MEMORANDUM OF DECISION AND ORDER
The Plaintiff in this case, Kevin Murray (“Murray” or the “Plaintiff’) commenced this action on September 24, 2009, against the Defendants the Town of North Hemp-stead (the “Town”), the Town of North Hempstead Department of Buildings (the “Department”), the Town of North Hemp-stead Department of Finance (the “Department of Finance”), the Town of North Hempstead Town Attorney Office (the “Attorney Office”), and the Town of North Hempstead Town Board (the “Board”) (collectively the “municipal Defendants”), as well as against the individually named Defendants Joanne Taormina (the Commissioner of the Department of Finance), Jon Kaiman (the Defendant Town Supervisor), Richard Finkel, Esq. (the Town Attorney), and six Councilmen and Councilwomen on the Defendant Board: Robert Troiano, Thomas K. Dwyer, Angelo P. Ferrera, Maria Christina Poons, Lee R. Seaman, and Fred L. Pollack (collectively the “individual Defendants”). Murray asserts causes of action pursuant to 42 U.S.C. § 1983, based upon allegations that the Defendants retaliated against him for the assertion of his First Amendment right to freedom of speech.
The Plaintiff and the Defendants have now cross-moved for summary judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 56(c). In addition, the Defendants have filed a motion for sanctions pursuant to Fed.R.Civ.P. (“Rule 11”) against the Plaintiffs attorney, Austin R. Graff, Esq. For the reasons set forth below, the Court denies the Plaintiffs motion for summary judgment but grants the Defendants’ motion for summary judgment in its entirety. In addition, the Court denies the Defendants’ motion for Rule 11 sanctions against the Plaintiffs counsel, Austin R. Graff, Esq.
I. BACKGROUND
A. Factual Background
1. Employment History
a. Observations of Alleged Corruption
The Plaintiff commenced his employment with the Defendant Town on August 22, 2001 as a plumbing inspector with the Department. (Plaintiffs Local Rule 56.1(a) Statement (“PL 56. 1”) at ¶25.) In the Complaint, the Plaintiff alleges that over the course of his eight years of employment working for the Department, he
First, the Complaint states that in 2003, the Plaintiff observed that the work of a plumbing contractor named Daniel Weintraub did not conform to the Defendant Town’s regulatory standards that were enforced by the Department. Murray claims he raised Weintraub’s non-conforming work with the Department, but that his complaint was ignored. (Complaint (“Compl.”) at ¶25.) According to the Plaintiff, when Weintraub learned of the Plaintiffs complaints, he falsely accused the Plaintiff of soliciting bribes from him. (Compl. at ¶ 27.) A formal investigation was never conducted, although the Plaintiff requested the Department’s Commissioner, David Wasserman, to do so. Moreover, the Plaintiff alleges that Wasserman told him that if he went to the Town attorney about Weintraub’s work he was going to get -fired because “Nothing goes across the street [to the Defendant Attorney Office]. We handle the stuff over here.” (Compl. at ¶ 31-32.) Weintraub was never disciplined regarding his noncompliance with applicable regulations. (Compl. at ¶ 33-36.)
Second, Murray alleges that in or about 2005, he was accused by Ron Dean, a general contractor, for charging $50.00 to perform a plumbing inspection, which is not permitted by law. (Compl. at ¶ 40-41.) Once again, the Plaintiff alleges that a formal investigation was never conducted, even though the Plaintiff requested Wasserman to do so. (Compl. at ¶ 46.) As a result of Dean’s allegation, the Plaintiff contends that he was transferred to a different department and the stress of the ordeal caused him to develop shingles. However, after an outside company admitted to charging the fee and not Murray, he was returned to his usual position as a plumbing inspector. (Compl. at ¶ 51.)
Third, Murray alleges that in or about 2003 or 2004, the Plaintiff and four other inspectors examined the Maharaji Supermarket for the Town and discovered numerous violations of the Defendant Town’s Building Code. Murray claims that during the inspection, his supervisors at the Department of Buildings told the Plaintiff “not to issue any notice of violations of the Defendant Town’s Building Code to the Majaraji Supermarket.” (Compl. at ¶ 55.) The Plaintiff complied with this directive, apparently because of the past threats if he attempted to communicate his concerns to the Defendant Attorney regarding the operations of the Department. (Compl. at ¶ 56.)
b. Testimony at Corruption Trial
In or about June 2008, the Plaintiff testified on behalf of the Nassau County District Attorney at David Wasserman’s corruption trial. In particular, Murray testified that a builder was denied a Certificate of Occupancy by the Department until the builder purchased a table at a political fundraiser for the election of the Town’s Supervisor, the Defendant Jon Raiman. (Compl. at ¶ 60.) After this testimony, the builder called the Plaintiff and offered him money to “gratuitize” him for his testimony, which Murray then reported. (Compl. at ¶ 61.) Ultimately, the jury rendered a not guilty verdict and the Plaintiffs co-employees criticized him for reporting the builder’s offer. As a result of this experience, the Plaintiff claims he suffered a mental breakdown. (Compl. at ¶ 63-64.)
c. Drug Addiction and Rehabilitation
Beginning in or about 2005, the Plaintiff was prescribed Xanax to address certain stress and mental health conditions, allegedly caused by the prior instances of observed misconduct and threats. The
It is not entirely clear as to when the Plaintiff actually returned to work for the Department. In the Plaintiffs Local Rule 56.1 Statement, he states that he returned from in-patient drug treatment rehabilitation on or about February 3, 2009, and the Defendants do not dispute this date. (PL 56.1 at ¶ 37.) In addition, in the Complaint, the Plaintiff states that he was working on February 13, 2009. However, in the Plaintiffs motion for summary judgment, he claims that he did not officially return from FMLA leave until March 16, 2009.
2. Protected Speech
The Plaintiff alleges that he engaged in protected First Amendment Activity on three separate occasions. The exercise of his free speech was allegedly motivated by the instances of alleged corruption in the Department discussed above that the Plaintiff claims he observed during his employment.
a. The Notice of Claim
First, on February 9, 2009, the Plaintiff filed a Notice of Claim pursuant to New York Municipal Law § 50, which stated
The Town of North Hempstead has not taken the necessary steps to ensure that the Town of North Hempstead Department of Buildings and the other Town agencies are free from corruption. The Town of North Hempstead and its officers are aware of the misconduct of its employees and, despite numerous conversations with the Claimant, the Town of North Hempstead has refused to take action against, to halt and where appropriate, remove the corrupt elements.
(Pl. 56.1 at ¶ 28.) Murray cited claims of intentional infliction of emotional distress, negligent infliction of emotional distress, as well as violations of New York Civil Service Law § 75-b and New York Labor Law § 740. A number of the Defendants had actual knowledge of the Notice of Claim within days of its filing, including the Defendants Finkel, Kaiman, Taormina, and the Department. (PL 56.1 at ¶ 29.) The Plaintiff does not allege that any other Defendant had actual knowledge of this filing.
b. The Newsday article
Second, on March 19, 2009, after the Plaintiff was interviewed by a reporter, the Long Island newspaper Newsday published a news story in connection with the Plaintiffs filing the Notice of Claim. The article specifically identified Murray and discussed his allegations of corruption. In particular, the article stated:
Kevin Murray, a plumbing inspector since 2001, alleges in the notice of claim that “retaliatory action” was taken against him and that the town has not taken steps to ensure that the building department and other town agencies “are free from corruption.”
(Pl. 56.1 at ¶ 30-31.) Several of the Defendants read or discussed this article when it was published, including the Defendants Finkel, Kaiman, and the Department. The Plaintiff does not allege that any other Defendant read or discussed this article.
c. New York Municipal Law § 50-h Hearing
Third, on two separate occasions, April 14, 2009 and April 21, 2009, the Plaintiff testified at a New York Municipal Law § 50-a hearing. The Plaintiff spoke on a number of topics regarding the claimed
Murray’s testimony was reviewed by the Defendant Finkel, who then discussed the testimony with the Defendant Kaiman and the Department’s Commissioner Kevin Cronin. The Plaintiff does not allege that any other Defendant was aware of his testimony.
3. Allegations of Adverse Employment Actions
The Plaintiff claims that in response to the exercise of his First Amendment rights to freedom of speech, he suffered a number of adverse employment actions at the hands of the Defendants.
a. Desk Duty
The first allegation of an adverse employment action took place on February 26, 2009, which was approximately seventeen days after the Plaintiff filed his Notice of Claim and approximately twenty-three days after the Plaintiff physically returned to work from in-patient drug rehabilitation. The Defendant Taormina and the Defendant Department of Finance’s Commissioner drafted a letter to the Plaintiff from the Defendant Town. This letter restricted the Plaintiff to desk duty and further informed him that he was required to submit a letter from a “duly licensed New York State physician” attesting that he was able to perform the functions of his job and to operate a Town vehicle. (Pl. 56.1 at ¶ 37-40; Taormina Dep. at 12:20-22.) The Defendant Finkel reviewed this letter before it was mailed to the Plaintiff. The Plaintiff did not receive the letter until March 18, 2009 because it was sent to a previous address. On March 18, 2009, the Plaintiffs physician wrote a note stating that he “had not observed, nor has Murray reported any cognitive or motor difficulties.” (Compl. at ¶ 95.) The Town accepted this note as medical clearance to return to the Plaintiffs driving duties. Nevertheless, the Plaintiff remained restricted to desk duty for approximately two additional weeks. (Compl. at ¶ 96.)
The Plaintiff claims that he was restricted to desk duty and prohibited from conducting field inspections as retaliation for filing the Notice of Claim. On the other hand, the Defendants claim that there were a “combination of things” that kept Murray assigned to desk duty, notably that he “had a lot of administrative issues that he needed to address.” (Geraci Dep. at 25:10-18.) Although the Defendants claim that the Plaintiff did not fully address all of the administrative issues, they put him back on full duty on April 3, 2009, to replace another inspector who was going on vacation. (Geraci Dep. at 27:16-28:17.)
b. Heighted Supervision
In addition to his restriction to desk duty, the Plaintiff alleges that he was subject to heightened supervision after he returned from drug rehabilitation and filed the Notice of Claim. For instance, the Plaintiffs supervisor Geraci kept notes regarding Murray’s employment, although he did not do so for the other employees he supervised. However, Geraci maintained that he did so “[bjecause it became apparent [Murray] was having some difficulties. They were affecting his performance and they were affecting the Building Department as a whole. His job was not
As another example of heightened supervision, Geraci relocated the Plaintiffs workstation, although it is disputed precisely when this occurred. Geraci testified that he relocated the Plaintiffs desk so he “could directly supervise him to try to ensure that [the Plaintiffs administrative work] was being done.” (Geraci Dep. at 36:14-28; Def. 56.1 at ¶ 35(b).) On the other hand, the Plaintiff claims that this was an adverse employment action because the new location of his desk restricted his ability to do his job. (PI. 56.1 at ¶ 85.) In particular, he alleges that he had trouble accessing certain files from this location. (Def. 56.1 at ¶ 35(c).)
Finally, the Plaintiff claims that on an unknown date, he was physically followed by George Kalamaras, a supervisor in the Department, when he was leaving a site inspection, and that this was an adverse employment action. (PI. 56.1 at ¶ 92.) The Defendants deny this allegation. Although the Plaintiff states that he only observed this one instance of surveillance, he also alleges that Kalamaras told him that the Department was generally “keeping an eye on him.” (PI. Dep. at 65:4-12.)
c. Threats of Termination and Constructive Discharge
Beyond the reassignment to desk duty and the heightened supervision, the Plaintiff claims that it was the Defendants’ objective to terminate his employment. This was made clear to him in late April 2009 when the Defendant Finkel told him that the Defendant Kaiman wanted him “out of here.” (PI. Dep. at 25:23-26:9.) According to the Plaintiff, this threat of termination was another adverse employment action that caused him severe emotional distress.
In addition to the threat of termination, at this time, New York State Civil Service Law § 75 disciplinary charges were being contemplated against the Plaintiff. (PL 56.1 at ¶ 98; Cronin Dep. at 57:9-24.) Therefore, the Plaintiff made the choice to resign from his employment with the Defendant Town, which he alleges constituted a constructive discharge. Murray’s explanation for this decision was that he was under the threat of being fired because the Town Attorney Finkel told him that the Town supervisor Kaiman wanted him terminated. (Pl. Dep. at 37:10-16.) However, the Plaintiff also acknowledges that he felt that he had no alternatives because if he did not resign, he would face disciplinary charges and this would be difficult in view of his health problems. (Compl. at ¶ 153-54; Def. 56.1 at 177.)
4. Settlement Agreement
In early June 2009, the Defendant Town’s outside counsel was in communication with the Plaintiffs counsel regarding the terms of Murray’s resignation.
On June 5, 2009, the Plaintiff was placed on administrative leave with pay pending the Defendant Town Board’s approval of a settlement related to the dissolution of his employment. (Def. 56.1 at ¶ 53.) The Plaintiff approved a letter which stated:
effective Monday June 8, 2009, you are on administrative leave, with pay, pending the Town Board’s approval of the settlement related to the termination of your employment with the Town[] in which [sic] the Town agrees to pay you the lump sum of $35,000.00
(Pl. Dep. at 129:2-9.) The Defendant Board ratified the terms of this agreement on June 23, 2009. There is no general release language in the June 5 letter. (PL 56.1 at ¶ 24.)
On July 8, 2009, the Defendant Town sent a letter to the Plaintiffs counsel stating:
[c]onsistent with the agreement relating to Mr. Murray’s voluntary separation from Town employment, as contained in correspondence dated June 5, 2009 and ratified by the Town Board on June 23, 2009, enclosed please find a check in the amount of $31,747.21.
(PI. Ex. L.) However, the settlement process broke down and on July 14, 2009, the Plaintiff returned the check to the Defendant Town and demanded that they either continue him on administrative leave with pay or authorize him to return to work. On July 16, 2009, Defendant Finkel responded by informing the Plaintiff that he was no longer employed by the Defendant Town pursuant to the June 5, 2009, agreement.
On or about July 10, 2009, the Plaintiff communicated with his union, the Civil Service Employment Associated (“CSEA”) regarding his employment and resignation. The CSEA then filed a demand for arbitration. However, on or about August 3, 2009, CSEA withdrew this demand because of their belief that the issues did not involve a violation of the Collective Bargaining Agreement (“CBA”) between the Town and CSEA but rather was a dispute between the Town and Murray. (Compl. at ¶ 147.) The Plaintiff had never otherwise filed a grievance with the CSEA, but he maintains that he was not required to do so under the terms of the CBA.
On August 5, 2009, an agreement was eventually reached between the Defendants and the Plaintiff, which essentially included the terms of the June 5, 2009 agreement, along with provisions for continued health insurance coverage and the Defendants’ assurance to not contest the Plaintiffs application for unemployment. On August 6, 2009, the Town sent a check to the Plaintiff in the amount of $31,747.21, which the Plaintiff accepted.
B. Procedural Background
On September 24, 2009, the Plaintiff filed a Complaint against the Town, several municipal agencies, including the Department of Buildings, as well as several individual Town employees. The Complaint contained four causes of action: two for violations of 42 U.S.C. § 1983 and two with regard to the Town’s Administrative Code.
On April 5, 2011, in response to a “safe harbor letter” sent by the Defendants, the Plaintiff withdrew his claims against the individually-named Defendants in their official capacities only. In addition, the Plaintiff withdrew his first and second causes of action relating to the Town’s Administrative Code.
On April 18, 2011, the Plaintiff filed a motion for summary judgment for the remaining Section 1983 claims. On that same day, the Defendants filed a cross-motion for summary judgment on those same claims. In addition, on May 27, 2011, the Defendants filed a motion for sanctions against the Plaintiffs counsel, pursuant to Rule 11, on the ground that counsel previously negotiated a settlement with the Defendants that encompassed all claims between the parties, and that Plaintiffs counsel made material misrepresentations of fact in the course of the summary judgment process.
II. DISCUSSION
A. Legal Standard on a Motion for Summary Judgment
It is well-settled that summary judgment under Fed.R.Civ.P. 56(c) is proper only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
Once the moving party has met its burden, “the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
B. As to Whether a Settlement Agreement Was Reached Waiving the Plaintiff’s Claims
As an initial matter, the Court will address a portion of the Defendants’ motion for summary judgment relating to the possible relinquishment of the Plaintiffs claims. The Defendants assert that the parties have already settled this matter through a payment by the Defendants and that the Plaintiff has thereby waived his right to assert any claims regarding his employment, including the Section 1983 claims presently at issue. On the other hand, Murray contends that this case should not be dismissed because the Plaintiff did not release any claims and that his acceptance of a settlement amount only specifically related to his separation from the Town’s employment. Resolution of this issue is essential not only to the Defendants’ motion for summary judgment, but also to the Defendants’ motion for sanctions, which will later be discussed in further detail.
Both parties do not dispute that they engaged in a settlement negotiation process which took place over several months, ultimately resulting in a payment to the Plaintiff of a lump sum of approximately $35,000. What is disputed is whether the final settlement agreement merely addressed the separation of Murray from the Town’s employment so that he can maintain his federal claims, as the Plaintiff contends, or, whether the agreement was intended to conclude all claims whatsoever relating to the Plaintiffs employment, as the Defendants contend.
In this regard, the Defendants point to a series of emails to demonstrate that while at one point the Town actually considered allowing separate First Amendment claims to stand, it ultimately issued a payment to the Plaintiff only as a resolution of all
The Plaintiff then responded “This will confirm that the June 5, 2009 letter has been reaffirmed by Mr. Murray. In other words, the June 5, 2009 letter governs the agreement between the Town of North Hempstead and Mr. Murray regarding Mr. Murray’s separation from employment with the Town.” Thus, according to the Defendants, the final email from the Plaintiffs attorney stating that he accepted the Town’s terms was a clear acceptance that there was a resolution of all of the issues between the claimant and the Town.
In response, the Plaintiff claims that the Defendants cannot identify any document executed by the Plaintiff or any act by the Plaintiff that evidences a clear, unmistakable waiver by the Plaintiff of his present claims. Rather, the Plaintiff argues that the Defendants rely only upon inferences to be drawn from the exchange of emails and letters between the parties’ counsel, which is insufficient to establish the existence of a release of the claims asserted in this action, as a matter of law.
Once an individual executes a valid settlement agreement, he cannot subsequently seek both the benefit of the agreement and the opportunity to pursue the claim he agreed to settle. Wilmes v. United States Postal Serv.,
The Supreme Court has held, in a number of varying contexts, that a waiver of constitutional rights must be based upon clear and convincing evidence to demonstrate that the waiver is knowing, voluntary, and intelligent. Faretta v. California,
These standards apply to contractual waivers of constitutional rights. In the civil context, “a party waiving constitutionally protected rights' — even when doing so through the execution of a contract— must also be made aware of the significance of the waiver.” Morris v. N.Y.C. Employees’ Retirement Sys.,
The Court finds that in the present case, the Plaintiff did not unequivocally waive his federal claims voluntarily, knowingly, and intelligently.
First, the Plaintiff testified at his deposition that he was not knowingly aware of any waiver of his rights. He stated “I agreed to this and this alone. Now, if the Town Board was approving the settlement of something, I’m unaware of, I didn’t sign anything. I didn’t agree to anything else. Never intended to.” (PI. Dep. at 120). In addition, he testified that “I understood that I had the right to continue with the process of the 50-H hearing through the lawsuit and that I was relinquishing no rights whatsoever.” (PI. Dep. at 120-21). In light of the stringent standard described above necessary to constitute a waiver of constitutional rights, the Court must permit the reasonable presumption against waiver that this testimony infers.
Second, the Defendants cannot point to any actual agreement signed by the Plaintiff that expressly relinquishes his right to bring the present claims. This is not the type of case where an agreement was signed by the Plaintiff that specifically forbids the assertion of any constitutional claims regarding his employment, or relinquishing, releasing, and waiving all possible claims and causes of action against the Town. Cf. Intermor v. Inc. Vill. of Malveme, No. 03 Civ. 5164,
Here, the Plaintiff did accept a payment from the Defendant Town pursuant to the June 5 letter, that stated “effective Monday June 8, 2009, you are on administrative leave, with pay, pending the Town Board’s approval of the settlement related to the termination of your employment with the Town in which [sic] the Town agrees to pay you the lump sum of $35,000.00.” According to the Defendants’ own correspondence with the Plaintiff, “All relevant terms are contained in the June 5, 2009 letter.” (PLEx. G.) The Plaintiffs final acceptance merely confirmed these precise terms. Therefore, the June 5 letter itself contains all the relevant terms and forms the agreement between the parties, and the language contains no expression by the Plaintiff that his acceptance of the $35,000 represents a waiver of his present claims.
In addition, much of the language the Defendants cite to in their correspondence with the Plaintiffs counsel to demonstrate the claimed unequivocal proposal and acceptance of certain settlement terms is ambiguous at best. Statements such as, “I do not know if original game plan will fly. You let the cat out of the bag” and “back
Although the Defendants’ letter on July 31, 2009 does state that the Town rejected the Plaintiffs proposition to maintain his rights, it later goes on to state the Town’s position without explicit reference to any waiver of claims. While the Defendants may have intended for the waiver of any subsequent claims to be an explicit condition of Plaintiffs acceptance of payment from the Town, and while it is certainly a reasonable inference from the July 31 letter, it is insufficient to constitute an unequivocal voluntary, knowing, and intelligent waiver of claims under the law.
As the Defendant Finkel’s July 16, 2009 letter to the Plaintiffs counsel stated:
Notably, the June 5, 2009 correspondence, which your client reviewed with you before signing and which was prepared at your insistence, makes no reference to any ‘claims’ which Mr. Murray may believe he has. It merely addressed the ‘termination of his employment with the Town’. His subsequent rejection of a ‘global settlement’ inclusive of those claims previously raised in his Notice of Claim has no bearing on his separate agreement to voluntarily terminate his employment in return for a payment of $35,000.00.
(PI. Ex. K.) The Court agrees with this conclusion.
Therefore, the Court finds that the Plaintiff did not knowingly, voluntarily, and intelligently waive his rights to assert the present constitutional claims. Accordingly, the Plaintiffs claims under Section 1983 for violations of his constitutional rights are not barred by the Settlement Agreement.
C. The Present Motions for Summary Judgment
The Plaintiff and the Defendants have filed cross-motions for summary judgment with regard to the third and fourth causes of action for violations of 42 U.S.C. § 1983, the only two causes of action which now remain. The third cause of action is asserted against the Town, the Department, the Department of Finance, the Attorney Office, Finkel and Taormina. This claim is based upon the alleged retaliation for the exercise of Murray’s First Amendment rights of freedom of speech through the adverse employment action of placing Murray on -desk duty. The fourth cause of action is asserted against all of the Defendants except the Department of Finance. This claim is based upon the alleged retaliation of constructive discharge for the exercise of Murray’s First Amendment rights of freedom of speech. In sum, Murray bases his Section 1983 claims on the Defendants’ alleged retaliation for the exercise of his First Amendment rights.
The Plaintiff asserts that he is entitled to summary judgment on the remaining Section 1983 claims because there are no genuine issues of material fact as to whether (1) the Plaintiff engaged in protected First Amendment activities; (2) the Plaintiff suffered adverse employment actions, including the reassignment to desk duty as well as the alleged constructive discharge; and (3) there was a causal connection between the exercise of Murray’s First Amendment rights and the Defendants’ alleged retaliatory conduct, so that his speech was a motivating factor in the adverse employment decisions.
The Court will consider the cross-motions for summary judgment independently, viewing the facts in a light most favorable to the non-moving party. See Schwabenbauer v. Board of Educ. Of Olean,
D. Relevant Law
Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan,
The Second Circuit has “described the elements of a First Amendment retaliation claim in several ways, depending on the factual context.” Williams v. Town of Greenburgh,
To establish a prima facie case of First Amendment retaliation, a plaintiff must show that (1) he engaged in constitutionally protected speech because he spoke as a citizen on a matter of public concern; (2) he suffered an adverse employment action; and (3) the speech at issue was a substantial or motivating factor in the decision. Johnson,
E. Whether the Plaintiff’s Speech Relates to a Matter of Public Concern
Speech is on a matter of public concern and therefore a protected activity “if it relates ‘to any matter of political, social, or other concern to the community.’ ” Johnson,
Whether or not “ ‘an employee’s speech addresses a matter of public concern is a question of law for the court to decide, taking into account the content, form, and context of a given statement as revealed by the whole record.’ ” Ruotolo v. City of New York,
The Plaintiff claims he exercised his right to free speech in three separate contexts, all of which were to address what he perceived to be corruption by the Defendants. First, the Plaintiff asserts that his filing of a Notice of Claim pursuant to N.Y. Municipal Law § 50 on February 9, 2009, was an exercise of his free speech rights. Second, the Plaintiff claims that that the news story published by the Long Island newspaper Newsday was also protected as an exercise of his free speech. Third, the Plaintiff asserts that his testimony at the N.Y. Municipal Law § 50-h hearing, again concerning the corruption of safety and health violations by certain Defendants, was protected free speech.
The alleged corruption was observed by Murray during the course of his public employment, and thus arguably was made pursuant to his official duties and not protected. See Garcetti v. Ceballos,
The speech at issue here is not the type of unprotected speech where workplace complaints are made only to redress personal grievances. Moreover, even if the speech was partially motivated by personal grievances, “it does not follow that a person motivated by a personal grievance cannot be speaking on a matter of public concern.” Storman v. Klein,
Therefore, the Court finds, as a matter of law, that the speech at issue here is on matters of public concern and therefore a protected activity.
F. Whether the Plaintiff Suffered Adverse Employment Actions
“In the First Amendment context ... plaintiffs need only show that the retaliatory conduct in question ‘would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.’” Nixon v. Blumenthal,
According to the Plaintiffs motion for summary judgment, he suffered four adverse employment actions in retaliation for the exercise of his constitutionally protected activities. The first three all involve changes in the Plaintiffs working conditions. The last claimed adverse employment action concerns his alleged constructive discharge. However, the Court finds that even when viewing the facts in a light most favorable to the Plaintiff, none of the alleged adverse employment actions, individually or collectively, would plausibly deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.
1. Change in Work Conditions
The first three adverse employment decisions asserted by the Plaintiff involve
First, the Plaintiff claims that the Defendant Department placed him on desk duty for approximately two weeks and thereby severely modified his previous job responsibility to go out in the field and perform plumbing inspections throughout the community. (PI. Dep. at 56-57.) Second, the Plaintiff alleges that the Defendant Town relocated his work station from an inspector’s cubicle and reassigned him to a different location within the building, and that consequently he was unable to perform his job duties because he had “no access to the file cabinets.” (PI. Dep. at 62.) The Plaintiff also testified that the reason they moved his desk was to place him directly next to his supervisor Joseph Geraci so that Geraci could “keep an eye on [him]”. (PI. Dep. at 59, 75:2-6.) Third, the Plaintiff claims that he was subject to another form of heightened supervision because George Kalamaras, assistant to the Commissioner of the Department, told him that “they want to watch you. They are keeping an eye on you.” (PL Dep. at 64, 73.) In particular, the Plaintiff claims that on at least one occasion, he was actually followed by Kalamaras during a plumbing inspection. According to the Plaintiff, “Mr. Kalamaras was assigned by [the] Commissioner [of the Department] to follow me in the field.” (PL Dep. at 64:11-18.)
The Defendants do not dispute that the Plaintiff was placed on desk duty and that his workstation was moved in order to keep a closer eye on him. However, the Defendants deny that the Plaintiff was ever followed by Kalamaras. Regardless, the Defendants contend that none of these events, even if true, would constitute adverse employment actions. Instead, the Defendants argue in both their opposition to the Plaintiffs motion and in their own motion for summary judgment that a change in Murray’s work station, five days of being placed on restricted duty, and one incident where Murray alleges he was followed, amount to nothing more than “mere inconvenience[s]” and “alterationfs] of job responsibilities.” See Galabya v. New York City Bd. of Educ.,
The Court finds that the Plaintiff has not suffered adverse employment actions with regard to these occurrences, even under the less rigid First Amendment standard. See Zelnik v. Fashion Inst. of Tech.,
Retaliatory harassment in the First Amendment context can reach a “critical mass” of frequency and severity as to constitute an adverse employment action. See Hoover v. County of Broome,
First, with regard to the restriction of Murray to desk duty, this action by
Second, with regard to a change in the Plaintiffs work station when he was relocated from his inspector’s cubicle to a desk on the other side of the building, this could only reasonably be viewed as making his job more logistically difficult. See Lorenzo v. St. Luke’s-Roosevelt Hosp. Ctr.,
Moreover, the Plaintiffs testimony with regard to this condition was expressed as an adverse action largely because of the heightened supervision it entailed by being placed in a desk immediately next to his supervisor. Notwithstanding this context, the action would still not be found, as a matter of law, to constitute an adverse employment action. See Mabry v. Neighborhood Defender Serv.,
Finally, with regard to the heightened supervision and surveillance, even if assumed to be true, the facts as alleged here would not, as a matter of law, constitute adverse employment actions. In general, excessive or heightened scrutiny of an employee has been held by courts to be insufficient to constitute an adverse employment action. See generally Mendez v. Starwood Hotels & Resorts Worldwide, Inc.,
Even when viewing the facts in a light most favorable to the Plaintiff, this case does not present any particularly egregious allegations that would lead the Court to stray from this general consensus. If the Defendants were keeping a close eye on the Plaintiff in the course of his duties, which in this case necessarily would involve following him to site inspections, this does not, as a matter of law, constitute an adverse employment action. The Defendants’ actions may have constituted overzealous supervisory actions but none created an “unreasonably inferior and adverse” work environment in the First Amendment retaliation context. See Russo v. City of Hartford,
In particular circumstances, other courts have noted that surveillance on the job can constitute an adverse employment action. See Constance,
In sum, the minor events described above do not, as a matter of law, constitute adverse employment actions. While the precedent in this Circuit allows a combination of seemingly minor incidents to form the basis of a constitutional retaliation claim once they reach a critical mass, no such “critical mass” exists here. As found recently by the Second Circuit in the Title VII retaliation context, “[individually the actions were trivial, and placed in context they remain trivial. Taken in the aggregate, the actions still did not adversely affect [the plaintiff] in any material way. ‘Zero plus zero is zero.’ ” Tepperwien v. Entergy Nuclear Operations,
As in Tepperwien, the Plaintiff suffered several minor incidents, such as restrictions to certain administrative tasks for a limited period of time and the relocation of his workstation. However, as in Tepperwien, these allegations are insufficient, even in light of the entire context of this case. The Plaintiff points out, and the Court is fully aware, that the relevant standard in the First Amendment retaliation context is not “materially adverse”, as in the Title VII retaliation context, but rather, “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Zelnik v. Fashion Inst. of Tech.,
Therefore, the Plaintiffs summary judgment motion alleging these actions as adverse employment actions is denied.
2. Constructive Discharge
Other than the minor incidents described above, the Plaintiffs only other allegations of retaliatory conduct are that he was threatened with termination and consequently “constructively discharged.” The evidence in support of these allegations is the Plaintiffs own testimony that he was told by the Defendant Finkel, who was in turn told by Defendant Jon Raiman, the Town’s Supervisor, that he was going to be fired for attendance issues. Specifically, Finkel told the Plaintiff that “Jon [Raiman] wants you out of here. We are going to move to fire you.” (PI. Dep. at 26.) The Plaintiff had the understanding that if he did not resign, that the Defendant Town was going to terminate his employment. The Plaintiff also testified at his deposition that he felt that he had no alternative because he was “under the threat of termination which meant that [he] had to go through a civil service procedure” and that he “needed for [his] health to accept the severance pay and get out of there.” (PL Dep. at 36.) The Plaintiffs attorney began negotiations with the Town almost immediately after this alleged threat over the mechanism as to how Murray would be separated from Town employment. Approximately one week after Finkel’s statement, he signed a letter terminating his position. (PL Dep. at 28.)
While the facts themselves in this regard are largely undisputed, the Defendants adamantly deny that the Plaintiff
As an initial matter, threats of termination cannot, by themselves, constitute an adverse employment action. See Brightman v. Prison Health Serv., Inc., No. 05 Civ. 3820,
The relevant determination then is whether there is a genuine issue of material fact as to whether the Plaintiffs separation from the Town’s employment was a constructive discharge constituting an adverse employment action.
“A constructive discharge ... occurs when an employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.” Spence v. Maryland Cas. Co.,
Moreover, many cases support the finding that threats of termination cannot lead to a constructive discharge, even when combined with more egregious conduct not alleged here. See, e.g., Spence,
In the present case, Murray relies solely on a statement from the Town Attorney Finkel, not his direct employer, who told him that his supervisor wanted him terminated. Of course, “this is not to say that a direct threat from someone with firing authority is always necessary to support a claim of constructive discharge based on the threat of termination.” Lindner v. New York City Bd. of Educ., No. 01-Civ-8245,
While the Plaintiff cites to two cases, one of which is from this Court, for the proposition that an employee with the choice of being fired or resign establishes a constructive discharge as a matter of law, this is a mischaracterization of the holdings in these cases. In Lopez v. S.B. Thomas, Inc.,
Moreover, the Plaintiff contends that he had no alternatives because if he did not resign, he would face disciplinary charges and this would be difficult on his health. However, “when an employee resigns rather than responds to disciplinary charges, the resignation cannot later be construed as- a constructive discharge.” Bailey v. New York City Bd. of Educ.,
Finally, the Court notes that the availability of alternatives to resignation, such as complaint procedures, may preclude a finding of constructive discharge. See Spence,
In the present case, the Plaintiff did ask his union, the CSEA, to file a demand for arbitration, but this request was withdrawn when CSEA learned of the settlement between the Town and the Plaintiff. The Plaintiff allowed CSEA to withdraw the grievance and did not appeal the with
The Court finds that there are insufficient facts to allege constructive discharge on the part of the Defendants. Therefore, the Court need not address whether Murray’s failure to pursue grievances procedures under his union’s collective bargaining agreement would prevent him from pursuing a constructive discharge claim.
Therefore, the Court finds that the Plaintiff has failed to demonstrate that he suffered any adverse employment actions.
G. Whether A Causal Connection Exists Between the Exercise of the Plaintiff’s Rights and the Defendants’ Conduct
Assuming, arguendo, that the Plaintiff has established that no genuine issues of material fact exist as to whether he suffered adverse employment actions, the issue remains as to whether or not the Defendants actually retaliated against Murray for exercising his First Amendment rights to free speech. A causal connection between the speech and adverse action must exist “so that it can be said that [the] speech was a motivating factor in the determination,” Morris,
1. Circumstantial Evidence and Temporal Proximity
The Plaintiff points to certain pieces of circumstantial evidence to demonstrate an inference of a causal connection; one that the Plaintiff claims is so strong that there remains no genuine issue of material fact with regard to whether a causal connection exists. At its core, the Plaintiffs argument is that (1) the Defendants’ behavior toward him changed; and that (2) this change of behavior was in close temporal proximity to the exercise of his free speech.
First, the Plaintiff states that he was never disciplined prior to the exercise of his free speech. Second, the Plaintiff states that after he exercised his free speech rights, he was placed on desk duty; had his workstation relocated; was followed on at least one inspection; and was threatened with termination. Murray ar
Theoretically, temporal proximity can be a sufficient basis from which to infer a causal connection as a matter of law. See Gaetano & Assocs. Inc. v. N.L.R.B.,
Moreover, even if the Court considers the two and a half month period between the Newsday article published on March 19, 2009, and the Plaintiffs resignation, the Court is not convinced that this would establish, as a matter of law, that a causal connection exists. This is especially true when the only other circumstantial evidence the Plaintiff can point to is a change in behavior. See Caskey v. County of Ontario,
Finally, the Plaintiff maintains that Murray was a union employee subject to a contractual system of progressive discipline prior to the filing of disciplinary charges under New York Civil Service Law § 75. The Plaintiff argues that the “Defendants leapfrogging its progressive discipline system obligation alone is sufficient to establish the Plaintiffs prima facie case of adverse employment action in the context of a claim of retaliation.” (PI. Rep. at 6) (citing Foss v. Coca Cola Entrs., Inc.,
However, the CBA at issue here does not contain the contractual progressive discipline system referred to by the Plaintiff. Instead, it is a disciplinary review process that occurs once the Town has elected to file a disciplinary notice or impose disciplinary action. The CBA does not require the Town to warn a Plaintiff or hold formal counseling sessions. Rather, it requires only that if the Town wished to terminate the Plaintiff, it would have had to serve a five day notice of its intention, so that the Union could demand arbitration on the Plaintiffs behalf. As the Defendants did not file formal disciplinary charges prior to the Plaintiffs resignation, this argument is without merit and thus does not provide any evidence supporting an inference of retaliation.
Therefore, the Plaintiff has failed to sufficiently allege a causal connection between the protected speech and any adverse employment actions.
2. Defendants’ Purported Non-Discriminatory Reasons for its Conduct
Even assuming that the Plaintiff has presumptively established a causal correlation, once the Defendants have presented a non-retaliatory reason for its employment actions, they are entitled to summary judgment “unless the Plaintiff can point to evidence that reasonably supports a finding of prohibited [retaliation].” James v. New York Racing Ass’n,
Viewing the facts in a light most favorable to the Plaintiff, the Defendants are nevertheless entitled to summary judgment on this ground and the Plaintiffs motion for summary judgment necessarily fails, because the Defendants have provided several legitimate, non-retaliatory reasons for its alleged adverse acts, which the Plaintiff has not adequately refuted as mere pretext. See Milano v. Astrue, No. 05 Civ. 6527,
First, the Defendants contend that the reason the Plaintiff was restricted to desk duty was to allow the Plaintiff to catch up on the administrative paperwork that had gotten backlogged since his FMLA leave. (Geraci Dep. at 27:11) (“The only way he could [do the reports] was to be in the office, sort out the inspection reports ... try to clean up all of the paperwork that was around. The only way for him to do that was to stay in the office.”). The Plaintiff does not deny that these tasks were a necessary part of his job responsibilities, and therefore the Court finds this to be a legitimate non-retaliatory reason for the restriction to desk duty.
As for the heightened supervision, both by relocating Murray’s desk to be situated next to Geraci and through actual surveillance by Kalamaras, and the alleged constructive discharge, the evidence put forth by the Defendants demonstrates that these actions were solely motivated and justified by Murray’s poor work performance and attendance problems. (See Geraci Dep. at 3) (“we were not having a lot of success with [the Plaintiff], in terms of getting him to perform his duties on a whole. He still had administrative tasks
With regard to his attendance problems, the Plaintiff himself admitted in his deposition that he could not state how many days he was tardy or out of the office upon his return from FMLA leave, but that “it could have been thirty” or even more than forty. (PI. Dep. at 42-43.) Murray’s persistent attendance issues were further demonstrated by records maintained by Murray’s supervisor, Joseph Geraci. (PI. Ex. T.) Moreover, Murray’s work performance and attendance issues were discussed repeatedly by Geraci with him. (Def. Opp. at 15.) Geraci held three meetings with the Plaintiff in 2008 to address the Plaintiffs attendance, organization, and filing paperwork, which were designed to “increase awareness, gain compliance and train the employee.” (Geraci Dep. at 28, 30, 36.) These meetings were both formal and informal discussions. (PI. 56.1 at ¶ 72-73.) The Plaintiff never received formal discipline, but he did receive a Counseling Memorandum dated August 22, 2008 for failing to comply with the Department’s rules and procedures. (PI. 56.1 ¶ 74-77.) This memorandum, issued before any protected speech occurred, demonstrates that Murray had failed to comply with certain job requirements and that his “compliance [was] sporadic at best.” (PI. Ex. U.)
Therefore, the Court finds that the Defendants’ actions zealously supervising Murray and contemplating disciplinary action are not inherently retaliatory, particularly in light of the strong evidence of Murray’s poor performance prior to his partaking in any protected activity. (See Def. 56.1 at ¶ 39) (the Plaintiff not disputing that he was going to be receiving a disciplinary notice a year before his filing the Notice of Claim); (Geraci Dep. at 37:3-9, 39:9-13.) This evidence is more than sufficient to establish a legitimate, non-retaliatory reason for any adverse actions taken against the Plaintiff. The facts here raise a strong inference that Murray was not terhiinated for retaliatory reasons — an inference which Murray has not overcome by the production of contrary evidence.
The Plaintiff has not pointed to any evidence that his absenteeism or poor work performance was a mere pretext for the heightened supervision or alleged constructive discharge. For example, the Plaintiff has not refuted his poor work and attendance record. Although the Plaintiff contends that he was on FMLA leave until March 16, 2009 (PI. Mem. at 15), so that his performance in early 2009 is irrelevant, the Plaintiff has simultaneously stated that he returned to work in February 2009 and does not dispute that he was physically present at work throughout a number of days in February and early March. Even if there is a question of fact as to whether the Plaintiff was on FMLA leave during the period of January-March 2009, there is no dispute that the Plaintiffs job performance was a viable issue prior to 2009. Moreover, even if the Court were to consider March 16, 2009 as the beginning date at which the Plaintiffs lateness or absence from work could be considered as a reason for his alleged constructive discharge, the Defendants have demonstrated that the Plaintiffs consistently poor attendance, time and performance record did not improve after this date. The Plaintiff has marshaled no evidence to support the view that the Defendants’ dissatisfaction with the Plaintiffs performance was a mere pretext to cloak unwarranted retaliation.
Accordingly, because the Plaintiff has not set forth any adverse employment actions or causal connection to the exercise of his First Amendment speech, and be
H. As to Sanctions
The Defendants have moved for sanctions against the Plaintiffs attorney, Austin R. Graff, Esq., pursuant to Rule 11, asserting that: (1) the statements and claims asserted in the Plaintiffs filings were frivolous and without merit; and (2) the complaint should have been withdrawn after the Settlement Agreement was signed.
Rule 11(b) of the Federal Rules of Civil Procedure states that an attorney who presents “a pleading, written motion, or other paper” to the court thereby “certifies” that to the best of his knowledge, information, and belief formed after a reasonable inquiry, the filing is: (1) not presented for any improper purpose, “such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation”; (2) “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law”; and (3) either supported by evidence or “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery”. Fed.R.Civ.P. 11(b).
In general, “the standard for triggering the award of fees under Rule 11 is objective unreasonableness.” Margo v. Weiss,
As an initial matter, the Defendant’s contention that sanctions are warranted relies on the presumption that the Settlement or June 5 letter effectuated a release of the Plaintiffs claims. A review of the Agreement however, as set forth more fully above, does not support this presumption. The agreement did not explicitly provide that the Plaintiff agreed to release and discharge any and all causes of action which the Plaintiff may have had, arising out of his employment with the Town. In addition, the Plaintiffs deposition testimony indicates that he did not knowingly waive any of his federal claims. Accordingly, the Court finds that the Plaintiff did not release all of his claims asserted in the complaint when he agreed to terms of the Settlement and accepted a check from the Defendants in the amount of $35,000. The Court finds that there was a legal and factual basis to assert those claims in the instant action. Therefore, the Court denies the Defendants’ motion for Rule 11 Sanctions against the Plaintiff on this ground.
Second, as to the alleged material misrepresentations of fact and frivolous arguments, the Defendants point to certain language and several propositions in the Plaintiffs filings that they deem patently false and without evidentiary support. It may be that certain arguments of the Plaintiff are unconvincing or have weak evidentiary support. However, the Court finds that the Complaint, as well as the Plaintiffs other filings with this Court, are
Accordingly, the Defendants’ motion for Rule 11 sanctions against Austin R. Graff, Esq. is denied.
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the Plaintiffs Motion for Summary Judgment on the Section 1983 causes of action is denied; and it is further
ORDERED that the Defendants’ Motion for Summary Judgment dismissing the complaint in its entirety is granted; and it is further
ORDERED that the Defendants’ Motion for Rule 11 Sanctions is denied; and it is further
ORDERED that the Clerk of the Court is respectfully directed to close this case. SO ORDERED.