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February 25, 2002


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.

Within the first few weeks of the training period, Graybow conducted an orientation meeting with the Trainees during which Imhof and Shapiro were present. (Id. ¶ 7.) Plaintiff alleges that Graybow informed the Trainees that she planned to conclude the formal training within three or four months, at which time they would be assigned to offices to continue their on-the-job training. (Iannillo Dep. at 12-13.) Plaintiff interjected that he did not think the proposed training period would adequately prepare him for his position and that he felt it unfair that the previous group of Trainees were allowed more time. (Indiv. Defs. Rule 56.1 Stmt. ¶ 9.) Graybow attempted to reassure plaintiff and the group that they would be given adequate training and that the training period would not conclude until they were prepared. (Id. ¶ 11.) Defendants argue that despite these reassurances, plaintiff made repeated objections which caused a disruption in the meeting as plaintiff and Graybow argued. (Oster Dep. at 16; Competelli Dep. at 49-55.) Plaintiff denies that his conduct was disruptive, but at least one of plaintiffs fellow trainees, Mary Oster, stated that she felt very uncomfortable during the exchange. (Oster Dep. at 16.) A few days after the orientation meeting, Graybow met with Peterson and informed her that plaintiff questioned the training timetable and that she was concerned that "someone who had only been in training a couple of weeks would voice — would be that disruptive, would interrupt me and say that what I was indicating to him was incorrect or improper." (Peterson Dep. at 9.)

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.

(Id. at 63.)

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 ...

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