KENNETH A. Rocco, Presiding Judge.
{¶ 1} Defendant-appellant, Corrine Whiteaker, appeals from her conviction for theft following a bench trial. She argues that the evidence was insufficient and that her conviction contravened the manifest weight of the evidence. We find that the evidence presented by the state was insufficient to support appellant's conviction. Accordingly, we reverse.
{¶ 2} Appellant and her husband, Roland Whiteaker, were both charged with one count -of theft with an elderly specification in an indictment filed October 29, 2008. Both defendants waived a jury, and the case proceeded to trial before the court. At the conclusion of the trial, the court found appellant guilty of theft. The court sentenced her to five years of community control and ordered her to pay restitution of $3,779 to the victim, jointly and severally with her husband. The court further ordered that community-control sanctions could end when all restitution had been paid.
{¶ 3} At trial, the parties stipulated that the Whiteakers had deposited coins in appellant's bank account on ten occasions between July 1 and August 29, 2008. They also stipulated that the victim, appellant's mother-in-law, was elderly.
{¶ 4} The state presented the testimony of the victim, Adelle Whiteaker; First Merit Bank investigator Kirk Saxon; Strongsville Patrolman Derek Apo; and Strongsville Detective Steven Dzurisin. The victim testified that she and her husband collected coins from the washers and dryers on rental properties they owned. Eventually, they filled two milk cans and a cream can with coins; they also had a separate canvas bag containing collectible coins. Neither she nor her husband counted how many coins there were. She had placed a piece of plywood on top of the cans and covered it with an Indian blanket. In March or April 2008, the victim and her son (appellant's husband) moved the cans so that her son could paint the room.
{¶ 5} The victim's husband suffered from dementia and could not be left unsupervised. In June 2008, the victim asked her son to take care of his father while she took a trip to South Dakota. When she returned, she noticed ripples in the blanket that covered the cans filled with coins; knickknacks on top of the blanket had been removed. Six or eight weeks after that, she tried to move the cans and discovered that they were far lighter than they had been. She also discovered that the canvas bag was missing. She then called the police.
{¶ 6} Kirk Saxon, a financial-crimes investigator for First Merit Bank, testified that the Strongsville Police Department contacted him for video surveillance tapes of deposits being made to appellant's bank account. He identified photographs of appellant and/or her husband depositing coins at the bank at times that corresponded to deposits recorded to appellant's account. Specifically, a deposit of $1,880 was made on July 1, 2008, at 12:54 p.m.; a deposit of $1,080 was made on July 8, 2008, at 1:52 p.m.; a deposit of $552 was made on July 11, 2008; a deposit of $200 was made on July 15, 2008; a deposit of $1,160 was made on July 31 at 9:13 a.m.; a deposit of $420 was made on August 4, 2008, at 12:16 p.m.; a deposit of $185 was made on August 11, 2008, at 3:31 p.m.; a deposit of $40 was made on August 18, 2008, at 11:02 a.m.; a deposit of $200 was made on August 19, 2008, at 12:00 p.m.; and deposits of $249 and $150 were made on August 29, 2008, at 4:22 p.m. While coins were included in each deposit, Saxon could not say what portion of each deposit consisted of coins.
{¶ 7} Patrolman Derek Apo and Detective Steven Dzurisin of the Strongsville Police Department both testified about their investigation of the theft. Their testimony concluded the state's case. Both defendants then moved the court for acquittal. The court denied their motion.
{¶ 8} Appellant's husband testified on his own behalf and also presented the testimony of Sharon Schuster, his niece (the victim's granddaughter), and Carmen Schoch, his sister (the victim's daughter). Appellant's husband testified that the victim had given him permission to take the coins if "something happened to either one of my parents."
{¶ 9} Appellant's husband said that his parents had a violent fight, after which his mother left and went to South Dakota. While she was gone, he was "forced" to take care of his father (the victim's husband) because he needed supervision. One day, he found coins on the floor at his father's house. He instructed his father to pick them up. His father did so. He later discovered that his father had put the coins in plastic bags in the garage. He told his father to move the bags, and his father did.
{¶ 10} Appellant's husband kept a car in his parents' garage while the victim was away. When he took the car back to his home, he discovered that the plastic bags of coins were inside. He estimated that there were "a few hundred dollars" in the bags. He took the coins home and combined them with coins he had collected himself, "because of what my mother done costed me work, my wife and myself had to even use up our coins in order to live because she costed me work." He testified that his mother gave him money, which he spent taking care of his father. He returned what was left of that money after she came back.
{¶ 11} Appellant's husband testified that he did not know how much of the bank deposits that he and appellant made in July and August 2008 were in coins, but most of the deposits were from work he and appellant did.
{¶ 12} Appellant also testified. She said that she had been present while her husband painted at the victim's home and heard the victim give him permission to take the coins. She and her husband took the coins from his car and put them in their apartment. Later, they took the coins to the bank and deposited them along with their own payroll checks.
{¶ 13} The defendants renewed their motions for acquittal at the conclusion of all the evidence. The court denied the motions. The court found that the state had proved the defendants guilty beyond a reasonable doubt and found that the value of the stolen property was more than $500. At sentencing, the court heard further testimony from First Merit Bank's assistant branch manager, who supplied copies of bank records of the deposits. These records showed that some $3,800 in coins had been deposited in the defendants' account.
{¶ 14} Appellant first challenges the sufficiency of the evidence. In essence, sufficiency is a test of adequacy. "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
{¶ 15} Appellant questions the adequacy of the state's case before any evidence was presented by the defense. She preserved any error in the court's denial of her Crim. R. 29 motion at the close of the state's case by renewing her motion for acquittal at the close of all the evidence. See, e.g., State v. Brown (1993), 90 Ohio App.3d 674, 630 N.E.2d 397. Therefore, we do not consider her own inculpatory testimony that she deposited the victim's coins into her bank account.
{¶ 16} The state presented evidence that appellant deposited coins into her bank account. The victim's testimony provided some circumstantial evidence that appellant's husband had taken coins from the victim's home, but there is no evidence that appellant knew the coins came from the victim's home or that her husband had taken them without the victim's permission. We find insufficient evidence in the record to support the conclusion that appellant knowingly exerted control over the victim's coins without the victim's consent. Accordingly, we reverse.
Judgment reversed.
STEWART and CELEBREZZE, JJ., concur.
, 503 F.3d 89, 95 (2d Cir. 2007) (quotation marks omitted).
The allegations in a complaint must meet a standard of "plausibility." A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that [plaintiff is entitled to relief]." Plausibility "is not akin to a probability requirement;" rather plausibility requires "more than a sheer possibility. . . ." Pleading a fact that is "merely consistent with a defendant's liability" does not satisfy the plausibility standard.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564 (2007).
Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (quotation marks omitted).
Id. (quotation marks omitted).
Id. (quotation marks omitted).
The court "must limit itself to the facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." A document is considered incorporated by reference if it is "in a pleading . . . adopted by reference elsewhere in the same pleading or in any other pleading. . . ." A court may also consider a document not specifically incorporated by reference but on which the complaint heavily relies and which is integral to the complaint.
Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991).
Fed.R.Civ.P. 10(c).
See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
B. Section 1983
Section 1983 "does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere." In order to state a claim under section 1983, a plaintiff must show that the conduct complained of was committed by a person or entity acting under color of state law, and that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution. 1. First Amendment Retaliation
Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
See Palmieri v. Lynch, 392 F.3d 73, 78 (2d Cir. 2004).
To establish a retaliation claim in violation of the First Amendment right to free speech, a plaintiff must show first, that the speech at issue was protected; second, that he suffered an adverse employment action; and third, that there exists a causal connection between the protected speech and the adverse employment action. With respect to the first prong, the Supreme Court has made clear that "public employees do not surrender all of their First Amendment rights by reason of their employment." "Whether public employee speech is protected from retaliation under the First Amendment entails two inquiries: (1) `whether the employee spoke as a citizen on a matter of public concern' and, if so, (2) `whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.'"
See Singh v. City of New York, 524 F.3d 361, 372 (2d Cir. 2008).
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting Garcetti, 547 U.S. at 417).
The Supreme Court has stated that when a public employee makes statements pursuant to his official duties, he does not speak as a citizen for First Amendment purposes. Accordingly, "the Constitution does not insulate [an employee's] communications from employer discipline" based on the employer's reaction to the speech. Thus, "[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." The Supreme Court rejected the "notion that the First Amendment shields from discipline the expressions [public] employees make pursuant to their professional duties." Moreover, the Second Circuit has ruled that "speech can be `pursuant to' a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer."
See Garcetti, 547 U.S. at 421 ("We hold 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.
Id. at 421-22 ("Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job").
Id. at 426.
Weintraub v. Board of Educ. of City Sch. Dist. of City of New York, 593 F.3d 196, 203 (2d Cir. 2010).
"Employee expression is not a matter of public concern when it `cannot be fairly considered as relating to any matter of political, social, or other concern to the community.'" "`[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision.'" "In making its determination, the court should focus on the motive of the speaker, and attempt to discern whether the speech was calculated to redress personal grievances or whether it had a broader public purpose."
Singh, 524 F.3d at 372 (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)).
Id. (quoting Connick, 461 U.S. at 147).
Hanig v. Yorktown Cent. Sch. Dist., 384 F. Supp. 2d 710, 722 (S.D.N.Y. 2005).
If an employee spoke as a citizen on a matter of public concern, a First Amendment claim may, but does not automatically, arise. The next question is "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public."
This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations.
Garcetti, 547 U.S. at 418.
"So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively."
Id. at 419.
2. Due Process Liberty Interest
Pursuant to the Due Process Clause of the Fourteenth Amendment, a state may not deprive an individual of liberty or property without due process of law. In order to prevail on a procedural due process claim, a plaintiff must identify a constitutionally protected liberty or property interest and demonstrate that the state has deprived him of that interest without due process of law.
See U.S. Const. amend. XIV.
See Weinstein v. Albright, 261 F.3d 127, 134 (2d Cir. 2001); see also Local 342 v. Town Bd. Of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994). Dingle's alleged deprivation of a liberty interest falls under procedural due process, although he alleges violations of substantive due process. See Compl. ¶ 106 ("Defendants . . . violated Plaintiff's Constitutional rights by denying him substantive due process by engaging in reckless, intentionally damaging behavior, stigmatizing him and foreclosing him from pursuing other job opportunities and publicly disclosing false allegations of Plaintiff's incompetence.").
It is well established that damage to one's reputation is not "by itself sufficient to invoke the procedural protection of the Due Process Clause." As the Supreme Court stated in Paul v. Davis:
Paul v. Davis, 424 U.S. 693, 701 (1976).
While we have in a number of our prior cases pointed out the frequently drastic
effect of the "stigma" which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either "liberty" or "property" by itself sufficient to invoke the procedural
protection of the Due Process Clause.
The Second Circuit has interpreted this to mean that "stigma plus" is required to establish a constitutional violation where reputation is the primary issue. To prevail on a "stigma plus" claim, a plaintiff must establish the following: (1) a "stigma" by showing "the utterance of a statement sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false;" (2) a "plus" by showing "a material state-imposed burden or state-imposed alteration of the plaintiff's status or rights;" and that "both `stigma' and `plus' are claimed to be sufficiently proximate."
Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 2004). Accord Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994).
Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (quotation marks omitted).
Velez v. Levy, 401 F.3d 75, 89 (2d Cir. 2004).
Establishment of a stigma requires the plaintiff to assert that the injurious remarks are false and that Defendants' actions "will result in stigma, that is, in `public opprobrium' and damage to [his] reputation." In the context of job performance, the remarks must "`denigrate the employee's competence as a professional and impugn the employee's professional reputation in such a fashion as to effectively put a significant roadblock in that employee's continued ability to practice his . . . profession.'" A statement that an employee merely performed a job poorly or acted in an improper manner is not sufficient. Statements that "describe problems within the employee's power to correct" are not stigmatizing.
See Vega, 596 F.3d at 82 (citing Codd v. Velger, 429 U.S. 624 (1977)).
Valmonte, 18 F.3d at 999. Accord Velez, 401 F.3d at 87 ("The defamatory statement must be sufficiently public to create or threaten a stigma; hence, a statement made only to the plaintiff, and only in private, ordinarily does not implicate a liberty interest.").
Segal v. City of New York, 459 F.3d 207, 212 (quoting Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630-31 (2d Cir. 1996)).
See O'Neill v. City of Auburn, 23 F.3d 685, 692 (2d Cir. 1992) ("An accusation that a licensed professional is incompetent is `considerably graver' . . . than a statement that the individual performed a job poorly").
Id.
To establish the "plus", a plaintiff cannot rely merely on "`the deleterious effects which flow directly from a sullied reputation'" such as "the impact that defamation might have on job prospects, or, for that matter, romantic aspirations, friendships, self-esteem, or any other typical consequence of a bad reputation." Although "it is not entirely clear what the `plus' is," the Second
Valmonte, 18 F.3d at 1001. Accord Siegert v. Gilley, 500 U.S. 226, 234 (1991) ("Most defamation plaintiffs attempt to show some sort of special damage and out-of-pocket loss which flows from the injury to their reputation. But so long as such damage flows from injury caused by the defendant to a plaintiff's reputation, it may be recoverable under state tort law but it is not recoverable in a Bivens action.").
Neu v. Corcoran, 869 F.2d 662, 667 (2d Cir. 1989). Accord Sadallah, 383 F.3d at 38.
Circuit has made the standard less ambiguous by determining that the "plus" is satisfied by deprivation of the plaintiff's property or termination of the plaintiff's government job or some other right or status.
See Sadallah, 383 F.3d at 38.
A sufficiently proximate relationship between the "stigma" and the "plus"
will be satisfied where (1) the stigma and plus would, to a reasonable observer, appear connected — for example, due to their order of occurrence, or their origin — and (2) the actor imposing the plus adopted (explicitly or implicitly) those statements in doing so. There is no rigid requirement, therefore, that both the "stigma" and the "plus" must issue from the same government actor or at the same time.
3. Qualified Immunity
Government officials performing discretionary functions are generally granted qualified immunity and are immune from suit provided that "`their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" "[A] qualified immunity defense can be presented in a [motion to dismiss], but . . . the defense faces a formidable hurdle when advanced on such a motion."
Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004) (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)).
McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004).
4. Municipal Liability
For a person deprived of a constitutional right to have recourse against a municipality under section 1983, he or she must show harm that results from a municipal "policy" or "custom." For a municipality's failure to train or supervise to constitute a "policy or custom" actionable under section 1983, a plaintiff must establish that the municipality's failure to train reveals a "`deliberate indifference'" to the citizen's rights.
Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). Accord Board of County Comm'rs v. Brown, 520 U.S. 397, 402 (1997); Pembaur v. City of Cincinnati, 475 U.S. 469, 479-81 (1986).
Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir. 2007) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)).
The Second Circuit set out three requirements that must be met for failure to train or supervise to be considered deliberate indifference:
First, the plaintiff must show that a policymaker knows "to a moral certainty" that her employees will confront a given situation. . . . Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation. . . . [Third,] the plaintiff must show that the wrong choice by the city employee
will frequently cause the deprivation of a citizen's constitutional rights.
Additionally, plaintiffs must offer facts showing a causal relationship between the inadequacies of the training program and the alleged constitutional violations.
See Amnesty America v. Town of West Hartford, 361 F.3d 113, 129 (2d Cir. 2004) (citing Harris, 489 U.S. at 391).
C. New York State Claim Requirements
Section 50-i of the New York General Municipal Law provides that no tort action shall be prosecuted or maintained against a municipality or any of its officers, agents, or employees unless: (1) a Notice of Claim has been served against the municipality; (2) the municipality has refused adjustment or payment of the claim; and (3) the action is commenced within one year and ninety days after the event upon which the claim is based occurred. Section 50-e requires that the Notice of Claim be filed "within ninety days after the claim arises."
See N.Y. Gen. Mun. Law § 50-i.
Id. § 50-e(a).
Section 157 of the New York Public Housing Law ("section 157") states specifically that
[i]n every action . . . against an authority . . ., the complaint or necessary moving papers shall contain an allegation that at least
thirty days have elapsed since the demand, claim or claims upon which such action . . . is founded were presented to the authority for adjustment and that it has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.
Section 157 further states that
[a]n action against an authority . . . for damages for personal injuries, alleged to have been sustained by reason of the negligence of, or by the creation or maintenance of a nuisance by said authority, or any member, officer, agent or employee thereof, shall be commenced within one year and ninety days after the cause of action therefor shall have accrued, provided that a notice of the intention to commence such action shall have been served upon the authority.
All the provisions of section fifty-e of the general municipal law shall apply to such notice.
New York's notice of claim requirements are not applicable to section 1983 claims brought in federal court. However, the requirements do apply to state law personal injury claims that are brought in federal court. Actions brought under section 75-b of the Civil Service Law of New York must also comply with the Notice of Claim requirements. Federal courts do not have jurisdiction to hear state law claims brought by plaintiffs who have failed to comply with the notice of claim requirement, nor can a federal court grant a plaintiff permission to file a late notice of claim.
See Day v. Moscow, 955 F.2d 807, 814 (2d Cir. 1992). Accord Horvath v. Daniel, No. 04 Civ. 9207, 2006 WL 47683, at *3 (S.D.N.Y. Jan. 9, 2006) ("Courts in this Circuit have repeatedly held that the notice of claim requirement is not applicable to federal claims under section 1983.").
See, e.g., Shakur v. McGrath, 517 F.2d 983, 985 (2d Cir. 1975) (dismissing state malpractice claims that were added to a section 1983 complaint nine months after the complaint was filed because state notice of claim requirements were not satisfied). See also Horvath v. Daniel, No. 04 Civ. 9207, 2006 WL 950404, at *3 (S.D.N.Y. Apr. 7, 2006) ("Although we retain jurisdiction over plaintiff's [section] 1983 action, we lack authority to permit plaintiff to file a late Notice of Claim and therefore dismiss plaintiff's state law claims without prejudice.").
See Donas v. City of New York, 878 N.Y.S.2d 360, 360 (1st Dep't 2009). Accord Williams v. County of Nassau, 684 F. Supp. 2d 268, 295 (E.D.N.Y. 2010) ("There is no dispute here that plaintiffs failed to file a notice of claim with respect to their Section 75-b claims.")
See Gibson v. Commissioner of Mental Health, No. 04 Civ. 4350, 2006 WL 1234971, at *5 (S.D.N.Y. May 8, 2006); Brown v. Metropolitan Transp. Auth., 717 F. Supp. 257, 260 (S.D.N.Y. 1989) ("Until the state legislature amends § 50-e(7) to include federal trial courts, we have no choice but to dismiss for lack of jurisdiction plaintiff's application to file a late notice of claim or to have his notice of claim deemed timely filed.").
D. Amendments to Pleadings
"Rule 15(a) provides that, other than amendments as a matter of course, `a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.'" "[W]hether to permit a plaintiff to amend its pleadings is a matter committed to the Court's sound discretion." According to the Supreme Court
Slayton v. American Express Co., 460 F.3d 215, 226 n. 10 (2d Cir. 2006) (quoting Fed.R.Civ.P. 15(a)).
McCarthy v. Dun Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (quotation marks and citation omitted).
[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given."
Therefore, "`[i]t is the usual practice upon granting a motion to dismiss to allow leave to replead.'"
Vacold LLC v. Cerami, No. 00 Civ. 4024, 2002 WL 193157, at *6 (S.D.N.Y. Feb. 6, 2002) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)). Accord Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999) ("When a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint.").
IV. DISCUSSION
A. Federal Claims 1. Dingle Has Sufficiently Pled First Amendment Retaliation
a. Dingle Engaged in Protected Speech
The crux of the parties' dispute on Dingle's First Amendment retaliation claim relates to whether Dingle engaged in protected speech. For purposes of the instant motion, Dingle has adequately pled that he "spoke as a citizen on a matter of public concern" and consequently satisfied the first prong of the protected speech test. Dingle repeatedly contends that his speech constituted complaints about the "chronic understaffing of the Polo Grounds [that] posed a danger to the health and safety of residents." Although Dingle does not mention specific instances of health and safety problems within the Polo Grounds, it is certainly plausible that, because NYCHA employees are responsible for taking care of problems such as "leaking pipes, broken locks, defaced walls, and cracked flooring," understaffing may lead to an unsafe environment for many residents of the Polo Grounds.
Ruotolo, 514 F.3d at 188.
Compl. ¶ 24.
Id. ¶ 15.
Additionally, Dingle contends that his "discussion of Gadson's failure to comport her behavior with [NYCHA] policies and procedures and the misuse of power by [NYCHA] administration . . . is protected under the First Amendment as speech by a public employee on matters of public concern." Gadson's violations, as alleged, are directly related to the public interest, as they concern the well-being of Polo Grounds residents. Dingle states that, in allegedly generating false "gas leak" reports and entering potentially occupied apartments without authorization, Gadson jeopardized "the health and safety of the public who may be subjected to dangerous situations in the event that such an entry leads to the use of guns [sic] etc."
Id. ¶ 96.
Id. ¶ 63.
Defendants argue that Dingle's remarks were "made in furtherance of [his] job duties because they were part and parcel of his concerns about his ability to properly perform his job as a Superintendent and therefore do not have First Amendment Protection." Defendants further argue that the Complaint makes clear that Dingle's remarks about understaffing were related to his employment and professional duties. However, the Supreme Court has held that a public employee's speech is unprotected if it relates to "matters only of personal interest." Because Dingle's speech about the understaffing problem relates to matters of public concern, it is protected, regardless of whether Dingle's personal interest is also at stake.
Opp. Mem. at 11 (citing Weintraub, 593 F.3d at 202-04).
See Compl. ¶ 16 (Dingle's first mention of the understaffing problem was made while he was complaining about "the over burdensome workload Gadson was requiring Mr. Dingle to do").
Connick, 461 U.S. at 147 (emphasis added).
The second prong of the protected speech test — "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public" — is not disputed by the parties. In suppressing Dingle's speech, Defendants are not serving their interests in operating efficiently or effectively. Essentially, Dingle's speech was not a threat to the Defendants' operations.
Ruotolo, 514 F.3d 188.
See Opp. Mem. at 10.
b. Dingle Suffered an Adverse Employment Action
Defendants do not contest that Dingle suffered adverse employment actions. See id.
Dingle has offered sufficient facts to support his allegation that he suffered adverse employment actions. In Zelnick v. Fashion Institute of Technology, the Second Circuit established that
[i]n the context of a First Amendment retaliation claim, we have held that only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action. In this context, adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand. This list of retaliatory conduct is certainly not exhaustive,
however, and lesser actions may also be considered adverse employment actions. Adverse employment actions may include negative evaluation letters. . . .
Dingle alleges that he was subjected to adverse employment actions including numerous counseling memoranda, unequal treatment, verbal harassment, and an increased workload. c. Dingle Has Pled a Causal Connection Between His Speech and the Adverse Employment Action
See supra notes 17-23, 37-38 and accompanying text.
Defendants do not contest that Dingle has pled a causal connection between his speech and the adverse employment action. See Opp. Mem. at 10.
Dingle has also sufficiently alleged a causal connection between his speech and the adverse employment actions. Although temporal proximity is strong circumstantial evidence of improper intent, because Dingle frequently engaged in the protected speech for a several-year period — not only before the adverse employment actions — this Court's ability to infer causation solely based on a temporal connection is weakened.
See Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001).
See McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 280 (2d Cir. 1999).
Nevertheless, causation is sufficient because Dingle alleges specific connections between his speech and adverse employment actions. For example, immediately after a meeting concerning Dingle's complaints among Knapp, Gadson, and Dingle on September 20, 2007, Gadson "approached Itzkowitz and demanded that a Counseling Memo be reissued against Mr. Dingle that had been issued the week before."
Compl. ¶ 29.
2. Dingle's Due Process Liberty Interest in Freedom from Defamation Claim Is Dismissed
Because Dingle does not adequately plead a violation of his due process liberty interest in freedom from defamation, this claim is dismissed with prejudice. Dingle alleges, in general terms, that Defendants "engag[ed] in reckless, intentionally damaging behavior, stigmatizing him and foreclosing him from pursuing other job opportunities and publicly disclosing false allegations of Plaintiff's incompetence."
Id. ¶ 106.
To sufficiently plead a stigma plus claim, the stigmatizing remarks must be specifically alleged to be false. Dingle only points to three instances of false public statements — two counseling memoranda (one of which was later rescinded) and one email sent to several NYCHA administrators. These statements, however, cannot be considered "sufficiently derogatory to injure" Dingle's reputation," as they described Dingle as "perform[ing] a job poorly." As a matter of law, such statements are not considered to be stigmatizing.
See id. ¶¶ 69(m), 69(n), 74. In his Affidavit, Dingle alleges that he received a counseling memorandum in connection with this email. See Dingle Aff. ¶¶ 8-9.
Vega, 596 F.3d at 81.
See O'Neill, 23 F.3d at 692.
Even if these allegations did meet the "stigma" requirement, a stigma plus claim is still not sufficiently stated because Dingle does not satisfy the "plus" requirement. Dingle does not provide a factual basis for his allegation that Defendants foreclosed him from "pursuing other job opportunities." Dingle additionally alleges that the false statements arising from the July 11, 2009 incident led to a Local Hearing, at which Dingle received a disciplinary charge resulting in the loss of two days accrued leave. This loss cannot be considered a violation of procedural due process because Dingle does not dispute the fairness of the
Compl. ¶ 106.
See Dingle Aff. ¶ 14.
hearing.
See Martuciello v. Ward, No. 87 Civ. 1709, 1988 WL 3490, at *4 (S.D.N.Y. Jan. 11, 1988).
It must be noted that Dingle alleges that "Gadson's treatment . . . is ongoing and continuous to the present." Accordingly, in his Affidavit, Dingle alleges that on April 21, 2010,
Compl. ¶ 92.
Gadson sent a defamatory email to me with a cc to all NYCHA supervisory personnel including Mr. Knapp, Mr. Ginsberg, and Ms. Teri Dawson, stating in a bold large font type that I was "incompetent[t]," "failed to perform my duties," that I needed to "reevaluate my responsibilities as a superintendent" and refused to accept any responsibility for failing to answer my request for funds.
Unlike the allegedly false statements in the Complaint, this email carries the potential to meet the "stigma" standard. Nevertheless, Dingle does not allege any sort of corresponding harm from this email that would satisfy the "plus" requirement. As such, this claim is dismissed with prejudice.
See O'Neill, 23 F.3d at 692.
There is no additional substantive information Dingle could offer to satisfy the "plus" requirement. Granting him the opportunity to replead this claim would therefore be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
3. Defenses to the Section 1983 Claim
a. Gadson Is Not Protected by Qualified Immunity
Defendants do not assert that Gadson is entitled to qualified immunity with regard to the First Amendment retaliation claim. They do argue, however, that "[t]he deprivation of liberty interest claim should . . . be dismissed as against Gadson, in her individual capacity, on the ground that Gadson is protected by qualified immunity." Because Dingle's deprivation of liberty interest claim has been dismissed with prejudice, this argument is moot.
Def. Mem. at 17.
b. The Municipal Liability Against the NYCHA Is Dismissed
Dingle alleges that "Defendants did knowingly, recklessly, or with gross negligence fail to instruct, supervise, control, and discipline on a continuing basis Defendant Gadson in her duties to refrain from unlawfully and maliciously retaliating against Plaintiff for engaging in protected activities." However, Dingle does not sufficiently allege "deliberate indifference" on behalf of the NYCHA. When Dingle complained to his supervisors about Gadson, his complaints were not ignored — supervisors answered Dingle's emails and held meetings in response to his complaints.
Compl. ¶ 100.
Jenkins, 478 F.3d at 94.
See Compl. ¶¶ 18, 27, 42.
The only alleged instances that demonstrate the NYCHA's indifference are when Dingle never heard back regarding a complaint filed with the NYCHA's Inspector General's office on June 30, 2009, and when Knapp refused to meet with Dingle's union representative in August 2009, regarding the conflict between Dingle and Gadson. Dingle additionally alleges that Joseph Porcelli, a Borough Administrator, was aware of Gadson's First Amendment retaliation and did nothing to stop it — "[i]n the context of [a] stream of emails going back and forth by and between Gadson and Porcelli and Mr. Dingle during this time, it was clear to Porcelli that Mr. Dingle was complaining about Gadson's retaliation against him. . . ." But these three examples of inaction do not indicate a "discriminatory practice . . . so manifest as to imply the constructive acquiescence of senior policy-making officials." Dingle's "failure to train or supervise"
See id. ¶ 68.
See id. ¶ 79.
Id. ¶ 39.
Sorlucco v. New York City Police Dep `t, 971 F.2d 864, 871 (2d Cir. 1992). Dingle does not allege that Knapp is a senior policy-making official, but even if Knapp acts in this capacity, his refusal to meet with a union representative on one occasion cannot be characterized as a "persistent and widespread" discriminatory practice. Id. at 870.
allegation also fails because Dingle does not allege any "difficult choice" or "situation" that training or supervision would have made less difficult. Because it appears that Dingle has carefully alleged the details of every instance of alleged indifference, leave to amend would be futile. Accordingly, this claim is dismissed with prejudice.
Walker, 974 F.2d at 297.
B. The State Law Claims Are Dismissed
Defendants argue that Dingle's state law claims — defamation and a whistleblower claim under section 75-b — should be dismissed because Dingle failed to comply with the pleading requirements set forth by section 157. Section 157 applies to Dingle's state law claims against the NYCHA because the statute discusses claims "against an authority." It also applies to Dingle's claims against Gadson, however, because Gadson is an employee of the NYCHA — a public corporation.
See Reply Memorandum of Law of Defendants in Support of Their Motion for Judgment on the Pleadings at 18, 22.
N.Y. Pub. Hous. Law § 157.
See N.Y. Gen. Mun. Law § 50-e(a) ("[A] notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof. . . ."). It is well settled that the NYCHA is a public corporation. See Barnes v. New York City Hous. Auth., 691 N.Y.S.2d 463, 464 (1st Dep't 1999); Nachowitz v. New York City Hous. Auth., 467 N.Y.S.2d 386, 386 (1st Dep't 1983) ("New York City Housing Authority is a public corporation").
Although Dingle eventually filed a Notice of Claim on June 10, 2010, it is beyond cavil that he did not meet the statutory pleading requirements at the time of filing. "The purpose of the notice of claim requirement is to afford the municipality an adequate opportunity to investigate the claim in a timely and efficient manner and, where appropriate, to settle claims without the expense and risks of litigation." By filing a Notice of Claim midway through the pleadings, Dingle did not satisfy these purposes. He therefore failed to comply with New York State's statutory requirements.
Notice of Claim, Ex. A to Opp. Mem., at 3. The actual document is signed and dated "June 10, 2006", but notarized with the date "June 10, 2010". Presumably, the 2006 date is a typographical error.
McLaurin v. New Rochelle Police Officers, 368 F. Supp. 2d 289, 296 (S.D.N.Y. 2005) (citing Brown v. New York City Transit Auth., 568 N.Y.S.2d 54, 55 (1st Dep't 1991)).
Dingle's state claims are dismissed for failure to timely file notice of claim without prejudice. Because this Court cannot grant permission to file a late Notice of Claim, Dingle must pursue his state claims in state court.
See Gibson, 2006 WL 1234971, at *5.
V. CONCLUSION
For the reasons stated above, Defendants' motion for judgment on the pleadings is granted in part and denied in part. The Clerk of the Court is directed to close this motion (Docket No. 15). A conference is scheduled for October 13, 2010, at 4:30 p.m., in Courtroom 15C.
SO ORDERED: