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MORAY v. CITY OF YONKERS

April 16, 1996

GERARD MORAY, Plaintiff against CITY OF YONKERS, ALFRED C. CAVA, LEONARD SMITH, LOUIS LOMBARDI, JAMES WHITTON, and RICHARD BONITO, Defendants


The opinion of the court was delivered by: PARKER

 This action alleging violation of a public employee's civil rights, under 42 U.S.C. § 1983 and the First Amendment of the United States Constitution, is before this Court on the defendants' motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

 FACTS

 The facts as alleged in the complaint are as follows:

 The plaintiff, Gerard Moray, served as a detention officer at the Yonkers City Jail for seven years and had been granted permanent civil service status. During the course of his employment, Moray's immediate supervisor, co-defendant Leonard Smith, allegedly engaged in a pattern of misconduct which involved expressing his desire for sexual relations with Moray's wife. For example, in December 1994, Smith allegedly presented Moray with a Christmas gift for Moray's wife. Unbeknownst to Moray, the gift consisted of obscene and explicit clothing and an off-color greeting card, both of which offended Moray's wife.

 In January 1995, Moray complained to Smith's supervisors, co-defendants James Whitton and Mario Lombardi, alleging that Smith was engaging in favoritism, racism and sexism in operating the City Jail. When Whitton and Lombardi failed to respond in a way that satisfied Moray, he filed a formal complaint against Smith with the Internal Affairs Department of the Yonkers Police Department. The complaint also charged Whitton and Smith with corrupt and illegal activity.

 In a Supplementary Report annexed to the complaint, Moray alleged that Whitton threatened to manipulate detention officers' hours if they refused to purchase items for him. The report further alleged that Smith publicly made sexually degrading remarks about Moray's wife and suggested that he intended to woo her away from Moray. Additionally, Moray alleged that Smith polluted the workplace with racism, frequently using racial slurs, and pressured Moray to falsify reports.

 Co-defendant Richard Bonito was put in charge of the Internal Affairs investigation. Moray alleges that after Lombardi, Whitton and Smith learned about the complaint, they conspired to retaliate against Moray by making false accusations against him in an intentional effort to cause his suspension. Meanwhile, Bonito allegedly engaged in "whitewashing" Moray's complaint and told Moray there was little strength to his allegations.

 On March 1, 1995, Moray was suspended from his job and on March 6, 1995, upon approval from Whitton, Lombardi and Smith, the City of Yonkers promulgated charges against Moray which placed him on unpaid suspension status. On April 6, 1995, the City's Personnel Commissioner, co-defendant Alfred C. Cava, held a hearing and upheld Moray's suspension. Consequently, Moray remained on unpaid suspension status for 120 days until June 30, 1995, when, pursuant to the terms of an existing collective bargaining agreement, he was returned to a salaried position at a different location.

 On August 8, 1995, Moray filed a complaint pursuant to 42 U.S.C. § 1983 alleging that Smith, Whitton, Lombardi, Bonito, Cava, and the City of Yonkers had conspired to retaliate against him for filing the complaints and that this retaliation violated his First Amendment rights to freedom of speech. In response, the co-defendants filed this motion to dismiss for failure to state a claim. The motion to dismiss is based on three grounds: (1) Moray's statements did not constitute speech on a matter of public concern and was, therefore, not protected by the First Amendment; (2) the individual defendants are protected from liability in this action under the doctrine of qualified immunity; and (3) Moray's claim against the City of Yonkers must be dismissed because he has not alleged that a city policy caused any deprivation of his constitutional rights.

 DISCUSSION

 At this stage in the litigation, this Court must accept each of the plaintiff's allegations as being true. "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 A. Speech on a Matter of Public Concern

 To be protected under the First Amendment, a public employee's speech must implicate matters of public concern. The Supreme Court has held that determining whether speech involves a matter of public concern entails an inquiry into the "content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-48, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). When making such an inquiry, the determinative question is whether the statement arises from the declarant's role as a public citizen or from his status as a public employee. See Blum v. Schlegel, 18 F.3d 1005, 1012 (2d Cir. 1994). When an employee's speech involves matters only of personal interest a federal court is generally not an appropriate forum in which to review the personnel decision of a public agency made allegedly in response to the employee's statement. See Connick, 461 U.S. at 147. However, when the employee's complaints to a supervisor implicate system-wide ...


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