sufficient evidence that, taken together, could support a finding that age
discrimination played at least some role in the decision to terminate Plaintiff’s employment.
First, it is undisputed that Plaintiff was replaced with a younger scientist, Dr. Cooper. Pl.’s
56.1 ¶ 208.
Second, Mr. Kupferschmid’s query about Plaintiff’s plans for retirement was made three
months before Plaintiff’s dismissal and “within approximately one month” of his recommendation
to Dr. Sampson that Plaintiff should be fired. Pl.’s Br., at 24 (citing Pl.’s 56.1 ¶¶ 308-316).13 Compare
McGuire-Welch v. House of the Good Shepherd, 219 F. Supp. 3d 330, 344 (N.D.N.Y. 2016), aff’d, 720 F.
App’x 58 (2d Cir. 2018) (fact that supervisor’s question about retirement was “made almost two

13

According to Plaintiff, Mr. Kupferschmid’s question about retirement was the “very first topic” he
raised with Dr. Stajic and her deputies. Pl.’s Br., at 24. However, as Defendants point out, there is
no evidence in the record to support this assertion, and Defendants dispute it. Defs.’ Reply, at 11.
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years prior to plaintiff’s termination” weighed against finding discriminatory bias in case arising
under the Age Discrimination in Employment Act and New York State Human Rights Law).
Third, it is undisputed that, with respect to Plaintiff, Dr. Sampson did not adhere to her
usual practice of communicating her dissatisfaction to employees before terminating their
employment. Pl.’s 56.1 ¶ 331. Plaintiff contends that this was the result of Dr. Sampson’s “agebased stereotypes”—namely, her “assumption that an older employee is resistant to change.” Pl.’s
Br. at 24, 25 (citing Pl.’s 56.1 ¶ 332).
Finally, the record is inconsistent regarding Dr. Sampson’s account of her decision to
terminate Plaintiff, which may be an indicator of a false explanation designed to obscure age
discrimination. Dr. Sampson testified at her deposition in this case that she decided to dismiss
Plaintiff because of her “attitude, culture and the direction that the agency was going in.” Pl.’s 56.1
¶ 332. But this is inconsistent with Dr. Sampson’s other explanation for Plaintiff’s dismissal—her
deficient job performance. Id. Plaintiff also challenges Defendants’ assertion that Dr. Sampson
decided to fire Plaintiff in response to the discussion about the root cause analysis that was the
“straw that broke the camel’s back,” id. ¶¶ 176, 191, because, among other things, Dr. Sampson
testified both that the discussion about the root cause analysis occurred a “few months” before
Plaintiff was fired, and that she did not decide to fire Plaintiff until March 2015, when the executive
team had reached consensus about it. Id. ¶¶ 191, 317-19. In light of these inconsistencies, and
drawing all reasonable inferences in Plaintiff’s favor, a reasonable juror could conclude that Dr.
Sampson’s explanations signal pretext. See E.E.O.C. v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.
1994) (“from such discrepancies a reasonable juror could infer that the explanations given by [the
defendant] at trial were pretextual, developed over time to counter the evidence suggesting age
discrimination uncovered by the state investigation.”); see also Cadet-Legros v. New York Univ. Hosp.
Ctr., 21 N.Y.S.3d 221, 225-26 (1st Dep’t 2015) (quoting Bennett, 92 A.D.3d at 45) (“One way for a

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plaintiff to defeat summary judgment is by offering ‘some evidence that at least one of the reasons
proffered by defendant is false, misleading, or incomplete.’”).
Viewing these factors together, and considering the totality of circumstances in the light
most favorable to Plaintiff, the Court concludes that there is sufficient evidence in the record for a
reasonable juror to conclude that the decision to terminate Plaintiff was based at least in part on age
discrimination. Accordingly, Defendants’ motion for summary judgment on the age discrimination
claim must be denied.
E. N.Y. Executive Law 995-a(6) – Private Right of Action
Finally, Defendants are entitled to summary judgment with respect to Plaintiff’s claim under
Section 995-a(6) of the New York Executive Law. Given the plain language of the subsection, and
context in which it appears—a statutory provision creating and defining the CFS—there is no
textual reading to support the conclusion that § 995-a(6) was intended by the legislature to provide
broad protection against retaliation for actions taken as a CFS member.
Section 995-a(6) of the New York Executive Law provides that:
No member of the commission on forensic science shall be disqualified from
holding any public office or employment, nor shall he or she forfeit any such office
or employment, by reason of his or her appointment hereunder, and members of the
commission shall not be required to take and file oaths of office before serving on
the commission.
The parties dispute whether this provision implicitly creates a private right of action. “In the
absence of an express private right of action, plaintiffs can seek civil relief in a plenary action based
on a violation of the statute only if a legislative intent to create such a right of action is fairly implied
in the statutory provisions and their legislative history.” Cruz v. TD Bank, N.A., 22 N.Y.3d 61, 70
(2013). This determination is based on three factors:
(1) whether the plaintiff is one of the class for whose particular benefit the statute
was enacted; (2) whether recognition of a private right of action would promote the
legislative purpose; and (3) whether creation of such a right would be consistent with
the legislative scheme.
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Id. (quoting Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 633 (1989)). Of these, the third is the
most significant because “the Legislature has both the right and the authority to select the methods
to be used in effectuating its goals, as well as to choose the goals themselves.” Id. (internal citation
omitted). “Thus, regardless of its consistency with the basic legislative goal, a private right of action
should not be judicially sanctioned if it is incompatible with the enforcement mechanism chosen by
the Legislature or with some other aspect of the over-all statutory scheme.” Id. at 70-71.
Furthermore, “a statute’s goal may not necessarily be enhanced by adding a private enforcement
mechanism.” Uhr ex rel. Uhr v. E. Greenbush Cent. Sch. Dist., 94 N.Y.2d 32, 40 (1999); see also id. at 38
(“A statutory command . . . does not necessarily carry with it a private right of enforcement by
means of tort litigation.”).
The critical concern is whether legislative intent to create a private right of action may be
fairly implied from the statute. Indeed, in certain circumstances, the New York Court of Appeals
has required that there must be “clear evidence” of such legislative intent. Id. at 42.
With respect to the first requirement, Plaintiff, who was a public official and served as a CFS
commissioner, is clearly “one of the class” for whose benefit § 995-a(6) was enacted.
With respect to the legislative purpose of the provision, the context in which it appears is
telling. The first subsection of § 995-a creates the CFS and describes its makeup: it “shall consist of
the following fourteen members: (a) the commissioner of the division of criminal justice services
. . . ; [and] (b) twelve members appointed by the governor.” § 995-a(1). The second subsection
further defines the membership of the CFS, mandating that the members appointed by the governor
include, for example, one member who is “the director of a forensic laboratory located in New York
state,” and two members who are scientists with “experience in the areas of laboratory standards or
quality assurance regulation and monitoring and [who] shall be appointed upon the recommendation
of the commissioner of health.” § 995-a(2). Other subsections set forth the length of members’
terms, § 995-a(3), procedures for filling vacancies that are “created otherwise than by expiration of
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term,” § 995-a(4), the number of meetings that the CFS is required to hold each year, § 995-a(5),
and the fact that CFS members will not be compensated for their services, but are allowed their
actual and necessary expenses incurred in the performance of their CFS functions. § 995-a(7). In
other words, the statute creates and defines the CFS—including who its members will be, how they
will be selected and appointed, how long they will serve, and how they will be compensated (or not).
The provision in question here, § 995-a(6), is no different. It describes qualifications for
CFS commissioners. Specifically, it advises members of the CFS that they need not forfeit other
public office or employment because of their appointment to the Commission, and that they are not
required to “take and file oaths of office before serving” on the Commission. § 995-a(6).
In addition, the Court recognizes that no enforcement mechanism exists under the statute,
and that the absence of an enforcement mechanism may, in some cases, reflect the legislature’s
intent to create a private right of action. Martinez v. Capital One, N.A., 863 F. Supp. 2d 256, 263
(S.D.N.Y. 2012), aff’d and remanded sub nom. Cruz v. TD Bank, N.A., 742 F.3d 520 (2d Cir. 2013)
(“courts have recognized that a private right of action may be implied if there are no enforcement
mechanisms or express remedies available, such that without an implied private cause of action,
plaintiffs would have no remedy to the legislatively recognized harm.”). But the absence of an
enforcement mechanism does not always indicate legislative intent to create a private right of action.
See Sheehy, 73 N.Y.2d at 634-35 (“a private right of action should not be judicially sanctioned if it is
incompatible with the enforcement mechanism . . . or with some other aspect of the over-all
statutory scheme”); see also Uhr ex rel. Uhr, 94 N.Y.2d at 42 (“If we are to imply such a right, we must
have clear evidence of the Legislature’s willingness to expose the governmental entity to liability that
it might not otherwise incur.”).
This is particularly true here, where Plaintiff would have the Court infer a private right of
action for retaliation claims, even though New York State law already protects citizens’ rights of
speech. See Sheehy, 73 N.Y.2d at 636 (“where the Legislature has not been completely silent but has
45

instead made express provision for civil remedy . . . the courts should ordinarily not attempt to
fashion a different remedy, with broader coverage, on the basis of a different statute, at least where,
as here, the two statutes address the same wrong.”). Therefore, rather than filling a gap, as Plaintiff
contends, a private right of action of the sort she endorses would create a remedy that is cumulative
of the remedy provided by the New York State Human Rights Law.
Having considered the factors set forth in Sheehy, the Court declines to find an implied
private right of action in § 995-a(6). Consequently, Defendants’ motion for summary judgment is
granted with respect to Plaintiff’s § 995-a claim.
V.

CONCLUSION

For the foregoing reasons, summary judgment is DENIED as to the Monell claim, the
retaliation claims with respect to the CFS Statements and the CFS Votes, and the age discrimination
claim. Summary judgment is GRANTED as to the § 995-a claim and the retaliation claim
concerning the 2013 Statement to Dr. Sampson.
The Clerk of Court is directed to terminate the motion pending at Dkt. No. 94.
SO ORDERED.
Dated: September 27, 2018
New York, New York

_____________________________________
GREGORY H. WOODS
United States District Judge

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