Cole- Hatchard v. Hoehmann et al

Filing 43

OPINION AND ORDER. The motion to dismiss is GRANTED as to plaintiff's claims for prospective interference with speech, violation of due process, violation of the New York Labor Law, and common law defamation. The motion is DENIED as to plaintiff 's claims for retaliation against speech and association and violation of equal protection. By separate order, the Court will schedule an initial conference. The Clerk is directed to terminate the motion. (Doc. #34). So ordered. re: 34 MOTI ON to Dismiss Amended Complaint filed by George Hoehmann, Town of Clarkstown, New York, Frank Borelli, John J. Noto, Town Board Of The Town Of Clarkstown, New York, Stephanie Hausner, Adrienne D. Carey. (Signed by Judge Vincent L. Briccetti on 9/15/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
STEPHEN COLE-HATCHARD,
:
Plaintiff,
:
:
v.
:
:
GEORGE HOEHMANN, as Supervisor for the
:
Town of Clarkstown, New York, and in his
:
individual capacity;
:
FRANK BORELLI, as Councilman and Deputy
:
Supervisor for the Town of Clarkstown, New
:
York, and in his individual capacity;
:
STEPHANIE HAUSNER, as Councilwoman for
:
the Town of Clarkstown, New York, and in her
:
individual capacity;
:
JOHN J. NOTO, as Councilman for the Town of
:
Clarkstown, New York, and in his individual
:
capacity;
:
ADRIENNE D. CAREY, as Councilwoman for
:
the Town of Clarkstown, New York, and in her
:
individual capacity;
:
TOWN OF CLARKSTOWN, NEW YORK; and :
TOWN BOARD OF THE TOWN OF
:
CLARKSTOWN, NEW YORK,
:
Defendants.
:
---------------------------------------------------------------x

OPINION AND ORDER
16 CV 5900 (VB)

Briccetti, J.:
Plaintiff Stephen Cole-Hatchard brings this action pursuant to 42 U.S.C. § 1983 and state
law against defendants George Hoehmann, town supervisor for the Town of Clarkstown, New
York (the “town”); Frank Borelli, the town’s deputy supervisor and a member of the town board;
town board members Stephanie Hausner, John J. Noto, and Adrienne D. Carey; the town itself;
and the town board (the “board”). The amended complaint claims defendants violated plaintiff’s

1

constitutional rights to free speech, due process, free assembly, and equal protection, violated the
New York Labor Law, 1 and committed common law defamation against plaintiff.
Before the Court is defendants’ motion to dismiss the amended complaint under Rule
12(b)(6). (Doc. #34).
For the following reasons, defendants’ motion is GRANTED in part and DENIED in
part.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and § 1367(a).
BACKGROUND
In deciding the pending motion, the Court accepts as true all well-pleaded factual
allegations in the amended complaint and draws all reasonable inferences in plaintiff’s favor. As
noted below, the Court also relies on several documents that are “integral to the complaint.”
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal quotation omitted).
Plaintiff worked for the Clarkstown Police Department (the “department”) for thirty-two
years, attaining the rank of detective sergeant. Plaintiff claims defendants stripped him of
significant job responsibilities and effectively forced him to resign on September 4, 2016, in
retaliation for comments plaintiff made to a reporter about defendants’ campaign financing.
In June 2014, plaintiff was “selected” by the Rockland County District Attorney to be the
director of the Strategic Intelligence Unit (“SIU”) (Am. Compl. ¶ 31), a “very prestigious”
position. (Id. 95). The SIU “prepares criminal intelligence work product for numerous local,
State, and Federal agencies for the protection of national security, as well as for regional and
local counter-terrorist and criminal investigative purposes.” (Id. ¶ 32). The SIU’s operations

1

Plaintiff concedes his claim under New York Labor Law is now moot. (Pl.’s Br. at 27).
2

address both “terrorist activities” (id. ¶ 34), and “criminal activity in the Town of Clarkstown,
the County of Rockland, and other areas as requested by partner agencies.” (Id. ¶ 35).
Before the incidents described in the amended complaint, plaintiff’s responsibilities
within the department also included “communicating with news media on behalf of the
[d]epartment, and the responsibility for addressing many of the requests for information made to
the [d]epartment pursuant to the New York State Public Officers Law.” (Am. Compl. ¶ 37).
From March 16 through March 28, 2016, plaintiff corresponded via email with Steven
Lieberman, a local newspaper reporter, regarding a story Lieberman was writing about campaign
financing. Plaintiff used his department email address to conduct this correspondence, but
claims he was “off the clock and at home when virtually all of the email exchanges occurred.”
(Am. Compl. ¶ 60). Plaintiff claims this exchange was unrelated to his law enforcement duties.
According to the amended complaint, in October 2015, a terminated Clarkstown police
officer made large, illegal donations to the campaigns of Hoehmann, Borelli, Noto, and the
Rockland County Republican Party. Allegedly, Lieberman had examined public records and
concluded certain donations to Hoehmann and the Republican Party were improper. Plaintiff
claims Lieberman asked him via email whether, in his opinion as a former elected official, 2
plaintiff agreed with Lieberman’s conclusion. Plaintiff’s response indicated he did agree.
On March 28, 2016, Lieberman also asked plaintiff via email about a confidential
disciplinary proceeding against a Clarkstown police officer, to whom the parties refer as “Officer
P.” Lieberman wrote, “Aside: What’s up with P[]? Is he out?” (Loomba Decl. Ex. C). Plaintiff
responded, “721-0774 Don[’]t want an email on that[.]” (Id.). Plaintiff’s response included the
email signature, “Sgt. Stephen J. Cole-Hatchard, Director, Rockland County Strategic

2

Plaintiff previously held elected positions in a neighboring town and on a school board.
3

Intelligence Unit, Clarkstown Police Department.” (Id.) Plaintiff claims he “declined to discuss
that matter” with Lieberman (Am. Compl. ¶ 64) and “did not disclose or discuss any confidential
information or data related to the Town of Clarkstown Police Department.” (Id. ¶ 62). Plaintiff
further asserts he could not have disclosed any such information because, at the time, no internal
affairs information or investigative records for the proceeding against Officer P yet existed.
On June 29, 2016, the department’s chief, Michael Sullivan, served plaintiff with a
written Notice of Internal Investigation, indicating Hoehmann, Borelli, Noto, Carey, Hausner,
and the board had accused plaintiff of communicating with a reporter about Officer P’s pending
disciplinary matter. That afternoon, Chief Sullivan questioned plaintiff about the accusation.
Plaintiff admitted he had communicated with the media about the department generally, but
denied disclosing any information to anyone about Officer P’s disciplinary matter.
On July 1, 2016, Hoehmann sent Chief Sullivan a memorandum, copying Borelli,
Hausner, Noto, and Carey, among others. According to the memorandum, it was “clear that
there was an email exchange and a suggestion that [Plaintiff] and the Reporter would have
further dialogue over [Officer P’s] status.” (Loomba Decl. Ex. F). The memorandum directed
plaintiff’s “immediate reassignment today out of the [SIU] to other duties appropriate to his
status and rank as a detective sergeant within [department headquarters]” and ordered that
plaintiff “is not to have any duties that place him in contact with members of the press and
media, either direct or indirect.” (Id.). Although the amended complaint claims the
memorandum “prohibit[s] [plaintiff] from having any communications with the media in any
form or fashion” (Am. Compl. ¶ 88), the memorandum does not mention private
communications with media outside of work.

4

Plaintiff alleges defendants used his email exchange regarding Officer P as a pretext for
retaliating against plaintiff for his comments to Lieberman about defendants’ campaign
financing. Plaintiff claims Hoehmann already knew the complaint against plaintiff was “without
foundation” when he sent the July 1 memorandum to Chief Sullivan. (Am. Compl. ¶ 85).
Plaintiff alleges the July 1 memorandum was nevertheless placed in plaintiff’s personnel file and
was “reported to news agencies including but not limited to a Facebook page” operated by an
entity that supports the “electoral aspirations” of Hoehmann, Borelli, Noto, and Carey. (Id. ¶
86).
Based on the July 1 memorandum, plaintiff alleges he was “demoted” from the SIU
directorship; “stripped of numerous other long-time responsibilities with the Police Department;
transferred back to police headquarters with no specific duties given; and prohibited from
speaking or communicating with the press ‘directly or indirectly.’” (Am. Compl. ¶ 95).
On July 29, 2016, a local newspaper allegedly quoted Hoehmann’s chief of staff saying,
“When [plaintiff] got caught leaking information about a current officer, he made up a fantastical
story about political retribution to cover himself.” (Am. Compl. ¶ 155). On August 1, 2016,
Hoehmann allegedly went on a Rockland County radio station and said plaintiff had leaked
confidential information about another police officer to the media.
In August, the department’s internal affairs investigation allegedly exonerated plaintiff of
leaking Officer P’s confidential information. Defendants received the complete written report
from the investigation on August 12, 2016. Plaintiff learned of his exoneration on August 17.
Plaintiff claims defendants continued to make public, false accusations against him.
Between August 17 and September 1, 2016, defendants allegedly accused him of “illegal
political espionage; illegally surveilling and investigating a judge; illegally surveilling and

5

investigating a sheriff; abusing department owned asse[ts]; racial surveillance; racial profiling;
illegally violating intelligence guidelines, including 28 C.F.R. 23; and illegally monitoring
civilians expressing a dislike towards police.” (Am. Compl. ¶ 99 (internal quotation marks
omitted)). Defendants made some of these accusations in counterclaims against plaintiff in a
separate lawsuit in which plaintiff was not initially a party. (Ranni Decl. Ex. E). Defendants
also allegedly “‘leaked’ and caused to be published false and defamatory allegations that
Plaintiff improperly deleted files while under ‘investigation.’” (Am. Compl. ¶ 93).
Plaintiff claims defendants’ actions caused him to resign and retire on September 4, 2016.
DISCUSSION
I.

Legal Standard
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative

complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff’s legal conclusions and “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,” are not entitled
to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678.
Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Id. at 678. A claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

6

II.

Free Speech Claim
Plaintiff’s free speech claim actually contains two different claims. First, plaintiff claims

defendants “interfere[d] with [his] right to freedom of speech by prohibiting him from having
contact with members of the media.” (Am. Compl. ¶ 119). Second, plaintiff claims defendants
“retaliated against [him] for his previous exercise of his right to freedom of speech.” (Id.).
A.

Interference with Prospective Speech Claim

Plaintiff does not state a claim for interference with prospective speech.
A plaintiff alleging a violation of his prospective right to free speech must show “either
that (1) defendants silenced him or (2) defendants’ actions had some actual, non-speculative
chilling effect on his speech.” Williams v. Town of Greenburgh, 535 F.3d 71, 78 (2d Cir. 2008)
(internal quotations and alterations omitted). Although a governmental employer “may impose .
. . on the speech of its employees[] restraints that would be unconstitutional if applied to the
general public,” public employees retain the right “to speak on matters of public concern.”
Sassone v. Quartararo, 598 F. Supp. 2d 459, 469 (S.D.N.Y. 2009) (quoting City of San Diego v.
Roe, 543 U.S. 77, 80 (2004)). Thus, a public employee plaintiff must additionally show the
chilled speech “would have been speech by citizens on a matter of public concern.” Id.
Plaintiff does not plausibly allege defendants’ actions silenced him or had an actual
chilling effect on his speech with respect to matters of public concern. The July 1 memorandum
is the only action plaintiff alleges defendants took to curb plaintiff’s speech. Moreover, the only
matter of public concern about which plaintiff alleges he wishes to speak as a private citizen is
defendants’ campaign contributions. But the order removing plaintiff from “duties that place

7

him in contact with members of the press and media, either direct or indirect” (Loomba Decl. Ex.
F) did not prevent plaintiff from speaking privately about this matter. 3
B.

Retaliation Claim

Plaintiff does, however, state a plausible First Amendment retaliation claim.
The First Amendment prohibits government officials from subjecting a public employee
to retaliatory actions for exercising the employee’s free speech rights under the First
Amendment. Holley v. Cty. of Orange, 625 F. Supp. 2d 131, 140 (S.D.N.Y. 2009). “To prevail
on a First Amendment retaliation claim, a public employee must establish: (1) that the speech at
issue was protected, (2) that he suffered an adverse employment action, and (3) that there was a
causal connection between the protected speech and the adverse employment action.” Diesel v.
Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000) (internal quotation omitted).
1.

Whether Plaintiff’s Speech was Protected

Plaintiff adequately alleges his speech about campaign financing was protected.
“[W]hen public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the Constitution does
not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S.
410, 421 (2006). “If the court determines that the [employee] either did not speak as a citizen or
did not speak on a matter of public concern, the employee has no First Amendment cause of
action based on his or her employer’s reaction to the speech.” Sousa v. Roque, 578 F.3d 164,
170 (2d Cir. 2009) (internal quotations omitted). A public employee speaks as a citizen if (i) the
speech “fall[s] outside of the employee’s official responsibilities,” and (ii) there is a “civilian

3

Plaintiff’s contention that the July 1 memorandum prohibited him “from having any
communications with the media in any form or fashion” (Am. Compl. ¶ 88) is not a plausible
reading of the memorandum’s language.
8

analogue” to the method of speaking. Matthews v. City of New York, 779 F.3d 167, 173 (2d
Cir. 2015) (internal quotation omitted). “Speech has a relevant civilian analogue if it is made
through channels available to citizens generally.” Id. at 175 (internal quotation omitted).
First, as alleged, plaintiff’s speech to Lieberman about defendants’ campaign financing
was made in his capacity as a private citizen. Plaintiff claims he was giving an opinion as a
former elected official experienced in campaign finance issues, not as a representative of the
department. The list of plaintiff’s official responsibilities in the amended complaint does not
include investigating public corruption or violations of campaign finance laws. Although
plaintiff’s duties did include communicating with the press generally, plaintiff’s alleged
comments to Lieberman did not address any department matter or investigation; indeed,
Lieberman was asking for plaintiff’s thoughts about Lieberman’s own reporting. Moreover,
speaking to a reporter about public documents is a channel available to private citizens. Even if
plaintiff’s use of his work email favors finding this was public speech, this one fact does not
outweigh the allegations suggesting plaintiff was speaking as a private citizen. 4
Second, plaintiff’s speech was on a matter of public concern, because it allegedly
concerned illegal campaign financing. “‘[P]ublic corruption or wrongdoing’ is almost always a

4

Defendants’ citation to Wilson v. Poughkeepsie City Sch. Dist., 2015 WL 5474241
(S.D.N.Y. July 8, 2015) is unpersuasive. (Defs.’ Reply Br. at 4). In Wilson, unlike here, there
were several indicia of plaintiff’s official capacity beyond just his use of an official school
district letterhead. For example, the letter “refer[red] to [plaintiff’s] job title,” stated that
someone’s actions “put the District in a vulnerable position,” requested a meeting in plaintiff’s
office, and invoked plaintiff’s “authority as superintendent to reprimand a Board member.” Id.
at *4. Copies of the letter were also sent to school officials and the Board of Education. Id.
9

matter of public concern.” Murray v. Town of N. Hempstead, 853 F. Supp. 2d 247, 264
(E.D.N.Y. 2012) (quoting Lewis v. Cowen, 165 F.3d 154, 164 (2d Cir. 1999)). 5
2.

Whether Plaintiff Suffered an Adverse Employment Action

In the First Amendment retaliation context, employment action is adverse if it “would
deter a similarly situated individual of ordinary firmness from exercising his or her constitutional
rights.” Zelnick v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006) (internal quotation
omitted). “[W]holesale reassignment of job duties” coupled with changing the “physical
location of [the employee’s] job” may meet this standard. Hoyt v. Andreucci, 433 F.3d 320, 329
(2d Cir. 2006); accord Kane v. Krebser, 44 F. Supp. 2d 542, 546 (S.D.N.Y. 1999) (“diminution
of job responsibilities” or “being given inferior and less desirable work duties” constitute adverse
employment action (internal quotations omitted)). So may falsely implicating the employee of
criminal activity. Wrobel v. Cty. of Erie, 211 F. App’x 71, 73 (2d Cir. 2007).
Plaintiff alleges defendants’ retaliatory actions: (i) cost plaintiff his “very prestigious”
SIU directorship; (ii) stripped him of his responsibilities—including his role interacting with the
media—without assigning him new ones; (iii) changed the location of his job; and (iv) subjected
him to accusations of illegal activity. This sufficiently pleads adverse employment action.

5

The Court is not persuaded by defendants’ argument that “[t]he July 1 Memo . . . makes
clear that the employment action was taken in response to an e-mail about a disciplinary
investigation involving another officer in the Department,” which is not a matter of public
concern. (Defs.’ Br. at 12). At this stage, the Court credits plaintiff’s plausible allegation that
the July 1 memorandum’s stated reason for taking action against plaintiff was a pretext for
retaliating against plaintiff for his comments on defendants’ campaign financing.
10

3.

Pickering Defense

Defendants argue even if plaintiff has pleaded the elements of a First Amendment
retaliation claim, 6 the claim should nevertheless be dismissed on the basis of the “Pickering
defense.” See Pickering v. Bd. of Educ., 391 U.S. 563 (1968). This defense excuses an adverse
employment action if “(1) the employer’s prediction of the disruption that such speech will cause
is reasonable; (2) the potential for disruption outweighs the value of the speech; and (3) the
employer took the adverse employment action not in retaliation for the employee’s speech, but
because of the potential for disruption.” Castine v. Zurlo, 756 F.3d 171, 176 (2d Cir. 2014).
Plaintiff plausibly claims defendants’ stated reason for taking action against him—his
email about Officer P—was pretextual, and the real reason defendants took action against him
was to retaliate for plaintiff’s comments about campaign financing. At this stage, the Court is
required to accept this allegation as true. Thus, as alleged, the third element of the Pickering
defense is not met because defendants “took the adverse employment action [] in retaliation for
[plaintiff’s] speech” rather than “because of the potential for disruption,” Castine v. Zurlo, 756
F.3d at 176.
Accordingly, dismissal of plaintiff’s free speech retaliation claim is not warranted.
III.

Due Process Claim
Like his free speech claim, plaintiff’s due process claim actually contains two different

claims: a claim for deprivation of his “property interest in his employment” (Am. Compl. ¶ 127)
without procedural due process, and a so-called “stigma-plus” claim for constitutional

6

Defendants do not argue plaintiff fails to allege a causal connection between speech and
retaliation. Pleading a three month interval between the speech and the retaliation is sufficient.
See Cioffi v. Averill Park Central Sch. Dist. Bd. of Educ., 444 F.3d 158, 168 (2d Cir. 2006).
11

defamation, see Segal v. City of New York, 459 F.3d 207, 211 (2d Cir. 2006), alleging injury to
his reputation plus the deprivation of a tangible “liberty” interest (Am. Compl. ¶ 127).
A.

Property Interest Claim

To determine whether plaintiff states a claim for deprivation of a property interest
without due process, the Court examines (i) whether plaintiff possessed a protected property
interest; and (ii) what process plaintiff was due before he could be deprived of that interest.
Ciambriello v. Cty. of Nassau, 292 F.3d 307, 313 (2d Cir. 2002).
“Property interests are not created by the Constitution; rather ‘they are created and their
dimensions are defined by existing rules or understandings that stem from an independent source
such as state law-rules or understandings that secure certain benefits and that support claims of
entitlement to those benefits.’” Ciambriello v. Cty. of Nassau, 292 F.3d at 313 (quoting Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). “While state law defines the
underlying substantive interest, ‘federal constitutional law determines whether that interest rises
to the level of a “legitimate claim of entitlement” protected by the Due Process Clause.’”
Ezekwo v. New York City Health & Hosps. Corp., 940 F.2d 775, 782 (2d Cir. 1991) (quoting
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978)).
Plaintiff pleads no protected property interest in his position as director of the SIU.
Particular positions or ranks in public employment are protected if they would be
“protected under state law” and are of “sufficient importance” to the employee. Ciambriello v.
Cty. of Nassau, 292 F.3d at 318. “[H]igher pay and greater benefits” weigh in favor of finding
sufficient importance. Id. Conversely, although “a governmental employer may specifically
create a property interest in a non-economic benefit, such as a particular work assignment,” such
a non-economic interest is “exceedingly rare” and “plaintiff’s expectation of this right cannot be

12

a mere ‘abstract need’ or expectation.” Kane v. Krebser, 44 F. Supp. 2d at 550 (quoting Bd. of
Regents of State Colls. v. Roth, 408 U.S. at 577).
Plaintiff has not alleged facts showing his position at the SIU is protected by a state law
source, such as the civil service law or a collective bargaining agreement, see Ciambriello v. Cty.
of Nassau, 292 F.3d at 313-14, or any other independent source. Although plaintiff characterizes
his loss of the position as a demotion, he does not allege he lost his rank as detective sergeant or
that his salary or benefits were decreased. Plaintiff also pleads no facts suggesting he had more
than a unilateral expectation his position at SIU would continue.
Further, plaintiff does not adequately plead he was deprived of due process when he was
allegedly forced to resign from the department on September 4, 2016.
When a public employee resigns, “the only possible dispute is whether the resignation
was voluntary or involuntary,” which “cannot be determined in advance.” Giglio v. Dunn, 732
F.2d 1133, 1135 (2d Cir. 1984). In such a case, “a pre-deprivation hearing is impractical,” so a
“meaningful” post-deprivation hearing satisfies due process. Id. A plaintiff’s “fail[ure] to avail
himself of the opportunity” of a post-deprivation hearing is fatal to a due process claim. Id.
In New York, a police officer may bring an Article 78 proceeding, see N.Y. C.P.L.R.
§ 7801 et seq., to challenge the voluntariness of his resignation. See Stenson v. Kerlikowske,
205 F.3d 1324 (Table), 2000 WL 254048 (2d Cir. Mar. 3, 2000). Plaintiff did not do so. This
renders implausible plaintiff’s allegation that he was denied due process. See id.
B.

Stigma-Plus Claim

“‘Stigma plus’ refers to a claim brought for injury to one’s reputation (the stigma)
coupled with the deprivation of some ‘tangible interest’ or property right (the plus), without

13

adequate process.” DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003). “[T]he availability
of adequate process defeats a stigma-plus claim.” Segal v. City of New York, 459 F.3d at 213.
To establish the “stigma” element of the claim, plaintiff must allege the government
made false and defamatory statements that “call into question [his] good name, reputation, honor,
or integrity,” Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 446 (2d Cir. 1980)
(internal quotation marks omitted), or “impugn [his] professional reputation in such a fashion as
to effectively put a significant roadblock in [his] continued ability to practice his . . . profession.”
Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 631 (2d Cir. 1996).
The “deleterious effects [flowing] directly from a sullied reputation,” including
“economic harm,” Sadallah v. City of Utica, 383 F.3d 34, 38-39 (2d Cir. 2004), and “the impact
that defamation might have on job prospects, or, for that matter, romantic aspirations,
friendships, self-esteem, or any other typical consequence of a bad reputation,” Valmonte v.
Bane, 18 F.3d 992, 1001 (2d Cir. 1994), cannot constitute the “plus.” Rather, plaintiff must
allege an additional “specific and adverse [state] action clearly restricting [his] liberty—for
example, the loss of employment.” Velez v. Levy, 401 F.3d 75, 87-88 (2d Cir. 2005).
Plaintiff cannot rely on his resignation from the department for the “plus” because he did
not avail himself of an Article 78 proceeding after he resigned. As explained supra Part III.A,
plaintiff’s resignation rendered a pre-termination hearing impractical. See Giglio v. Dunn, 732
F.2d at 1135. Therefore, plaintiff was only entitled to a post-deprivation hearing. Id. An Article
78 proceeding adequately serves as a “post-deprivation name-clearing hearing[].” Spang v.
Katonah-Lewisboro Union Free Sch. Dist., 626 F. Supp. 2d 389, 397 (S.D.N.Y. 2009).
Plaintiff’s failure to avail himself of this proceeding means he was not denied due process. Id.

14

None of the other alleged negative effects of defendants’ statements, i.e., damage to
plaintiff’s personal and professional relationships, is sufficient to meet the “plus” element.
Accordingly, plaintiff’s due process claim must be dismissed.
IV.

Freedom of Association Claim
“To succeed on a First Amendment claim [for retaliation against associational conduct 7]

a plaintiff must be able to demonstrate that (1) the conduct at issue was constitutionally
protected, (2) the alleged retaliatory action adversely affected his constitutionally protected
conduct, and (3) a causal relationship existed between the constitutionally protected conduct and
the retaliatory action.” Wrobel v. Cty. of Erie, 692 F.3d 22, 27 (2d Cir. 2012). Plaintiff claims
defendants retaliated against him for associating with journalists, Lieberman in particular.
Defendants contend this claim fails because plaintiff has not shown a causal connection
between plaintiff’s association with journalists and defendants’ alleged retaliation.
The Court disagrees.
Plaintiff associated with Lieberman in late March 2016. Defendants’ alleged retaliation
came in early July. Under the circumstances, a three-month interval is sufficiently close to imply
causation. See Cioffi v. Averill Park Central Sch. Dist. Bd. of Educ., 444 F.3d at 168. 8

7

Based on the amended complaint and plaintiff’s brief in opposition to the motion to
dismiss, it appears plaintiff’s freedom of association claim only encompasses a retaliation claim,
and not prospective interference with association. To the extent this claim does encompass
prospective interference, it fails for the same reason as does plaintiff’s claim for prospective
interference with speech—namely, the July 1 memorandum did not bar plaintiff from associating
with journalists outside of work. See supra Part II.A.
8

The Court rejects defendants’ argument that plaintiff fails to show causation because
plaintiff has associated with journalists for years through his position at the department without
retaliation. Regardless of plaintiff’s past association with journalists generally, plaintiff’s claim
here is that defendants retaliated against him for associating with a particular journalist as a
private citizen for the purpose of helping the journalist report on defendants’ alleged improper
campaign financing. These two events are close enough in time to imply causation at this stage.
15

Defendants also raise the Pickering defense in response to this claim. The Court rejects it
at this stage for substantially the same reasons explained above. See supra Part II.B.3.
Accordingly, dismissal of plaintiff’s free association retaliation claim is not warranted.
V.

Equal Protection Claim
Plaintiff claims his equal protection rights were violated because defendants “targeted

[him] for disfavor based upon his refusal to comply with Defendants’ political agenda.” (Am.
Compl. ¶ 144). It is clear, therefore, that plaintiff’s equal protection claim is based solely on his
being retaliated against for his speech and association with Lieberman.
When an equal protection claim “is based on an alleged First Amendment violation, the
former ‘coalesces with the latter.’” Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals,
812 F. Supp. 2d 357, 372 (S.D.N.Y. 2011) (quoting Kempkes v. Downey, 2008 WL 852765, at
*6 (S.D.N.Y. Mar. 31, 2008)); accord Rankel v. Town of Somers, 999 F. Supp. 2d 527, 544 n.32
(S.D.N.Y. 2014). Such is the case here. Because plaintiff states a claim for First Amendment
retaliation, his equal protection claim can proceed on this theory as well. See Verbeek v. Teller,
158 F. Supp. 2d 267, 279 (S.D.N.Y. 2001). 9
Accordingly, dismissal of plaintiff’s equal protection claim is not warranted.

9

Defendants are incorrect that plaintiff’s equal protection claim is a “class of one” claim,
which is not available to public employees. (Defs.’ Br. at 19). A “class of one” claim alleges
there is “no rational basis for the difference in treatment” between the plaintiff and “others
similarly situated.” Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010).
Plaintiff does not claim defendants’ treatment of him was arbitrary, but rather that it was “based
on impermissible considerations such as . . . intent to inhibit or punish the exercise of
constitutional rights.” Rankel v. Town of Somers, 999 F. Supp. 2d at 544 (quoting Cine SK8,
Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007)).
16

VI.

Common Law Defamation
Defendants contends plaintiff’s failure to file a notice of claim dooms his state common

law claim for defamation.
The Court agrees.
“[I]n a federal court, state notice-of-claim statutes apply to state-law claims.” Hardy v.
N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999). “In New York, filing a
[n]otice of [c]laim with a municipality is a condition precedent to commencing a tort claim
against any employee of that municipality.” Chamberlain v. City of White Plains, 986 F. Supp.
2d 363, 396 (S.D.N.Y. 2013). It is also a condition precedent to commencing a claim against a
town. DeCarolis v. Town of Vienna, 322 F. App’x 25, 26 (2d Cir. 2009) (citing N.Y. Town Law
67). “Failure to comply with [notice of claim] requirements ordinarily requires a dismissal for
failure to state a cause of action.” Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d at 794.
Plaintiff does not dispute his failure to file a notice of claim in this case. Rather, he
argues he did not have to file a notice of claim because his claims for damages are incidental to
the injunctive relief he seeks. However, the amended complaint seeks “an award of damages,
both compensatory and punitive, against the Defendant[s] in an amount to be determined at trial
for defamation.” (Am. Compl. ¶ F). This is more than incidental. Although the amended
complaint also states “Defendants and their agents should be ordered to issue corrections of their
false statements, and be enjoined from further uttering false statements regarding Plaintiff” (Am.
Compl. ¶ 166), the Court is not persuaded this is the primary relief sought. Indeed, the “prayer
for relief” does not even mention this proposed injunctive relief.
Accordingly, dismissal of plaintiff’s defamation claim is warranted.

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VII.

Legislative Immunity
Defendants contend they are entitled to dismissal by reason of legislative immunity.
The Court disagrees.
Legislative immunity only attaches to actions that are “legislative in function,” that is,

“taken ‘in the sphere of legitimate legislative activity.’” Harhay v. Town of Ellington Bd. of
Educ., 323 F.3d 206, 210 (2d Cir. 2003) (quoting Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998)).
“Discretionary personnel decisions, even if undertaken by public officials who otherwise are
entitled to immunity, do not give rise to immunity because such decisionmaking is no different in
substance from that which is enjoyed by other actors.” Id. at 210-11.
The only action defendants argue was within the sphere of legitimate legislative activity
is reassigning plaintiff away from the SIU and changing his duties. This is a discretionary
personnel decision, not a legislative action. Nor is it apparent on the face of the complaint that
any other of defendants’ alleged actions falls within the scope of legislative activity.
Accordingly, dismissal on the basis of legislative immunity is not warranted at this stage.
VIII.

Qualified Immunity
The individual defendants argue in the alternative that they are entitled to qualified

immunity on plaintiff’s remaining § 1983 claims. Qualified immunity shields government
officials whose 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).
The scope of qualified immunity is broad, and it protects “all but the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). A qualified
immunity defense is established where “(a) the defendant’s action did not violate clearly
established law, or (b) it was objectively reasonable for the defendant to believe that his action

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did not violate such law.” Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998).
During the time period described in the amended complaint, it was clearly established
law that retaliation against a public employee for protected speech violates the Constitution.
Moreover, without the benefit of a fuller factual record, the Court cannot conclude any defendant
was objectively reasonable to believe his or her actions did not violate such clearly established
law.
Accordingly, dismissal on the basis of qualified immunity is not warranted at this stage.
CONCLUSION
The motion to dismiss is GRANTED as to plaintiff’s claims for prospective interference
with speech, violation of due process, violation of the New York Labor Law, and common law
defamation.
The motion is DENIED as to plaintiff’s claims for retaliation against speech and
association and violation of equal protection.
By separate order, the Court will schedule an initial conference.
The Clerk is directed to terminate the motion. (Doc. #34).
Dated: September 15, 2017
White Plains, NY

SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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