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April 13, 1999


The opinion of the court was delivered by: McMAHON, District Judge.


In this matter (which I will call "Boylan II" to distinguish it from the other two actions filed by plaintiff Stephen Boylan against various officials of the Town of Yorktown, New York), plaintiff alleges that the defendants, Robert Arruda (the chief of Police of the Town of Yorktown), James Morgan (Arruda's predecessor in that position) and the Town*fn2 retaliated against him for commencing his first lawsuit against the same three defendants (hereinafter referred to as "Boylan I"). The complaint identifies three acts of retaliation: first, that defendants Arruda and Morgan sent a letter to the Westchester County District Attorney's Office, requesting, among other things, that Boylan's charges of impropriety against the Yorktown Police Department (which had led to the filing of Boylan I) be investigated; and second, that he was the subject of an unwarranted investigation, referred to the Westchester District Attorney's Office in June 1995, into whether he had engaged in credit card fraud (which resulted in the filing of no charges).*fn3 Defendants made a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). This Court referred that motion to The Hon. Mark D. Fox, who had presided at the jury trial of Boylan I pursuant to 28 U.S.C. § 636(c).*fn4 Magistrate Judge Fox, after converting the motion to a motion for summary judgment pursuant to Fed.R.Civ.P. 12(c), has submitted a Report and Recommendation (the "Report") in which he recommends that the complaint be dismissed as against defendant Morgan and dismissed only in part as against the other two defendants. For the reasons that follow, I accept the Magistrate Judge's recommendation and dismiss the complaint in its entirety as against Morgan. I disagree with the Magistrate Judge's conclusion as to Arruda and the Town, however, and I order the entry of summary judgment dismissing the case against them as well.

In determining the motion, I am mindful of and follow in every particular the legal precepts set forth at page two of the learned Magistrate Judge's Report concerning the standards to be applied on a motion for summary judgment.

I. Res Judicata

Defendants have moved on two grounds. First, they contend that this action is barred by principles of res judicata and collateral estoppel. They are in error on this point, as found by Magistrate Judge Fox (who was, conveniently, the presiding judge in the first trial and the master of what was litigated and what was not). I adopt as my own his reasoning on this issue, which is to be found at pages four and five of his Report.

II. No Adverse Employment Action

Defendants also argue that they are entitled to summary judgment on the ground that the conduct complained of by plaintiff does not amount to "adverse employment action" as required to sustain an action brought pursuant to 42 U.S.C. § 1983. They contend that neither the referral of Boylan's complaints to the District Attorney nor the instigation of the credit card fraud investigation constituted an "adverse employment action." Defendants urge that, under settled case law, "adverse employment action" is action that relates to a significant aspect of the employment relationship. To be an "adverse employment action," the step taken by the employer must affect the plaintiff's employment in a way that is both detrimental and substantial. Mishk v. Destefano, 5 F. Supp.2d 194, 202 (S.D.N.Y. 1998), quoting Bernheim v. Litt, 79 F.3d 318, 327 (2d Cir. 1996) (Jacobs, J., concurring). Certain actions clearly fall within the parameters of the phrase "adverse employment action," including dismissal, demotion, refusal to rehire, refusal to promote, and reprimand. See, e.g., Rutan v. Republican Party, 497 U.S. 62, 75, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Givhan v. Western Line Consolidated School District, 439 U.S. 410, 417, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); Perry v. Sindermann, 408 U.S. 593, 598, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Bernheim v. Litt, supra, 79 F.3d at 327 (Jacobs, J., concurring). Other actions just as clearly do not, including insubstantial changes in an employee's work conditions.

While the Court of Appeals in Bernheim refused to parse an employee's complaint to weed out allegations that fell into the latter category on a motion to dismiss for failure to state a claim, on the ground that it would be too burdensome a task on so sparse a record, see Bernheim, 79 F.3d at 326, it did not preclude — indeed, it invited — such pruning on a motion for summary judgment. Id. This case is not in the same preliminary phase that Bernheim was in when the Second Circuit declined to hold that the complaint failed to state a claim. Magistrate Judge Fox has converted this motion into one for summary judgment and considered matters outside the four corners of the pleading — a wholly appropriate decision, since there was extensive discovery into the underlying facts in Boylan I. As I believe he was right to examine each of the allegedly retaliatory acts to see if it fell within or without the "adverse employment action" standard, I reject plaintiff's suggestion that this violates Bernheim and proceed to do the same.

A. The January 1995 Letter

I agree entirely with the Magistrate Judge's conclusion that sending a letter concerning plaintiff's lawsuit to the District Attorney, asking that her office examine the Town's and Boylan's conduct to see if any impropriety had occurred, does not qualify as "adverse employment action." The letter in question specifically asked that District Attorney Pirro institute "a formal investigation into certain allegations of impropriety against the Yorktown Police Department, its chief [Morgan] and one of its lieutenants [Arruda]." It is difficult to see how sending this letter had any effect, let alone an adverse effect, on the plaintiff's employment. Indeed, such an investigation would seem to be precisely what plaintiff wanted when he complained of various improprieties, many of them amounting to criminal activities, in the Yorktown Police Department.*fn5

Moreover, the defendants, having been publicly accused of heinous wrongdoing, had their own First Amendment right to respond, and no obligation to "suppress the disapproval and anger that [Boylan's] speech provoke[d]." Bernheim v. Litt, supra, 79 F.3d at 331 (Jacobs, J., concurring); see also, Pavone v. Lindau, 96 Civ. 4993(CLB), Mem. Dec., (S.D.N.Y. Dec. 17, 1997), at 4. Admittedly, Morgan and Arruda made an additional request that might not have been to Boylan's liking — they asked Mrs. Pirro to look into whether the charges had been "wrongfully brought" — but that additional request falls within the overall scope of the defendants' legitimate inquiry to the District Attorney and does not give rise to any independent constitutional violation.*fn6

Therefore, I find that plaintiffs' allegations concerning the January 1995 letter to the Westchester County District Attorney do not give rise to any constitutional violation and cannot be relied upon to sustain the two causes of action asserted in the complaint. As this is the only conduct alleged to have been committed by Morgan, I direct that summary judgment be entered dismissing the complaint as to him.

B. The Credit Card Investigation

As Magistrate Judge Fox concluded, the question of whether Arruda's initiation of an investigation by the District Attorney's office into alleged credit card fraud by Boylan is more troublesome. The Fifth Circuit recently held that an internal investigation that does not culminate in at least a reprimand is not an adverse employment action, even if motivated by plaintiff's exercise of First Amendment rights. See Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998). Benningfield is a persuasive precedent and I would be inclined to follow it without further discussion if this case involved only an internal investigation. However, the complaint here alleges that Arruda caused an unwarranted criminal investigation to be conducted by an outside agency, and papers submitted by the defendants in support of their motion confirm that the District Attorney's office ...

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