MEMORANDUM OF DECISION
I. INTRODUCTION
Plaintiff, a 26-year veteran of the New York City Police Department (“NYPD”) and former Detective First Grade within the 83rd Precinct Detective Squad, alleges that his supervisors and co-workers forced his resignation after he complained to the NYPD’s Internal Affairs Bureau (“LAB”) that a fellow detective had attempted to pressure him to falsely accept blame for a botched homicide investigation. Suing under 42 U.S.C. § 1983 (“Section 1983”), plaintiff claims that the retaliation he faced as a result of reporting his colleague’s misconduct violated his right to free speech as guaranteed by the First Amendment and his rights to procedural and substantive due process under the Fifth and Fourteenth Amendments. Additionally, plaintiff alleges that defendants conspired to deprive him of his civil rights in violation of 42 U.S.C. § 1985 (“Section 1985”) and asserts claims for intentional infliction of emotional distress and “whistleblower” retaliation under New York State law.
Defendants move to dismiss plaintiffs Amended Complaint (“Compl.” or “Complaint”) pursuant to Federal Rule of Civil Procedure 12(b)(6). In an Order dated March 30, 2012, the Court held that, unless and until the evidence shows otherwise, plaintiff may prosecute his Section 1983 claim for First Amendment retaliation against the City of New York and the individually named defendants because plaintiffs complaint to IAB plainly qualifies as protected speech. The Court, however, granted defendants’ motion with respect to plaintiffs due process, Section 1985, and state law claims. This Memorandum explains the Court’s decision.
II. BACKGROUND
The pertinent allegations follow. Plaintiff, now 50 years old, joined the NYPD as an entry-level officer in 1983. In October 2005, he was promoted to Detective First Grade and placed on the C Team of detectives in the 83rd Precinct in Bushwick, Brooklyn. Prior to the events giving rise to plaintiffs claims, plaintiff had received “nothing but praise from his colleagues and supervisors, and numerous citations and awards for his performance.” Compl. ¶ 15.
A. Underlying Basis for Retaliation
The harms allegedly suffered by plaintiff arise from a botched murder investigation. On October 22, 2005, Detective First Grade Michael O’Keefe (“O’Keefe”) was assigned to interview a stabbing victim being treated at Elmhurst Hospital. Via telephone, a nurse informed O’Keefe that the victim was incapacitated post-surgery and would be unable to speak with anyone
On November 10, 2005, while plaintiff was patrolling with colleague Detective Robert Wagner (“Wagner”), Detective Third Grade Kevin McCarthy (“McCarthy”) called to ask plaintiff to contact IU and accept blame for O’Keefe’s mistake. McCarthy added that if plaintiff refused, McCarthy and other detectives would falsely inform IU that the failed investigation was plaintiffs fault. Compl. ¶¶ 21-22. McCarthy and plaintiff “had never worked on that case together and thus had no reason to ‘confer’ about it.” Compl. ¶ 35. Because plaintiff had previously reprimanded McCarthy for being disrespectful to colleagues and had encouraged others to challenge McCarthy for his elected union position at the Detective Endowment Association (“the union”), plaintiff and McCarthy had a “negative history.” Compl. ¶ 21. Plaintiff shared the contents of the entire conversation with Wagner who “admitted] his disgust with McCarthy’s request/threat.” Compl. ¶ 23.
Plaintiff decided to bring McCarthy’s threats to IU’s attention. When no one from IU reached out to him, on November 16, 2005, plaintiff “exercised his First Amendment rights by contacting ... [IAB] to report the fact that McCarthy had instructed plaintiff to lie during an official investigation.” Compl. ¶ 25.
On December 7, 2005, plaintiff was advised by a fellow detective that all of plaintiffs colleagues in the 83rd Precinct were discussing a rumor that McCarthy was the subject of an IAB report. Plaintiff responded that the rumor was true and that it was he who had contacted IAB. Compl. ¶ 26. The following day, December 8, 2005, Wagner called plaintiff and castigated him for reporting McCarthy to IAB. Although McCarthy’s “conduct had been wrong,” Wagner said, “plaintiff was wrong to contact [IAB], and ... Wagner could not ‘defend [plaintiff] in any way now.’ ” Compl. ¶ 27.
The alleged retaliation began shortly after word got out that it was plaintiff who had reported McCarthy’s corrupt overtures to IAB and continued until plaintiffs constructive termination from the NYPD on July 25, 2009. Compl. ¶¶ 28, 67.
B. Retaliation
1. 83rd Precinct: December 2005-March 2006
On December 9, 2005, plaintiff found the word “RAT” written in permanent marker in large letters on his locker, and the mattress he was known to use in the precinct dormitory was “flipped over and vandalized.” Compl. ¶¶ 29-30. Later that day, while pacing in front of many of plaintiffs colleagues, including one of the unit’s supervisors, a fellow detective repeatedly called plaintiff a “rat” and a “coward,” and then approached plaintiff in an aggressive manner. After being pulled away by colleagues, the detective stated that he would “clock [plaintiffs] whistle” and “write that ‘[plaintiff] is a rat’ on every chalkboard in the building.” Compl. ¶ 31.
The following day, December 10, 2005, none of plaintiffs colleagues would speak or make eye contact with plaintiff, including the officer with whom plaintiff had frequently worked and was assigned on that day to conduct investigations. Although plaintiff informed his supervisor that his partner was unwilling to work
Throughout December 2005, IAB investigated plaintiffs allegations against McCarthy; however, “[a]ll of the material witnesses failed to cooperate with the investigation,” including Wagner who told the investigators that he “did not hear any statements made by ... McCarthy,” and McCarthy himself, who stated that he had only “called plaintiff ... ‘to confer with [him] about the case’ and that he never instructed plaintiff to lie.” The IAB dismissed the allegations made by plaintiff against McCarthy as “unsubstantiated.” Compl. ¶ 35.
In early January, after plaintiffs return to the office following vacation, plaintiff was informed by one of his supervisors that he would be transferred from the C Team to the E Team because the “C Team detectives held a lot of animosity towards plaintiff, and that in the department’s opinion ... [the transfer was] the best solution to prevent further problems.... ” Compl. ¶ 36. Plaintiff noticed that the word “RAT” had not yet been removed from his locker and since had been written in multiple other places on plaintiffs locker. Compl. ¶ 37. As before his vacation, “none of the other detectives would either speak to plaintiff or make eye contact with him,” which “made it impossible for plaintiff to conduct investigations and thus satisfactorily do his job.” Although plaintiff again complained to his superior, the superior “did not offer any solution.” Compl. ¶ 38.
On January 16, 2006, Detective Joseph Tallarme (“Tallarme”) began working on the C Team and told plaintiff that although he had heard of the IAB report, he “would not have a problem working with plaintiff in the future.” Based on Tallarine’s willingness to work with plaintiff, plaintiffs supervisor moved him back to the C Team. The partnership, however, did not last long. Later that same day, Tallarme told plaintiff that he had noticed other C Team members giving Tallarme “dirty looks,” ostensibly for agreeing to work with plaintiff. Compl. ¶39. The following day, plaintiff “witnessed and overheard” a conversation between Tallarme and Detective Anthony Cardinale (“Cardinale”), a union board member, during which Cardinale told Tallarme that “we want [plaintiff] to leave, he’s a rat,” and “we don’t want you to talk to him, work with him, nothing.” Plaintiff then approached Cardinale “in an effort to explain to Cardinale plaintiffs version of the events.” Cardinale responded that “everyone at [the union] thought of plaintiff as a rat, that no one in the entire NYPD was currently talking to plaintiff or would ever talk to him again in the future ... that everyone wanted plaintiff to just resign from his position with NYPD ... [and] that these events would forever affect plaintiffs family.” Compl. ¶¶ 40-41. Although Tallarme and plaintiff continued to work together, “Tallarine’s attitude towards plaintiff became hostile and the two generally did not communicate unless it was absolutely necessary.” Compl. ¶42.
2. Cold Case Squad: March 2006-October 2007
On March 2, 2006, plaintiff was transferred to the Cold Case Squad and placed
From the beginning of plaintiffs time on the Cold Case Squad until his transfer around October 2007, Reznick engaged in a string of allegedly retaliatory actions, including (1) assigning plaintiff a “significantly greater number of cases” than others, Compl. ¶ 44, all of which plaintiff would later be told by a different supervisor were “practically unsolvable and designed to waste plaintiffs time,” Compl. ¶ 54; (2) denying plaintiffs request to attend two relevant training courses while sending other detectives to one of those courses “without explanation,” Compl. ¶¶ 45-46; (3) denying, or ordering others to deny, on at least four occasions, plaintiff the ability to work overtime and be compensated in cash, although this was customary and provided to plaintiffs partners on the exact same assignments, Compl. ¶¶ 48, 50-52; (4) denying, or ordering others to deny, plaintiffs request for reimbursement of expenditures made during an investigation, Compl. ¶ 53; and (5) blocking plaintiffs request to transfer to the 105th Precinct by “submitting] an interoffice memorandum to the Chief of Detectives ... ordering] that plaintiff not be granted his request.” Compl. ¶ 57. Reznick instead transferred him to the 111th Precinct, although “there was an opening and a need for a detective possessing plaintiffs credentials” at the 105th Precinct. Compl. ¶¶ 55-57.
Among the individuals allegedly instructed by Reznick to deny plaintiff cash overtime pay or otherwise treat plaintiff differently from his peers, was defendant Captain Sean Crowley (“Crowley”). On May 2, 2007, during a meeting presided over by Crowley at which all Cold Case Squad members were present, Crowley stated that Reznick had ordered him “not to authorize any cash overtime” for plaintiff for May 2007, informed plaintiff and the others that “Reznick had ordered Crowley to ‘shut [plaintiff] down,’” and dared plaintiff to put “Crowley in [this] law suit.” Compl. ¶ 48. Crowley also denied plaintiffs request for overtime while granting it to his partners for the same work on the same assignments on at least two other occasions. Compl. ¶¶ 51-52.
Plaintiff filed a grievance with the union citing “numerous examples of times that Reznick, as carried out by Crowley, singled out plaintiff treating him disparately from his similarly-situated colleagues.” Compl. ¶ 49. In addition, plaintiff filed a grievance with the union based upon Reznick’s efforts to deny him a transfer to the 105th Precinct. Compl. ¶¶ 55-58.
3. 111th and 105th Precincts:
October 2007-July 2009
Around March 2008, while plaintiff was working at the 111th Precinct, he received by mail a report regarding a robbery that had “some alleged connection to the 111th Precinct” filed by an anonymous member
Shortly thereafter, plaintiff was finally transferred to the 105th Precinct as he had originally requested, where he fared no better. Although no incidents are alleged between March and December 2008, in January 2009, the word “RAT” was written on plaintiffs hole puncher and in May 2009, plaintiffs locker was vandalized and pictures were deleted from his personal camera. Although plaintiff turned over the camera to IAB in an attempt to identify the culprit, they were unable to do so. Compl. ¶¶ 60-62.
Plaintiffs supervisor at the 105th Precinct, defendant Lieutenant Michael Miltenberg (“Miltenberg”), also allegedly engaged in retaliatory conduct. In May 2009, Miltenberg “intentionally failed to submit” official paperwork approving plaintiffs “very standard request ... approved for other detectives as a matter of course” to work one week of his vacation. Compl. ¶ 63. On or around July 9, 2009, after plaintiff worked approved overtime hours on a different matter, Miltenberg “made calls to ensure that plaintiffs request [for cash overtime compensation] was pulled and thus not approved.” Compl. ¶ 64. Plaintiff filed a grievance with the union regarding Miltenberg’s actions. Compl. ¶ 65. Lastly, at a staff meeting held shortly before plaintiffs constructive termination, Miltenberg “stared directly at plaintiff and stated that ‘there’s a rat in here, not someone who retired or transferred but sitting right here in this room.’ ” Plaintiff alleges that “[a]s a direct result of Miltenberg’s actions, all of plaintiffs colleagues refused to work and/or speak to plaintiff.” Compl. ¶ 66.
Soon after this meeting, on July 25, 2009, plaintiff decided he had had enough and left the NYPD. Compl. ¶ 67.
C. Instant Matter
Plaintiff initially filed his complaint in the Southern District of New York on March 8, 2010, ECF Docket # 1, and then amended his complaint on April 29, 2010, ECF Docket #3. On June 1, 2010, on consent of all of the parties, the case was transferred to the Eastern District of New York. ECF Docket # 11. On October 28, 2010, pursuant to Federal Rule of Civil Procedure 41(a)(l)(A)(i), plaintiff voluntarily dismissed his claims without prejudice and without costs as against one named defendant, Anthony Cardinale. ECF Docket # 25. On November 22, 2010, the remaining defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), ECF Docket #29; plaintiff responded on December 28, 2010, ECF Docket # 34, and defendants replied on January 19, 2011, ECF Docket # 32. Oral argument was held on the motion on June 23, 2011, ECF Docket #38, and I subsequently allowed both parties to file supplemental briefings.
III. DISCUSSION
A. Standard of Review
Under Rule 12(b)(6), the Court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding such a motion, the Court “must accept as true all of the factual allegations set out in plaintiffs complaint, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally.” Gregory v. Daly,
A complaint must nevertheless plead a “plausible” claim for relief to survive a motion to dismiss under Rule 12(b)(6). Harris v. Mills,
B. Section 1983 Claims
1. Background Principles and Parties
Plaintiff sues the City of New York, the NYPD, and the individual defendants pursuant to Section 1983 for violations of his right to free speech under the First Amendment and rights to procedural and substantive due process under the Fifth and Fourteenth Amendments. As an initial matter, all claims brought solely against the NYPD must be dismissed with prejudice, as “the NYPD is a non-suable agency of the City.” Jenkins v. City of New York,
2. First Amendment Retaliation Claim
Plaintiffs claim for First Amendment retaliation is the pivotal issue in this case. It is by now well settled that “a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.” Connick v. Myers,
To establish a prima facie retaliation claim under Section 1983 in violation of a public employee’s First Amendment right to freedom of speech, a plaintiff must show that: “(1) his or her speech was constitutionally protected; (2) he or she suffered an adverse employment action; and (3) a causal connection exists between the speech and the adverse employment action.” Washington v. Cnty. of Rockland,
There is no dispute that plaintiff has sufficiently alleged that adverse employment action was taken against him and that a “causal connection exists” between the speech and such action. Likewise, defendants do not contend that the adverse action would have taken place “even in the absence of’ the protected speech, or that there was “an adequate justification for treating the employee differently from any other member of the general public.”
In Garcetti v. Ceballos, the Supreme Court sought to clarify the test for protected speech: “[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.”
Given the allegations in this case, I readily conclude that plaintiffs complaint to IAB is protected under the First Amendment: Plaintiff did “speak as a citizen addressing matters of public concern.” Garcetti
a. Plaintiff Spoke as a Citizen
In Garcetti, the Supreme Court stressed that “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.” Id. at 421,
The Second Circuit has since frequently confronted similar situations where, as in Garcetti, the speech at issue was expressly part of the employee’s official job duties and thus not protected under the First Amendment. See, e.g., Morey v. Somers Cent. Sch. Disk,
Two recent opinions in this Circuit have addressed circumstances where speech concerning official corruption was considered part of the plaintiffs core job duties and consequently was not protected. In Anemone v. Metro. Trans. Auth.,
In Garcetti, however, the Supreme Court also recognized that there would be a second and entirely different species of cases where, unlike the facts presented in Garcetti itself or the Second Circuit cases just described, “there [would be] room for serious debate” over whether the employee was speaking as a citizen or “pursuant to his employment duties.” Garcetti, 547
Weintraub centered on a union grievance filed by a public school teacher about his school’s failure to discipline an unruly student assigned to his class. Id. In holding that the teacher’s grievance was “part- and-parcel of his concerns about his ability to properly execute his duties,” and thus undertaken “pursuant to his job duties,” the court stressed that maintaining classroom discipline was “an indispensable prerequisite to effective teaching and classroom learning” and that the teacher’s speech “was a means to fulfill and undertaken in the course of performing his primary employment responsibility of teaching.” Id. (internal citations and quotation marks omitted). The court also found relevant the fact that the teacher’s form of speech, the employee grievance, had “no relevant citizen analogue.” Id. at 203 (citing Garcetti
In applying Garcetti and Weintraub to this second and more nebulous class of cases where no clear “official duty” to speak is present on the record, this Circuit focuses on the subject, manner, and context of the speech to determine whether it relates to topics that are “indispensable prerequisites to effective” performance of the speaker’s “primary employment responsibility,” and thus not entitled to First Amendment protection. Weintraub,
Defendants contend that plaintiffs speech falls within both classes of speech identified in Garcetti. Defendants first argue that plaintiffs reporting to IAB of McCarthy’s criminal overture falls within the first class of Garcetti cases, as the “complaints were ... made pursuant to [plaintiffs] official job duties and therefore not entitled to First Amendment protection.” ECF Docket # 31, Defendants’ Memorandum in Support of Motion to Dismiss (“Defs.’ Mem.”) at 19. In support of this contention, defendants cite to Section 207-21 of the NYPD Patrol Guide, which provides, in relevant part: “All members of the service have an absolute duty to report any corruption or serious misconduct, or allegation of corruption or serious misconduct, of which they become aware.” ECF Docket # 33, Exhibit B, NYPD Patrol Guide Section 207-21, annexed to the Declaration of Andrea O’Connor, dated January 19, 2011 (“Patrol Guide”).
I am not at all persuaded that the existence of this manual, described merely as “Training Materials,” forecloses plaintiffs claim to First Amendment protection. Garcetti itself “rejected] ... the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions.” Garcetti,
Moreover, defendants’ argument ignores the relevant allegation that reporting internal misconduct to IAB was neither encouraged nor rewarded. Much the opposite, the complaint alleges that the NYPD actively and aggressively opposed whistle-blowing. See, e.g., Paola v. Spada,
This case is readily distinguishable from Barclay v. Michalsky,
In the alternative, defendants contend that plaintiffs speech falls within the second species of cases identified in Garcetti arguing in conclusory fashion: “[I]t certainly cannot be said that reporting alleged misconduct is not ‘part-and-pareel’ of a detective’s job function.” Defs.’ Mem. at 10 (citing Weintraub,
That avoiding undeserved blame for the botched investigation may have motivated plaintiff, in part, to report McCarthy does not alter the Court’s analysis. Garcetti made clear that whether an employee’s speech “concerned the subject matter of [the speaker’s] employment [is] ... nondispositive.”
Defendants further argue that plaintiffs speech is unprotected because reporting to IU and IAB falls within plaintiffs “chain of command” since “plaintiff directed his alleged speech only to NYPD officials.” Defs.’ Mem. at 10-11 (emphasis in original) (internal quotation marks omitted). As an initial matter, all cases defendants cite in support of this claim, with the exception of Weintraub, involve circumstances where the speaker only complained internally, to a supervisor. See Defs.’ Mem. at 11 (citing Brady,
Moreover, any citizen may report wrongdoing to the IAB. Citizens are able and directed to file reports with the IAB in the exact same manner as NYPD officers and using the exact same 24-hour phone number provided to NYPD officers in their Patrol Guide. The IAB phone number is located prominently on the public web page of the New York City Commission to Combat Police Corruption, an independent “board to monitor and evaluate the anti-corruption programs, activities, commitment, and efforts of the [NYPD].”
In one last effort to persuade the Court that plaintiffs speech had no “relevant citizen analogue” and thus was made pursuant to his role as a public employee, defendants assert for the first time in their Reply Brief: “There are no allegations that a member of the general public would have knowledge of Detective McCarthy’s alleged misconduct.” Defs.’ Reply at 3. This, however, is exactly the point. Such speech must necessarily be protected by the First Amendment to protect the public’s significant First Amendment interest in receiving information about the functioning of government, to which they otherwise would not be privy. “Were [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.” City of San Diego v. Roe,
While Garcetti does indeed invite “multiple interpretations,” Weintraub,
b. Plaintiffs Speech Concerned a Matter of Public Concern
“Whether an employee’s speech addresses a matter of public concern is a
Speech relating to the functioning of government is of particularly great import to the public. As Justice Brennan observed, “It is hornbook law ... that speech about the manner in which government is operated or should be operated is an essential part of the communications necessary for self-governance the protection of which was a central purpose of the First Amendment.” Connick,
Defendants raise two challenges to plaintiffs claim that his reports to IAB addressed a matter of public concern, both of which lack merit.
First, ignoring readily available inferences that a fact-finder might draw from the facts as plead, defendants argue that plaintiffs complaint is “devoid of any allegations that there is an epidemic within the NYPD regarding members of service being ‘instructed’ to lie during official investigations.” Defs.’ Mem. at 13. It is constitutionally irrelevant, however, that
Recently confronted with remarkably similar facts to the case sub judice, the Second Circuit held that a plaintiff pled a viable First Amendment retaliation claim based upon a single incident of alleged corruption where a plaintiffs fellow police officers requested that he withdraw his report and cover up a colleague’s excessive use of force. See Jackler,
Second, defendants argue that plaintiffs complaint to IAB was “of a personal nature and therefore not a matter of public concern,” Defs.’ Mem. at 12, motivated primarily by plaintiffs personal grudge against McCarthy and workplace conditions. However, “a speaker’s motive is not dispositive in determining whether his or her speech addresses a matter of public concern.” Sousa v. Roque,
c. Qualified Immunity
The individual defendants raise the affirmative defense of qualified immunity, which shields government officials from liability in their performance of discretionary functions if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
Although a qualified immunity defense can be presented in a Rule 12(b)(6) motion, “the defense faces a formidable hurdle” at this stage in the proceedings. McKenna v. Wright,
Defendants’ lone argument in favor of qualified immunity is that “lodging a complaint about a fellow member of service is certainly not a ‘clearly established’ First Amendment right such that it ‘would be clear’ to the Individual Defendants [sic] that their ‘conduct was unlawful.’ ” Defs.’ Mem. at 25. As the Second Circuit recently cautioned, however, the “clearly established law” “standard must not be so specific that qualified immunity could be overcome only if the very action in question has previously been held unlawful.” Nagle,
Although not in dispute, defendants have also failed to meet their burden to show that their actions were objectively reasonable. As already discussed, plaintiff has sufficiently alleged retaliatory animus, let alone the far lesser standard of unreasonableness. “Though the qualified immunity inquiry is generally an objective one, a defendant’s subjective intent is indeed relevant in motive-based constitutional torts such as [First Amendment employment retaliation].” Johnson,
For all of the foregoing reasons, defendants’ motion to dismiss the First Amendment retaliation claim is denied.
3. Procedural and Substantive Due Process
Plaintiff additionally sues for violations of his procedural and substantive due process rights under the Fifth and Fourteenth Amendments. It is well-established that “the Fifth Amendment applies] to and restrict[s] only the Federal Government.” Pub. Utils. Comm’n of Dist. of Columbia v. Pollak,
Plaintiff alleges that his constructive termination at the hands of defendants deprived him of a property interest in his employment without adequate process. Compl. ¶¶ 77-78, 80. Even assuming that plaintiff had a “legitimate property interest” in his job and was constructively terminated, however, I must dismiss his procedural due process claims as a matter of law because “the availability of an Article 78 proceeding provided [plaintiff] with a meaningful opportunity to challenge the voluntariness of his resignation sufficient to ensure due process.” Stenson v. Kerlikowske,
Plaintiff additionally alleges that defendants deprived him of substantive due process because he was stigmatized in conjunction with the deprivation of his government employment. Compl. ¶ 81. Referred to as “stigma-plus,” this claim “involves an injury to one’s reputation (the stigma) coupled with the deprivation of some tangible interest or property right (the plus), without adequate process.” Segal v. City of New York,
Here too, plaintiffs claim must be dismissed because of the availability of an Article 78 proceeding. Anemone,
Plaintiffs substantive and procedural due process claims are, therefore, dismissed.
C. Section 1985 Conspiracy Claims
Plaintiff brings Section 1985 claims alleging that defendants “conspired” to deprive him of his constitutional rights. Compl. ¶¶ 84-89. To make out a claim under Section 1985, plaintiff must show: “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right 'or privilege of a citizen of the United States.” Cine SK8, Inc. v. Town of Henrietta,
Plaintiff has neither pled nor suggested the possible existence of any kind of “discriminatory animus,” race-based or otherwise, on the part of defendants. Defendants’ motion to dismiss plaintiffs Section 1985 claim is, therefore, granted.
D. State Law Claims—New York Civil Service Law Section 75-b and Intentional Infliction of Emotional Distress
Lastly, plaintiff brings pendent state law claims against defendants pursuant to Section 75-b of the New York Civil Service Law for whistleblower retaliation and state tort law for intentional infliction of emotional distress. Defendants move to dismiss both claims for plaintiffs failure to file a notice of claim within 90 days as required under sections 50-e and 50—i of the New York General Municipal Law. Defs.’ Mem. at 22-23 (citing N.Y. Gen. Mun. Law § 50-e(l)(a) (McKinney 2010)
Plaintiff concedes that no notice of claim was filed for either state law claim, let alone within 90 days after the claim arose. Instead, plaintiff insists that neither of his state law claims fall within the notice of claims requirements because they “arise from statute” and not from tort. ECF Docket # 34, Plaintiffs Memorandum in Opposition to Motion to Dismiss (“Pl.’s Mem.”) at 21-22.
First, plaintiffs claim that intentional infliction of emotional distress is not a tort is baseless and requires no further discussion. Second, plaintiffs claim brought pursuant to section 75-b of the New York Civil Service Law also falls under section 50-e’s notice of claim provisions. See Thomas v. City of Oneonta,
IV. CONCLUSION
It remains to be seen whether the evidence will support plaintiffs very serious allegations. It is, however, clear to the Court that the principles supporting limited First Amendment protection to public employees counsel in favor of allowing this case to proceed to discovery. Plaintiffs principle complaint does not simply reflect some intramural tiff over case responsibility or relatively petty administrative gripe or employee grievance. If plaintiffs allegations are sustained, moreover, plaintiffs speech would be of paramount public concern as the integrity of those sworn to protect us would seriously be called into question.
Defendants’ motion to dismiss plaintiffs First Amendment retaliation claim pursuant to Section 1983 is denied as to all individually named defendants and the City of New York. Defendants’ motion to dismiss plaintiffs procedural and substantive due process claims pursuant to Section 1983 is granted. Defendants’ motion to dismiss plaintiffs Section 1985 conspiracy claim is granted. Defendants’ motion to dismiss plaintiffs pendant state law claims for intentional infliction of emotional distress and violation of New York Civil Service Law Section 75-b is granted. All claims filed against the NYPD are dismissed.
SO ORDERED.
Notes
. Even if defendants did argue that plaintiff's First Amendment interests were outweighed by the potential for workplace disruption, their claim would fail as a matter of law, at least at this stage in the proceedings. As the Second Circuit recently explained in a similar context: "[I]f the allegations of internal misconduct are indeed true, [the employee's] statements could not have adversely affected the proper functioning of the department since the statements were made for the very reason that the department was not functioning properly.” Jackler v. Byrne,
. The Court may consider the NYPD Patrol Guide in deciding this motion, because "[i]t is well established that a district court may rely on matters of public record in deciding a motion to dismiss under Rule 12(b)(6).” Pani v. Empire Blue Cross Blue Shield,
. This case is also readily distinguishable from D’Olimpio v. Crisafi,
. Note that the Second Circuit’s Summary Order in Paola affirmed and relied upon an unpublished "Ruling on Motion for Reconsideration” by the District Court. This unpublished opinion included the discussion of the superior's explicit .order, upon which the decision relied. See Paola,
. Commission to Combat Police Corruption Homepage, http://www.nyc.gov/html/ccpc/ html/home/home.shtml (last visited June 1, 2012); see also supra note 3.
. Defendants also suggest that plaintiff could have instead "lodge[d] a complaint with the New York City Civilian Complaint Review Board ("CCRB”),” Defs.’ Mem. at 10, but plaintiff correctly points out that the CCRB only "investigates complaints of excessive or unnecessary use of force, abuse of authority, discourtesy, and offensive language” and "refers complaints about corruption or neglect of duty to the NYPD,” Pl.’s Mem. in Opp’n to Defs.’ Mot. to Dismiss at 10-11; see Frequent
. The “discriminatory animus” component derives from the second element of the Section 1985 claim. United Bhd. of Carpenters & Joiners of Am. v. Scott,