Not what you're
looking for? Try an advanced search.
IANNILLO v. COUNT OF ORANGE
February 25, 2002
EUGENE IANNILLO, PLAINTIFF,
V.
COUNTY OF ORANGE, MARGARET KIRCHNER, COMMISSIONER OF THE ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, SHAWN YETTER, DEPUTY COMMISSIONER OF THE ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, DAVID M. SMITH, WEST PAGE 171 ADMINISTRATIVE OFFICER OF THE ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, AND HATTIE PETERSON, DIRECTOR OF ECONOMIC INDEPENDENCE OF THE ORANGE COUNTY DEPARTMENT OF SOCIAL SERVICES, DEFENDANTS.
The opinion of the court was delivered by: William C. Conner, Senior District Judge.
Plaintiff Eugene Iannillo brings the instant action pursuant
to 42 U.S.C. § 1981, 1983 against defendants County of Orange
(the "County"), Margaret Kirchner, individually and as
Commissioner of the County Department of Social Services (the
"Department"), Shawn Yetter, individually and as Deputy
Commissioner of the Department, David M. Smith, individually and
as Administrative Officer of the Department and Hattie Peterson,
individually and as Director of Economic Independence of the
Department. Plaintiff alleges that he was terminated from the
Department in retaliation for exercising his First Amendment
right of free speech. Defendants now move for summary judgment
pursuant to FED. R. Civ. P. 56(b). For the reasons that follow,
defendants' motion is granted in part and denied in part.
The following facts are undisputed unless otherwise indicated.
In 1999 the Department announced openings for the position of
Social Welfare Examiner Trainee ("Trainee"). (Indiv. Defs.
Rule 56.1 Stmt. ¶ 1.) The announcement specified the following
qualifications for the position:
Working knowledge of investigation techniques
including interviewing procedures and practices;
working knowledge of Federal, State, and Local Laws,
Codes, and Policies concerning the provision of
Social Welfare Programs; working knowledge of other
laws, codes, and programs relating to the provision
of Human Services; ability to communicate both orally
and in writing; ability to relate to others under
stressful conditions; ability to read and understand
moderately complex written information; ability to
analyze obtained information and determine its
pertinence to eligibility programs; good powers of
observation and perception; initiative; tact;
patience; good judgment; physical condition
commensurate with the demands of the position.
(McGuinness Aff., Ex. C.) Plaintiff was hired as a Trainee and
began his employment on February 22, 2000. (Indiv. Defs.
Rule 56.1 Stmt. ¶ 2.) As a Trainee, plaintiff was to undergo one year
of training, including classroom instruction, seminars, mock
interviews and other on the job training. After successful
completion of the program, plaintiff would become a permanent
Social Welfare Examiner ("Examiner"). (Id. ¶¶ 3-4.) Plaintiff
was included in a group of five trainees, and was trained
primarily by Scott Imhof, a senior Examiner for the Department,
Sabina Shapiro, a Trainer for the Department and Carol Graybow,
a Supervisor for the Department.
One of the primary responsibilities of an Examiner is to
interview people who apply to the Department for public
assistance. During the initial interview, the applicant
completes several forms, including a statemandated screening
form used to determine if an applicant should consult with a
professional drug and alcohol counselor. (Indiv. Defs.
Rule 56.1 Stmt. ¶¶ 15, 17.) The counselor then determines if the applicant
needs additional drug and alcohol treatment. (Id. ¶ 16.) The
Examiner's role in this process is to assist the applicant in
completing the required paperwork and to make the appropriate
referral to a drug and alcohol counselor if indicated by the
screening form. (Id. ¶ 18.) If the applicant answers two or
more of the questions on the form "yes," the Examiner is
required to refer the applicant to the counselor. (Id. ¶ 22.)
The Examiner is not charged with determining whether or not the
applicant has a drug or alcohol problem; that decision is solely
within the province of the counselor. (Id. ¶ 20.)
On March 14 and 16, 2000, Imhof conducted a mock interview
session with the Trainees during which he posed as a
hypothetical welfare applicant with a potential substance abuse
problem. Defendants allege that plaintiff objected to the
statemandated screening form based on his experience as an owner
of a bar, stating that the form did not indicate whether or not
a person had a drug or alcohol problem and that it should
probably not be used. (Id. ¶ 24.) Defendants contend that
plaintiff's comments were disruptive and indicated a lack of
understanding of the Examiner's function. Plaintiff concedes
that during the training session, in response to Imhof's query
as to whether he contested the form's validity, he stated that
he was "friends with an attorney, a Supreme Court justice on the
bench for forty years who would answer two of these questions
yes, does that mean that man had a problem, should we refer
him?" (Iannillo Dep. at 350.) Plaintiff stated that he also knew
accountants that frequent his bar who would be referred for
counseling under the form, and that because he "see[s] problems
every day with people . . . I'm probably more in tune with it
than many of the examiners, all of the examiners put together
. . . [and that] [i]f I feel the man has a problem, I'll refer
him to the alcohol counselor." (Id. at 351-52.) Plaintiff
contends, however, that he did not question the validity of the
form and that his comments were made in jest and were not
disruptive to the training. (Id. at 354.)
On April 6, 2000, the Trainees attended a state-sponsored
domestic violence training seminar with approximately thirty
additional Trainees from various counties. The objective of the
session was to demonstrate to the Trainees when and how an
Examiner makes a referral to the Department's domestic violence
liaison personnel. (Indiv. Defs. Rule 56.1 Stmt. ¶ 29.) The
session was designed to put the Trainees on alert for potential
domestic violence situations and to depict the impact of
domestic violence on the client. (Id. ¶ 30.) A referral was
required by state mandate if indicated by information provided
by the client on the domestic violence screening form or if the
Examiner had reason to believe a potential domestic abuse
situation existed. (Id. ¶ 31.) The role of the Examiner is
strictly limited to referring the potential domestic violence
victim to a qualified professional, who would then make a
determination whether there was domestic abuse. (Id. ¶ 32.)
During the training session, a film entitled "It's Not O.K."
was shown depicting five different scenarios of domestic abuse,
ranging from severe physical abuse to less severe emotional
abuse. (Id. ¶ 34.) At the conclusion of the film, the trainer
asked the participants what the five scenarios had in common.
(Id. ¶ 36.) Plaintiff volunteered that "we only heard one-half
of the story." (Iannillo Dep. at 18.) Many of the attendees were
offended by plaintiff's comments and, by plaintiffs own
admission, the "meeting erupted and I was verbally abused by a
number of women in the audience." (Id.; Indiv. Defs.
Rule 56.1 Stmt. ¶ 38.) Defendants argue that following the initial
comment, plaintiff was loud and disruptive, and that no further
meaningful discussion of the video was possible. Plaintiff
disputes that his comments were disruptive of the session.
Shortly after the incident at the domestic abuse session,
Imhof, Graybow and Shapiro reported to Peterson. (Indiv. Defs.
Rule 56.1 Stmt. ¶ 42.) Peterson was informed of plaintiffs
comment and told that "[plaintiff] was very disrupt[ive] and the
people in attendance was (sic) shocked that he made the
comment," that "[plaintiff] kept interrupting . . . the training
by trying to explain what he meant" and that "several people
that had attended training were embarrassed by his statement."
(Peterson Dep. at 15-16, 20.) Peterson testified that she then
met with Yetter, Kirchner, Smith and Ana Finkle, Graybow's
supervisor.*fn1 (Indiv. Defs. Rule 56.1 Stmt. ¶ 43; Peterson
Dep. at 21.) During the meeting, Finkle recounted the April 6th
incident at the training session. (Peterson Dep. at 23.)
Peterson added that she "was amazed at the fact that anyone
could make
that statement." (Id.) Peterson alleges that she then
discussed two other incidents reported to her, specifically,
plaintiff's questioning the adequacy of the training timetable
and the validity of the alcohol and drug screening form. She is
resolute, however, that she considered the April 6 incident most
egregious. (Id. at 24.) Some time thereafter, perhaps
following a second meeting, Peterson recommended and received
approval from Kirchner to terminate plaintiff. (Indiv. Defs.
Rule 56.1 Stmt. ¶ 44.) In her deposition testimony, Kirchner
testified that she could not recall any discussions regarding
the training timetable or screening form, but that "[Yetter and
Peterson] did state that there were other issues, that they felt
that he was not a candidate for a permanent appointment but the
one I recall, the specific example is the domestic violence
one." (Kirchner Dep. at 11.) Yetter testified that the
recommendation to Kirchner to terminate plaintiff was made
because plaintiff did not exhibit the necessary qualities for an
Examiner, that "[plaintiff] was showing a high level of argument
against basic rules and regulations that we're mandated to
follow and he was very persistent in his argument on some of
those rules and regulations." (Yetter Dep. at 17.)
Plaintiff received his notice of termination on April 19,
2000. (Indiv. Defs. Rule 56.1 Stmt. ¶ 45.) The notice gave
plaintiff the opportunity to appeal the decision to Smith.
(Id. ¶ 46.) Plaintiff met with Smith on April 24, 2000. (Id.
¶ 46.) Smith explained that plaintiffs termination was based on
the three aforementioned incidents, and that the trainers and
supervisors believed his conduct indicated that he was not fit
to deal with the public. (Id. ¶¶ 48-49.) With respect to the
training timetable, plaintiff explained that "we were going to
be cut down from six months to three months . . . [and that he]
was concerned that a three-month period would not . . .
adequately prepare [him for his] position." (Iannillo Dep. at
12-13.) When asked to explain the confrontation regarding the
drug and alcohol screening form, plaintiff stated that he was
"not really questioning the validity of the drug/alcohol
statement, [but was just] . . . trying to learn here." (Id. at
17.) With respect to the domestic violence session, plaintiff
reiterated his comment that the video represented only half of
the story. (Id. at 18.)
On April 25, 2000, plaintiff received a letter stating that
the Department reviewed the information and statements provided
at that April 24th meeting and decided not to reconsider their
decision to terminate plaintiff. (Smith Dep. at 62.) Smith
explained at his deposition that
I reviewed what Shawn [Yetter] and Gene [Iannillo]
said about the three incidents including some quotes
[Iannillo] made to me about the domestic violence
being six and a half hours of male bashing and the
domestic violence instructor being anti-male. Him
(sic) alleging that he had more experience than our
whole . . . department with the public. Those quotes
showed me we made the right decision regarding Mr.
Iannillo's employment.
Plaintiff filed the instant action on July 11, 2000, alleging
that defendants terminated him in violation of the First
Amendment. Specifically, plaintiff alleges that, in addition to
the three instances specified by defendants, he was terminated
because of comments made regarding the Department's treatment of
clients residing in the Village of Kiryas Joel, New York
("Kiryas Joel clients"), a predominately Hassidic community.
(1st Am.Complt. ¶ 26.) During training, plaintiff and Oster
uncovered suspicious activity relating to the Kiryas Joel file.
(Indiv. Defs. Rule 56.1 Stmt. ¶ 50; Iannillo Dep. at 265.) They
discovered that, regardless of the employer, many of
the Kiryas Joel clients reported weekly income of approximately
$180, the maximum amount entitling the client to maximum welfare
benefits. (Iannillo Dep. at 265; Imhof Dep. at 41.) In one
particular instance, a Kiryas Joel client claimed to make $180
per week when the individual's bank statements showed
approximately $2,600 worth of activity in the past two or three
weeks. (Imhof Dep. at 41.) Plaintiff and Oster brought the
discrepancy to Imhof's attention during a meeting with the other
Trainees. (Oster Dep. at 10.) Imhof responded that it was a
"good catch," and that they should refer the case to the Special
Investigations Unit ("SIU"). (Indiv. Defs. Rule 56.1 Stmt. ¶
51.) Imhof confirmed that the Trainees were able to refer a case
to the SIU if they found suspicious activity. (Id. ¶ 52.) Over
Imhof's denial, plaintiff alleges that Imhof also stated that
the disputed wage reports had been around for a long time, that
everyone knew about the alleged fraud, and that, more than
likely, nothing would be done about it. (Iannillo Dep. at
268-69.) Patricia Competelli, plaintiffs fellow Trainee, recalls
that Imhof informally told the group that "the Kiryas Joel
organization is treated differently than everyone else, because
they do have lots of advocates and they have a great deal of
political power." (Competelli Dep. at 122.) Plaintiff argues
that he informed Imhof of the discrepancies regarding the Kiryas
Joel clients on at least ten additional occasions leading up to
the time he was terminated. (Iannillo Dep. at 308.) Plaintiff's
comments regarding the Kiryas Joel clients were not raised
during the April 24th meeting and were not explicitly stated as
a reason for plaintiffs termination.
I. Summary Judgment Standard
Defendants move for summary judgment pursuant to FED. R. Civ.
P. 56. Summary judgment may be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c). The burden rests on the moving party to demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986); Ticali v. Roman Catholic Diocese of Brooklyn,
41 F. Supp.2d 249, 254 (E.D.N.Y. 1999). A genuine factual issue
exists if there is sufficient evidence favoring the nonmovant
for a reasonable jury to return a verdict in his favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986); Ticali, 41 F. Supp.2d at 254. In
deciding whether summary judgment is appropriate, the court
resolves all ambiguities and draws all permissible factual
inferences against the movant. See Anderson, 477 U.S. at 255,
106 S.Ct. 2505. Summary judgment is warranted when the nonmovant
has no evidentiary support for an essential element on which it
bears the burden of proof. Celotex, 477 U.S. at 322-23, 106
S.Ct. 2548; Silver v. City Univ. of N.Y., 947 F.2d 1021, 1022
(2d Cir. 1991).
II. Section 1983 First Amendment Claim
In order to prevail on a § 1983 freedom of speech claim,
plaintiff must demonstrate by a preponderance of the evidence
that: 1) the speech at issue is protected; 2) that he suffered
an adverse employment action; and 3) that the speech was at
minimum a substantial or motivating factor in the adverse action
taken by the employer. See Blum v. Schlegel, 18 F.3d 1005,
1010 (2d Cir. 1994); White Plains Towing Corp. v. Patterson,
991 F.2d 1049, 1058 (2d Cir. 1993).
For speech to be protected under the First Amendment, it must
first relate to "any matter of political, social or other
concern to the community." Connick v. Myers, 461 U.S. 138,
146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Therefore,
[w]hen a public employee speaks not as a citizen upon
matters of public concern, but instead as an employee
upon matters only of personal interest, absent the
most unusual circumstances, a federal court is not
the appropriate forum in which to review the wisdom
of a personnel decision ...