Stajic v. The City Of New York , et al

Filing 54

MEMORANDUM OPINION AND ORDER re: 27 MOTION to Dismiss filed by Barbara Sampson, The City Of New York, Timothy Kupferschmid. For these reasons, Defendants' motion to dismiss Plaintiff's First Amendment retaliation claim is DENIED. The Clerk of Court is directed to terminate the motion pending at Dkt. No. 27. (As further set forth in this Order.) (Signed by Judge Gregory H. Woods on 9/30/2016) (kko)

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: 9/30/16

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 who served as the Director of the
Forensic Toxicology Laboratory (“FTL”) for the New York City Office of Chief Medical Examiner
(“OCME”) for over 29 years. In April 2015, she was told that she could either resign immediately
or be terminated, without any prior indication that her performance was lacking or that her superiors
were otherwise dissatisfied with her work. From 2004 to 2015, Plaintiff also served on the New
York State Commission on Forensic Science, 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.
Plaintiff filed this lawsuit against the City of New York, Barbara Sampson, and Timothy
Kupferschmid, alleging that Ms. Sampson and Mr. Kupferschmid, two of her superiors at the
OCME, orchestrated her ouster from her position as director of the FTL for discriminatory reasons
and in retaliation for Plaintiff having expressed views on the Commission with which Ms. Sampson
and Mr. Kupferschmid were dissatisfied. Plaintiff asserts 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 to
dismiss only Plaintiff’s First Amendment retaliation claim, arguing that Plaintiff’s termination from
the OCME lacks sufficient temporal proximity to Plaintiff’s alleged instances of protected speech to
establish that the two were causally linked, which is a required element of a First Amendment
retaliation claim. However, because Plaintiff does not rely solely on temporal proximity in pleading
her First Amendment retaliation claim, and also alleges facts that could constitute direct evidence of
retaliatory animus, Defendants’ motion must be denied.
II.

BACKGROUND

Plaintiff has asserted 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. Complaint, Dkt. No. 1 at 15-17. On June 15, 2016,
Defendants moved to dismiss only the First Amendment claim, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Def. Memo, Dkt. No. 28 at 2. Defendants’ motion notes that
“defendants are not moving to dismiss” Plaintiff’s state law claims; rather, Defendants “request that
the Court dismiss plaintiff’s sole federal claim” and that the Court “decline to exercise supplemental
jurisdiction over those claims.” Id. Additionally, Defendants’ motion states that “Defendants
assume, solely for purposes of this motion,” that Plaintiff engaged in protected speech and that she
suffered an adverse employment action. Id. at 6. Accordingly, Defendants contest only the “causal
connection” element of Plaintiff’s First Amendment retaliation claim.
The OCME hired Plaintiff as the Director of the FTL in 1986. Compl. ¶ 16. 1 The primary
mission of the FTL is post mortem analysis. Id. ¶ 20. The OCME also operates the Forensic
Biology Laboratory (“FBL”), which performs serology and DNA testing on physical evidence from
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At the motion to dismiss stage, the allegations in the complaint are accepted as true and all
reasonable inferences are drawn in Plaintiff’s favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152
(2d Cir. 2002).
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criminal cases in the City of New York. Id. ¶¶ 18-19. Plaintiff did not have any duties at the OCME
related to the FBL. Id. ¶ 22. In 2004, Governor George Pataki appointed Plaintiff to serve on the
New York State Commission on Forensic Science, and to hold the position designated by statute for
the director of a forensic laboratory. Id. ¶ 30. Under New York law, one member of the
Commission “shall be the director of a forensic laboratory located in New York state.” N.Y. Exec.
Law § 995-a(2)(b).
Plaintiff’s appointment on the Commission was renewed in 2007, 2010, and 2013. Id. ¶ 33.
While working on the Commission, Plaintiff abstained from voting or commenting on issues that
directly related to the FTL, but she did participate in discussion and votes related to other aspects of
the OCME’s work, including matters relating to the FBL. Id. ¶ 32.
In or about July 2013, Barbara Sampson, then the Acting Chief Medical Examiner at the
OCME, hired Timothy Kupferschmid to replace Mechthild Prinz as the head of the FBL. Id. ¶¶ 3739. Several weeks earlier, Sorenson Forensics, an outside consultant that employed Mr.
Kupferschmid, had issued a report recommending changes in the operations of the FBL, including
new leadership. Id. ¶¶ 35-36. Mr. Kupferschmid was one of the co-authors of the report. Shortly
after Mr. Kupferschmid was hired, Plaintiff asked Ms. Sampson if his “appointment could
reasonably be viewed as a conflict of interest,” and Ms. Sampson replied that she did not consider
his appointment to be a conflict. Id. ¶ 40. During an executive session held by the Commission on
August 22, 2013, Plaintiff “made clear her view that Prinz had been forced out of her position
unfairly.” Id. ¶ 43. The complaint alleges that “Sampson and Kupferschmid became aware of
the[se] comments . . . and they were displeased with the suggestion that OCME had not acted
appropriately in terminating Prinz and hiring Kupferschmid.” Id. ¶ 44.
The complaint alleges that the “use of LCN in criminal proceedings is currently the subject
of controversy in the scientific and legal communities because of concerns that the analysis produces
an unacceptable number of false positive results, which in turn can result in wrongful convictions,”
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but that “Sampson and Kupferschmid have been strong advocates for the OCME’s continued use
of LCN.” Id. ¶¶ 47-48.
During an October 24, 2014 meeting, Barry Scheck, a commissioner and well-known
criminal defense attorney, questioned Eugene Lien, Assistant Director and Technical Leader of
Nuclear DNA Testing Operations at the OCME, “as to whether OCME had conducted an internal
validation study that supported the use of LCN when the DNA sample recovered was a mixture of
two or more people and the amount of the sample was particularly small.” Id. ¶ 51. Mr. Lien
responded that OCME “did indeed possess an internal validation study supporting the use of LCN
under those circumstances.” Id. Mr. Scheck then made a motion for the Commission to produce
the study and for the study to be made available to the public. Id. ¶ 52. Plaintiff voted in favor of
that motion. Id. ¶ 53. She was one of only three commissioners to vote in favor of the motion,
which was defeated. Id. ¶ 54. The only other commissioners to vote in favor of the motion were
Mr. Scheck and Marvin Shechter, who is also a criminal defense attorney. Id. After the initial
motion was defeated, Mr. Scheck made another motion for the OCME’s study to be produced to
the Commission without public disclosure. Plaintiff also voted in favor of this motion, but it too
was defeated. Id. ¶ 55. The complaint alleges that “Sampson and Kupferschmid became aware of
Stajic’s votes, and they were displeased that Stajic appeared to be aligned with the criminal defense
lawyers on the Commission, who Sampson and Kupferschmid viewed as adversarial to OCME.” Id.
¶ 56.
On December 10, 2014, Mayor Bill de Blasio permanently appointed Ms. Sampson as Chief
Medical Examiner; shortly thereafter, Ms. Sampson promoted Mr. Kupferschmid to the position of
Chief of Laboratories, a newly created position to which Plaintiff began to report. Id. ¶¶ 57-58. In
or about early January 2015, Mr. Kupferschmid met with Plaintiff and her two Assistant Directors
of Toxicology, Elizabeth Marker and William Dunn, and asked them “when they planned to retire.
Stajic and Dunn responded . . . that they had no plans to retire; Marker said she would likely retire in
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September 2015.” Id. ¶ 60. “During the period Kupferschmid supervised Stajic, he never expressed
any dissatisfaction with her performance as the Director of the FTL” nor had he “advise[d] Stajic of
any steps that he believed she needed to take to improve the operations of the FTL.” Id. ¶ 62.
On April 9, 2015, Plaintiff was called to a meeting with Ms. Sampson, Mr. Kupferschmid,
and Nancy Romero, Assistant Commissioner of Human Resources, during which she was informed
“that her services were no longer required, and that her employment would be terminated effectively
unless she elected to resign.” Id. ¶ 64. She “asked Sampson why she was being forced out of her
job” but “Nancy Romero replied that she advised Sampson not to answer that question” and
“Sampson did not respond.” Id. ¶ 65. Plaintiff submitted her retirement papers on April 10, 2015.
Id. ¶ 67.
On or about April 10, 2015, Mr. Kupferschmid called Brian Gestring, the Director of the
Office of Forensic Services and a member of the Commission, to inform him that Plaintiff was no
longer the director of the FTL. Before the call ended, Mr. Kupferschmid asked Mr. Gestring, “[t]his
means that [Stajic] is not on the Commission any more, right?” Id. ¶ 69. Mr. Gestring responded
that she would continue to serve until she was replaced. Id.
On or about April 15, 2015, “while sitting in executive session, the Commission asked
Kupferschmid and OCME General Counsel Florence Hunter to discuss the circumstances of
Stajic’s separation from OCME. Kupferschmid and Hunter told the Commission that Stajic’s
departure was not related to the quality of her work, but they otherwise declined to explain the
reasons why Stajic was removed from her position.” Id. ¶ 71.
III.

LEGAL STANDARDS
a. Motion to Dismiss under Rule 12(b)(6)

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks and citation omitted). “A claim has facial plausibility when the
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plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
While a complaint need not provide “detailed factual allegations,” it nevertheless must assert
“more than labels and conclusions” and more than “a formulaic recitation of the elements of a cause
of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). The facts pleaded “must be
enough to raise a right to relief above the speculative level on the assumption that all the allegations
in the complaint are true.” Id. (citations omitted). The court must accept all factual allegations in
the complaint as true, and draw all reasonable inferences in favor of the nonmoving party. ATSI
Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
b. First Amendment Retaliation
To state a claim for First Amendment retaliation, a plaintiff must plausibly allege that
“(1) h[er] speech or conduct was protected by the First Amendment; (2) the defendant took an
adverse action against h[er]; and (3) there was a causal connection between this adverse action and
the protected speech.” Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015) (citation
omitted).
“The causal connection must be sufficient to warrant the inference that the protected speech
was a substantial motivating factor in the adverse employment action, that is to say, the adverse
employment action would not have been taken absent the employee’s protected speech.” Morris v.
Landau, 196 F.3d 102, 110 (2d Cir. 1996). “Causation can be established either indirectly by means
of circumstantial evidence, for example, by showing that the protected activity was followed by
adverse treatment in employment, or directly by evidence of retaliatory animus.” Mandell v. County of
Suffolk, 316 F.3d 368, 383 (2d Cir. 2003).
“A plaintiff can establish a causal connection that suggests retaliation by showing that
protected activity was close in time to the adverse action,” Espinal v. Goord, 558 F.3d 119, 129 (2d
Cir. 2009) (citation omitted), and generally, “[t]emporal proximity is strong circumstantial evidence
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of improper intent,” Anderson v. State of New York, Office of Court Admin., 614 F. Supp. 2d 404, 430
(S.D.N.Y. 2009). The Second Circuit has “not drawn a bright line to define the outer limits beyond
which a temporal relationship is too attenuated to establish a causal relationship between the
exercise of a federal constitutional right and an allegedly retaliatory action.” Id. “[D]irect evidence
of retaliation may consist of ‘conduct or statements by persons involved in the decisionmaking
process that may be viewed as directly reflecting the alleged retaliatory attitude.’” McAvey v. OrangeUlster BOCES, 805 F. Supp. 2d 30, 40 (S.D.N.Y. 2011) (quoting Lightfoot v. Union Carbide Corp., 110
F.3d 898, 913 (2d Cir. 1997) (brackets omitted)).
Importantly, to survive a motion to dismiss for lack of causation, “the plaintiff’s pleading
need not clearly establish that the defendant harbored retaliatory intent. It is sufficient to allege facts
which could reasonably support an inference to that effect.” Posr v. Court Officer Shield No. 207, 180
F.3d 409, 418 (2d Cir. 1999). “Causation generally is a question for the finder of fact” and “[o]n this
motion, the role of the Court is to determine whether Plaintiff has alleged facts that could support a
reasonable finding of a causal connection between [her] protected speech and the adverse
employment action.” DePace v. Flaherty, 183 F. Supp. 2d 633, 638 (S.D.N.Y. 2002).
IV.

DISCUSSION

As noted above, Defendants challenge only the “causal connection” element of Plaintiff’s
First Amendment retaliation claim. Defendants argue that “plaintiff cannot establish a causal
connection between her allegedly protected speech on August 22, 2013 and October 24, 2014, and
her allegedly forced resignation on April 9, 2015, one year and seven months, and five and a half
months later respectively.” Def. Memo at 2. Defendants argue that “[t]his lack of temporal
proximity breaks any causal connection” and accordingly, “plaintiff’s First Amendment claim fails.”
Id.; see also id. at 7 (“Because of the lack of temporal proximity between plaintiff’s allegedly protected
speech . . . and here allegedly forced resignation . . . plaintiff cannot establish the requisite causal
connection.”).
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However, as previously discussed, the causal connection that a plaintiff must allege in order
to survive a motion to dismiss a First Amendment retaliation claim may be alleged indirectly by, for
example, alleging that the protected activity was followed by adverse treatment in employment or
directly, by alleging direct evidence of retaliatory animus. Here, the Court finds that Plaintiff has
alleged direct evidence of retaliatory animus, independent of any inferences that could or could not
be plausibly drawn with respect to the temporal proximity between the protected speech and the
adverse action, sufficient to survive Defendants’ motion to dismiss.
The complaint describes Plaintiff’s work on the Commission, and alleges that in various
instances, her work on the Commission displeased the Defendants. Those instances concern
Plaintiff’s remarks about the termination of Ms. Prinz and the hiring of Mr. Kupferschmid, and her
votes in favor of the motions that the OCME produce the LCN internal validation study. The
complaint then alleges several statements and conduct by Defendants which could plausibly reflect a
retaliatory attitude in response to Plaintiff’s work on the Commission, including Mr. Kupferschmid’s
asking Mr. Gestring if Plaintiff would no longer be on the Commission given her departure from the
OCME, and the statements by Mr. Kupferschmid and Ms. Hutner to the Commission that Plaintiff
was not terminated for any reason related to the quality of her work.
The Court finds that Plaintiff has “allege[d] facts which could reasonably support an
inference” that Defendants harbored retaliatory intent. Posr, 180 F.3d at 418. A jury would be
entitled to find, based on the facts that Plaintiff has alleged, that Defendants retaliated against her
for the views she expressed and positions she took in connection with her work on the Commission,
and that the decision to terminate her was in retaliation for expressing those views and taking those
positions. Furthermore, given the plausibility of the inference that Plaintiff was terminated for
retaliatory reasons, it is similarly plausible that she was terminated in order to prevent her from
continuing her work on the Commission. The statutory requirement that at least one member of the
Commission be the head of a forensic laboratory in New York provided a mechanism by which
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terminating Plaintiff from the OCME could serve to prevent her from continued involvement with
the Commission.
V.

CONCLUSION

For these reasons, Defendants’ motion to dismiss Plaintiff’s First Amendment retaliation claim
is DENIED. The Clerk of Court is directed to terminate the motion pending at Dkt. No. 27.
SO ORDERED.
Dated: September 30, 2016
New York, New York

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GREGORY H. WOODS
GREGORY H
GOR
United States District Judge
nited

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