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O'MALLEY v. NEW YORK CITY TRANSIT AUTH.

August 10, 1993

THOMAS O'MALLEY, Plaintiff,
v.
THE NEW YORK CITY TRANSIT AUTHORITY, ALAN KIEPPER, PRESIDENT, NEW YORK CITY TRANSIT AUTHORITY, MARIE WINSTON, ACTING DIRECTOR OF THE WORKERS COMPENSATION BUREAU OF THE NEW YORK CITY TRANSIT AUTHORITY, Defendants.



The opinion of the court was delivered by: JOHN R. BARTELS

 MEMORANDUM-DECISION AND ORDER

 On December 19, 1990, plaintiff Thomas O'Malley was dismissed from his position as an associate attorney in the Workers Compensation Bureau ("WCB") of the Law Department of defendant New York City Transit Authority ("NYCTA"). O'Malley claims that he was discharged in retaliation for exercising his First Amendment rights and seeks reinstatement and damages. Defendants move for summary judgment, and for the reasons stated below, their motion is granted in part and denied in part.

 I. Background

 The alleged retaliation flows from two incidents. The first incident involves a valid workers' compensation claim O'Malley filed after sustaining a hernia in the WCB office in January 1986. O'Malley was dismissed from his position several months after filing the claim. He then brought an action against the NYCTA alleging retaliatory discharge in violation of N.Y. Workers' Compensation Law § 120. *fn1" O'Malley prevailed, and on July 5, 1988, was reinstated with full back pay. O'Malley v. NYCTA, DC#058-28-1546 (3d Dept. February 15, 1990).

 The second incident concerns the August 1990 appointment of defendant Winston as O'Malley's supervisor. O'Malley learned that in 1982 Winston pled guilty to a one-count information alleging a violation of 18 U.S.C. § 209. U.S. v. Winston, 81-CR-0274 (LPG) (S.D.N.Y. 1982). Winston pled guilty to accepting a $ 200 supplementation of her salary from a non-governmental source "given for and because of official acts performed and to be performed by [Winston] in connection with the handling and processing of various individuals' compensation claims. . . ." while she worked as a Claims Examiner in the U.S. Department of Labor, Employment Standards Administration, Office of Workers' Compensation Programs/Longshore Division. Id. On April 12, 1990, O'Malley wrote a letter to defendant Alan Kiepper, President of NYCTA, informing him that "it was totally improper to place Ms. Winston as Acting Director of the WCB when she had previously pled guilty to a federal crime while working for the U.S. Dept. of Labor Workers' Compensation Program." Def. Ex. 9 (Letter, O'Malley to Kiepper, April 12, 1990). He also wrote that Winston "did not disclose or reveal [the conviction] on her employment application. . . ." Id.

 NYCTA Vice President and General Counsel Albert Cosenza investigated O'Malley's allegations and informed Kiepper by memorandum that Winston "apprised the Human Resource Department . . . of the past conviction in her employment application." Def. Ex. 9 (Memorandum, Cosenza to Kiepper, July 11, 1990). In fact, Winston indicated in her employment application that she was convicted of a crime, but in the space provided to "give full details" about the same, she wrote only, "Misdemeanor - 1981 (1 Day Probation)." Def. Ex. 14. On July 11, 1990, Kiepper wrote to O'Malley that "the details you have supplied concerning an employee in the Workers Compensation Section of the Law Department have been previously reviewed. No impropriety has been found concerning the application for employment you have referenced." Def. Ex. 9 (Letter, Kiepper to O'Malley, July 11, 1990).

 At an unspecified date, O'Malley allegedly left a copy of Winston's criminal disposition papers on the desk of NYCTA employee Jill Johnson. Def. Ex. 12, Friedus Dep. at 25. He also continued to press the matter in letters to Kiepper dated July 3, 1990 and November 26, 1990. On December 6, 1990, Robin C. Stevens, Assistant to Kiepper, responded to O'Malley's letters by explaining to him that the NYCTA had reviewed Winston's employment application "a number of times" and that her record of conviction was known when she was hired. Def. Ex. 9 (Letter, Stevens to O'Malley, December 6, 1990).

 Meanwhile, on November 19, 1990, Winston notified O'Malley by memorandum that his work performance in a workers' compensation matter involving Bruce Dinuzzo was "unacceptable," and that he would be fired absent future satisfactory performance. *fn2" Def. Ex. 5 (Memorandum, Winston to O'Malley, November 19, 1990). On the same day, O'Malley replied to Winston in a memorandum that her critique of his work was "frivolous." Def. Ex. 5 (Memorandum, O'Malley to Winston, November 19, 1990). Matters came to a boil when, on December 6, 1990, O'Malley and Winston had an argument in the WCB office. Def. Ex. 11. On December 19, 1990, Winston dismissed O'Malley pursuant to the instructions of NYCTA Executive Assistant General Counsel Eugene Friedus. Def. Ex. 12, Friedus Dep. at 10-11.

 O'Malley then commenced the instant lawsuit alleging five causes of action as follows: (1) retaliatory discharge for "complaining about keeping" Winston as Acting Director of WCB, in violation of the First and Fourteenth Amendments to the Constitution and 42 U.S.C. § 1983; (2) retaliatory discharge for informing the defendants about Winston's criminal record in violation of the same; (3) retaliatory discharge for his successful N.Y. Workers' Compensation Law § 120 action in violation of the same; (4) violation of N.Y. Civil Service Law § 75(b); and (5) violation of N.Y. Constitution, Article I, § 8.

 Defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56 on the first three causes of action by contending that O'Malley's speech is not protected under the First and Fourteenth Amendments and § 1983. Defendant NYCTA alternatively disclaims liability under Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), and defendant Winston by asserting a claim of qualified immunity.

 II. Discussion

 Summary judgment is proper only when, "viewing the evidence in the light most favorable to the nonmovant, the court can determine that 'there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.'" Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993), quoting Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). The Court must resolve all ambiguities and draw all doubtful inferences against the moving parties. Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991).

 O'Malley claims that he was dismissed for his successful workers' compensation retaliatory discharge lawsuit and for exposing Winston's criminal record. A public employee who claims to be discharged for the exercise of First Amendment rights must establish, "as an initial matter, that his speech may be 'fairly characterized as constituting speech on a matter of public concern.'" White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1058 (2d Cir. 1993), quoting Rankin v. McPherson, 483 U.S. 378, 384, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987) (internal quotations omitted). "Once the employee establishes that he has spoken as a citizen on a matter of public concern, he must also establish that that speech was at least a 'substantial' or 'motivating' factor in the discharge." Id. at 1058, quoting Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). If the employee carries these burdens, the employer can avoid liability by demonstrating either that (1) "it would have made the same employment decision in the ...


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