namely, whether referring an employee to law enforcement for an
investigation qualifies as "adverse employment action" when the
investigation terminates favorably to the employee and no
employment action whatever is taken. Indeed, as far as this Court
can determine, the Second Circuit has never seen quite this fact
pattern, where the alleged adverse action is neither one of the
widely-recognized ones (firing, refusing to rehire, refusing to
promote, reprimanding) nor something that can fairly be
characterized as insignificant or a matter of personal
preference. Cf. Bernheim v. Litt, supra, 79 F.3d at 330
(Jacobs, J., concurring). That oft-cited dichotomy is meaningless
under the facts of this case. Moreover, in Benningfield, supra,
the only Circuit Court of Appeals to address a question close to
the one facing this Court has ruled that no § 1983 relief is
available to a plaintiff in Boylan's circumstances, and that
decision was rendered three years after the allegedly offending
conduct against plaintiff took place. In light of this, I find
that the law of this Circuit at the time of the allegedly
offending conduct did not clearly establish that Arruda's
referral of the credit card matter to the District Attorney's
office, unaccompanied by any action that touched on, or affected,
the terms and conditions of Boylan's employment, rose to the
level of a constitutional violation. Thus, Arruda is entitled to
immunity with respect to both causes of action in the complaint.
See, e.g., McEvoy, 124 F.3d at 105; Neu v. Corcoran, 869 F.2d
The defendants' motion for summary judgment is granted and the
complaint is dismissed.
*fn2 The action has been voluntarily discontinued as against the
fourth named defendant, Marc Oxman.
*fn3 A third claimed act of retaliation was that Oxman made
certain statements adverse to plaintiff at a Town Board meeting
that was broadcast on cable television. As the plaintiff has
voluntarily discontinued his claim against Oxman, his claim for
damages based on this act must be dismissed. In any event, an
attorney's public statement concerning actions taken against a
public employee, which is all that is alleged here, does not
amount to an "adverse employment action." See infra, Point II.
*fn4 The jury in Boylan I returned a verdict in favor of
defendants on plaintiff's First Amendment claim and for plaintiff
on his selective enforcement claim. Plaintiff was awarded $1 in
damages against each defendant. His appeal to the United States
Court of Appeals for the Second Circuit was dismissed after he
*fn5 Among other things, Boylan accused Morgan and Arruda of
tampering with evidence, perjury, forgery, extortion and witness
*fn6 As noted above, the claim against Oxman has been
discontinued — appropriately, in this Court's view, since Mr.
Oxman is a private citizen and cannot possibly have taken any
action under color of State law. However, it bears noting that a
hostile statement made about an errant employee in a public forum
is also not an "adverse employment action." Plaintiff cannot
insulate himself from criticism by his on-the-job foes simply by
suing them and then asserting that their responsive comments
constitute retaliation. If he believes that Oxman's remarks
injured his reputation, he can bring an action for libel — in the
courthouse next door.
*fn7 I recognize that this lack of evidence may be because there
is no such evidence, but I cannot claim to have reviewed the
entire pretrial record from Boylan I.
*fn8 That reputational injury is the touchstone of plaintiff's
complaint is confirmed by a reading of his papers opposing the
motion to dismiss and his objections to Magistrate Judge Fox's
*fn9 Under New York law, reporting a potential violation of law
to a law enforcement official is a qualifiedly privileged
communication. See Toker v. Pollak, 44 N.Y.2d 211, 405 N.Y.S.2d 1,
376 N.E.2d 163 (1978). However, a plaintiff can overcome the
privilege by pleading and proving malice. See Sweeney v.
Prisoners' Legal Services of New York, Inc., 84 N.Y.2d 786,
792-93, 622 N.Y.S.2d 896, 647 N.E.2d 101 (1995).