953 F. Supp. 2d 367
E.D.N.Y2012Background
- Whitehead, a current NYPD officer, sues Marino, the City of NY, and the NYPD under 42 U.S.C. § 1983 and state laws for alleged First Amendment retaliation and related claims.
- Defendants move to dismiss under Rule 12(b)(6).
- Marino allegedly imposed a quota policy requiring 10 tickets and 1 arrest per officer per month.
- Whitehead received below-competent evaluations under the quota; he opposed the quota and was monitored, reassigned, or disciplined.
- Arbitration and union activity related to the quota policy are cited as bases for retaliation; CARB reviews and patrol reassignment followed; Whitehead later sought sergeant promotion but was not promoted.
- Court grants dismissal of federal claims and declines supplemental jurisdiction over state law claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff's speech qualifies as First Amendment protected. | Whitehead’s opposition to the quota policy and union activity should be protected. | Speech was made pursuant to official duties, not as a private citizen. | No First Amendment protection; speech not protected. |
| Whether plaintiff’s equal protection claim is valid as a class-of-one claim. | Plaintiff was treated differently for retaliatory reasons. | Public employment cannot support class-of-one claims. | Dismissed; no valid class-of-one claim in public employment. |
| Whether state-law claims should be heard given federal claims. | State claims should be preserved for supplemental consideration. | Court should decline supplemental jurisdiction after federal claims are dismissed. | State-law claims dismissed without prejudice. |
| Whether Matthews v. City of New York alters rule for Rule 60(b)(6) relief. | Matthews changed law and supports relief from judgment. | Rule 60(b)(6) relief denied; Matthews not controlling for extraordinary relief. | Denied; Matthews provides no basis for relief. |
Key Cases Cited
- Garcetti v. Ceballos, 547 U.S. 410 (Supreme Court 2006) (public employee speech governed by official duties analysis)
- Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir. 2010) (speech via internal grievance not protected unless citizen speech outside official channels)
- Ross v. Breslin, 693 F.3d 300 (2d Cir. 2012) (going outside chain of command does not automatically make speech private citizen speech)
- Frisenda v. Inc. Vill. of Malverne, 775 F. Supp. 2d 486 (E.D.N.Y. 2011) (internal memorandum not protected where related to employment; union activity may be protected)
- Engquist v. Oregon Dept. of Agric., 553 U.S. 591 (Supreme Court 2008) (class-of-one claims in public employment generally not cognizable)