14 F. Supp. 3d 295
S.D.N.Y.2014Background
- Weslowski was a Senior Assistant County Attorney for Rockland County who, in 2009, refused to approve a county contract he believed legally defective and was later confronted by supervisors Zugibe and Fortunato and asked to resign; he signed a resignation on November 24, 2009 effective December 4, 2009.
- Earlier in 2009 he had been reprimanded for using county computers to view legal gay male sexual content; defendants later used those incidents among other grounds to press for his departure.
- At the November 24 meeting defendants promised he would be paid for his accumulated unused leave if he voluntarily resigned; post-resignation Rockland paid for fewer hours than Weslowski claims he accrued, leaving an alleged unpaid balance.
- Weslowski filed suit in 2012 asserting federal claims (FCA retaliation under 31 U.S.C. § 3730(h); § 1983 claims for First Amendment, due process, and equal protection violations; a § 1985 conspiracy claim) and state-law claims (breach of contract, promissory estoppel, unjust enrichment, and Human Rights Law discrimination).
- Defendants moved to dismiss; the Court dismissed all federal claims for failure to state timely or plausible federal claims and declined to retain supplemental jurisdiction over state claims, dismissing them without prejudice and granting leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of FCA § 3730(h) claim | Weslowski contends his termination and the loss of promised leave accrued no earlier than Dec. 4, 2009 or are part of a continuing violation within 3 years | Defendants argue § 3730(h)(3) (three-year limit) applies and accrual was Nov. 24, 2009; thus suit filed Dec. 3, 2012 is untimely | Accrual was the Nov. 24 meeting; claim is time-barred; plaintiff’s attempt to rely on continuing-violation fails; WSLA and equitable tolling do not save the claim |
| Applicability of Wartime Suspension of Limitations Act to FCA retaliation claim | In a sur-reply plaintiff posits WSLA tolled limitations because U.S. is at war | Defendants disputed tolling (did not fully brief WSLA response) | Court holds WSLA does not apply to § 3730(h) retaliation claims because fraud against U.S. is not an essential element of such personal retaliation claims |
| First Amendment retaliation (§ 1983) | Weslowski asserts termination was retaliation for expressive conduct (visiting gay-content sites) | Defendants assert speech was not protected public‑concern speech and relates to employee duties and workplace policy | Dismissed — visiting sexually explicit websites (as pleaded) is not speech on a matter of public concern; Garcetti line and Connick analysis control |
| Procedural due process (§ 1983) | Plaintiff says he was deprived of procedural protections and coerced into resignation so Article 78 would be foreclosed | Defendants argue available state post‑deprivation remedies (Article 78) provide adequate process | Dismissed — Article 78 provides an adequate post‑deprivation remedy; plaintiff’s allegations do not plausibly show inability to use it |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard applied to complaints)
- Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409 (accrual of § 3730(h) claims occurs when retaliation occurs)
- Garcetti v. Ceballos, 547 U.S. 410 (public‑employee speech doctrine limits First Amendment protection)
- Connick v. Myers, 461 U.S. 138 (speech on matters of public concern required for First Amendment protection in employment)
- Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (discrete acts accrue at time of occurrence for continuing‑violation analysis)
- Engquist v. Oregon Dep’t of Agriculture, 553 U.S. 591 (class‑of‑one equal protection theory unavailable in public employment)
- Locurto v. Safir, 264 F.3d 154 (Article 78 is adequate post‑deprivation remedy for due process in NY public‑employment context)