The opinion of the court was delivered by: McMAHON, District Judge.
Plaintiff brought this action, in which he alleges that he was
retaliatorily terminated as Police Director of the New York City
Department of Environmental Protection (the "DEP"), against
Defendants Stasiuk (the Deputy Commissioner of the DEP) and Miele
(Commissioner of the DEP) in their individual capacities. He now
seeks leave to amend the complaint to assert a claim directly
against the City of New York (the "City"). Plaintiff claims that
liability can be imputed to the City, notwithstanding the Supreme
Court's ruling in Monell v. Department of Social Services of
City of New York,
, 690, 98 S.Ct. 2018, 56 L.Ed.2d
611 (1978), because
the individuals who decided to terminate his employment held
"high ranking, policy making positions." (Plaintiff's Memorandum
Pursuant to Rule 15(a) for Leave to Serve an Amended Complaint,
at 3). The City argues that plaintiff's application should be
denied because it is made too late in the day and because any
amendment would be futile, since plaintiff cannot state a viable
cause of action against the City.
The City is correct. Accepting, for purposes of this motion,
that defendants and the other two individuals who allegedly
participated in the decision to terminate plaintiff's employment
(First Deputy Commissioner Diana Chapin and Chief of
Staff/Special Counsel Charles Sturcken) qualified as "policy
makers" at DEP does not mean that every decision they make is a
policy decision. In particular, it does not mean that they were
making policy on behalf of the City when they decided to fire
Collins, so as to fall within the exception to Monell for "a
single act taken by the municipal officer who, as a matter of
state law, has final policy-making authority with respect to the
area in which the action is taken." McMillian v. Monroe County,
Ala., 520 U.S. 781, 785, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997).
Plaintiff asks the Court to infer from the high rank and the
managerial authority vested in theses four individual by the New
York City Charter — which authority includes the power to recruit
personnel and to hire and fire — that they have final
policy-making authority with regard to personnel policy at DEP.
There is a glaring fallacy in plaintiff's inferential leap. While
these individuals may well have had final authority to make an
individual personnel decision concerning plaintiff (who was
himself a relatively high-ranking official at DEP), the hiring,
promotion, demotion or termination of a single individual is NOT
a "municipal policy." The dictionary defines the word "policy" as
"a definite course or method of action selected from among
alternatives and in light of given conditions to guide and
determine present and future decisions" (emphasis added) and "a
high-level overall plan embracing the general goals and
acceptable procedures, especially of a governmental body"
(Webster's New Collegiate Dictionary, 1977 ed.). The decision to
fire one man, for whatever reason, is neither a course or method
of action to help guide and determine present and future
decisions nor a high-level overall plan. It is a singular act,
applicable to one individual, in the unique circumstances of his
case. It is, in short, a personnel decision and nothing more. It
is hard to imagine any decision that falls farther outside the
common understanding of the word "policy."
Of course, an individual personnel decision carried out by a
final policymaker pursuant to a definite course or method of
action that was designed to guide future decision making, or in
furtherance of some governmental body's high-level overall plan,
would qualify for the Monell exception. But not every personnel
decision made by a senior policymaker falls into that category.
There is no evidence in this record that Stasiuk, Miele, Chapin
and Sturcken terminated plaintiff's employment either as part of
a formal, officially promulgated policy of the DEP to get rid of
whistle blowers or pursuant to a pervasive departmental custom
and practice of so doing. Thus, plaintiff has not overcome the
strong presumption that a personnel decision is just a personnel
decision, and nothing more.
Nor is there any evidence that these four individuals have any
authority, let alone final authority, to define or make a City
policy generally applicable to all City employees — or even, for
that matter, to all DEP employees. Per the terms of the New York
City Charter, that authority is vested finally and exclusively in
the Commissioner for the Department of Citywide Administrative
Services. See N.Y. City Charter §§ 3, 8(a), 21, 28, 811,
814(c). Several years ago, Judge Cote of this Court had occasion
to consider this precise
question in a case brought by another employee of the City of New
York. In Soto v. Schembri, 960 F. Supp. 751, 759 (S.D.N Y
1997), she ruled as follows:
Plaintiffs must demonstrate that the named officials
have policymaking authority under state law. . . .
[T]he Mayor, the City Council and the Personnel
Director are the final policymakers with regard to
personnel decisions, not agency heads. . . . [T]he
power to make employment decisions alone does not in
itself give rise to potential Section 1983
liability. (Emphasis added)
Judge Cote's decision is manifestly correct. If plaintiff's
argument had merit, then every decision by a hig-ranking official
to hire or fire would constitute a "policy" with respect to the
affected individual, and every senior decisionmaker who had
ultimate authority over anyone's employment could be deemed to
have "final authority over policy" within the meaning of the
McMillian exception to Monell. The absurdity of that result —
which would effectively vitiate Monell — is apparent on its
Because plaintiff's proposed amendment does not state a claim
on which relief may be granted, it would be futile to grant the
motion. See Electronics Communications Corp. v. Toshiba America
Consumer Products, Inc., 129 F.3d 240, 246 (2d Cir. 1997).
Therefore, plaintiff's application for leave to amend is denied.
This constitutes the decision and order of the Court.
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