Olma v. Collins et al
Filing
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DECISION AND ORDER granting defendants' motion to dismiss in part and dismissing the amended complaint as against the individual defendants Chris Collins, Christopher Grant, John Greenan and Gregory Skibitsky in their official capacities. The C lerk of Court shall amend the catpion accordingly. The Court denies the motion in all other respects. Defendants shall answer the amended complaint within 20 days of entry of this Decision and Order. SO ORDERED. Signed by Hon. Richard J. Arcara on 8/25/2011. (JMB)
UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK
GREGORY B. OLMA,
Plaintiff,
DECISION AND ORDER
11-CV-61A
v.
CHRIS COLLINS, individually and in his
official capacity as Erie County Executive,
CHRISTOPHER M. GRANT, individually
and in his official capacity as an employee
of Erie County,
JOHN GREENAN, individually and in his
official capacity as Personnel Commissioner
of Erie County,
GREGORY SKIBITSKY, individually and in
his official capacity as Commissioner of the
Erie County Department of Emergency
Services, and
THE COUNTY OF ERIE,
Defendants.
I.
INTRODUCTION
Pending before the Court is a motion by defendants Chris Collins
(“Collins”), Christopher Grant, John Greenan, Gregory Skibitsky, and the County
of Erie to dismiss plaintiff Gregory Olma’s amended complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”). Plaintiff has accused
defendants of violating his First and Fourteenth Amendment rights to political
speech and association by firing him for political reasons, thereby entitling him to
relief under 42 U.S.C. § 1983.1 In their motion, defendants argue that plaintiff’s
claims of politically motivated termination are not legally cognizable because a
duly enacted resolution of the Erie County Legislature eliminated his position.
Plaintiff counters that the elimination of his position was a mere formality after
defendants targeted him for his political speech and affiliation.
The Court held oral argument on August 12, 2011. For the reasons below,
the Court grants defendants’ motion in part to dismiss the action against the
individual defendants in their official capacities. The Court otherwise denies
defendants’ motion.
II.
BACKGROUND
This case concerns allegations that defendants wrongfully terminated
plaintiff to retaliate for plaintiff’s support of Collins’s opponents in the 2007
election for Erie County Executive. Some basic facts appear not to be in dispute.
In or around October 2006, plaintiff was provisionally appointed to the civilservice position of Senior Administrative Assistant for Homeland Security at the
Erie County Department of Emergency Services. This position paid an annual
salary of $38,648. Through a resolution proposed on January 21, 2011 and
1
Plaintiff also refers to 42 U.S.C. § 1985 in his amended complaint but
never employs it in any cause of action.
2
adopted on February 13, 2008 (the “Budget Amendment”), the Erie County
Legislature amended the 2008 County budget that it passed in December 2007,
before Collins took office. The Budget Amendment eliminated plaintiff’s position
along with a position of Grant Monitoring Specialist for Homeland Security in the
Erie County Department of Central Police Services. In the text of the Budget
Amendment, the Erie County Legislature cited a decrease in federal homelandsecurity funding as the reason for the eliminations. On February 15, 2008,
plaintiff received notice that he would be terminated effective February 27, 2008
due to a lack of funding for his position.
The heart of plaintiff’s amended complaint consists of what he believes is
the real reason for the elimination of his position, which had nothing to do with
funding decreases. According to plaintiff, the Erie County Legislature passed the
County’s 2008 budget in December 2007, based on proposals from outgoing
County Executive Joel Giambra. The original 2008 budget contained funding for
plaintiff’s position and the Grant Monitoring Specialist position. Nonetheless,
plaintiff’s situation changed following the 2007 election for County Executive.
Plaintiff had supported Democratic candidates for County Executive, but Collins,
a Republican, won the election. Thereafter, defendants hatched a scheme
through which they would disguise a politically motivated termination as a
budgetary move. The first step of the scheme consisted of delaying the release
of plaintiff’s civil-service examination score, which was high enough to warrant a
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permanent appointment to his position. Next, Collins proposed the Budget
Amendment to the Erie County Legislature, proposing that plaintiff’s position and
the Grant Monitoring Specialist position be eliminated because of a decrease in
funding.2 The crux of the scheme was that person filling the Grant Monitoring
Specialist position, a woman by the name of Janet Vogtli (“Vogtli”), was a
Republican Party member and donor who subsequently would be rehired in
another County department. According to plaintiff, the ostensible termination and
subsequent transfer of Vogtli would give defendants cover for their politically
motivated termination of plaintiff. The alleged scheme ran its course when the
Erie County Legislature adopted the Budget Amendment.
In response to what he considers political retribution, plaintiff filed his
original complaint on January 21, 2011 and his amended complaint on June 3,
2011. The amended complaint contains five causes of action under 42 U.S.C.
§ 1983. In the first cause of action, plaintiff accuses defendants of jointly and
severally conspiring to terminate him, in violation of his First and Fourteenth
Amendment rights to political speech, because he supported Democratic
candidates for County Executive in the 2007 election. In the second cause of
action, plaintiff accuses defendants of violating his First and Fourteenth
Amendment rights to political affiliation. In the third cause of action, plaintiff
2
The record is not clear as to whether federal homeland-security funding
decreased generally or for plaintiff’s position in particular, and as to when
defendants became aware of the decrease in funding.
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accuses defendants of violating his rights to political affiliation by failing to train
County staff with respect to constitutional restrictions on terminating employees.
In the fourth cause of action, plaintiff accuses Collins of violating his First and
Fourteenth Amendment rights by “fail[ing] to properly supervise his staff and
subordinates and fail[ing] to intervene to stop the illegal plans and activities he
was aware of or which occurred in his immediate presence.” (Dkt. No. 9 ¶ 82.) In
the fifth cause of action, plaintiff asserts that the County of Erie itself faces
municipal liability because Collins and the Erie County Legislature endorsed
plaintiff’s wrongful termination in their official capacities.
Defendants filed their motion to dismiss on June 24, 2011. Defendants
advance several arguments for dismissal. First, defendants want the amended
complaint dismissed to the extent that it alleges claims against anyone in their
official capacities, given that the County of Erie itself is a named defendant.
Defendants believe that naming both the County of Erie and its elected officials in
their official capacities is legally redundant. Second, defendants argue that, to
the extent that plaintiff is making this request, he may not recover punitive
damages against a municipal entity or municipal employees sued in their official
capacities. Third, defendants submit that they are entitled to absolute legislative
immunity because plaintiff’s termination followed a duly enacted resolution of the
Erie County Legislature that eliminated plaintiff’s position. Fourth, defendants
contend that plaintiff has failed to allege any sort of official policy that would lead
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to liability against the County of Erie. Fifth, defendants maintain that the time
frame of plaintiff’s complaints needs to be shortened, since he filed his original
complaint on January 21, 2011 and the limitations period for Section 1983 claims
is only three years. Finally, defendants argue that any claim that plaintiff wants to
make under 42 U.S.C. § 1985 should be dismissed because he has not pled any
sort of class-based animus.
Plaintiff opposes defendants’ motion with three arguments. First, plaintiff
rejects defendants’ argument about legislative immunity because “while a
restructuring of plaintiff’s department was proposed in the legislation, what in fact
occurred was a de facto termination of plaintiff for illicit political motives while the
only other person whose position was eliminated by the resolution was soon hired
back.” (Dkt. No. 14 at 1.) Second, plaintiff argues that the passage of the Budget
Amendment does not fall under any immunity because Collins signed and
endorsed the resolution pursuant to wrongful employment policies. Finally,
plaintiff submits that there is no dispute that Erie County employees receive no
training about constitutional rights.
III.
DISCUSSION
A.
FRCP 12(b)(6) Generally
“A pleading that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief.” FRCP
8(a)(2). “‘A short and plain statement of the claim’ does not mean ‘a short and
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plain statement of the eventual jury charge for that claim’ or ‘a short and plain
recitation of the legal elements for that claim.’ FRCP 8(a)(2) requires a plaintiff to
state, in concise but plausible fashion, what he currently thinks a defendant
actually did to him, subject to revision during later discovery.” Beswick v. Sun
Pharm. Indus., Ltd., No. 10-CV-357, 2011 W L 1585740, at *5 (W .D.N.Y. Mar. 4,
2011) (Arcara, J.). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged. 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.” Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct.
1937, 1949 (2009) (internal quotation marks and citations omitted). Courts
assess the legal sufficiency of a claim while “accepting all factual allegations in
the complaint as true, and drawing all reasonable inferences in the plaintiff’s
favor.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 61
(2d Cir. 2010) (internal quotation marks and citation omitted).
B.
Individuals in Their Official Capacities
The Court first will address defendants’ arguments that plaintiff cannot sue
both the County of Erie and the individual defendants in their official capacities.
“Official-capacity suits . . . generally represent only another way of pleading an
action against an entity of which an officer is an agent. As long as the
government entity receives notice and an opportunity to respond, an
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official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity. It is not a suit against the official personally, for the real party
in interest is the entity. Thus, while an award of damages against an official in his
personal capacity can be executed only against the official’s personal assets, a
plaintiff seeking to recover on a damages judgment in an official-capacity suit
must look to the government entity itself.” Kentucky v. Graham, 473 U.S. 159,
165–66 (1985) (internal quotation marks and citations omitted); accord Ware v.
City of Lackawanna, No. 08-CV-720, 2009 W L 3464057, at *2–3 (W .D.N.Y. Oct.
21, 2009) (Arcara, C.J.) (citing Graham). Here, plaintiff has sued both the County
of Erie and a number of individual defendants in their official capacities. Plaintiff
has made explicit in his fifth cause of action and in his opposition papers that he
wants to prove that the County of Erie pursued wrongful personnel policies or
customs in violation of Monell v. N.Y. City Dep’t of Social Services, 436 U.S. 658
(1978), and City of St. Louis v. Praprotnik, 485 U.S. 112 (1988). W hatever the
ultimate merits of his claims, plaintiff can pursue his claims fully by suing the
County of Erie. Suing the individual defendants in their official capacities adds
nothing to this action and is legally redundant. Accordingly, the Court grants this
aspect of defendants’ motion and dismisses the amended complaint to the extent
that it advances claims against the individual defendants in their official
capacities.
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C.
Punitive Damages Against the County of Erie
Defendants next seek to dismiss any claims that plaintiff has advanced for
punitive damages against the County of Erie. A review of the amended complaint
does not reveal where plaintiff has asked for punitive damages against the
County of Erie. At most, plaintiff asserted that he “is entitled to recover his
damages, attorney’s fees, costs, and punitive damages against the individual
defendants.” (Dkt. No. 9 ¶ 92.) This claim might have implicated the County of
Erie while plaintiff was suing the individual defendants in their official capacities.
As noted above, though, the Court has dismissed that aspect of the amended
complaint, leaving nothing in the amended complaint that suggests that plaintiff
seeks punitive damages against the County of Erie. Accordingly, the Court
denies this aspect of defendants’ motion without prejudice to renew if, in fact,
plaintiff does attempt to pursue punitive damages against the County of Erie.
D.
Legislative Immunity
Defendants argue that legislative immunity undermines plaintiff’s amended
complaint in its entirety. “It is well established that federal, state, and regional
legislators are entitled to absolute immunity from civil liability for their legislative
activities.” Bogan v. Scott-Harris, 523 U.S. 44, 46 (1998). “Absolute legislative
immunity attaches to all actions taken in the sphere of legitimate legislative
activity.” Id. at 54 (citation omitted); cf. Almonte v. City of Long Beach, 478 F.3d
100, 107 (2d Cir. 2007) (“[W ]e conclude that legislative immunity cloaks not only
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the vote on the budgetary resolutions, but also any discussions the Council
members may have held, and any agreements they may have made, regarding
the new budget in the months preceding the actual vote.”). Eligibility for
legislative immunity, however, follows a fact-based analysis. “W hether an act is
legislative turns on the nature of the act, rather than on the motive or intent of the
official performing it.” Bogan, 523 U.S. at 54.
Here, the Court finds that it lacks sufficient factual information to conclude
categorically, as a matter of law, that legislative immunity covers the Budget
Amendment. Plaintiff has alleged that he was essentially terminated before the
Budget Amendment passed. If the chronology of events turns out to support that
allegation then the Budget Amendment could be the conclusion of a personnel
action and not an independent legislative act. Since the Court must credit
plaintiff’s allegation at face value for purposes of the pending motion, plaintiff
should be allowed to explore the extent to which the elimination of his position
was more administrative than legislative in nature. Compare Jessen v. Town of
Eastchester, 114 F.3d 7, 9 (2d Cir. 1997) (per curiam) (“Because the complaint
alleges that defendants fired Jessen before eliminating his position through any
legislative action, the district court properly denied their motion to dismiss.”) with
Almonte v. City of Long Beach, No. 04-CV-4192, 2009 W L 962256, at *4
(E.D.N.Y. Mar. 31, 2009) (“Each of [three plaintiffs in question] received their
termination notice on or after May 25, 2004, the date the Resolution was passed.
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Plaintiffs have not alleged any facts, which if taken as true, would show that these
three Plaintiffs were administratively terminated prior to the passage of the
Resolution, on May 25, 2004.”).
Adding to the potential administrative character of defendants’ conduct is
defendants’ concession at oral argument that they eliminated plaintiff’s position
through an amendment to the 2008 County budget. As the chronology of events
appears to have unfolded, the 2008 budget passed with plaintiff’s position in it.
Presumably, funding for the position existed then. Defendants cited a lack of
funding a few months later when amending the budget to eliminate plaintiff’s
position. The record is not clear, though, as to how federal funding might have
changed between December 2007, when the budget passed, and February 13,
2008, when the Budget Amendment passed. This early in the case, plaintiff
should be allowed to explore what actually was happening with federal funding
during those few months and whether any changes in funding affected only his
position. Cf. Orange v. County of Suffolk, 830 F. Supp. 701, 705 (E.D.N.Y. 1993)
(granting legislative immunity where the Suffolk County Legislature passed a
resolution “eliminating fifteen administrative positions, and replacing them with
twenty new entry level positions,” but suggesting that “situations affecting a single
worker” would not qualify). Perhaps more importantly, plaintiff should be allowed
to explore the extent to which defendants, through a budget amendment targeting
no more than two people, “did not engage in the kind of broad, prospective
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policymaking that is characteristic of legislative action . . . . but rather [was] part of
a process by which an employment situation regarding a single individual was
resolved.” Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 211 (2d Cir.
2003). The Court thus denies this aspect of defendants’ motion.
E.
Failure to State a Claim
Defendants seek to dismiss the amended complaint because plaintiff
“simply makes a conclusory assertion that the County maintained a policy of
making adverse employment decisions based on political considerations and that
the County failed to train to prevent such decisions.” (Dkt. No. 11 at 13.) This
argument oversimplifies the contentions in the amended complaint. The
amended complaint sets forth, and defendants have confirmed, that plaintiff’s
position was funded for the 2008 budget until Collins became County Executive.
Plaintiff then asserts that defendants targeted him for politically motivated
termination under the guise of a budget amendment so narrow that it affected
only two people. According to plaintiff, such a narrow budget amendment “had
not happened in the prior eight years” (Dkt. No. 9 ¶ 27) and resulted from
unconstitutional practices and a failure to train employees about proper practices.
“To show a policy, custom, or practice, the plaintiff need not identify an express
rule or regulation. It is sufficient to show, for example, that a discriminatory
practice of municipal officials was so persistent or widespread as to constitute a
custom or usage with the force of law, or that a discriminatory practice of
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subordinate employees was so manifest as to imply the constructive
acquiescence of senior policy-making officials. A policy, custom, or practice may
also be inferred where the municipality so failed to train its employees as to
display a deliberate indifference to the constitutional rights of those within its
jurisdiction.” Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004)
(internal quotation marks and citations omitted). W hether plaintiff can prove his
assertions at trial is another matter entirely and would appear to require
addressing, inter alia, whether federal homeland-security funding dried up for only
his position and one other between December 2007 and February 13, 2008. For
now, however, plaintiff has set forth a factually plausible theory of liability that
does not qualify for legislative immunity this early. The Court accordingly denies
this aspect of defendants’ motion.
F.
Timeliness of Plaintiff’s Claims
Defendants seek dismissal of the amended complaint to the extent that it
contains any causes of action that accrued more than three years before plaintiff
filed his original complaint on January 21, 2011. Plaintiff conceded at oral
argument that claims under 28 U.S.C. § 1983 fall under a three-year limitations
period. See Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004)
(“The statute of limitations applicable to claims brought under §§ 1981 and 1983
in New York is three years.”) (citations omitted). Of the five causes of action in
the amended complaint, however, none appear to have accrued exclusively from
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events occurring before January 21, 2008—three years before the filing of the
original complaint. All five appear to have accrued at least in part on February
13, 2008 when the Budget Amendment passed. At this time, the parties have not
provided any information to the Court that suggests otherwise. Consequently, the
Court denies this aspect of defendants’ motion without prejudice to renew upon a
showing that one or more causes of action fully accrued more than three years
before the filing of the original complaint.
G.
Plaintiff’s Claims Under 42 U.S.C. § 1985
Finally, defendants seek dismissal of any claims that plaintiff may have
under 42 U.S.C. § 1985 because he failed to state any claim of liability under that
statute. As with the issue of punitive damages, though, the Court sees nothing to
resolve at this time. Plaintiff mentions Section 1985 at the beginning of the
amended complaint but not in any of the five causes of action. At oral argument,
plaintiff did not suggest that he intended to pursue any Section 1985 claim.
Section 1983 is the only statute mentioned in the five causes of action in the
amended complaint. Accordingly, the Court denies this aspect of defendants’
motion without prejudice to renew if, in fact, plaintiff does attempt to pursue
liability under 42 U.S.C. § 1985.
IV.
CONCLUSION
For all of the foregoing reasons, the Court grants defendants’ motion to
dismiss (Dkt. No. 10) in part and dismisses the amended complaint as against the
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individual defendants Chris Collins, Christopher Grant, John Greenan, and
Gregory Skibitsky in their official capacities. The Clerk of the Court shall amend
the caption accordingly. The Court denies the motion in all other respects.
Defendants shall answer the amended complaint within 20 days of entry of
this Decision and Order.
SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: August 25, 2011
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