Frederick v. State of New York, Office of Mental Health, Rochester Psychiatric Center et al

Filing 46

DECISION AND ORDER granting in part and denying in part 40 Motion for Summary Judgment. Signed by Hon. Elizabeth A. Wolford on 03/26/2020. (CDH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOEL W. FREDERICK,
Plaintiff,

DECISION AND ORDER

v.

6:16-CV-06570 EAW

STATE OF NEW YORK, OFFICE OF
MENTAL HEALTH, ROCHESTER
PSYCHIATRIC CENTER, COLOMBA
MISSERITTI, Director of Human Resource
Management, JOSEPH COFFEY, Director
of Facility Administration, DOUG LEE,
Associate Personnel Administrator, JOHN
BURROWS, Bureau of Employee Relations
Representative, PHILLIP GRIFFIN, Executive
Director, DR. GUTTMACHER, Clinical
Director, SGT. DAVID REED, Safety
Department Representative, TIM COLES,
Maintenance Supervisor II,
Defendants.

INTRODUCTION
Plaintiff Joel W. Frederick (“Plaintiff”) raises a series of claims arising from his
employment with Defendant Rochester Psychiatric Center (“RPC”), including from a
mental hygiene arrest1 that was effected based upon the representations of several RPC
employees.

Plaintiff alleges violations of § 504 of the Rehabilitation Act of 1973

Plaintiff and Defendants use the term “mental hygiene arrest” and “mental health
arrest” interchangeably to refer to the same event. Plaintiff’s arrest was effected pursuant
to a provision of the New York Mental Hygiene Law. As such, the Court refers to
Plaintiff’s arrest as a “mental hygiene arrest.”
1

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(“Rehabilitation Act”), 29 U.S.C. § 794, for discriminatory treatment due to a perceived
disability and retaliation for opposing discrimination based on that perceived disability;
New York Labor Law § 740; and 42 U.S.C. § 1983, for alleged deprivation of his federal
constitutional rights by state employees, including retaliation against him for exercising his
First Amendment rights, false arrest and imprisonment, and abuse of process. (Dkt. 2 at
2). Presently before the Court is Defendants’ motion for summary judgment. (Dkt. 40).
For the following reasons, Defendants’ motion is granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff began working for the New York State Office of Mental Health (“OMH”)
at the RPC as a general mechanic in May of 2011, and remains employed in that same
capacity. (Dkt. 40-1 at ¶¶ 1-2; Dkt. 44-1 at ¶¶ 1-2). Plaintiff described his mechanic duties
as “general maintenance,” including “work[ing] on locks,” “painting, plumbing, drywall
work, doors, hardware, framing, . . . carpentry[,] or mechanical repairs.” (Dkt. 40-3 at 22).
On August 8, 2015, Plaintiff was involved in an incident with his supervisor, Ron
Germain (“Germain”). Plaintiff claims that Germain, using an explicative, threatened to
throw Plaintiff out the window if he did not “shut up.” (Dkt. 40-1 at ¶ 4; Dkt. 44-1 at ¶ 4.1).
Plaintiff did not report this incident until almost six months later, after Germain reduced
Plaintiff and his coworker’s access to overtime hours. (Dkt. 40-1 at ¶¶ 5, 12-13; Dkt. 44-1
at ¶¶ 5, 12-13).
Separately, in September 2015, Plaintiff was involved in a domestic incident.
Plaintiff’s then-girlfriend contacted the police after Plaintiff allegedly sent her a text
message of a picture of himself holding a gun to his head. (Dkt. 40-1 at ¶ 6; Dkt. 44-1 at
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¶ 6). The police then confiscated Plaintiff’s lawfully possessed guns, and placed Plaintiff
under mental hygiene arrest pursuant to the New York Mental Hygiene Law. (Dkt. 40-1
at ¶ 7; Dkt. 44-1 at ¶ 7). Plaintiff was discharged the following day. (Dkt. 40-1 at ¶ 8; Dkt.
44-1 at ¶ 8). After the incident, Plaintiff told a “couple of co-workers” that he had a
“domestic dispute” with his girlfriend and “that the police took [his] guns for an off period.”
(Dkt. 40-3 at 37, 42-43).
On Friday, February 5, 2016, Plaintiff met with Germain. Plaintiff was told that
locksmith Thomas DeMarco (“DeMarco”) would respond to requests outside of working
hours relating to lock repairs. (Dkt. 40-1 at ¶ 11; Dkt. 40-3 at 52, 184; Dkt. 44-1 at
¶¶ 11-11.1). Plaintiff and his coworker were asked to turn over their master keys. (Id.).
Plaintiff was also told that going forward, he and his fellow mechanic would be “secondary
responders.” (Dkt. 40-3 at 52). This meant that if the locksmith took every such request,
Plaintiff and his co-worker would not receive overtime work (and presumably overtime
pay). (Id.).
Later that day, Plaintiff complained to Defendant Joseph Coffey (“Coffey”),
Director of Facility Administration, about Germain’s decision to reduce his access to
overtime pay and, for the first time, complained about Germain’s alleged comment made
some six months earlier, threatening to throw Plaintiff out the window. (Dkt. 40-1 at
¶¶ 12-13; Dkt. 44-1 at ¶¶ 12-13). Coffey advised Plaintiff to file a workplace violence
report with respect to the alleged comment. (Dkt. 40-1 at ¶ 14; Dkt. 44-1 at ¶ 14).
On Monday, February 8, 2016, Plaintiff met with Defendant Doug Lee (“Lee”),
Associate Personnel Administrator, and completed a Violence Reporting Form. (Dkt. 40-1
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at ¶¶ 15, 17; Dkt. 40-3 at 65, 241; Dkt. 44-1 at ¶¶ 15, 17). On the section of the form that
asked for a description of what occurred, Plaintiff indicated that he, Germain, and Demarco
were working on a “new matrix for Control Rm [sic] Keyboard.” (Dkt. 40-3 at 241).
Plaintiff wrote: “When I mentioned something was out of order Mr. Germain told me to
shut up before he throws me out the window.” (Id.). In response to a separate prompt on
the form asking how the event ended, Plaintiff responded: “In total fear of Mr. Germain,
constantly working in a hostile environment, was not reported immediately in fear of
retaliation.” (Id.). Plaintiff later met with Defendant RPC Executive Director Phillip
Griffin (“Griffin”) and Lee to further discuss Germain’s threat and the loss of potential
overtime. (Dkt. 40-1 at ¶ 16; Dkt. 44-1 at ¶ 16).
On February 29, 2016, Plaintiff was informed that his workplace violence complaint
was not substantiated. (Dkt. 40-1 at ¶ 18; Dkt. 44-1 at ¶ 18). Later that day, Plaintiff
completed a New York State Department of Labor Public Employee Safety and Health
Bureau form entitled “Notice of Alleged Safety or Health Hazards,” complaining about
Germain’s alleged threat and RPC’s determination that this conduct did not constitute
workplace violence. (Dkt. 40-1 at ¶ 19; Dkt. 40-3 at 245; Dkt. 44-1 at ¶ 19). This complaint
was received by the Department of Labor on March 2, 2016. (Dkt. 40-1 at ¶ 20; Dkt. 44-1
at ¶ 20).
Defendants allege that on March 1, 2016, Plaintiff met with his supervisor,
Defendant Timothy Coles (“Coles”), and made a series of concerning statements regarding
Germain and his decision about locksmith overtime, including statements that Germain
“doesn’t know who he is messing with and I am sick of his shit” and that Plaintiff
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previously had his personal firearms taken away. (Dkt. 40-1 at ¶¶ 21-23). Plaintiff admits
that he had a conversation with Coles regarding his personal firearms, but denies speaking
with Coles on March 1 and making the statements that Coles attributed to him. (Dkt. 40-3
at 82; Dkt. 44-1 at ¶¶ 21.1).
Coles testified that he had also been approached by staff members DeMarco,
Charles Smith, and John Gaede (“Gaede”) about Plaintiff’s behavior. (Dkt. 40-3 at
286-91). According to Coles, Charles Smith told him that Plaintiff said “something big is
going to happen Friday” and that he “wouldn’t be here after that,” and DeMarco told him
Plaintiff stated “I don’t need my guns. I can use a bow and arrow.” (Id. at 287-89).
Plaintiff disputes making these statements but does not dispute that Charles Smith and
DeMarco reported these alleged statements to Coles. (Dkt. 44-1 at ¶¶ 25-25.2).
Based on his observations and concerns about possible workplace violence, that
same day (March 1, 2016), Coles contacted his supervisor, Coffey. (Dkt. 40-1 at ¶¶ 27-28;
Dkt. 44-1 at ¶¶ 27-28). After his discussion with Coffey, at Coffey’s request, Coles
documented his concerns in an email. (Dkt. 40-1 at ¶¶ 29-30; Dkt. 44-1 at ¶¶ 29-30). This
email was then forwarded to Defendant Columba Misseritti (“Misseritti”), Associate
Director of Human Resources. (Dkt. 40-1 at ¶¶ 18, 31; Dkt. 44-1 at ¶¶ 18, 31). After an
additional email exchange, Misseritti interviewed Coles at approximately 2:30 p.m. on
March 1. (Dkt. 40-1 at ¶ 34; Dkt. 44-1 at ¶ 34).
Shortly thereafter, Misseritti and Lee interviewed employee DeMarco, who
confirmed hearing the bow and arrow comment. (Dkt. 40-1 at ¶¶ 39-40; 40-3 at 335).
According to Misseritti, DeMarco also “placed [employee] Craig Smith in the area.” (Dkt.
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40-3 at 335). Misseritti and Lee then interviewed Craig Smith, who likewise confirmed
hearing Plaintiff make this comment. (Dkt. 40-1 at ¶ 40). Plaintiff disputes making these
statements but does not dispute that DeMarco and Craig Smith separately spoke with
Misseritti and Lee and reported to them that Plaintiff made these comments. (Dkt. 44-1 at
¶¶ 39-40). Following these interviews, Lee and Misseritti then spoke with Defendant John
Burrows (“Burrows”), Bureau of Employee Relations Representative, and were given the
authorization to place Plaintiff on administrative leave.2 (Dkt. 40-1 at ¶ 41; Dkt. 44-1 at
¶ 41).
On March 2, at about 9:00 a.m., Germain met with Lee and Coles. Germain
expressed fear that his family might be harmed by Plaintiff, and Germain was granted
permission to leave RPC grounds. (Dkt. 40-1 at ¶ 45; Dkt. 44-1 at ¶ 45). Lee and Misseritti
then interviewed Charles Smith at approximately 9:30 a.m., who confirmed hearing
Plaintiff state that something big would be happening on Friday and Plaintiff would not be
at RPC after that day. (Dkt. 40-1 at ¶ 46). Charles Smith also reported that Plaintiff said
he was “getting to” Germain, since Germain apparently had to go to the doctor, and that
Plaintiff told him that Plaintiff had been “mental hygiene arrested” and his guns were taken
away, but that he was trying to get them back. (Id. at ¶ 47). Finally, Charles Smith told

2

As discussed below, Defendant Burrows’ motion to dismiss was granted by the
Court on February 3, 2017. (Dkt. 26). Plaintiff was granted leave to replead his Amended
Complaint against Burrows but did not do so. In the motion presently before the Court,
the parties have offered little information regarding Burrows’ title and job duties.
Documents submitted by Plaintiff from the New York State Department of Labor suggest
that Burrows was RPC’s OMH Bureau of Employee Relations Representative (Dkt. 44-3
at 56), but none of the parties have explained his role.
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Lee and Misseritti that Plaintiff also “mentioned something about suicide.” (Id. at ¶ 48).
Plaintiff disputes making these comments but does not dispute that Charles Smith spoke
with Lee and Misseritti and reported that he heard Plaintiff make them. (Dkt. 44-1 at
¶¶ 46-48.1). Lee and Misseritti interviewed Gaede, then contacted the OMH Albany office
to discuss placing Plaintiff on administrative leave or seeking a mental hygiene arrest.
(Dkt. 40-1 at ¶¶ 49-50; Dkt. 44-1 at ¶¶ 49-50).
From roughly 10:15 a.m. until noon, six of the Defendants, Griffin, Coffey,
Misseritti, Lee, RPC Clinical Director Dr. Larry Guttmacher (“Guttmacher”), and RPC
Safety Department Sergeant David Reed (“Reed”), met to discuss Plaintiff’s situation.
(Dkt. 40-1 at ¶ 52; Dkt. 40-3 at 341-342; Dkt. 44-1 at ¶ 52). During this meeting,
Defendants were told the results of the inquiry into Coles’ workplace violence report,
including that Plaintiff was angry and upset; his previous mental hygiene arrest and the
resulting confiscation of his firearms; and his references to suicide, something big
happening on Friday, not being at RPC after Friday, and not needing guns because he had
a bow and arrow. (Dkt. 40-1 at ¶ 54). Plaintiff disputes being angry or upset and the
making of the statements attributed to him, but does not dispute that these statements were
reported to Defendants at the meeting. (Dkt. 44-1 at ¶ 54). As a result of this meeting, a
collaborative decision was made to call the police regarding a mental hygiene arrest of
Plaintiff. (Dkt. 40-1 at ¶¶ 55-56; Dkt. 44-1 at ¶¶ 55-56). This option was chosen over
continued administrative leave and an eventual psychiatric evaluation because Plaintiff had
referenced suicide and not being there on Friday, so the group felt it best to seek immediate
psychiatric attention for Plaintiff by way of a mental hygiene arrest. (Dkt. 40-1 at ¶¶ 57-58;
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Dkt. 44-1 at ¶¶ 57-58). Although Coles initially brought forward the concerns about
Plaintiff’s behavior, Coles did not participate in this meeting. (Dkt. 40-1 at ¶ 53; Dkt. 44-1
at ¶ 53).
On March 2, 2016, around noon, the Rochester Police Department (“RPD”), in the
presence of RPC security, arrested Plaintiff pursuant to the New York Mental Hygiene
Law. (Dkt. 40-1 at ¶ 59; Dkt. 44-1 at ¶ 59). Plaintiff was not on RPC grounds at the time,
and the individual Defendants were not present at the time of the arrest. (Dkt. 40-3 at
110-13). Plaintiff was handcuffed, placed briefly in an RPD police car, then escorted to an
ambulance that transported him to Strong Memorial Hospital (“SMH”). (Dkt. 40-1 at ¶ 60;
Dkt. 44-1 at ¶ 60). Plaintiff was discharged at 9:16 p.m. that evening. (Dkt. 40-1 at ¶ 61;
Dkt. 44-1 at ¶ 61). According to Plaintiff, SMH cleared him to return to work as part of
that examination. (Dkt. 44-1 at ¶¶ 62.1, 70.1).
Unbeknownst to anyone at RPC, at approximately 2:15 p.m. on March 1, Plaintiff
contacted OMH’s Director of Investigations, William McDermott (“McDermott”). (Dkt.
40-1 at ¶¶ 42, 44; Dkt. 40-2 at ¶¶ 1-3; Dkt. 44-1 at ¶¶ 42, 44). Plaintiff and McDermott
discussed his grievances about RPC, including his complaint about Germain. (Dkt. 40-1
at ¶¶ 42; Dkt. 44-1 at ¶ 42). According to Plaintiff, his discussions with McDermott also
included complaints of bid rigging and “falsification of documents” on projects to the
“Joint Commission.”3 (Dkt. 44-2 at ¶ 22).

None of the parties have explained the terms “Joint Commission” or “Joint
Commission Survey.”
3

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After his mental hygiene arrest, Plaintiff contacted McDermott again on March 2,
this time from SMH. (Dkt. 40-1 at ¶ 63; Dkt. 44-1 at ¶ 63). After that call, McDermott
called Misseritti, who learned for the first time that Plaintiff had previously contacted
McDermott. (Dkt. 40-1 at ¶¶ 64-65; Dkt. 44-1 at ¶¶ 64-65).
In a letter dated March 2, Plaintiff was informed by Misseritti that he was placed on
administrative leave, with pay, effective March 3, 2016. (Dkt. 40-1 at ¶ 66; Dkt. 44-3 at
16). Plaintiff was not permitted on RPC grounds absent authorization. (Dkt. 44-3 at 16).4
On March 23, 2016, Plaintiff filed a complaint with the New York State Division of
Human Rights (“NYSDHR”), alleging discrimination on the basis of disability. (Dkt. 44-3
at 34-43). In his NYSDHR complaint, Plaintiff alleged that his mental hygiene arrest was
orchestrated due to his reports of workplace violence and corruption, complaining that RPC
“knew about prior mental hygiene issues and wanted to exploit this for malicious retaliation
for the purpose of ending any investigation.” (Id. at 39). Neither Defendants nor Plaintiff
have provided any evidence of when or even whether RPC received notice of this
complaint.
Misseritti testified that she later interviewed Plaintiff on March 31 and April 1,
2016. (Dkt. 40-3 at 337). On April 1, 2016, Plaintiff was notified that RPC had

4

Plaintiff contends that he was placed on administrative leave on March 1, 2016 (Dkt.
44-1 at ¶ 66), but also testified that his mental hygiene arrest occurred on March 2, 2016,
he worked at RPC that day, and the arrest occurred at a pizza shop after he left RPC grounds
for lunch. (Dkt. 40-3 at 104, 109). Plaintiff does not claim that this difference in the
alleged start date of his administrative leave has any bearing on Defendants’ motion.
Plaintiff’s contention that his administrative leave began on March 1 is contrary to his
testimony and in any event, the difference in dates is not material.
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determined, pursuant to New York Civil Service Law § 72(5), that his presence in the
workplace could be a potential danger to patients, co-workers, or himself. (Dkt. 40-3 at
256). As a result, he was placed on an involuntary leave of absence as of that date and
would be required to undergo a medical examination conducted by the Employee Health
Service (“EHS”). (Id.). Plaintiff underwent that examination on April 18, 2016, and in a
letter dated April 27, 2016, EHS determined that Plaintiff was “fit to perform the essential
duties of a General Mechanic.” (Dkt. 44-3 at 50). Plaintiff returned to work on May 18,
2016. (Dkt. 40-1 at ¶ 73; Dkt. 44-1 at ¶ 73).
Plaintiff initiated this action on August 13, 2016. (Dkt. 1; Dkt. 2). Defendants
Burrows and Germain moved to partially dismiss the Amended Complaint. (Dkt. 19). By
Decision and Order dated February 3, 2017, this Court granted Germain’s motion to
dismiss, with prejudice, the sole count against him. (Dkt. 26). Burrows moved to dismiss
all four counts in the Amended Complaint brought against him in his personal capacity.
This Court granted Burrows’ motion to dismiss but granted Plaintiff leave to replead three
of the counts. (Id.). Plaintiff did not do so, and the Amended Complaint remains the
operative pleading.
DISCUSSION
I.

Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes “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). The Court should grant summary judgment if, after considering the evidence in
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the light most favorable to the nonmoving party, the Court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
“The moving party bears the burden of showing the absence of a genuine dispute as
to any material fact. . . .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486
(2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing the evidentiary
materials of record, if reduced to admissible evidence, would be insufficient to carry the
non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the
moving party has met its burden, the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc.,
781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Cir. 2011)).

Specifically, the non-moving party “must come forward with specific

evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654
F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).

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II.

Plaintiff’s Substantive Rehabilitation Act Claim (Count I)
Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified

individual with a disability . . . shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance. . . .” 29 U.S.C. § 794(a).
The Rehabilitation Act incorporates the definition of “individual with a disability” set forth
in the Americans with Disabilities Act of 1990 (“ADA”), which includes “being regarded
as having” “a physical or mental impairment that substantially limits one or more major
life activities.” 42 U.S.C. § 12102(1), (3); 29 U.S.C. § 705(20)(B) (subject to certain
exclusions not relevant here, “the term ‘individual with a disability’ means . . . any person
who has a disability as defined in section 12102 of Title 42”). The Rehabilitation Act
proscribes discrimination “solely by reason of . . . disability,” 29 U.S.C. § 794(a), while
Title I of the ADA prohibits discrimination in employment on the “basis of disability,” 42
U.S.C. § 12112(a). The Second Circuit has made clear that the causation standards with
respect to employment discrimination claims are the same under both statutes. Natofsky v.
City of New York, 921 F.3d 337, 345 (2d Cir. 2019) (holding that 1992 amendments to the
Rehabilitation Act adding section 794(d) “displace[d] the causation standard expressed in
§ 794(a) in the employment discrimination context”).
To state a prima facie case for discrimination under the Rehabilitation Act, a
plaintiff must show that:
1) his employer is subject to the Act; 2) the plaintiff has, or is perceived to
have, a disability within the meaning of the Act; 3) the plaintiff was capable
of performing the essential functions of the job with reasonable
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accommodation; and 4) the plaintiff was subjected to an adverse employment
action because of the disability.
Hatch v. Brennan, No. 3:16cv795 (JBA), 2018 WL 3421314, at *6 (D. Conn. July 13,
2018), aff’d, 792 F. App’x 875 (2d Cir. 2019) (citations omitted). Once the plaintiff has
established his prima facie case, “the burden of proof shifts to the defendant to ‘articulate
some legitimate, nondiscriminatory reason for the’ employer’s conduct.” Fox v. Costco
Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019) (quoting McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)).
With respect to Plaintiff’s prima facie case, RPC does not contest that it is subject
to the Rehabilitation Act or that Plaintiff was capable of performing the essential functions
of his job. Instead, RPC argues that Plaintiff was neither disabled nor perceived to be
disabled by RPC and that RPC took no adverse action against Plaintiff on the basis of his
disability.
Plaintiff alleges that RPC took a series of specific adverse employment actions that
violated his rights. Plaintiff relies on this same list of alleged employment actions in
support of his Rehabilitation Act claims and his First Amendment retaliation claim. With
respect to his Rehabilitation Act claims, the Court will separate its discussion of these
employment actions based on whether they occurred before or after the April 27, 2016,
determination that Plaintiff was fit to resume his general mechanic duties (“April 27th
Determination”).
Plaintiff claims that on March 2, 2016, he was subjected to a mental hygiene arrest,
placed on administrative leave, and placed on a “restrictive list,” which prevented him from
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being present on RPC grounds. (Dkt. 44 at 11). Plaintiff also claims that he was subjected
to a second psychological evaluation. (Id.). All of these actions occurred prior to the April
27th Determination that Plaintiff was fit to resume his duties.
Plaintiff also alleges that he “remained out of work for more than three weeks while
the Joint Commission Survey completed its review of the RPC” and that after he returned
from administrative leave, he was removed from the locksmith overtime list completely,
his administrative duties and unspecified essential responsibilities were removed, his
personal RPC-owned work tools were missing, and his work environment changed because
he was ostracized by supervisors and co-workers and his co-workers made jokes about his
mental hygiene arrest. (Dkt. 44 at 11; Dkt. 44-2 at ¶ 44). All of these alleged actions
occurred after the April 27th Determination.
A.

Alleged adverse employment actions occurring prior to the April 27th
Determination
1.

There is a genuine issue of disputed fact as to whether RPC
perceived Plaintiff to be disabled prior to the April 27th
Determination

There is no dispute that Plaintiff does not claim to be disabled. Instead, Plaintiff
claims that he never made the statements that led RPC to seek his mental hygiene arrest,
thus either RPC perceived him as having a mental health condition or Defendants
orchestrated his mental hygiene arrest in an effort to silence his complaints about Germain.5

5

The factual underpinnings of these theories appear mutually exclusive, because one
theory supports Plaintiff’s Rehabilitation Act claims, while the other supports his § 1983
claims. Nonetheless, Plaintiff is not foreclosed from arguing that Defendants’ actions can
be viewed as supporting alternate theories of liability. Zeranti v. United States, 358 F.
Supp. 3d 244, 260 n.10 (W.D.N.Y. 2019).
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RPC appears to argue that Defendants’ concerns about Plaintiff’s personal safety
and the safety of others does not mean that those involved in the decision to seek a mental
hygiene arrest perceived Plaintiff as disabled. The sole case cited by RPC in support of its
argument, Bruzzese v. Sessions, 725 F. App’x 68 (2d Cir. 2018), is inapplicable here.
Plaintiff Bruzzese, a Special Agent for the Bureau of Alcohol, Tobacco, Firearms and
Explosives, underwent psychological and psychiatric evaluations which did not conclude
that he suffered from any disorder, but revealed “personality traits” that supported
restricting his ability to carry a firearm absent additional measures, including further
training. Id. at 71. The court held that in taking action based on those personality traits,
the defendant did not perceive Bruzzese as disabled. Id. However, Bruzzese did not
challenge the underlying evaluations as adverse actions. Id. Instead, Bruzzese argued that
the results of those evaluations led his employer to find that he was no longer qualified to
perform important aspects of his job. Id. In contrast, here Plaintiff claims that the mental
hygiene arrest and the April psychological examination were themselves adverse
employment actions based on his perceived disability.
RPC’s justification for the mental hygiene arrest was clearly based in part on
concerns that Plaintiff was possibly suicidal and thus should have access to immediate care.
RPC employee Charles Smith told Lee and Misseritti that Plaintiff mentioned suicide. In
her written “timeline” of events, Misseritti notes a “recent suicide history” and that “due to
lethality concerns regarding Mr. Frederick it was felt that a Mental Health Arrest (MHA)
would be a more appropriate form of immediate care for Mr. Frederick and the safety and
security of the facility,” as opposed to other means of evaluating Plaintiff, which could
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“delay a review/care . . . until a later date, perhaps weeks.” (Dkt. 40-3 at 370) (emphasis
added). Likewise, on the day of the mental hygiene arrest, Plaintiff was placed on
administrative leave and his access to the facility was restricted. RPC’s concerns and
attempts to secure immediate care for Plaintiff certainly suggest that RPC perceived that
Plaintiff had some form of mental health condition.6
On April 1, 2016, Misseritti communicated to Plaintiff that RPC was placing
Plaintiff on an involuntary leave of absence pursuant to New York Civil Service Law
§ 72(5), and that he would undergo “a medical and/or psychiatric examination conducted
by the Department of Civil Service Employee Health Service.” (Dkt. 40-3 at 256). Section
72 governs leave for “ordinary disability” and § 72(5) provides in pertinent part:
[I]f the appointing authority determines that there is probable cause to believe
that the continued presence of the employee on the job represents a potential
danger to persons or property or would severely interfere with operations, it
may place such employee on involuntary leave of absence immediately;
provided, however that the employee shall be entitled to draw all
accumulated unused sick leave, vacation, overtime and other time allowances
standing to his or her credit. If such an employee is finally determined not
to be physically or mentally unfit to perform the duties of his or her position,
he or she shall be restored to his or her position and shall have any leave
credits or salary that he or she may have lost because of such involuntary
leave of absence restored to him or her less any compensation he or she may
have earned in other employment or occupation and any unemployment
benefits he or she may have received during such period.
N.Y. Civ. Serv. Law § 72(5).

When alleged discrimination is based on a perceived impairment, “[t]he ‘regarded
as’ clause requires a plaintiff to establish ‘that he or she has been subjected to an action
prohibited under this chapter because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit a major life
activity.’” Donley v. Vill. of Yorkville, New York, No. 6:14-CV-1324 (MAD/ATB), 2019
WL 3817054, at *3 (N.D.N.Y. Aug. 13, 2019) (quoting 42 U.S.C. § 12102(3)(A)).
6

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There is no evidence suggesting that at the time that RPC placed him on this leave
and ordered the psychiatric examination, Misseritti and RPC knew the results of Plaintiff’s
March 2, 2016, evaluation at SMH. (See, e.g., Dkt. 44-3 at 26). RPC has not suggested
that its decision to take action under Civil Service Law § 72(5) was premised on different
motivations than the decision to seek his mental hygiene arrest. There is a genuine issue
of material fact as to whether, at the time RPC sought Plaintiff’s mental hygiene arrest,
placed him on administrative leave and on a “restricted list,” and ordered a psychological
evaluation pursuant to Civil Service Law § 72(5), RPC perceived Plaintiff as disabled.
2.

The March 2 actions and separate April 2016 psychological
evaluation were not adverse employment actions

Plaintiff generally alleges that the mental hygiene arrest was an adverse employment
action. “An adverse employment action ‘must be more disruptive than a mere
inconvenience or an alteration of job responsibilities and might be indicated by a
termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices . . . unique to a particular situation.’” Fox, 918 F.3d at
71-72 (quoting Patrolmen’s Benevolent Ass’n of City of N.Y. v. City of New York, 310 F.3d
43, 51 (2d Cir. 2002)).
Plaintiff has not alleged that the mental hygiene arrest or the April 2016
psychological evaluation created any change in salary or loss of benefits. Indeed, other
than citing the recognized criteria for an adverse employment action, Plaintiff makes no
effort to establish how the mental hygiene arrest or the April 2016 psychological evaluation
- 17 -

were adverse employment actions. The mental hygiene arrest was effected outside the
workplace, and Plaintiff has not revealed any undisputed facts or cited any precedent to
suggest that RPC’s decision to contact the RPD and seek a mental hygiene arrest
constituted an adverse employment action. See Farina v. Branford Bd. of Educ., 458 F.
App’x 13, 17 (2d Cir. 2011) (forcing plaintiff “to take a second fitness for duty evaluation
is not evidence of an adverse employment action” (quotation omitted)); Forgione v. City
of New York, No. 11-CV-5248, 2012 WL 4049832, at * 5 (E.D.N.Y. Sept. 13, 2012)
(finding that although plaintiff may have viewed two referrals for psychological
evaluations “as inconvenient and unwarranted, and although they may have carried
negative connotations, they did not effect a materially adverse change in his working
conditions”).
There is likewise no evidence that Plaintiff’s March administrative leave with pay
and concomitant restriction from accessing the facility were adverse employment actions.
Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006) (paid administrative leave was not an
adverse action); Laface v. E. Suffolk BOCES, 349 F. Supp. 3d 126, 150 (E.D.N.Y. 2018)
(temporary paid administrative leave not an adverse employment action), reconsideration
denied, 2019 WL 1433095 (E.D.N.Y. Mar. 29, 2019); c.f. Abbott v. Wyo. Cty. Sheriff’s
Office, No. 1:15-CV-00531 EAW, 2019 WL 4689045, at *11 (W.D.N.Y. Sept. 26, 2019)
(circumstances suggested leave was an adverse action where plaintiff was not paid until
the end of three months of administrative leave). Plaintiff makes the conclusory claim that
he lost overtime pay as a result of his administrative leave. However, Plaintiff repeatedly
testified that his lost access to overtime pay occurred following the February 5, 2016
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meeting when Germain told Plaintiff that locksmith DeMarco would respond to requests
outside of working hours relating to lock repairs, well before his mental hygiene arrest and
administrative leave. (Dkt. 40-3 at 53-54, 143-144, 163). Moreover, although Plaintiff
generally claims that he was removed from the overtime list following his administrative
leave, Plaintiff does not present any evidence that anyone actually received overtime pay
after February 5, 2016.
In sum, Defendants have established that there is no genuine issue of material fact
that the March 2 actions and separate April 2016 psychological evaluation were not adverse
employment actions, and Plaintiff has failed to come forward with any evidence
demonstrating otherwise.
B.

There is no genuine issue of material fact that RPC did not regard
Plaintiff as disabled after the April 27th Determination that Plaintiff was
fit to perform his job duties

According to Plaintiff, SMH cleared him to return to work when he was discharged
from SMH following his mental hygiene arrest. (Dkt. 44-1 at ¶¶ 62.1, 70.1). This is based
solely on language in the SMH discharge summary, which states under the heading
“General Instructions,” “Return to Work/School on: As tolerated.” (Dkt. 44-1 at ¶¶ 62.1,
70.1; Dkt. 44-3 at 23). Assuming that this language actually clears Plaintiff to return to
work, Plaintiff has not suggested that this information was in any way communicated by
him (or anyone else) to RPC. It is, however, undisputed that after the April 2016
evaluation, which determined that Plaintiff was fit to resume his duties, Plaintiff returned
to work three weeks later.

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Plaintiff alleges that notwithstanding the April 27th Determination, he remained out
of work for three additional weeks, he was removed from the locksmith overtime list
completely, his administrative duties and unspecified essential responsibilities were
removed, his personal RPC-owned work tools were missing, and his work environment
changed. However, Plaintiff makes no effort to articulate whether RPC perceived him as
disabled after the April 27th Determination. Instead, Plaintiff focuses solely on the events
that occurred prior to the April 27 Determination, arguing only that RPC never questioned
Plaintiff about his statements until after the mental hygiene arrest and that he was required
to undergo an additional psychological evaluation after he was “cleared to return to work
on March 2.” (Dkt. 44 at 10). With respect to the three-week delay in his return to work,
Plaintiff suggests that this was somehow connected to his earlier complaint relating to bid
rigging or the falsification of documents (Dkt. 44-1 at 31, ¶ 29), and makes no attempt to
tie this delay to any perceived disability. In short, there is no evidence that RPC regarded
Plaintiff as disabled after the April 27th Determination.
C.

Plaintiff has not alleged a hostile work environment claim

In his Amended Complaint, Plaintiff alleges as part of his substantive Rehabilitation
Act claim that “RPC’s actions created an intimidating, offensive and oppressive work
environment, and as a direct result, Plaintiff has suffered from monetary damages in the
form of lost wages and emotional distress in the form of pain and suffering.” (Dkt. 2 at
¶ 64). It is not clear from this lone allegation whether Plaintiff intended to claim that he
experienced a hostile work environment based on a perceived disability.

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As part of their motion for summary judgment, Defendants argue in part that
Plaintiff cannot maintain a hostile work environment claim. (Dkt. 40-4 at 11, 17-19). If
in fact Plaintiff intended to plead such a claim, he has made no attempt to support a hostile
work environment claim in his response to Defendants’ motion. The factual recitation in
Plaintiff’s Memorandum of Law notes colloquially at various points that his relationship
with Germain was “hostile” beginning in mid-2015 and that after his return to work,
Plaintiff’s “work environment has been nothing less than hostile.” (Dkt. 44 at 2-3, 6).
However, Plaintiff does not go on to allege or discuss any purported hostile work
environment claim on the basis of a perceived disability in violation of the Rehabilitation
Act. If Plaintiff did intend to state such a claim in his Amended Complaint, he has since
abandoned it.
For the reasons set forth above, Defendants’ motion for summary judgment with
respect to Count I is granted.
III.

Plaintiff’s Rehabilitation Act Retaliation Claim (Count II)
Plaintiff alleges in his Amended Complaint that he opposed discrimination based

on a perceived disability and was subjected to unlawful retaliation by RPC. (Dkt. 2 at 9-10).
“[T]he elements of a retaliation claim under either [the Rehabilitation Act] or the ADA are
(i) a plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that plaintiff
was involved in protected activity; (iii) an adverse decision or course of action was taken
against plaintiff; and (iv) a causal connection exists between the protected activity and the
adverse action.” Natofsky, 921 F.3d at 353 (alterations in original) (quoting Weixel v. Bd.
of Educ. of City of N.Y., 287 F.3d 138, 148 (2d Cir. 2002)).
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RPC, focusing largely on the mental hygiene arrest, argues that Plaintiff did not
allege any protected activity occurring before the mental hygiene arrest. (Dkt. 40-4 at
20-21). In response, Plaintiff points to his filing of a complaint of discrimination with the
NYSDHR on March 23, 2016, and alleges that with the exception of the March 2 mental
hygiene arrest, administrative leave, and placement on the “restricted list,” all of the
remaining actions alleged by Plaintiff following Plaintiff’s protected activity—the March
23 filing of the NYSDHR complaint—constituted retaliatory activity in violation of the
Rehabilitation Act.
Plaintiff’s NYSDHR complaint alleged that RPC exploited his previous mental
health issues to end any investigation into his reports of workplace violence and corruption
by effecting a mental hygiene arrest. (Dkt. 44-3 at 34-43). Assuming that this complaint
is protected activity, there is no evidence that Defendant was aware of it.
Plaintiff claims summarily that RPC had notice of his complaint “because they filed
a response.” (Dkt. 44 at 12). In support of this statement, Plaintiff cites to his Local Rule
56(a)(2) statement of material facts not in dispute, which claims that “[o]n June 30, 2016,
RPC filed its response to Frederick’s [NYSDRH] complaint.” (Dkt. 44-1 at 32, ¶ 32).
Plaintiff provides no citation to any evidence at all for this statement, in clear contravention
of Fed. R. Civ. P. 56(c)(1). In addition, counsel for Plaintiff’s Attorney Declaration
purports to attach as Exhibit O a document described as “RPC DHR Response—June 30,
2016.” (Dkt. 44-3 at 2). However, the document attached as Exhibit O is not what Plaintiff
claims. Instead, it is a letter from the New York State Department of Labor, dated June 30,
2016, notifying RPC Director Coffey of Plaintiff’s complaint of retaliation for submitting
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a workplace violence complaint with the New York Public Employee Safety and Health
Bureau, and what appears to be Coffey’s response to that letter. (Dkt. 44-3 at 52-59). There
is no evidence before the Court that RPC was aware that Plaintiff filed this complaint and
thus, no evidence that the alleged retaliators knew that Plaintiff was involved in protected
activity.7 Accordingly, summary judgment is granted in favor of Defendants on Count II.
IV.

Plaintiff’s Section 1983 Claims (Counts IV, V, and VI)
“In order to maintain a [§] 1983 action, two essential elements must be present:

(1) the conduct complained of must have been committed by a person acting under color
of state law; and (2) the conduct complained of must have deprived a person of rights,
privileges, or immunities secured by the Constitution or laws of the United States.”
Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Here, Plaintiff alleges that the
remaining individual Defendants, Misseritti, Coffey, Lee, Griffin, Guttmacher, Reed, and
Coles, retaliated against him for exercising his First Amendment Rights and violated his
Constitutional rights by requiring him to undergo a second psychiatric evaluation pursuant
to New York Civil Service Law § 72(5) or by effecting his mental hygiene arrest.
A.

Retaliation in violation of First Amendment rights (Count IV)

A public employee bringing a First Amendment retaliation claim “must establish
that: (1) [his] speech or conduct was protected by the First Amendment; (2) the defendant

7

Although not addressed in Plaintiff’s response to Defendants’ motion, Plaintiff’s
Declaration indicates that on May 25, 2016, he “lodged a good-faith complaint of disability
discrimination with Coles and Misseritti.” (Dkt 44-2 at ¶ 45). However, it is unclear from
Plaintiff’s declaration whether this complaint occurred before or after the alleged adverse
actions.
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took an adverse action against [him]; and (3) there was a causal connection between this
adverse action and the protected speech.” Bloomberg v. N.Y.C. Dep’t of Educ., 410 F.
Supp. 3d 608, 619 (S.D.N.Y. 2019) (original alterations omitted) (quoting Matthews v. City
of New York, 779 F.3d 167, 172 (2d Cir. 2015) (internal quotation omitted)). Where an
“employee has established a prima facie case, the employer may still be entitled to
summary judgment . . . by demonstrating by a preponderance of the evidence that it would
have taken the same adverse employment action even in the absence of the protected
conduct.” Smith v. County of Suffolk, 776 F.3d 114, 119 (2d Cir. 2015) (internal quotations
omitted).
“Public employee speech is protected from retaliation under the First Amendment
only where (i) the employee spoke as a citizen, rather than pursuant to official duties, and
(ii) the employee spoke on a matter of public concern.” Dingle v. City of New York, No.
10 Civ. 4 (SAS), 2011 WL 2682110, at *4 (S.D.N.Y. July 7, 2011) (citing Sousa v. Roque,
578 F.3d 164, 170 (2d Cir. 2009)). As to the first element of protected speech, “when
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).

“The Second Circuit has ruled that ‘speech can 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.’” Dingle, 2011
WL 2682110, at *4 (quoting Weintraub v. Bd. of Educ. of the City Sch. Dist. of the City of
N.Y., 593 F.3d 196, 203 (2d Cir. 2010)).
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The Court previously granted Defendant Burrows’ motion to dismiss because
Plaintiff’s alleged protected speech, revealing to OMH that RPC provided false
information regarding fire codes, conditions of buildings, conditions of doors, and bid
rigging, could easily owe its existence to his professional responsibilities as a public
employee. (Dkt. 26 at 15 (quoting Dingle, 2011 WL 2682110, at *4)). As the moving
party seeking summary judgment, it is Defendants’ burden to show “the absence of a
genuine dispute as to any material fact.” Crawford, 758 F.3d at 486. Defendants did not
raise the issue of whether Plaintiff’s speech was part of his professional responsibilities.
With respect to whether Plaintiff’s speech was a matter of public concern, Defendants raise
this issue in one sentence in their Memorandum of Law, without any citation to the record
or legal argument. Defendants have not met their burden on summary judgment, and the
Court will assume without deciding that Plaintiff spoke as a citizen on a matter of public
concern.
Plaintiff’s retaliation claim names all the remaining Defendants. However, it is not
apparent from a plain reading of the Amended Complaint who Plaintiff alleges had
personal involvement in which (or any) of the alleged adverse actions. “[I]t is well settled
in this Circuit that personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.” Provost v. City of
Newburgh, 262 F.3d 146, 154 (2d Cir. 2001) (alterations omitted) (quoting Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994) (internal quotation omitted)). Defendants do not raise this
issue, and instead argue the legitimacy of the mental hygiene arrest. As such, the Court

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will assume, for purposes of Defendants’ motion, the personal involvement of the
individual Defendants.
Plaintiff alleges that on February 29, 2016, he complained to two individuals at the
OMH “Central Office/Internal Affairs Office” about “bid rigging or fixing bids and the
falsification of documents on projects to the Joint Commission at RPC by Germain and
Coffey.” (Dkt. 44-2 at ¶ 20). According to Plaintiff, he was advised to contact McDermott,
and did so on March 1. (Id. at ¶¶ 20, 22).
Plaintiff has not presented any evidence that any of the Defendants involved in the
decision to contact RPD about the mental hygiene arrest8 were aware of his February 29
contact with the OMH “Central Office/Internal Affairs Office.” Likewise, it is undisputed
that McDermott did not communicate with anyone at RPC regarding Plaintiff’s complaint
until after his mental hygiene arrest. Thus, the undisputed facts do not establish any causal
connection between this adverse action and the protected speech.
Moreover, even if Defendants were aware of his complaints, Defendants have
demonstrated that they would have taken the same action, regardless of Plaintiff’s protected
activity. Defendants Griffin, Coffey, Misseritti, Lee, Guttmacher, and Reed determined
that a mental hygiene arrest was appropriate after discussing the results of the inquiry into
Coles’ workplace violence report, including that Plaintiff was angry and upset; his previous
mental hygiene arrest and the resulting confiscation of his firearms; and his references to
suicide, something big happening on Friday, not being at RPC after Friday, and not needing

8

As discussed below, Defendant Cole was not involved in the decision to effect
Plaintiff’s mental hygiene arrest.
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guns because he had a bow and arrow. Again, Plaintiff disputes the statements attributed
to him, but does not dispute that employees reported to Misseritti and Lee that they heard
Plaintiff make these statements, and that Misseritti and Lee reported these statements to
the remaining individual Defendants involved in the decision.
However, at the time that Plaintiff was placed on administrative leave and on a
restricted list, Misseritti was aware that Plaintiff had spoken with McDermott. While
placing him on administrative leave and restricting his access to RPC appears justified, the
record indicates that Misseritti was aware of Plaintiff’s complaints to McDermott on March
2, 2016, after his mental hygiene arrest but prior to her letter placing him on administrative
leave. The standard for what constitutes a retaliatory adverse action both under Title VII
and in the First Amendment context is broader than in the discrimination context. Rivers v.
New York City Hous. Auth., 176 F. Supp. 3d 229, 244-45 (E.D.N.Y. 2016), aff’d sub nom.
Crenshaw v. New York City Hous. Auth., 697 F. App’x 726 (2d Cir. 2017). “[R]etaliatory
conduct that would deter a similarly situated individual of ordinary firmness from
exercising his or her constitutional rights constitutes an adverse action.” Id. at 245 (quoting
Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006)).
Here Defendants have not addressed the alleged adverse actions raised by Plaintiff
and have made no effort to establish the nonretaliatory reasons for his administrative leave,
the reasons for the length of this leave, or the delay in returning Plaintiff to work following
the April 27th Determination. As a result, Defendants’ motion for summary judgment on
Count IV is granted with respect to Plaintiff’s mental hygiene arrest, but it is denied as to
the remaining adverse actions alleged by Plaintiff.
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B.

Abuse of Process (Count V)

In Count V of his Amended Complaint, Plaintiff alleges that Defendants’ conduct
constituted an abuse of process, because Defendants acted to support an unspecified
person’s “goal of requiring Plaintiff to undergo a psychology [sic] examination conducted
by a consultant from the Employee Health Services.” (Dkt. 2 at ¶ 110). Defendants
correctly note that allegations that state actors abused some form of civil process do not
allege a deprivation of a federal right, and thus are not actionable under § 1983. Cook v.
Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (citing Spear v. Town of West Hartford, 954 F.2d
63, 68 (2d Cir. 1992)). Plaintiff did not respond to this argument or make any effort to
support his abuse of process claim.9 As a result, this claim is abandoned, and Defendants’
motion for summary judgment as to Count V is granted.
C.

False Arrest (Count VI)

“A § 1983 claim for false arrest, resting on the Fourth Amendment right of an
individual to be free from unreasonable seizures, including arrest without probable cause,
is substantially the same as a claim for false arrest under New York law.” Covington v.
City of New York, 171 F.3d 117, 122 (2d Cir. 1999) (internal quotation omitted). “This
protection adheres whether the seizure is for purposes of law enforcement or due to an
individual’s mental illness. . . . To handcuff and detain, even briefly, a person for mentalhealth reasons, an officer must have ‘probable cause to believe that the person presented a

9

This defect was previously identified in this Court’s decision granting Defendants
Burrows and Germain’s motion to partially dismiss the Amended Complaint. (Dkt. 26 at
16). Plaintiff made no effort to replead this Count against Burrows, nor did Plaintiff seek
to amend his pleading as to the other Defendants.
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risk of harm to [them]self or others.’” Myers v. Patterson, 819 F.3d 625, 632 (2d Cir.
2016) (quoting Kerman v. City of New York, 261 F.3d 229, 237 (2d Cir. 2001)). “Under
New York law, an action for false arrest requires that the plaintiff show that ‘(1) the
defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3)
the plaintiff did not consent to the confinement and (4) the confinement was not otherwise
privileged.’” Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting
Broughton v. State, 37 N.Y.2d 451, 456 (1975)). New York law also provides that “the
existence of probable cause is an absolute defense to a false arrest claim.” Jaegly v. Couch,
439 F.3d 149, 152 (2d Cir. 2006) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).
Here the Amended Complaint alleges that the individual Defendants “had plaintiff
arrested by Mental Hygiene Arrest.” (Dkt. 2 at ¶ 33). There is no allegation that any of
the individual Defendants personally detained or arrested plaintiff, or that any of the
individual Defendants conspired with another person acting under color of state law (for
example, an RPD officer) to confine Plaintiff in violation of his Fourth Amendment rights.
Instead, Plaintiff is essentially alleging that Defendants knowingly provided false
information to the RPD to induce his arrest.
Neither Plaintiff nor Defendants have addressed whether providing false
information to induce an arrest alleges sufficient personal involvement to support a claim
for false arrest. See, e.g., Boyler v. City of Lackawanna, 287 F. Supp. 3d 308, 326
(W.D.N.Y. 2018) (no personal involvement despite allegation that individual defendants
ordered the arrest; neighboring jurisdiction arrested plaintiff and individual defendants
were not present during arrest), aff’d 765 F. App’x 493 (2d Cir. 2019), cert. denied 140 S.
- 29 -

Ct. 63 (2019); Cruz v. City of New York, 232 F. Supp. 3d 438, 455-56 (S.D.N.Y. 2017)
(dismissing false arrest claim against officer who was present at the scene of the arrest after
plaintiff was detained by other officers, but was not personally involved in arrest); Dallas
v. Goldberg, No. 95 Civ. 9076 WHP, 2000 WL 1092986, at *6-7 (S.D.N.Y. Aug. 4, 2000)
(defendant who secured weapons at the scene and searched a female arrestee for weapons
not personally involved in arrest). Likewise, no party has addressed whether these
allegations properly state a claim for false arrest, as opposed to some other Constitutional
tort that has not been pled.
As neither party has briefed these questions, the Court will turn to Defendants’
primary arguments.

Defendants argue that Coles was not personally involved in

determining that the RPD should be contacted to effect a mental hygiene arrest, and thus
was not personally involved in any violation of Plaintiff’s Constitutional rights.
Defendants also argue that those involved in effecting Plaintiff’s mental hygiene arrest did
not induce the officer to arrest Plaintiff, and that in any event, there was probable cause to
believe that Plaintiff was a danger to himself or others.
With respect to Defendant Coles, Plaintiff disputes that he made statements to Coles
(or to any other employee) that suggested he might harm himself or others. While Coles
did contact Coffey and initiate a workplace violence report, it is undisputed that Misseritti
and Lee did not rely solely on Coles’ report and instead personally interviewed other RPC
employees. It is uncontested that these other employees articulated that Plaintiff made
threatening statements and referenced suicide. Most importantly, Plaintiff does not dispute
that Coles did not participate in the meeting which resulted in the “collaborative decision”
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to seek psychiatric care for Plaintiff by means of a mental hygiene arrest. (Dkt. 40-1 at
¶¶ 53, 55-56; Dkt. 44-1 at ¶¶ 53, 55-56). There is no dispute as to any material fact with
respect to Defendant Coles’ lack of personal involvement in the decision to effect a mental
hygiene arrest of Plaintiff.
With respect to the remaining individual Defendants, in the context of a mental
health seizure, to establish probable cause to detain an individual, a defendant need only
show a “‘probability or substantial’ chance of dangerous behavior, not an actual showing
of such behavior.”

Burdick v. Johnson, No. 1:06-CV-1465 (LEK/RFT), 2009 WL

1707475, at *5 (N.D.N.Y. June 17, 2009) (quoting Hoffman v. County of Delaware, 41 F.
Supp. 2d 195, 209 (N.D.N.Y. 1999), aff’d, 205 F.3d 1323 (2d Cir. 2000)). Here Plaintiff
was arrested pursuant to Mental Hygiene Law § 9.41. (Dkt. 44-3 at 14). Although Plaintiff
denied making any threat of suicide, he does not dispute that Charles Smith reported to
Misseritti and Lee that Plaintiff made a statement regarding suicide and that this was
relayed to Griffin, Coffey, Guttmacher, and Reed, along with information that Plaintiff was
angry and upset; his previous mental hygiene arrest and the resulting confiscation of his
firearms; and references to something big happening on Friday, not being at RPC after
Friday, and not needing guns because he had a bow and arrow.
Although Plaintiff does not directly dispute that employees Craig Smith and Charles
Smith reported concerning statements to Misseritti and Lee, Plaintiff attempts to challenge
these statements by claiming that they “essentially redacted [sic]” their statements in later
interviews. (Dkt. 44 at 17). With respect to both employees, Plaintiff relies on handwritten
notes apparently taken by a New York State Department of Labor investigator during
- 31 -

interviews with both employees. (Dkt. 44-1 at 30-31, ¶ 26). These handwritten notes do
not contradict Defendants’ contention that both employees reported to Lee and Misseritti
that Plaintiff made troubling statements. Moreover, Plaintiff does not claim or make any
effort to show that these notes constitute admissible evidence. Instead, these notes are
merely described as “Dept. of Labor, WPV Investigation Notes.” (Dkt. 44-3 at 1). As
such, Plaintiff has not shown any issue of disputed material fact.
Defendants have noted a series of concerning statements by Plaintiff, including
statements regarding weapons, something “big” happening on Friday, and a reference to
suicide. If the Court were to construe the remaining individual Defendants as having
“arrested” Plaintiff, this would constitute sufficient probable cause pursuant to Mental
Hygiene Law § 9.41. Hoffman, 41 F. Supp. 2d at 209. Accordingly, Defendants’ motion
for summary judgment with respect to Count IV is granted.
V.

Plaintiff’s Labor Law § 740 Claim (Count III) and Defendants’ Request for
Attorneys’ Fees
Plaintiff’s Amended Complaint alleges that the individual Defendants violated

Labor Law § 740, which:
creates a cause of action in favor of an employee who has suffered a
“retaliatory personnel action” as a consequence of, inter alia, “disclos[ing],
or threaten[ing] to disclose to a supervisor or to a public body an activity,
policy or practice of the employer that is in violation of law, rule or regulation
which violation creates and presents a substantial and specific danger to the
public health or safety,” or as a consequence of “object[ing] to, or refus[ing]
to participate in any such activity, policy or practice in violation of a law,
rule or regulation.”
Fough v. Aug. Aichhorn Ctr. for Adolescent Residential Care, Inc., 139 A.D.3d 665, 666
(2d Dep’t 2016) (alternations in original) (quoting N.Y. Lab. Law § 740(2)(a), (c)).
- 32 -

Defendants argue that Plaintiff has not alleged a violation of any law, rule, or regulation
affecting public safety. (Dkt. 40-4 at 22). In response, Plaintiff does not dispute this
argument, and “voluntarily dismisses” this cause of action.

(Dkt. 44 at 18, n.1).

Defendants’ motion for summary judgment as to Count III is granted.
Defendants also argue that they should be entitled to fees and costs pursuant to
Labor Law § 740(6). Section 740(6) provides that “[a] court, in its discretion, may also
order that reasonable attorneys’ fees and court costs and disbursements be awarded to an
employer if the court determines that an action brought by an employee under this section
was without basis in law or in fact.” N.Y. Labor Law § 740(6).
Assuming that Plaintiff’s Labor Law claim was without basis in law or fact,
Defendants have made no effort to support their request, and it is not clear what, if any,
fees, court costs, or disbursements Defendants incurred that are attributable to this claim.
As such, the Court declines to exercise its discretion, and Defendants’ request is denied.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. 40) is
granted in part and denied in part. Defendants’ motion for summary judgment with respect
to Counts I, II, III, V, and VI is granted. Defendants’ motion for summary judgment as to
Count IV is granted in part and denied in part. Defendants’ request for fees and costs is
denied.
Defendant Burrows’ motion to dismiss was granted by the Court on February 3,
2017, and Plaintiff was granted leave to replead his Amended Complaint against Burrows

- 33 -

(Dkt. 26) but did not do so. The Clerk is directed to dismiss the Amended Complaint
against Burrows with prejudice.
SO ORDERED.

________________________________
ELIZABETH A. WOLFORD
United States District Judge
Dated: March 27, 2020
Rochester, New York

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