plaintiffs about the DMH. Plaintiffs point to Ashman's
relationship with McLean and Rampe, and allege that he protected
EHG's contract with the County in exchange for McLean's
discharging Berweger and Menon. These statements, however, are
conclusory and speculative, with no evidentiary support. See
Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505. Indeed, the
evidence contradicts plaintiffs' speculation, as McLean/EHG lost
Plaintiffs also have not alleged that Ashman's position as
Commissioner of Mental Health gave him any legal authority to
independently make employment decisions on behalf of the County,
and they offer no evidence that he participated in the decision
to fire them. While plaintiffs in a civil rights action face
some difficulties in obtaining evidence, see Ramseur v. Chase
Manhattan Bank, 865 F.2d 460, 464 (2d Cir. 1989) ("In assessing
the inferences that may be drawn from the circumstances
surrounding a termination of employment, the court must be alert
to the fact that `[e]mployers are rarely so cooperative as to
include a personnel file' that their actions are motivated by
factors expressly forbidden by law."), the plaintiffs here have
failed to provide any evidence to support a claim against
Ashman. His motion for summary judgment is therefore granted.
In order to prevail in any claim against EHG under § 1983,
plaintiff must first show that EHG, a private party, was "acting
under color of state law" at the time it allegedly violated the
plaintiffs constitutional rights by firing them for engaging in
protective speech. See West v. Atkins, 487 U.S. 42, 48, 108
S.Ct. 2250, 101 L.Ed.2d 40 (1988); Sherlock v. Montefiore Med.
Ctr., 84 F.3d 522, 527 (2d Cir. 1996). A private individual can
be held liable under § 1983 "only as a `willful participant in
joint activity with the State or its agents.'" Spear v. Town of
West Hartford, 954 F.2d 63, 68 (2d Cir.) (quoting Adickes v.
S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d
142 (1970)), cert. denied, 506 U.S. 819, 113 S.Ct. 66, 121
L.Ed.2d 33 (1992). "Actions by a private party are deemed state
action if `there is a sufficiently close nexus between the State
and the challenged action' that the actions by the private
parties `may be fairly treated as that of the State itself.'"
Chan v. City of New York, 1 F.3d 96, 106 (2d Cir.) (quoting
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95
S.Ct. 449, 453, 42 L.Ed.2d 477 (1974)), cert. denied sub nom.
City of New York v. Kam Shing Chan, 510 U.S. 978, 114 S.Ct.
472, 126 L.Ed.2d 423 (1993). "The purpose of [the close-nexus]
requirement is to assure that constitutional standards are
invoked only when it can be said that the State is responsible
for the specific conduct of which the plaintiff complains."
Id. (emphasis in original) (citations omitted).
The Supreme Court has established three tests to determine
whether a private person is deemed to be a "state actor" for
purposes of § 1983:(1) the public function test, see Atkins,
487 U.S. at 49-50, 108 S.Ct. 2250; (2) the state compulsion
test, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct.
1598, 26 L.Ed.2d 142 (1970); and (3) the symbiotic relationship
or nexus test, see Burton v. Wilmington Parking Auth.,
365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). Plaintiff Berweger
alleges that EHG was a state actor under the state compulsion
and symbiotic relationship tests.
To prevail under the "state compulsion" test, plaintiff must
show that the state actor "exercised coercive power or . . .
provides such significant encouragement, either overt or covert,
that the choice must in law be deemed to be that of the State."
Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73
L.Ed.2d 534 (1982). In Adickes, the plaintiff was a white
teacher who was refused lunch at a Kress store in Hattiesburg,
Mississippi with her African-American students, and then
arrested when she left the store. She
alleged that there was a conspiracy between the store owner and
the police to deprive her of her Equal Protection Rights under
the Fourteenth Amendment, and sued under Section 1983. The
Supreme Court reversed the lower courts' grant of summary
judgment to the defendants. The Court reasoned that, while the
plaintiff had no direct knowledge of a conspiracy between Kress
and the Hattiesburg police, "the sequence of events created a
substantial enough possibility of a conspiracy to allow her to
proceed to trial, especially given the fact that the
non-circumstantial evidence of the conspiracy could only come
from adverse witnesses." 398 U.S. at 157, 90 S.Ct. 1598.
In the present case, the plaintiffs do not have actual
knowledge of steps defendant Rampe, or any of the County
Defendants, may have taken to deprive them of their employment
in retaliation for their exercise of protected speech. They can,
however, point to a sequence of events evidencing such a
conspiracy, sufficient to allow a jury to decide whether EHG was
a state actor when it fired plaintiffs. Rampe may have begun to
take an interest in EHG's contract after plaintiffs criticized
Ashman and DMH; he asked to see records of individuals who had
worked for EHG; and he personally intervened to prevent them
from being re-hired by EHG's successor (though they had worked
for EHG's predecessor). The record reflects that he was angry
about Berweger's criticism. The fact that plaintiffs were not
fired for poor performance (and had never been criticized for
same); that McLean was unable to explain what criticism Menon
had allegedly leveled at EHG or what "was said" in Berweger's
absence; that he had concern about his contract; and Rampe's
singular power over that contract — all of this taken
together-would permit a jury to infer that Rampe had something
to do with firing the plaintiffs. And if Rampe were so involved,
the decision by EHG to fire the plaintiffs as a matter of law
could fairly be attributed to the state under the "state
compulsion" test. Blum, 457 U.S. at 1004, 102 S.Ct. 2777.
To prevail under the "symbiotic relationship" or close nexus
test, plaintiff must show that "[t]he State has so far
insinuated itself into a position of interdependence with [EHG]
. . . that it must be recognized as a joint participant in the
challenged activity." Burton, 365 U.S. at 725, 81 S.Ct. 856.
EHG is an independent contractor, providing medical care to
inmates at the Jail. Plaintiffs must show that the state was,
through the interdependence of EHG and the County, a "joint
participant" in the activities being challenged — i.e., McLean's
decision to fire them.
Plaintiff distinguishes Sherlock v. Montefiore, 84 F.3d 522
(2d Cir. 1996), a case that did not find an independent
contractor to be a state actor. In Sherlock, the Second
Circuit affirmed the district court's grant of summary judgment
for the defendant on the grounds that the plaintiff had failed
to allege "state action" by a state contractor. 84 F.3d at 527.
There, the defendant was an independent contractor providing
medical services at the Rikers Island Correctional Facility that
had hired the plaintiff to provide counseling services. The
plaintiff sued under § 1983 for wrongful termination. In holding
that the plaintiffs claim was properly dismissed for failing to
allege state action, the Second Circuit noted:
The fact that a municipality is responsible for
providing medical attention to persons held in its
custody may make an independent contractor rendering
such services a state actor within the meaning of §
1983 with respect to the services so provided, see,
e.g., West v. Atkins, 487 U.S. 42, 54, 108 S.Ct.
2250, 101 L.Ed.2d 40 (1988), but that fact does not
make the contractor a state actor with respect to its
employment decisions, see, e.g., Rendell-Baker v.
Kohn, 457 U.S. 830, 840-43, 102 S.Ct. 2764, 73
(1982); Wolotsky v. Huhn, 960 F.2d 1331, 1335-36
(6th Cir. 1992).
Sherlock, 84 F.3d at 527.
Sherlock is distinguishable from the present case. In
Sherlock, there was no evidence of state involvement in the
decision to fire the plaintiff. Here, however, there is some
evidence that Rampe was, in fact, involved with EHG's decision
to fire plaintiffs. The issue is best left to a jury.
e. County of Orange
To recover against a municipality in a Section 1983 action,
the plaintiff must establish that (1) the municipality had a
policy or custom that was responsible for the alleged
deprivation of constitutional rights, or (2) that a failure of
supervision or lack of training is "so severe as to reach the
level of `gross negligence' or `deliberate indifference' to the
deprivation of plaintiffs constitutional rights." Monell v.
Dept. of Social Servs. of the City of New York, 436 U.S. 658,
691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiffs have not
alleged that Orange County or EHG maintained a policy of firing
employees for their critical speech. Thus, under Monell, it
would appear that the plaintiffs cannot make out a claim against
However, municipal liability may also be imposed where a final
policymaker of the municipality is personally responsible for
the constitutional violation. See McMillian v. Monroe County,
520 U.S. 781, 784-86, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997). A
final policymaker is an official of a municipality who "speak[s]
with final policymaking authority" for the municipality "in a
particular area, or on a particular issue." Id. at 785,
520 U.S. 781, 117 S.Ct. 1734, 138 L.Ed.2d 1. The question of who
qualifies as a final policymaker is one of state law. See City
of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915,
99 L.Ed.2d 107 (1988) (citing Pembaur v. City of Cincinnati,
475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)).
The Praprotnik Court noted that States have extremely wide
latitude in determining the form that local government takes.
See id. at 925. It concluded that "state law (which may
include valid local ordinances and regulations) will always
direct a court to some official or body that has the
responsibility for making law or setting policy in any given
area of a local government's business." Id.
The New York Alternative County Gov't Law § 155 grants broad
powers and duties to a County Executive. It provides, in
relevant part: "The county executive, except as otherwise
provided by this chapter or by other law, shall: (a) Be the
administrative head of the county government; (b) Have
supervision, direction and control over governmental functions
of all administrative units of the county . . ." N.Y. Alt.
County Gov't § 155. The Orange County Charter grants to the
County Executive "all executive powers and duties now or
hereafter conferred or imposed upon him . . . together with all
powers and duties necessarily implied or incidental thereto.
Among such duties, he shall: . . . (a) appoint, except as may
otherwise be provided in this Charter or the Administrative
Code, all department heads and appointive executive officers of
the County government, subject to the approval of the County
Legislature." Orange County Charter art III, § 3.02(a).
According to the Orange County Charter, County Executive Rampe
had the authority to appoint the Commissioners and Department
Heads in Orange County, subject to approval by the Legislature.
However, according to his deposition testimony, he was permitted
to make administrative and personnel decisions without review by
the anyone. (Rampe Dep. at 6.) Rampe also set the length of term
of county contracts without review. (Id.)
In light of the fact that Rampe was the final policymaker of
Orange County with regard to contracting, and because there is a
question of fact concerning
Rampe's role, if any, in the firings, see Praprotnik, 485 U.S.
at 126, 108 S.Ct. at 926, the liability of Orange County will be
submitted to the jury as well.
2. Defendants Motion for Summary Judgment of the New York
Defendants' motion for summary judgment as to the claim under
the Whistleblower Statute, Labor Law Labor Law § 740 is granted.
In order to establish a violation of Labor Law § 740, a
plaintiff must prove (a) that the activity, policy, or practice
that she objected to, refused to participate in, disclosed, or
threatened to disclose was an activity, policy, or practice of
the employer; (b) that the activity, policy, or practice
constituted an actual violation of a law, rule or regulation,
and (c) that the violation was one that creates and presents a
substantial and specific danger to the public health or safety.
See Radice v. Elderplan, 217 A.D.2d 690, 691, 630 N.Y.S.2d 326
(1995) (citations omitted).
The failure of DMH to verify patients' medication history, and
its neglect in providing emergency psychiatric care for inmates
was a violation of law, see Radice, 217 A.D.2d at 691,
630 N.Y.S.2d 326; Merriweather v. Sherwood, 518 F. Supp. 355
(S.D.N.Y. 1981) (Consent Judgment) (outlining requirements for
provision of mental health services in the Orange County
system), and such neglect created and presented a danger to the
life and safety of inmates under the care of DMH and EHG.
The only remaining question is whether plaintiffs were
objecting to a practice of their employer, as opposed to that
of a third party. In Radice, the plaintiff alleged that the
defendant wrongfully terminated her employment as a nurse
discharge planner because she reported the abuse of an elderly
patient by a personal care worker/home aide employed by a third
party. 217 A.D.2d at 690, 630 N.Y.S.2d 326. The Appellate
Division dismissed the claim because the reported activity was
not an activity of the defendant or of any of its employees.
See id. at 691, 630 N.Y.S.2d 326. Rather, it was the act of a
personal care worker employed by a third party who was not a
party to the action. See id.
In the present case, plaintiffs were employed by EHG, a
private entity, and not by the County. (Compl. at ¶ 13.)
Moreover, plaintiffs claim that they were terminated for
speaking out about the operation of DMH, not for any criticism
of EHG. Because DMH was not the plaintiffs' employer, they
cannot assert a claim under Section 740. Accordingly,
defendants' motion for summary judgment is granted.
3. Sanctions and Attorneys Fees
Defendant EHG seeks attorneys fees and sanctions as the
prevailing party in this court's decision to dismiss Menon's
claims against it. For the reasons set forth below, EHG's motion
for sanctions and attorneys fees is denied.
a. Attorneys Fees
In order to award attorneys' fees to a prevailing defendant
under § 1988, a district court must find that "the plaintiffs
action was frivolous, unreasonable, or without justification,
even though not brought in subjective bad faith."
Christiansburg Garment Co. v. Equal Employment Opportunity
Commission, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648
(1978). In American Federation of State, County and Municipal
Employees, AFL-CIO (AFSCME) v. County of Nassau, 96 F.3d 644
(2d Cir. 1996), the Second Circuit reviewed a number of its
prior decisions in which the plaintiffs' claims were found to
have met the Christiansburg standard:
We have indicated in particular cases what is meant
by `frivolous, unreasonable, or without foundation.'
In Gerena-Valentin v. Koch, 739 F.2d 755, 756-57
(2d Cir. 1984), the plaintiff claimed
that two municipal employees conspired to keep him
off the ballot in an election for New York City
councilman, in violation of the Voting Rights Act, §
42 U.S.C. § 1973 et seq. . . . [W]e approved a fee
award to the prevailing defendants because the
plaintiff had already litigated the issue
(unsuccessfully) in state court, and because `at no
time . . . did [the plaintiff] attempt to produce any
evidence whatsoever in support of his retaliation and
conspiracy claim.' Id. at 761. In Eastway Constr.
Corp. v. City of New York, 762 F.2d 243, 246 (2d
Cir. 1985), a general contractor charged the City of
New York and others with violating the antitrust and
civil rights laws by prohibiting it from contracting
with other companies `engaged in City-financed
reconstruction projects.' . . . [W]e approved a fee
award to the defendant because the plaintiff `could
not point to a deprivation of any single right
conferred by federal law or the . . . Constitution,'
and had unsuccessfully challenged the City's action
in state court. Id. at 252. And in Faraci v.
Hickey-Freeman Co., 607 F.2d 1025, 1027-29 (2d Cir.
1979), we approved a fee award against a Title VII
plaintiff where the evidence of non-discrimination
AFSCME, 96 F.3d at 650-51 (2d Cir. 1996).