Wolfe v. City of Rochester, et al.,

Filing 60

-CLERK TO FOLLOW UP-DECISION AND ORDER granting 45 Defendant's Motion for Summary Judgment; denying 51 Plaintiff's Motion for Partial Summary Judgment. 1 Plaintiff's Complaint is dismissed. 30 Plaintiff's Motion to Compel is denied as moot. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 10/6/16. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BARRY WOLFE,
DECISION AND ORDER
No. 6:14-cv-6581-MAT-MWP

Plaintiff,
-vsCITY OF ROCHESTER, COMMISSIONER
DELMONIZE A. SMITH, Individual
and Official capacity,
Defendants.

INTRODUCTION
Represented by counsel, Barry Wolfe (“Plaintiff”), a former
employee of the City of Rochester (“the City”), instituted this
action pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the
City and his former supervisor, Delmonize A. Smith (“Smith”)
(collectively, “Defendants”).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Smith

is

the

Commissioner

of

Neighborhood

and

Business

Development for the City of Rochester. Plaintiff was hired by the
City

in

May

of

1987,

as

an

Engineer

Technician,

and

was

subsequently promoted to Junior City Planner. On July 1, 2003,
Plaintiff accepted a probationary appointment to the competitive
class

position

of

Senior

City

Planner

in

the

Department

of

Community Development. After completing his probationary terms,
Plaintiff became a permanent appointee, subject to the protections
of New York Civil Service Law (“N.Y. C.S.L.”) § 75 (“Section 75”).
-1-

On April 3, April 10, and April 22, 2014, urine was found in
the wastebaskets of several employees in the Permit Office work
area. The Rochester Police Department was consulted, and video
cameras were installed in the Bureau of Planning on April 11, 2014.
Video recorded by the cameras on April 21, 2014, showed Plaintiff
pouring urine into his co-workers’ wastebaskets.
A Notice of Suspension was sent to Plaintiff on April 24,
2014, indicating that he was being suspended with pay pending
completion of an administrative investigation into his conduct on
April 21, 2014.
On June 5, 2014, Smith sent a letter to Plaintiff, informing
him that in accordance with Section 75, he was being charged with
“[p]lacing urine in a waste basket” based on the following facts:
Due to several incidents in which urine was found in
waste baskets in the Permit Office of the Bureau of
Planning & Zoning, surveillance cameras were installed in
the office. On April 24, 2014, you were observed on
security camera footage pouring liquid from a cup into a
waste basket of a co-worker in a cubicle located in the
Permit Office. Upon the emptying of that waste basket by
City Hall cleaning staff, it was determined that the
liquid you poured in that waste basket was urine.
(Dkt #56-1, p. 2 of 3). Plaintiff was informed that he had until
June 13, 2014, to respond to the charges asserted in the letter,
and was instructed that his answer was required to be in writing
and postmarked June 13, 2014, at the latest. Smith also outlined
the consequences of a plea of “not guilty,” namely, that Plaintiff
was entitled to a hearing and to be represented by an attorney. The

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letter set forth the possible penalties or punishment that could be
imposed following a finding of guilty: “a reprimand, a fine not to
exceed $100, a suspension without pay for a period not exceeding
two months, a demotion in bracket and title, or termination.” (Dkt
#56-1, p. 3 of 3).
Plaintiff sent a letter dated June 11, 2014, to Smith, stating
in part that he had been struggling with a “bladder problem for
years” which had been “compounded by” untreated sleep apnea, and
that he is “often in great pain” and “need[s] to relieve [his]
bladder very quickly.” (Dkt. #56-2, p. 2 of 4). Plaintiff stated
that his “condition and symptoms have become much worse recently[,]
and when alone and in pain a very few times [he] emptied a cup in
a wastebasket.”

(Id.). Plaintiff said he was “ashamed beyond

measure” of his “abnormal behavior” and stated that his “actions
were completely motivated by [his] condition.” (Id.). He asked for
permission to take extended medical leave in order to see “all the
specialists necessary” to treat his condition.

(Id.). Plaintiff

closed the letter by stating he was “pleading guilty to this charge
with an attached medical explanation[.]” (Id., p. 3 of 4). The
“medical explanation” consisted of a note dated June 9, 2014,
signed by Jeffrey A. Liberman, D.O., stating that Plaintiff was
under his care for a bladder control issue, was being evaluated by
a specialist, and would miss work for the next four weeks. (Id., p.
4 of 4).

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On June 20, 2014, Smith sent a letter to Plaintiff informing
him that he was being terminated, effective immediately. (Dkt #563, p. 2 of 2). Smith explained his reasoning for imposing the
penalty of termination:
Your admission to pouring a cup full of urine into a
wastebasket on several occasions exhibited a complete
disregard for the health, safety, and sensibilities of
your co-workers. Your claimed bladder control issue is
not a justification for your aberrant behavior; it does
not excuse or explain your calculated decision to pour
urine into a co-worker’s wastebasket. While I considered
your twenty-seven (27) year work history with the City,
it does not mitigate the penalty of termination.
(Id.).
Defendants

indicate

that

by

letter

dated

July

2,

2014,

Plaintiff unsuccessfully appealed his termination to the New York
Civil Service Commission pursuant to N.Y. C.S.L. § 76.
Plaintiff, through counsel, instituted this action on October
10, 2014, alleging causes of action based upon procedural due
process

violations

liability,

under

intentional

the

Fourteenth

infliction

of

Amendment,

emotional

municipal

distress,

and

negligent infliction of emotional distress. Following discovery,
Defendants moved for summary judgment on August 1, 2016. Plaintiff
filed a motion seeking partial summary judgment on August 3, 2016,
and opposed Defendants’ summary judgment motion. Defendants have
opposed Plaintiff’s partial summary judgment motion. The motions
were submitted on the papers without oral argument on September 29,
2016.

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For

the

reasons

discussed

below,

Defendants’

motion

for

summary judgment is granted, and Plaintiff’s motion for partial
summary judgment is denied.
SUMMARY JUDGMENT STANDARD
A court “shall grant summary judgment” pursuant to Rule 56(a)
of the Federal Rules of Civil Procedure “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
“A genuine dispute exists ‘where the evidence is such that a
reasonable jury could decide in the nonmovant’s favor.’”
Walsh v. New York City Hous. Auth., 828 F.3d 70, 74 (2d Cir. 2016)
(quoting Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir.
2014)).

“In moving for summary judgment against a party who will

bear the ultimate burden of proof at trial, the movant may . . .
point[ ] to an absence of evidence to support an essential element
of the nonmoving party’s claim.” Gummo v. Vill. of Depew, 75 F.3d
98, 107 (2d Cir. 1996).
DISCUSSION
I.

Denial of Procedural Due Process
In his first cause of action, Plaintiff asserts that he was

not afforded procedural due process because (i) he did not have a
hearing, and (ii) he was not given an additional five (5) days to
respond to the charge, pursuant New York Civil Practice Law and
Rules (“C.P.L.R.”) § 2103.
-5-

A.

Denial of Pre-Termination Hearing

“When a governmental employee is found to have a ‘property
interest’ in continuation of his or her employment, the Due Process
Clause of the Fourteenth Amendment forbids discharge unless the
employee is afforded a pre-termination hearing.” O’Neill v. City of
Auburn, 23 F.3d 685, 688 (2d Cir. 1994) (citing Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985); other citations
omitted). N.Y. C.S.L. § 75 governs the procedures by which covered
civil service employees in New York may be removed or subjected to
other

disciplinary

action.

Section

75

confers

upon

employees

covered by its provisions a protected property interest in their
continued employment, and provides, in relevant part, as follows:
A person . . . shall not be removed or otherwise
subjected to any disciplinary penalty provided in this
section except for incompetency or misconduct shown after
a hearing upon stated charges pursuant to this section.
N.Y. CIV. SERV. L. § 75(1).
With regard to the procedures to be followed in such cases,
Section 75 provides that
[a] person against whom removal or other disciplinary
action is proposed shall have written notice thereof and
of the reasons therefor, shall be furnished a copy of the
charges preferred against him and shall be allowed at
least eight days for answering the same in writing. The
hearing upon such charges shall be held by the officer or
body having the power to remove the person against whom
such charges are preferred, or by a deputy or other
person designated by such officer or body in writing for
that purpose. . . . The burden of proving incompetency or
misconduct shall be upon the person alleging the same. .
. .

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N.Y. CIV. SERV. LAW § 75(2). Defendants note that the purpose of a
hearing under Section 75 is to determine if the employee engaged in
the misconduct with which he was charged. See N.Y. CIV. SERV. L. §
75(1), (2). Here, Defendants argue, Plaintiff pled guilty and
admitted to the misconduct with which he was charged, thereby
obviating the necessity of a hearing. (See Dkt #45-26, p. 5 of 17
(citing Matter of Kufs v. State of N.Y. Liquor Auth., 637 N.Y.S.2d
846, 847 (4th Dep’t 1996) (holding that trial court erred in
granting petition to set aside order of cancellation issued by
respondent;

court

“had

no

authority

to

review

respondent’s

determination sustaining the charges against petitioner” because,
“[b]y entering [his] ‘no contest’ plea, petitioner waived [his]
right to a review of the facts upon which the punishment was
imposed”) (quotation and citation omitted)). Plaintiff acknowledges
that he “pled guilty to the disciplinary charge” but argues that
“the right to a hearing does not depend on a demonstration of
certain success.” (Dkt #53, p. 9 of 10 (citations omitted)).
Plaintiff also asserts in his Complaint that despite pleading
guilty, he never expressly, knowingly and voluntarily waived his
right to a hearing. (Dkt # 1, ¶ 17). The Court need not resolve the
waiver issue, because Plaintiff does not present a cognizable
constitutional claim on the facts presented in the record.
As the Second Circuit has explained, when a “[S]tate employee
intentionally

deprives

an

individual

-7-

of

property

or

liberty”

through a “random, unauthorized act[ ],” “the Due Process Clause of
the Fourteenth Amendment is not violated . . . , so long as the
State provides a meaningful postdeprivation remedy.” Hellenic Am.
Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877, 880 (2d
Cir. 1996) (citing Hudson v. Palmer, 468 U.S. 517, 531, 533 (1984);
other citations omitted)). Here, Plaintiff does not assert that the
due process violation premised on the lack of a pre-termination
hearing was caused by an established State procedure; rather the
gist of his claim is that Defendants “disregarded the clearly
established laws of the State of New York and the United States
when it [sic] wrongfully failed to provide Plaintiff with the
procedures set out by the laws of the State of New York.” (Dkt #1,
¶ 27). Plaintiff essentially is accusing Defendants of committing
a “random, unauthorized act[,]” Hellenic Am. Neighborhood Action
Comm., 101 F.3d at 880. Plaintiff’s claim that Defendants failed to
follow the appropriate procedures specified in Section 75 when
terminating him “necessarily fails because of the availability of
[New York Civil Practice Law and Rules] Article 78 review.” Chaffer
v. Bd. of Educ. of City Sch. Dist. of City of Long Beach, 229 F.
Supp.2d 185, 189 (E.D.N.Y. 2002) (citing Hellenic Am. Neighborhood
Action Comm. v. City of N.Y., 101 F.3d 877, 880 (2d Cir. 1996)),
aff’d, 75 F. App’x 12 (2d Cir. 2003)). That is, even assuming
arguendo

that

Plaintiff’s

Section

guilty

75

plea,

did
to

require

give

-8-

Smith,

Plaintiff

a

notwithstanding
hearing

before

terminating him, Plaintiff’s Section 1983 claim cannot stand. The
Second Circuit has held repeatedly that “[a]n Article 78 proceeding
is adequate for due process purposes even though the petitioner may
not be able to recover the same relief that he could in a § 1983
suit.” Id. at 881 (holding that when New York law gave city
contractor meaningful opportunity to challenge its alleged de facto
debarment from city procurements, contractor was not deprived of
due process as result of its own failure to avail itself of that
opportunity; citing Hudson, 468 U.S. at 535). Here, “because
[Plaintiff] could have brought an Article 78 proceeding challenging
[Defendants’] termination of him, he cannot allege a constitutional
violation

on

the

ground

that

[Defendants]

deviated

from

the

standard Section 75 procedures in terminating him.” Chaffer, 229 F.
Supp.2d at 189 (citing Garayua v. Bd. of Educ. of the Yonkers City
Sch. Dist., 671 N.Y.S.2d 278, 278 (2d Dep’t 1998); Rafiy v. Nassau
Cnty. Med. Ctr., 218 F. Supp.2d 295, 304 (E.D.N.Y. 2002)).
Plaintiff’s procedural due process claim, in the First Cause
of Action, premised on the failure to provide a pre-termination
hearing, is not cognizable and fails as a matter of law.
B.

Failure to Provide Adequate Time to Respond

Section 75 provides in pertinent part that “[a] person against
whom removal or other disciplinary action is proposed shall have
written notice thereof and of the reasons therefor, shall be
furnished a copy of the charges preferred against him and shall be

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allowed at least eight days for answering the same in writing.”
N.Y. CIV. SERV. LAW § 75(2). Here, the Notice of Charges was mailed
on June 5, 2014, by regular first class mail and certified mail. It
indicated that Plaintiff’s response was required to be postmarked
by June 13, 2014, thereby providing Plaintiff with the statutorilyrequired eight (8) days.
Plaintiff, however, asserts that pursuant to C.P.L.R. § 2103
(Service of papers), he was entitled to an additional five (5) days
to respond to the Notice of Charges. Though Plaintiff does not
specify the applicable subdivision of C.P.L.R. § 2103, Defendants
and the Court have assumed he is citing subdivision (b)(2) which
deals with service of interlocutory papers upon a represented party
attorney in a “pending action.” N.Y. CIV. P. LAW & R. § 2103(b)(2).
It provides that in such cases, service shall be on the party’s
attorney, and “where a period of time prescribed by law is measured
from the service of a paper and service is by mail, five days shall
be added to the prescribed period if the mailing is made within the
state[.]” Id.
The application of C.P.L.R. § 2103 “is expressly restricted to
service ‘in a pending action[.]’” Fiedelman v. New York State Dep’t
of Health, 58 N.Y.2d 80, 82 (1983) (per curiam). Section 101
explicitly provides that the C.P.L.R. is applicable only to “civil
judicial proceedings in all courts of [New York] state.” N.Y. CIV.
P. LAW & R. § 101. Courts in New York have consistently declined to

-10-

apply

the

provisions

of

the

C.P.L.R.

to

administrative

and

disciplinary proceedings. See, e.g., Fiedelman, 58 N.Y.2d at 83
(holding that C.P.L.R. 2103(c), which prescribes extensions of time
where service

on

a party

is

made

by

administrative

proceedings) (citing

mail, do not

Application of

apply to

Clark,

301

N.Y.S.2d 804, 809 (Sup. Ct. 1969) (“A disciplinary hearing is not
a ‘civil judicial proceeding’ (CPLR § 101).”) (quoting Infante v.
Donohue, 249 N.Y.S.2d 100, 105 (Sup. Ct. 1964)); other citations
omitted); see also IESI N.Y. Corp. v. Martinez, 778 N.Y.S.2d 900,
901 (2d

Dep’t

judicial

2004)

proceedings

(“[T]he
(see

CPLR governs
CPLR

101).

procedure

‘All

civil

in civil
judicial

proceedings shall be prosecuted in the form of an action, except
where

prosecution

in

the

form

of

a

special

proceeding

is

authorized’ (CPLR 103(b)). An administrative proceeding is not an
action

nor

a

special

proceeding.

Accordingly,

the

underlying

administrative proceeding in this case was not a civil judicial
proceeding, and the service provisions of CPLR 311(a)(1) did not
apply.”) (some internal citations omitted).
Here, the proceeding at issue clearly was not a civil judicial
proceeding as defined by New York law. Rather, it was an employee
disciplinary proceeding held pursuant N.Y. C.S.L. § 75(2), which
must be conducted by the officer or body having the power to remove
the employee (unless that person designates someone else to conduct
the hearing), according to duly enacted rules and regulations

-11-

specifically applicable to such proceedings. See, e.g., Infante,
249 N.Y.S.2d at 105 (rejecting respondent’s request for procedural
steps and remedies available to a litigant in a civil trial under
the

C.P.L.R.,

such

as

an

order

for

a

bill

of

particulars,

examination before trial, a court-appointed referee and a change of
venue, because the proceeding was a disciplinary hearing pursuant
to rules of the Division of New York State Police). Therefore,
C.P.L.R. § 2103(b) has no application here.
The procedural due process claim asserted in the First Cause
of Action, namely, that Plaintiff was entitled to rely on the timeperiods set forth in C.P.L.R. § 2103(b) when responding to the
Notice of Charge, fails as a matter of law.
II.

Municipal Liability
Plaintiff’s second cause of action asserts a claim under

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-94 (1978), on the
basis that the City allegedly had a custom, policy or practice of
(i) denying its permanent employees their right to a hearing
pursuant to Section 75 without obtaining the employees’ express
waiver of their right to a hearing; (ii) denying its employees a
Section 75 hearing when the City, in its sole discretion, believed
that the record evidence was sufficient to obviate the necessity of
a hearing; and (iii) denying its employees the required eight (8)
days to answer charges brought against them pursuant to Section 75.
(See Dkt #1, ¶¶ 34-36).

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“Monell does not provide a separate cause of action for the
failure by the government to train its employees; it extends
liability to a municipal organization where . . . the policies or
customs

that

it

has

sanctioned,

led

to

an

independent

constitutional violation.” Segal v. City of N.Y., 459 F.3d 207, 219
(2d Cir. 2006) (emphasis in original; citing Monell, 436 U.S. at
694 (municipal policy was “the moving force of the constitutional
violation” asserted by the plaintiff); other citation omitted).
Here, the Court has dismissed, as a matter of law, Plaintiff’s
procedural due process claims based on the denial of a pretermination hearing and the provision of inadequate time to respond
to

the

charges.

As

there

are

no

“independent

constitutional

violation[s]” to remedy in this case, Plaintiff cannot proceed on
his Monell claim. See, e.g., Mangino v. Inc. Vill. of Patchogue,
739 F. Supp.2d 205, 259 (E.D.N.Y. 2010) (“[B]ecause plaintiffs have
not

demonstrated

any

constitutional

violations

by

the

Fire

Department defendants, there is no basis on which they could
predicate

Monell

plaintiffs

lack

liability
any

against

underlying

the

claim

Fire

of

a

Department.
deprivation

When
of

a

constitutional right, the claim of municipal liability on the part
of the municipal defendant must be dismissed as well.”) (citing
Segal, 459 F.3d at 219–20 (holding that district court did not need
to

reach

municipal

liability

claim

where

due

process

claims

failed); other citations omitted); Sanchez-Vazquez v. Rochester

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City Sch. Dist., 2012 U.S. Dist. LEXIS 96301, at *11-*12 (W.D.N.Y.
July 10, 2012) (“Since Plaintiff failed to state a Section 1981
discrimination claim or any constitutional claim, his Monell claim
necessarily fails.”) (citing Segal, 459 F.3d at 219), aff’d, 2013
U.S. App. LEXIS 9661 (2d Cir. N.Y., May 14, 2013).
III. Intentional Infliction of Emotional Distress (“IIED”)
Plaintiff asserts that by the act of denying him of his due
process

rights,

Defendants

intended

to

cause,

and

did

cause

Plaintiff to suffer severe emotional distress. (See Dkt #1, ¶¶ 4344).
A.

IIED Claim As Against the City

It is well settled that “[p]ursuant to New York law, ‘[p]ublic
policy bars claims for intentional infliction of emotional distress
against a governmental entity.’” Frederique v. Cnty. of Nassau, 168
F. Supp.3d 455 (E.D.N.Y. 2016) (quoting Burbar v. Inc. Vill. of
Garden City, 961 F. Supp.2d 462, 474 (E.D.N.Y. 2013) (further
quotation and citation omitted)); see also Dzwonczyk v. Syracuse
City Police Dep’t, 710 F. Supp.2d 248, 273 n. 6 (N.D.N.Y. 2008)
(“Plaintiff’s IIED claim against the County must fail, as it is
well-settled that public policy bars claims sounding in intentional
infliction of emotional distress against a government entity.”)
(internal quotation omitted). Therefore, the Court dismisses, as a
matter of law, Plaintiff’s cause of action for IIED against the
City. See id.

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B.

IIED As Against Smith

Because no Federal causes of action remain pending in this
proceeding,

the

Court

declines

to

exercise

supplemental

jurisdiction over Plaintiff’s claim for IIED against Smith. See 28
U.S.C. § 1367(c)(3) (“The district courts may decline to exercise
supplemental jurisdiction over a claim [properly before the court]
if . . . the district court has dismissed all claims over which it
has original jurisdiction. . . .”).
IV.

Negligent Infliction of Emotional Distress
Plaintiff employs the same boilerplate allegations for his

cause

of

action

asserting

negligent

infliction

of

emotional

distress as he does for the IIED cause of action; he merely
substitutes the word “negligently” for “intentionally.” (See Dkt
#1, ¶¶ 46-47). Plaintiff cannot have it both ways. See, e.g.,
Mazurkiewicz v. New York City Transit Auth., 810 F. Supp. 563,
570–71 (S.D.N.Y. 1993) (“Plaintiff cannot argue that defendants
engaged in intentional conduct that forms the basis of an assault
and § 1983 excessive force claim and also argue that

defendants

were negligent towards plaintiff.”). Furthermore, as noted above,
no Federal causes of action remain pending in this proceeding.
Accordingly,

the

Court

declines

to

exercise

supplemental

jurisdiction over Plaintiff’s claims for negligent infliction of
emotional distress against Defendants. See 28 U.S.C. § 1367(c)(3).

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CONCLUSION
For

the

reasons

discussed

above,

Defendants’

Motion

for

Summary Judgment is granted, and Plaintiff’s Motion for Partial
Summary judgment is denied. The Complaint is dismissed. The Clerk
of the Court is directed to close this case.
SO ORDERED.
s/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

October 6, 2016
Rochester, New York.

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