Montero v. The City of Yonkers, New York et al
Filing
39
MEMORANDUM AND OPINION re: 29 MOTION to Dismiss First Amended Complaint, filed by Keith Olson, 26 MOTION to Dismiss First Amended Complaint, filed by The City of Yonkers, New York, Brian Moran, John Mueller. The Motion is granted with prejudice. The Clerk of Court is respectfully requested to terminate the pending Motions (Dkt. Nos. 26, 29) and close the case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 12/20/16) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RAYMOND MONTERO,
Plaintiff,
v.
No. 15-CV-4327 (KMK)
THE CITY OF YONKERS, NEW YORK;
KEITH OLSON, in his official and individual
capacities; BRIAN MORAN, in his official
and individual capacities; JOHN MUELLER,
in his official and individual capacities,
OPINION & ORDER
Defendants.
Appearances
Christopher Dale Watkins, Esq.
Michael Howard Sussman, Esq.
Sussman & Watkins
Goshen, NY
Counsel for Plaintiff
Clifford James Bond, Esq.
Clifford J. Bond, Attorney at Law
White Plains, NY
Counsel for Plaintiff
John A. Sarcone, III, Esq.
The Sarcone Law Firm, PLLC
White Plains, NY
Counsel for Plaintiff
John Martin Flannery, Esq.
Lalit Kumar Loomba, Esq.
Peter Alexander Meisels, Esq.
Wilson Elser Moskowitz Edelman & Dicker LLP
Stamford, CT
Counsel for Defendants the City of Yonkers, Brian Moran, and John Mueller
Andrew C. Quinn, Esq.
The Quinn Law Firm, PLLC
White Plains, NY
Counsel for Defendant Keith Olson
KENNETH M. KARAS, District Judge:
Detective Raymond Montero (“Plaintiff”) brought this suit pursuant to 42 U.S.C. § 1983
alleging that Defendants retaliated against him in violation of his First Amendment rights for
comments he made at two meetings held by the Police Association of the City of Yonkers, Inc.,
also known as the Yonkers Police Benevolent Association (the “Yonkers PBA”). (See Am.
Compl. (Dkt. No. 20).) Defendants have moved to dismiss the Amended Complaint.
Specifically, Defendants the City of Yonkers, Brian Moran, and John Mueller (the “City
Defendants”) have moved to dismiss on the grounds that Plaintiff has failed to state a claim for
retaliation in violation of the First Amendment, Moran and Mueller are entitled to qualified
immunity, and Plaintiff has failed to state a claim for municipal liability. (See Mem. of Law in
Supp. of Mot. To Dismiss Am. Compl. (“City Defs.’ Mem.”) (Dkt. No. 28).) Defendant Olson
has moved to dismiss on the ground that Plaintiff has failed to state a claim for retaliation in
violation of the First Amendment. (See Mem. of Law in Supp. of Def. Olson’s Mot. To Dismiss
Pursuant to F.R.C.P. Rule 12(b)(6) (“Olson’s Mem.”) (Dkt. No. 31).) For the reasons to follow,
Defendants’ Motions are granted.
I. Background
A. Factual Background
Because this case is before the Court on several motions to dismiss, the Court accepts as
true all factual allegations in Plaintiff’s Amended Complaint for the purpose of deciding the
Motions.
Plaintiff is a police officer with the City of Yonkers Police Department (the
“Department”). (See Am. Compl. ¶ 3.) In January 2010, Plaintiff ran for vice president of the
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Yonkers PBA and Olson ran for president. (See id. ¶¶ 11, 13.) Plaintiff defeated Olson’s friend
and preferred candidate, Michael Farina, and was elected vice president; Olson was elected
president. (See id. ¶¶ 12–13.)
During a Yonkers PBA meeting held in June 2010, Plaintiff criticized then-Police
Commissioner Edmund Hartnett for cutting several police units, arguing that the cuts were bad
for the police force, the Yonkers PBA, and the community. (See id. ¶¶ 16–17.) Plaintiff
expressed that he intended to call for a vote of no confidence in Commissioner Hartnett at the
next general meeting of the Yonkers PBA. (See id. ¶ 17.) Olson was in favor of the cuts
implemented by Commissioner Hartnett. (See id. ¶ 18.) Shortly thereafter, in July 2010, thenLieutenant Mueller spoke to Plaintiff in Mueller’s office and told him that Commissioner
Hartnett did not like what Plaintiff had been saying about the Commissioner and others. (See id.
¶ 19.) Mueller instructed Plaintiff to stop speaking negatively about the Yonkers PBA,
Commissioner Hartnett, or the mayor, and told Plaintiff that if he continued to make negative
comments, he would be transferred out of his current post in the Special Investigations Unit.
(See id.)
Notwithstanding Mueller’s warning, in February 2011, Plaintiff called for a vote of no
confidence in Commissioner Hartnett. (See id. ¶ 20.) Although the Amended Complaint does
not indicate where Plaintiff called for the vote, the Parties’ briefing makes clear that Plaintiff
called for the vote at a meeting of the Yonkers PBA. (See City Defs.’ Mem. 3; Pl.’s Mem. of
Law in Opp’n to Defs.’ Mots. To Dismiss (“Pl.’s Mem.”) 2 (Dkt. No. 32).)
One month later, in March 2011, Olson—along with Mueller and Moran, both close
personal friends of Olson—conducted an unauthorized investigation into Plaintiff’s submission
of overtime slips. (See Am. Compl. ¶¶ 15, 21.) Plaintiff alleges that any such investigation
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should have been conducted by the Internal Affairs Division. (Id.) Plaintiff further alleges that
during the course of the investigation, Olson, Mueller, and Moran “falsely and maliciously
accused Plaintiff of intentionally submitting false overtime slips.” (Id. ¶ 23.) As a result of the
investigation, the Department stripped Plaintiff of 40 hours of compensatory time and issued
Plaintiff a disciplinary write-up. (Id. ¶ 24.)
That same month, Moran, purporting to act on the instructions of Mueller, ordered
Plaintiff to transfer out of the Special Investigations Unit and ordered Plaintiff to submit a
transfer request to that effect. (Id. ¶ 25.) In April 2011, Plaintiff was transferred out of the
Special Investigations Unit and into the Detective Division. (Id. ¶ 26.) Plaintiff alleges that the
transfer was retaliation for his activity in the Yonkers PBA and served as a functional demotion
because the Special Investigations Unit is “an elite and highly desirable unit.” (Id. ¶ 27.) As a
result of the transfer, Plaintiff also lost overtime pay because he was punitively assigned to desk
duty. (Id.) In May 2011, Plaintiff alleges that Olson admitted that Plaintiff had been written up,
stripped of compensatory time, and transferred to a lesser position because of Plaintiff’s criticism
of Olson’s leadership of the Yonkers PBA and of Commissioner Hartnett’s management of the
Department. (Id. ¶ 28.)
In September 2011, after he learned that Plaintiff intended to run against him for Yonkers
PBA president, Olson verbally confronted Plaintiff, calling him a “fucking pussy” and telling
Plaintiff that Olson should “kick his ass.” (Id. ¶ 29.) Olson was in part frustrated because
Plaintiff had refused to debate Olson in advance of the election. (Id.) That same month,
Plaintiff’s office was vandalized, and pictures of the Cowardly Lion from “The Wizard of Oz”
were posted in Plaintiff’s office. (Id. ¶ 30.) Plaintiff alleges that the vandalism came at the
hands of Olson, either directly or at his instruction. (Id. ¶ 31.) Also in September 2011, Mueller
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conducted another unauthorized investigation into Plaintiff, this time about alleged
insubordination by Plaintiff. (Id. ¶ 32.) Plaintiff reported Olson’s threats and the vandalism of
his office to the Internal Affairs Division, but no investigation was undertaken. (Id. ¶ 33.)
In January 2012, Olson, Mueller, Moran, and another police officer conducted a second
unauthorized investigation of Plaintiff. (Id. ¶ 34.) Moran instructed the fourth police officer to
confiscate security footage from a building in which Plaintiff had been, and Moran himself took
photographs of Plaintiff’s truck and police placard. (Id. ¶ 35.) The purpose of the investigation
was to show that Plaintiff was outside of his home without authorization while on sick leave.
(Id. ¶ 36.) Plaintiff alleges that any such investigation should have been conducted by the
Department’s Medical Control Unit, and that Plaintiff did, in fact, have permission to be outside
of his home while on sick leave. (Id. ¶¶ 37–38.) The Department nonetheless docked Plaintiff
two days’ salary for the alleged infraction. (Id. ¶ 39.)
In January 2012, Plaintiff was transferred to the Gangs Unit. (Id. ¶ 40.) He remained in
that unit until at least the filing of the Amended Complaint on October 13, 2015. (Id.) Because
of Plaintiff’s placement in the Detective Division, where Moran is a detective-sergeant, Plaintiff
has lost many hours of overtime pay. (Id. ¶ 41.) Also in January 2012, Plaintiff ran against
Olson for president of the Yonkers PBA. (Id. ¶ 42.) Olson won the election, though Plaintiff
alleges that Olson used smear tactics and intimidation, “as well as a distinct specter of fraud,” to
win the election. (Id.)
In August 2012, Olson met with Plaintiff’s commanding officer, Detective-Sergeant
Michael Kivel, and stated, “Who the fuck does Montero think he is by not talking? He better be
fucking careful.” (Id. ¶ 43.) Plaintiff alleges that this comment was made in reference to
Plaintiff’s failure to acknowledge Olson and Moran while he was visiting a sick police officer.
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(Id.) Kivel relayed this threat to Plaintiff, who thereafter reported it to the Internal Affairs
Division. (Id. ¶ 44.) The Internal Affairs Division took no action to investigate the threat. (Id.)
Plaintiff further alleges that Defendants have targeted those who associate with Plaintiff
as retaliation for Plaintiff’s union activity. (Id. ¶ 45.) For instance, in April 2013, Olson and
Moran conducted an unauthorized investigation of Detective Captain Itzla because Itzla had
refused to discipline Plaintiff for alleged wrongdoing and because Itzla had recommended
disciplinary action against Moran. (Id. ¶ 46.) In July 2013, Olson told a civilian employee that
she would have problems on the job if she continued to associate with Plaintiff. (Id. ¶ 47.)
In September 2013, Olson sent Plaintiff a text asking Plaintiff to meet Olson “in another
jurisdiction and preferably off duty.” (Id. ¶ 50.) Plaintiff interpreted this as a threat and reported
it to the Internal Affairs Division, but no action was taken in response. (Id. ¶ 51.)
At one point in time, Olson complained to Commissioner Hartnett and the mayor about
comments on the Yonkers Tribune website that were critical of the leadership of the Yonkers
PBA. (Id. ¶ 48.) As a result, the Department instructed the Intelligence Unit to monitor the
Yonkers Tribune website. (Id. ¶ 49.) Shortly thereafter, in October 2013, Olson “compelled” the
Internal Affairs Division to investigate Plaintiff for alleged communications with a reporter for
the Yonkers Tribune. (Id. ¶ 52.) The Department did, in fact, investigate Plaintiff, and told
Plaintiff that he would be terminated if he did not reveal whether he had spoken with the
reporter. (Id. ¶ 53.)
That November, several high-ranking officers in the Department advised the City of
Yonkers’ corporation counsel that Plaintiff was the subject of harassment and negative treatment
because of his opposition to Olson. (Id. ¶ 55.) No action was taken in response. (Id.)
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In January 2014, at a Yonkers PBA meeting, Olson called for Plaintiff’s expulsion from
the Yonkers PBA. (Id. ¶ 56.) Plaintiff attempted to leave the meeting in apparent protest, but
William Pataky, one of Olson’s associates and a union trustee, blocked Plaintiff from leaving and
made verbal threats to Plaintiff. (Id. ¶ 57.) Thereafter, “some shoving and pushing ensued
between Plaintiff and Pataky.” (Id. ¶ 58.) After the meeting, Olson conducted an unauthorized
investigation into the incident. (Id. ¶ 59.) As part of that investigation, Olson directed other
police officers to seize videotapes from the facility where the meeting was held. (Id. ¶ 60.) The
Internal Affairs Division investigated Olson’s seizure of the videotapes and recommended that
Olson be disciplined; however, the Department did not discipline Olson. (Id. ¶¶ 61–62.)
Following the January meeting, Olson prepared a petition calling for Plaintiff to be
expelled from the Yonkers PBA. (Id. ¶ 63.) Plaintiff alleges that the petition falsely accused
him of providing information to local newspapers and of punching Pataky during the January
2014 meeting. (Id. ¶¶ 64–65.) The Department permitted Olson to post copies of the petition
throughout various precincts. (Id. ¶ 68.)
Around February 2014, Mueller urged Police Chief William Cave to remove Plaintiff
from his position as the Department’s representative at the weekly County-wide Intelligence
meetings. (Id. ¶ 69.) Cave agreed, removing Plaintiff from his position and putting Pataky in his
place. (Id. ¶¶ 71–72.) Plaintiff alleges that he lost 24 hours of pay per month as a result of this
action. (Id. ¶ 73.) In June 2014, at Olson’s urging, Plaintiff was expelled from the Yonkers
PBA. (Id. ¶ 74.)
In approximately July 2014, there was a break-in at the Gang Unit’s office where
Plaintiff worked. (Id. ¶ 76.) Plaintiff’s shield, which he had left on the desk in his office, was
taken. (Id. ¶ 78.) The Internal Affairs Division did not investigate the break-in. (Id. ¶ 79.)
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Shortly thereafter, Moran claimed to have been given Plaintiff’s shield by someone who found it
on a street in Yonkers. (Id. ¶ 80.) Moran wrote a report stating that Plaintiff’s shield had been
lost, with the alleged intent to cause Plaintiff to be disciplined for losing his shield. (Id. ¶ 81.)
No disciplinary action was taken against Plaintiff. (Id. ¶ 82.)
In addition to the above allegations, Plaintiff also alleges that the Department, “through
its final policymaking officials,” has aided Defendants in their retaliation against Plaintiff. (Id.
¶ 85.) Plaintiff also alleges that the Department “has adopted an unwritten policy to aid Olson,
Mueller[,] and Moran in retaliating against Plaintiff because of his union activity.” (Id. ¶ 86.)
B. Procedural Background
Plaintiff filed his Complaint on June 4, 2015. (See Compl. (Dkt. No. 1).) Following a
conference, (see Dkt. (minute entry for Sept. 9, 2015)), the Court entered an order setting forth
the schedule for Plaintiff’s Amended Complaint, (see Scheduling Order (Dkt. No. 17)). Plaintiff
filed his Amended Complaint on October 13, 2015. (See Am. Compl. (Dkt. No. 20).) Following
another conference, (see Dkt. (minute entry for Dec. 16, 2015)), the Court entered a briefing
schedule for Defendants’ Motions To Dismiss, (see Scheduling Order (Dkt. No. 25)). Pursuant
to the Court’s Order, all Parties filed their Motions and supporting papers on March 4, 2016.
(See Dkt. Nos. 26–34.) The Parties submitted supplemental letters discussing a recently-decided
Second Circuit case. (See Dkt. Nos. 35–37.) The Court held oral argument on December 8,
2016. (See Dkt. (minute entry for Dec. 8, 2016).)
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
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entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks
omitted). Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his] claims across the line from
conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P.
8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
“draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992
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F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145
(2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration to facts stated on the face of the complaint, in documents appended to
the complaint or incorporated in the complaint by reference, and to matters of which judicial
notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317
(S.D.N.Y. 2016) (same).
B. Discussion
All Defendants move for dismissal on the ground that Plaintiff has failed to state a claim
for retaliation in violation of the First Amendment. Mueller and Moran additionally argue that
they are entitled to qualified immunity, and the City of Yonkers argues that Plaintiff has failed to
adequately plead municipal liability. Because the issue of whether Plaintiff has stated a claim
under the First Amendment may be dispositive of the case, the Court will address that question
first.
1. Applicable Law
“In adjudicating the rights of public employees to speak without facing retaliation from a
government employer,” the Second Circuit has recently explained that “courts attempt ‘to arrive
at a balance between the interests of the employee, as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees.’” Lynch v. Ackley, 811 F.3d 569, 577 (2d Cir.
2016) (alteration omitted) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). In so
doing, “[c]ourts must weigh the employee’s speech interests against the government’s interest in
‘effective and efficient fulfillment of its responsibilities to the public, including promoting
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efficiency and integrity in the discharge of official duties, and maintaining proper discipline in
public service.’” Id. (alterations omitted) (quoting Lane v. Franks, 134 S. Ct. 2369, 2381
(2014)).
To that end, a plaintiff asserting a First Amendment retaliation claim must plausibly
allege that “(1) his speech or conduct was protected by the First Amendment; (2) the defendant
took an adverse action against him; and (3) there was a causal connection between this adverse
action and the protected speech.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d
Cir. 2011). To determine whether a public employee’s speech is protected, the Court must
engage in a two-step inquiry. First, the Court must determine “whether the 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) (internal quotation marks omitted) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418
(2006)). Within this first step, the Court must consider two additional 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.” Id. (some internal quotation
marks omitted). “If the answer to either question is no, that is the end of the matter.” Id. “If,
however, both questions are answered in the affirmative, the [C]ourt then proceeds to the second
step of the inquiry,” where it asks “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).
At this stage, the Parties dispute only whether Plaintiff’s speech or conduct was protected
under the First Amendment and whether any of Defendants took an adverse action against him.
With regard to whether Plaintiff’s speech or conduct was protected, the Parties do not reach the
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second step of the inquiry, and address only whether Plaintiff spoke as a private citizen on a
matter of public concern.
2. Private Citizen Speaking on Public Concern
The Parties dispute both whether Plaintiff spoke as a private citizen and whether he spoke
on a matter of public concern. Plaintiff seems to admit that the only speech at issue that could
give rise to protection under the First Amendment is his comments at the Yonkers PBA meetings
criticizing Commissioner Hartnett’s management of the Department. (See Pl.’s Mem. 11
(“[S]peech made by a public union official at a union meeting which is critical of management is
core union activity, and thus protected.”).1 Because the Court concludes that Plaintiff did not
speak as a private citizen, it need address only that issue.
In Matthews, the Second Circuit, relying on the Supreme Court’s decision in Garcetti,
held that in determining whether a public employee speaks as a citizen for First Amendment
purposes, the Court must ask: “(A) did the speech fall outside of the employee’s ‘official
responsibilities,’ and (B) does a civilian analogue exist?” 779 F.3d at 173.
The inquiry into whether a public employee spoke pursuant to his or her official duties is
“a practical one.” Weintraub v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 593 F.3d 196, 202
1
Earlier in the litigation, Plaintiff appeared poised to argue that statements he allegedly
made to two local newspapers were also protected speech. (See Letter from Clifford J. Bond,
Esq., to Court (Aug. 11, 2015) (Dkt. No. 11).) He has apparently abandoned that argument. (See
generally Pl.’s Mem.)
Separately, Plaintiff contended at oral argument that ¶ 15 of the Amended Complaint
identifies other instances of First Amendment speech that may have been protected. But ¶ 15
alleges only that “[f]rom January 2010 through January 2012, as Yonkers PBA Vice President,
Plaintiff criticized Olson’s leadership of the Yonkers PBA.” (Am. Compl. ¶ 15.) This allegation
offers no details on where these statements were made and, when pressed at oral argument,
Plaintiff’s counsel offered no specifics. Such a broad statement, devoid of any specifics, fails to
sufficiently allege protected speech. Cf. Kempkes v. Downey, No. 07-CV-1298, 2008 WL
852765, at *4 (S.D.N.Y. Mar. 31, 2008) (finding insufficient the plaintiff’s “general allegations
of unspecified protected speech”).
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(2d Cir. 2010) (internal quotation marks omitted). In making this determination, courts in the
Second Circuit “focus[] on the subject, manner, and context of the speech to determine whether
it relates to topics that are indispensable prerequisites to effective performance of the speaker’s
primary employment responsibility, and thus not entitled to First Amendment protection.”
Dillon v. Suffolk Cty. Dep’t of Health Servs., 917 F. Supp. 2d 196, 208–09 (E.D.N.Y. 2013)
(internal quotation marks omitted); see also Hagan v. City of New York, 39 F. Supp. 3d 481, 511
(S.D.N.Y. 2014) (holding that courts should consider whether “it is fair to say that the employer
would reasonably expect the expression and is therefore entitled to exercise control over its form
and content”). Speech may 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 Parties do not discuss whether Plaintiff’s statements were made pursuant to his
official duties. At this stage, the record does not contain any document showing what Plaintiff’s
official duties entailed, and thus the Court cannot say whether Plaintiff’s duties at the
Department were directly related to the comments made at the two Yonkers PBA meetings.
However, in Weintraub, the Second Circuit made clear that speech may be pursuant to a public
employee’s official duties so long as it is “‘part-and-parcel of his concerns’ about his ability to
‘properly execute his duties,’” 593 F.3d at 203 (quoting Williams v. Dall. Indep. Sch. Dist., 480
F.3d 689, 694 (5th Cir. 2007)), and clarified that an employee’s job description is not dispositive
of this question, see id. at 202–03.
Moreover, some courts have dismissed claims similar to Plaintiff’s on the ground that
comments by police officers regarding disputes with departmental policy or perceived issues in
the administration of the department are “part-and-parcel” of their official duties, insofar as
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management of the department impacts their ability to carry out their official duties. See Peone
v. County of Ontario, No. 12-CV-6012, 2013 WL 775358, at *8 (W.D.N.Y. Feb. 28, 2013)
(dismissing a claim where the plaintiff police officer had “complained . . . that [a superior] was
interfering with [his] ability to do [his] job[]” because “[i]n the context of [the plaintiff’s]
employment, such complaints are not protected speech”); Roman v. Velleca, No. 11-CV-1867,
2012 WL 4445475, at *9 (D. Conn. Sept. 25, 2012) (dismissing a claim because “the [p]laintiff,
a [d]etective in the Major Crimes Unit, does not have First Amendment protection for his speech
where he spoke out in protest against the manner in which the Unit was being operated,” and
noting that the complaint was “clear that [the] [p]laintiff’s alleged speech was made in his
capacity as a police officer and not as a citizen”); see also Carter v. Incorporated Village of
Ocean Beach, 693 F. Supp. 2d 203, 211 (E.D.N.Y. 2010) (granting summary judgment to the
defendants where “[a]ll of [the] plaintiffs’ complaints to their superiors . . . related to their
concerns about their ability to properly execute their duties as police officers”), aff’d, 415 F.
App’x 290 (2d Cir. 2011). And unlike the plaintiff in Matthews, who offered “policy-oriented
speech” that was “neither part of his job description nor part of the practical reality of his
everyday work,” 779 F.3d at 174, there is at least some indication in the Amended Complaint
that Plaintiff believed the cuts to which he objected would affect the day-to-day operations of
police officers, (see Am. Compl. ¶ 17 (“Plaintiff stated that the cuts were bad for the police
force, bad for members of the PBA[,] and bad for the community.”)).
Nevertheless, the Court is not persuaded that the mere fact that the criticisms of
Commissioner Hartnett may have related in some tangential way to Plaintiff’s daily workload is
dispositive of the issue. Unlike the comments made by the plaintiff in Weintraub, which related
to the plaintiff’s daily task of managing the students in his classroom, Plaintiff’s complaints
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about the management of the Department are only generally related to his daily tasks. See
Garcetti, 547 U.S. at 421 (noting that although the speech at issue “concerned the subject matter
of [the plaintiff’s] employment, . . . this, too, [was] nondispositive” because “[t]he First
Amendment protects some expressions related to the speaker’s job”). The Amended Complaint
goes no further than to say that Plaintiff was concerned that the cuts proposed by Commissioner
Hartnett would be detrimental to the Department and to the Yonkers PBA—it does not indicate
what specific impact the cuts would have on Plaintiff. Accordingly, while the Court finds it
relevant that Plaintiff spoke on issues related to the management of the Department, that
determination is far from dispositive.
More critical in this case is whether a civilian analogue exists. The Second Circuit has
explained that “[s]peech has a ‘relevant civilian analogue’ if it is made through ‘channels
available to citizens generally.’” Matthews, 779 F.3d at 175 (quoting Jackler v. Byrne, 658 F.3d
225, 238 (2d Cir. 2011)). While the lack of a civilian analogue is “not dispositive,” “it does bear
on the perspective of the speaker—whether the public employee is speaking as a citizen—which
is the central issue.” Weintraub, 593 F.3d at 204 (internal quotation marks omitted).
The Second Circuit has offered some guidance on how to determine whether a civilian
analogue exists, and four cases in particular shed some light on the issue.
In Weintraub, the plaintiff was a public school teacher who had filed a grievance through
his union expressing displeasure with the school’s failure to discipline a student who had
allegedly assaulted him. 593 F.3d at 198–99. The Second Circuit concluded that there was no
civilian analogue, and no First Amendment protection, because “[t]he lodging of a union
grievance is not a form or channel of discourse available to non-employee citizens,” and
emphasized that “[r]ather than voicing his grievance through channels available to citizens
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generally, [the plaintiff] made an internal communication pursuant to an existing disputeresolution policy established by his employer.” Id. at 204. The Second Circuit added that the
plaintiff “could only speak in the manner that he did by filing a grievance with his teacher’s
union as a public employee,” and that “[h]is grievance filing, therefore, lacked a relevant
analogue to citizen speech and ‘retained no possibility’ of constitutional protection.” Id.
(alteration omitted) (quoting Garcetti, 547 U.S. at 423).
In Jackler, the plaintiff, a police officer, had refused to withdraw or alter, at the request of
his supervisors, a supplemental report that cast a member of the police department in a negative
light. 658 F.3d at 231. The Second Circuit thought it “clear” that the plaintiff’s refusal to file a
false report had a civilian analogue because “a citizen has a First Amendment right to decide
what to say and what not to say, and, accordingly, the right to reject governmental efforts to
require him to make statements he believes are false.” Id. at 241. The court pointed out that one
“indicium that speech by a public employee has a civilian analogue is that the employee’s speech
was to ‘an independent state agency’ responsible for entertaining complaints by ‘any citizen in a
democratic society regardless of his status as a public employee,” and observed that “[a] police
department plainly is such an agency.” Id. (some internal quotation marks omitted) (quoting
Weintraub, 593 F.3d at 204). The court then went on to conclude that “a citizen who has
truthfully reported a crime has the indisputable right to reject pressure from the police to have
him rescind his accusation and falsely exculpate the accused.” Id.
The Second Circuit again addressed the issue in Ross v. Breslin, 693 F.3d 300 (2d Cir.
2012). There, the plaintiff complained to her supervisor’s boss and an outside consultant about
allegedly improper disbursements being made. Id. at 303. The Second Circuit instructed that in
determining whether a plaintiff was speaking as a private citizen, “[c]ourts must examine the
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nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship
between the two,” adding that “[o]ther contextual factors, such as whether the complaint was
also conveyed to the public, may properly influence a court’s decision.” Id. at 306. The Second
Circuit held that because the plaintiff’s testimony “ma[de] plain that reporting pay irregularities
to a supervisor was one of her job duties,” her statements were not entitled to First Amendment
protection. Id. But the Second Circuit went on to “emphasize that [its] holding that [the
plaintiff’s] speech was unprotected d[id] not rest on the fact that her speech was made in the
workplace as opposed to elsewhere,” because “[s]peech to a supervisor even in the workplace
can be protected as that of a private citizen if it is not made pursuant to the employee’s official
duties as an employee.” Id. at 307.
Finally, in Matthews, the plaintiff, a police officer, spoke with his superiors and
expressed his concern that an arrest quota policy was damaging the police department’s core
mission. 779 F.3d at 169–70. The Second Circuit, enunciating for the first time the two
inquiries relevant to deciding whether a public employee was speaking as a private citizen,
determined that a civilian analogue did exist in that case because the plaintiff “chose a path that
was available to ordinary citizens who are regularly provided the opportunity to raise issues with
the [p]recinct commanders.” Id. at 176. The court pointed to facts showing that one of the
plaintiff’s supervisors regularly attended monthly community council meetings (open to
members of the community), and another supervisor met with members of the community three
times a month to discuss issues in the precinct. Id. The Second Circuit dismissed the district
court’s conclusion that no civilian analogue existed because the plaintiff “could speak to the
officers ‘more readily, more frequently, and more privately than could an average citizen,’”
saying that it did “not consider the relative degree of access to be material; rather what matters is
17
whether the same or a similar channel exists for the ordinary citizen.” Id. (quoting Matthews v.
City of New York, 957 F. Supp. 2d 442, 465 (S.D.N.Y. 2013)).
Defendants argue here that because the Yonkers PBA meetings were closed to the
general public, Plaintiff’s mode of speech had no civilian analogue. Plaintiff did not allege that
the Yonkers PBA meetings were public, and assuming Defendants’ assertion that the meetings
were closed to the public, which Plaintiff admitted at oral argument and does not dispute in his
papers, is accurate, then Defendants are correct that this is not a case where “a public employee
[took] his job concerns to persons outside the work place in addition to raising them up the chain
of command at his workplace.” Carter, 693 F. Supp. 2d at 211 (internal quotation marks
omitted). Nor is this an instance where a plaintiff “made . . . statements as ‘internal
communications’ between employee and supervisor.” Dingle v. City of New York, No. 10-CV-4,
2011 WL 2682110, at *5 (S.D.N.Y. July 7, 2011) (footnote omitted). The circumstances here,
instead, are more akin to those in Weintraub, where the plaintiff communicated his grievance
with management through the union. See 593 F.3d at 199. As the Second Circuit stated there,
“[t]he lodging of a union grievance is not a form or channel of discourse available to nonemployee citizens.” Id. at 204; see also Whitehead v. City of New York, 953 F. Supp. 2d 367,
376 (E.D.N.Y. 2012) (“[The] plaintiff’s participation in the quota policy arbitration is not
protected by the First Amendment because he did not publicly testify and was only able to
participate in the arbitration because of his position as a police officer.”). A public employee, it
follows, “[is] not speaking as a private citizen in communications with his union representative.”
Dingle, 2011 WL 2682110, at *6. While Plaintiff did not communicate with his union
representative in the same way the plaintiff in Weintraub did, it is undisputed that Plaintiff’s
18
complaints about management, like those levied in Weintraub, were made exclusively in a closed
forum to a union official.
Plaintiff objects that in Weintraub, the plaintiff’s “grievance was not protected activity
because it was ‘part-and-parcel of his concerns’ about his ability to ‘properly execute his duties,
as a public school teacher.’” (Pl.’s Mem. 12–13 (alteration omitted) (quoting Weintraub, 593
F.3d at 203).) Though this observation is partially correct, it addresses only one of the two
considerations that inform whether a public employee speaks as a private citizen: whether the
speech addressed issues within the employee’s official responsibilities. See Matthews, 779 F.3d
at 175. Plaintiff does not argue that the portion of Weintraub, cited by Defendants, concerning
whether a civilian analogue mode of speech exists is inapposite here. And although Weintraub
involved the filing of a grievance—whereas here, Plaintiff vocalized his criticisms at a union
meeting—this distinction is immaterial: both the plaintiff in Weintraub and Plaintiff here
expressed their displeasure with management through their union in a forum not available for use
by ordinary citizens. Indeed, both here and in Weintraub, ordinary citizens were not even
permitted to listen in on or otherwise gain access to the complaints levied.
Additionally, the only court to address this precise issue has concluded that speaking out
at a closed union meeting does not implicate the First Amendment. See Nadolecki v. William
Floyd Union Free Sch. Dist., No. 15-CV-2915, 2016 WL 4768823, at *7 (E.D.N.Y. July 6, 2016)
(dismissing complaint where the plaintiff’s comments “were . . . all made through official
communications and established institutional channels” and the plaintiff “made complaints at
[u]nion meetings which only teachers were invited to” (internal citations and quotation marks
omitted)), adopted by 2016 WL 4766268 (E.D.N.Y. Sept. 13, 2016); cf. Brady v. County of
Suffolk, 657 F. Supp. 2d 331, 344 (E.D.N.Y. 2009) (noting as relevant the fact that the plaintiff
19
had made the statements at issue only “verbally during [two] meetings” and directed them “to the
supervisors who were present at the meetings”). In light of the factual similarities between the
grievance filed in Weintraub and the complaints asserted here, the lack of public access to the
Yonkers PBA meetings, and the lack of any allegations suggesting that public citizens could
have aired their grievances regarding management of the Department in the same way Plaintiff
did, the Court holds that Plaintiff’s exercise of speech here did not have a civilian analogue.
This conclusion, however, does not resolve the case, as the Second Circuit instructed in
Weintraub that the lack of a civilian analogue is “not dispositive.” Weintraub, 593 F.3d at 204;
see also Carter, 693 F. Supp. 2d at 212 (“No one factor has been found to be dispositive in
ascertaining whether a public employee was speaking as a citizen for First Amendment
purposes.”). Complicating this inquiry is the fact that in Weintraub, where the Second Circuit
held that no First Amendment protection was afforded to the plaintiff’s speech, the court
concluded that the public employee there was speaking on issues related to their official
responsibilities and that there was no available civilian analogue. See 593 F.3d at 203 (holding
that the plaintiff’s “speech challenging the school administration’s decision to not discipline a
student in his class was a means to fulfill, and undertaken in the course of performing, his
primary employment responsibility of teaching,” and adding that its conclusion on this point was
“supported by the fact that [the plaintiff’s] speech ultimately took the form of an employee
grievance, for which there is no relevant citizen analogue” (citations and internal quotation
marks omitted)). And courts in the Second Circuit are split about whether Matthews, which
clarified the two-part inquiry, abrogated the statement in Weintraub that neither factor is
dispositive. Compare Brown v. Office of State Comptroller, — F. Supp. 3d —, 2016 WL
5745090, at *7 (D. Conn. Sept. 29, 2016) (“After Weintraub, the availability of a civilian
20
analogue was seen as relevant to, but not dispositive of, whether an employee spoke as a citizen.
However, the recent decision in Matthews [] makes it clear that the existence of a civilian
analogue is typically a prerequisite to a holding that the employee was speaking as a citizen.”
(citations omitted)), appeal filed, No. 16-3615 (2d Cir. Oct. 26, 2016), with Buttaro v. City of
New York, No. 15-CV-5703, 2016 WL 4926179, at *9 n.5 (E.D.N.Y. Sept. 15, 2016) (citing
Weintraub for the proposition that “the lack of a citizen analogue is not dispositive” and
emphasizing that Matthews held only that the lack of a civilian analogue “reinforce[d]” the
Second Circuit’s conclusion that the plaintiff spoke as a citizen (internal quotation marks
omitted)), and McGuire v. City of New York, No. 12-CV-814, 2015 WL 8489962, at *4
(E.D.N.Y. Dec. 8, 2015) (noting that the “Second Circuit has set forth a number of factors that
may guide district courts in conducting this inquiry”).
Nothing in Matthews suggests that the Second Circuit intended to abrogate the
unremarkable comment in Weintraub that neither factor is dispositive, or the statement in Ross
that “[c]ourts must examine the nature of the plaintiff’s job responsibilities, the nature of the
speech, . . . the relationship between the two[,] . . . . [and] [o]ther contextual factors, such as
whether the complaint was also conveyed to the public.” 693 F.3d at 306. In clarifying the two
factors that courts must consider to determine whether a public employee spoke as a private
citizen, the Second Circuit in Matthews cited to Weintraub, see 779 F.3d at 173, and offered no
indication that Weintraub (or Ross) was no longer good law. The Court is therefore not
persuaded that Matthews made the unavailability of a civilian analogue the dispositive inquiry.
The Court is thus left with the question of whether, considering the content and
circumstances of the speech, it can be said that Plaintiff was speaking as a private citizen. On
this question, the Court finds it relevant that although it is alleged that Commissioner Hartnett
21
learned of Plaintiff’s comments disapproving of the proposed cuts, (see Am. Compl. ¶ 19),
Plaintiff never actually communicated that disapproval to Commissioner Hartnett, raising the
issue only at the Yonkers PBA meeting, (see id. ¶¶ 16–17). While Olson argues that “the
purpose behind [Plaintiff’s] speech was not to address matters of public concern, but to address
matters that affected [P]laintiff’s ambitions within the [Yonkers] PBA,” (Olson’s Mem. 13), the
Court is not prepared to speculate at this stage as to Plaintiff’s motivations for his conduct.
Nevertheless, that Plaintiff chose to voice his complaints in a nonpublic meeting, to which only
union members were invited, and not to Commissioner Hartnett himself (or any other
Department employee in a supervisory or decisionmaking role) counsels against finding that
Plaintiff acted as a private citizen in voicing his complaints. See Harisch v. Goldberg, No. 14CV-9503, 2016 WL 1181711, at *8 (S.D.N.Y. Mar. 25, 2016) (“The secrecy of [the meeting
where the plaintiff spoke], exclusively attended by [t]own employees and dedicated to discussing
other [t]own employees’ abuse of [t]own policies, further indicates that the speakers at the
meeting were not speaking as citizens.”); Palmer v. Penfield Cent. Sch. Dist., 918 F. Supp. 2d
192, 198 (W.D.N.Y. 2013) (“[E]xpression of one’s opinions to ‘a limited audience weighs
against a claim of protected speech.’” (alterations omitted) (quoting Desrochers v. City of San
Bernardino, 572 F.3d 703, 714 (9th Cir. 2009))
Plaintiff objects that it is clear from the facts alleged that Commissioner Hartnett did, in
fact, know of Plaintiff’s concerns. (See Pl.’s Mem. 10–11.) That is not the inquiry. In
Weintraub, the plaintiff’s supervisors knew of the plaintiff’s complaints about the
administration—indeed, that case concerned the filing of a grievance through the union, which
was directed at the plaintiff’s supervisors. See Weintraub, 593 F.3d at 199. Still, the Second
Circuit held that there was no civilian analogue because the plaintiff “made an internal
22
communication pursuant to an existing dispute-resolution policy established by his employer.”
Id. at 204. It is not dispositive, nor even relevant, that Plaintiff’s supervisors learned of his
criticisms—the First Amendment does not attach to a public employee’s comments made in a
closed environment merely because the substance of those comments is subsequently leaked to a
superior. To hold otherwise would suggest that Plaintiff’s speech was not protected when he
made it, but became protected once Commissioner Hartnett learned of it. Such a proposition has
no basis in the law.
Because Plaintiff’s speech lacked any civilian analogue, and because Plaintiff’s speech,
made behind closed doors outside the presence of both the public and Commissioner Hartnett,
was at least tangentially related to his official duties, the Court is persuaded that no First
Amendment protection attached to Plaintiff’s comments at the two Yonkers PBA meetings.
Plaintiff spoke at a closed forum, unavailable to ordinary citizens and made available to him only
by virtue of his status as a police officer. See Whitehead, 953 F. Supp. 2d at 376 (“[The]
plaintiff’s participation in the quota policy arbitration is not protected by the First Amendment
because he did not publicly testify and was only able to participate in the arbitration because of
his position as a police officer.”). The issues on which he spoke, though not directly related to
his official duties, did implicate the exercise of his official duties, and thus, considering the
“nature of . . . [P]laintiff’s job responsibilities, the nature of the speech, and the relationship
between the two,” as well as “[o]ther contextual factors,” Ross 693 F.3d at 306, the Court
concludes that Plaintiff was not speaking as a private citizen when he spoke out at the Yonkers
PBA meetings.
In opposition, Plaintiff relies almost exclusively on the Second Circuit’s decision in Clue
v. Johnson, 179 F.3d 57 (2d Cir. 1999). There, the plaintiffs were members of a minority faction
23
within the union and sought to oust union leadership because of their belief that union leaders
were colluding with management. See id. at 59. To that end, the plaintiffs (1) handed out
leaflets and flyers, (2) distributed a newsletter supporting their cause, and (3) obtained signatures
on a petition to recall certain union leaders. See id. The plaintiffs filed a claim alleging they
were retaliated against for their activities on behalf of the minority faction, and the supervisory
defendant sought to avoid liability by arguing that activities on behalf of a minority union
faction, rather than on behalf of the union itself, were not protected by the First Amendment. See
id. at 60. The Second Circuit disagreed, stating that although “[t]here may well be intraunion
disputes that do not raise enough of a public concern to trigger First Amendment protection,”
“activities on behalf of a union faction that necessarily entail a substantial criticism of
management raise matters of public concern under Connick [v. Myers, 461 U.S. 138 (1983)].”
Id. at 61. Cited by Plaintiff here is the Second Circuit’s pronouncement that “[t]here is no doubt
that retaliation against public employees solely for their union activities violates the First
Amendment.” Id. at 60.
Plaintiff’s reliance on Clue is unavailing. At issue in Clue was the question of whether
the plaintiffs’ speech implicated matters of public concern, one of two steps involved in
determining whether a public employee spoke as a private citizen on a matter of public concern.
See Matthews, 779 F.3d at 172. But although Defendants argue that Plaintiff did not speak on a
matter of public concern, (see City Defs.’ Mem. 9–12; Olson Mem. 13–17), a point on which
Clue is instructive, they also argue, and the Court agrees, see supra, that Plaintiff did not speak
as a private citizen, obviating any need to even address whether Plaintiff spoke on a matter of
public concern. Indeed, the fact that Plaintiff makes no attempt in his briefing to explain why his
24
speech was made as a private citizen—he does not even cite to Matthews—is itself telling of the
strength of the Parties’ respective positions on this point.
It is no answer to point to Clue’s broad language that “[t]here is no doubt that retaliation
against public employees solely for their union activities violates the First Amendment.” 179
F.3d at 60. First, Clue was decided several years before Garcetti, which clarified what is meant
when a public employee speaks as a private citizen. See Garcetti, 547 U.S. at 421–22. And it
was not until later, in Weintraub, Jackler, Ross, and Matthews, that the Second Circuit offered an
interpretation of Garcetti and set forth the two-factor test that now controls. In none of those
cases did the Second Circuit suggest that Clue carved out an exception to the rule in Garcetti for
public employees engaging in union activities, and, in fact, the Second Circuit did not even cite
to Clue in its decision in Weintraub, which involved the filing of a grievance through a union.
Second, the Second Circuit has since clarified that, even with respect to the issue of whether a
public employee is speaking on a matter of public concern, Clue should not be read as broadly as
Plaintiff suggests. See Lynch, 811 F.3d at 582 (“Though the court [in Clue] said in dicta that
‘retaliation solely for union activity clearly raises a public concern under Connick,’ it obviously
did not mean that all activities undertaken through a union necessarily become matters of public
concern merely by virtue of their collateral connection to the union.” (citation omitted) (quoting
Clue, 179 F.3d at 61)); see also Borough of Duryea v. Guarnieri, 564 U.S. 379, 398 (2011) (“A
petition filed with an employer using an internal grievance procedure in many cases will not seek
to communicate to the public or to advance a political or social point of view beyond the
employment context.”).
Plaintiff further objects that “[b]y [the] defendants’ reasoning, no public employee’s
union activity would be protected, except for perhaps television appearances and letters to the
25
editor, because the employee could only be a union member or union official by virtue of his
employment.” (Pl.’s Mem. 11.) But Plaintiff’s speech is not unprotected merely because it was
made in private, see Garcetti, 547 U.S. at 420 (“That [the plaintiff] expressed his views inside
his office, rather than publicly, is not dispositive. Employees in some cases may receive First
Amendment protection for expressions made at work.”), rather, it is unprotected because it was
made in a mode for which no civilian analogue exists and it touched, albeit only partially, on
matters related to Plaintiff’s official duties as a police officer. Public employees need not seek
out media attention to receive First Amendment protection, but they do need to exercise their
free speech rights in a forum for which a civilian analogue exists. In Clue, for instance, the
plaintiffs handed out flyers, distributed a newsletter, and solicited signatures for a petition. 179
F.3d at 59. These actions all have obvious civilian analogues, as any private citizens may hand
out flyers, distribute newsletters, or solicit support for a petition. But where, as here, a public
employee speaks out behind closed doors (closed to the public and to management) on issues
related to their employment, the Second Circuit has indicated that no First Amendment
protection attaches.
Finally, Plaintiff’s complaint that an adverse decision would leave him with no effective
recourse is unpersuasive. If Plaintiff is facing retaliation by a union leader because of comments
made at a union meeting, Congress has already offered protection for such speech. See 29
U.S.C. § 411(a)(2) (“Every member of any labor organization shall have the right . . . to express
at meetings of the labor organization his views . . . .”); see also Maddalone v. Local 17, United
Bhd. of Carpenters, 152 F.3d 178, 183 (2d Cir. 1998) (“[The Labor Management Reporting and
Disclosure Act] protects a member from being fined, suspended, expelled or ‘otherwise
disciplined’ for exercising any right guaranteed by [29 U.S.C. § 411] . . . .”). That Plaintiff has
26
withdrawn his claim under the Labor Management Reporting and Disclosure Act—either for
strategic reasons or because he is ineligible for protection by virtue of his expulsion and the state
court judgment affirming that expulsion—does not entitle him to additional First Amendment
rights. And if his complaint is that the Yonkers PBA and the Department are so corrupt and
mismanaged as to create an unbearable work environment, his recourse is not through § 1983,
but through conventional avenues of workplace reconciliation. See Rivera v. Brooklyn Hosp.
Med. Ctr., 28 F. Supp. 3d 159, 162 (E.D.N.Y. 2014) (“[A]n employer has no obligation to insure
a pleasant work environment . . . .”).
The Court thus concludes that, assuming all factual allegations in the Amended
Complaint as true, Plaintiff’s comments at the Yonkers PBA meetings were not made in
Plaintiff’s capacity as a private citizen, and thus were not protected by the First Amendment.2
Because this issue is dispositive of the case, the Court declines to consider whether Plaintiff
spoke on a matter of public concern, whether he suffered an adverse employment action, or
whether he has otherwise stated a claim for municipal liability pursuant to Monell v. Department
of Social Services of City of New York, 436 U.S. 658 (1978).3 The Court similarly declines to
consider whether the individual Defendants are entitled to qualified immunity.
2
Though Plaintiff argued in his opposition papers only that his comments criticizing
management were protected by the First Amendment, the analysis applied above would apply
with equal force to those comments made by Plaintiff that were critical of Olson’s leadership.
3
Although the Court has no occasion to weigh in on whether Plaintiff’s speech
implicated matters of public concern, the allegations in ¶ 15 of the Amended Complaint related
to Plaintiff’s criticism of Olson’s leadership plainly do not implicate a public concern. See Heil
v. Santoro, No. 94-CV-9109, 1997 WL 102451, at *4 (S.D.N.Y. Feb. 28, 1997) (“A public
employee’s speech on matters of purely personal or internal office affairs does not constitute a
matter of public concern and is therefore not entitled to constitutional protection.”); see also
Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir. 2008) (“The heart of the matter is
whether the employee’s speech was ‘calculated to redress personal grievances or whether it had a
broader public purpose.’” (quoting Lewis v. Cowen, 165 F.3d 154, 163–64 (2d Cir. 1999)).
Whether the allegations in ¶¶ 16 and 17, discussing Plaintiff’s opposition to cuts that were
27
C. Dismissal With Prejudice
A complaint should be dismissed without prejudice if the pleading, “‘liberally read,’
suggests that the plaintiff has a claim that [s]he has inadequately or inartfully pleaded and that
[s]he should therefore be given a chance to reframe.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (alterations and citation omitted) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d
794, 795 (2d Cir. 1999)). If a complaint, however, has substantive problems and “[a] better
pleading will not cure [them],” “[s]uch a futile request to replead should be denied.” Id. (citing
Hunt v. All. N. Am. Gov’t Income Tr., 159 F.3d 723, 728 (2d Cir. 1998)). Courts are especially
wary of giving plaintiffs multiple “bites at the apple” where a plaintiff has already been granted
leave to amend. See Anthony v. Brockway, No. 15-CV-451, 2015 WL 5773402, at *3 (N.D.N.Y.
Sept. 30, 2015) ([The] [p]laintiff has already been given one opportunity to amend his complaint
. . . , and there is nothing in his second amended complaint suggesting that [he] could do better
given another opportunity.”); Al-Qadaffi v. Servs. for the Underserved (SUS), No. 13-CV-8193,
2015 WL 585801, at *8 (S.D.N.Y. Jan. 30, 2015) (denying leave to amend where “[the plaintiff]
has already had one chance to amend his [c]omplaint, and there is still no indication that a valid
claim might be stated if given a second chance”), aff’d, 632 F. App’x 31 (2d Cir. 2016); Bui v.
Indus. Enters. of Am., Inc., 594 F. Supp. 2d 364, 373 (S.D.N.Y. 2009) (dismissing an amended
complaint with prejudice where the plaintiff failed to cure the deficiencies identified in his initial
complaint despite “being given ample opportunity to do so”).
Here, Plaintiff has already amended his Complaint. There is no reason to suspect that,
given another opportunity to amend, Plaintiff will be able to cure the substantive deficiencies
allegedly “bad for the community,” implicate a public concern presents a closer question that
need not be confronted here.
28
here. Plaintiffs counsel admitted as much at oral argument, conceding that Plaintiff was already
on his second complaint and that a second amendment would this far into the case would be
unusual. The Court also find s it relevant that Plaintiff, in filing his Amended Complaint,
removed factual detail from the original Complaint. (Compare Compl., with Am . Compl.) To
allow Plaintiff to now go back yet again and reinsert or add factual material that, in Plaintiffs
judgment, was not appropriate for inclusion in the Amended Complaint would give too much
leeway to a party who, represented by able counsel, has never expressed before that another
amendment was needed. Moreover, when pressed at oral argument as to what other protected
statements ~
15 of the Amended Complaint may allude, Plaintiffs counsel could not adduce a
single example of protected speech that could have been, but was not, pleaded in the Amended
Complaint. In such circumstances, the Court is not inclined to give Plaintiff yet another bite at
the burrito. Dismissal is therefore with prejudice.
III. Conclusion
For the foregoing reasons, the Motion is granted with prejudice. The Clerk of Court is
respectfully requested to terminate the pending Motions (Dkt. Nos. 26, 29) and close the case.
SO ORDERED.
DATED:
Decemberd.-0 , 2016
White Plains, New York
KENNETH M. KARAS
UNITED STATES DISTRICT JUDG E
29
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