96 F. Supp. 3d 308
S.D.N.Y.2015Background
- Plaintiff John L. Weslowski, a longtime Senior Assistant County Attorney for Rockland County, resigned after a November 24, 2009 meeting in which supervisors Zugibe and Fortunato told him he would be dismissed for cause or could voluntarily resign; he signed a resignation letter that day but alleged he only agreed because of promises he would be paid his accrued leave.
- Earlier in 2009 Weslowski refused to approve a county contract, alleging the contractor lacked legal authority; he also had been reprimanded earlier that year for using County computers to view gay male sexually explicit content in violation of a Computer Use Policy.
- Plaintiff alleges defendants gathered evidence to justify termination because of political pressure from the prospective contractor and because Plaintiff is gay; he contends similarly situated employees were not disciplined for comparable policy violations.
- Plaintiff brought federal and state claims, including § 1983 (First Amendment, Equal Protection, due process), § 1985 conspiracy, False Claims Act retaliation, and several state-law claims; the Court previously dismissed the original complaint and allowed an amended complaint.
- The amended complaint added allegations about inconsistent enforcement of the Computer Use Policy (identifying 16 coworkers by initials) and a novel "decisional autonomy/liberty" claim invoking Lawrence v. Texas; Defendants moved to dismiss and the Court granted the motion in full, dismissing with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff pleaded an Equal Protection discriminatory-discharge claim based on membership in a protected class | Weslowski says he is gay and that similarly situated non-gay employees violated the Computer Use Policy without discipline, creating an inference of discrimination | County says plaintiffs comparators are not shown to have committed comparable misconduct or to have been known by defendants, and claim is untimely | Dismissed: comparators not alleged to have committed comparably serious, consciously-knowable misconduct; claim also time-barred under § 1983 three-year limitations period |
| Whether plaintiff stated a "class-of-one" Equal Protection claim | Weslowski asserts he was singled out for arbitrary treatment | Defendants note class-of-one theory does not apply in public-employment context | Dismissed: Court reiterates class-of-one inapplicable to public employment |
| Whether plaintiff stated a liberty/"decisional autonomy" claim under Lawrence v. Texas to protect workplace access to sexually explicit material | Weslowski argues that inconsistent enforcement created a de facto right to access such material protected by Fourteenth Amendment liberty interests | Defendants contend Lawrence protects private consensual sexual intimacy in the home and does not create workplace rights to view pornography; inconsistent enforcement does not create a constitutional liberty interest | Dismissed: Lawrence does not extend to viewing sexually explicit material at work or create a liberty interest from alleged non-enforcement |
| Whether plaintiff's § 1985 conspiracy and state-law claims survive if federal claims fail | Weslowski ties § 1985 to his § 1983 claims and asserts state-law claims for discrimination and unpaid leave | Defendants argue § 1985 depends on viable § 1983 claims and intracorporate-conspiracy doctrine bars conspiracy among county employees; pendent state claims should be dismissed if federal claims fail | Dismissed: § 1985 fails (dependent on § 1983 and intracorporate conspiracy); Court declines supplemental jurisdiction over state-law claims and dismisses them |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standards and plausibility inquiry)
- Lawrence v. Texas, 539 U.S. 558 (liberty interest in private consensual sexual conduct in the home; does not extend to workplace pornography)
- Garcetti v. Ceballos, 547 U.S. 410 (public employees accept certain limitations when entering government service)
- Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (limits on employer-focused equal protection class-of-one claims in public employment)
- Shumway v. United Parcel Serv., 118 F.3d 60 (standard for similarly situated in employment discrimination)
- Weslowski v. Zugibe, 14 F. Supp. 3d 295 (S.D.N.Y. 2014) (Court's prior opinion dismissing original complaint)