REPORT AND RECOMMENDATION
TO THE HONORABLE LEWIS A. KAPLAN, U.S.D.J.:
The plaintiff Housing Works, Inc. ("Housing Works"), a not for-profit corporation advocating on behalf of homeless persons with HIV and AIDS, has brought these actions under 42 U.S.C. § 1983 against the City of New York (the "City") and several city officials, including, among others, former Mayor Rudolph Giuliani, former Deputy Mayor Randy Mastro, former Chief Contract Procurement Officer ("CCPO") Beth Kaswan, and the former Commissioners of the Human Resources Administration ("HRA"), the HRA's Division of AIDS Service and Income Support ("DASIS"), and the Department of Health ("DOH"). Housing Works alleges that these defendants caused several of its city and state contracts to be terminated in retaliation for its exercise of its First Amendment rights.
Housing Works also alleges that the defendants treated it differently from other similarly situated contractors in violation of the Equal Protection Clause.
All defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and they have moved to strike certain evidentiary submissions made by the plaintiff. For the reasons discussed below, I recommend that the defendants' summary judgment motion be granted in part and denied in part. I recommend that the defendants' motion to strike be denied.
The facts underlying the plaintiff's actions are set forth in substantial part in an earlier decision by the Honorable Victor Marrero, U.S.D.J., granting in part and denying in part the defendants' motion to dismiss. Housing Works, Inc. v. Turner, 179 F. Supp. 2d 177, 183-93 (S.D.N.Y. 2001). Only the facts most relevant to the instant motions are recited below, and additional facts are discussed as relevant to the analysis of the defendants' motion.
Housing Works is a not-for-profit organization whose mission is to provide services and advocacy for homeless persons with AIDS and HIV. (Amended Complaint, No. 00 Civ. 3561 ("Giuliani Am. Compl."), ¶ 27). Among the various services provided by Housing Works are: (1) a program to provide independent housing and supportive services in "scattered site" apartments throughout New York City, (2) two residential facilities providing housing and on site supportive services, (3) intake services providing initial assessment and case management, (4) adult day treatment centers providing AIDS-related health care, and (5) job training and placement programs. (Giuliani Am. Compl., ¶ 36). The plaintiff receives a variety of city, state, and federal contracts to fund these programs.
The defendants are the City of New York and various city officials, all of whom have left the positions they held during the periods relevant to these actions. The individual defendants, grouped into relevant categories, are: (1) Mayor Giuliani, Deputy Mayor Mastro, his former Chief of Staff Lou-Ellen Barkan, and Ms. Kaswan, collectively, "the Mayoral Defendants," (2) HRA Commissioner Lillian Barrios-Paoli, her successor Jason Turner, HRA's Contracting Officer Richard Bonamarte, and HRA's Acting General Counsel Jack McKay, collectively, the "HRA Defendants," (3) DASIS Commissioner (and HRA Deputy Commissioner) Gregory Caldwell and DASIS's Director of Contract Services John Dereszewski, collectively, the "DASIS Defendants," and (4) former DOH Commissioner Neal Cohen, DOH's Contracting Officer Mitchell Netburn, and Mr. Netburn's successor James Capoziello, collectively, the "DOH Defendants."*fn1
B. Housing Works' Protected Activities
The plaintiff was a vocal opponent of the City's AIDS-related policies during the entirety of Mayor Giuliani's administration. In 1994-95, Housing Works organized a number of public demonstrations to oppose the administration's plans to dismantle HRA's Division of AIDS Services (or "DAS"), the predecessor to DASIS. (Giuliani Am. Compl., ¶ 40). Many of these protests specifically targeted Mayor Giuliani and his Deputy Mayor for Community Relations, Fran Reiter. (Giuliani Am. Compl., ¶¶ 48-51). On December 1 of every year, Housing Works organized a "World AIDS Day" rally. (Declaration of Charles King dated Nov. 25, 2003 ("King Decl."), attached to Declaration of Matthew D. Brinckerhoff in Opposition to Defendants' Motion for Summary Judgment dated Nov. 25, 2003, ¶¶ 64, 87). Housing Works' protests continued in 1996, focusing on efforts to establish DASIS by law. (King Decl., ¶¶ 102-03). It challenged, in particular, procedures for determining the eligibility for AIDS-related services and the City's alleged violation of the Open Meetings Law. (King Decl., ¶¶ 95, 98).
From March to September 1997, Housing Works did not organize any public demonstrations. (King Decl., ¶ 107). However, as its dispute with the City over contracting intensified, it again protested on October 22 and 29, 1997 against the City's withholding of contract funds. (King Decl., ¶¶ 131, 140; Giuliani Am. Compl., ¶¶ 43, 123-24). In 1998, Housing Works successfully challenged the City's denial of a permit to organize a vigil on World AIDS Day. (King Decl., ¶¶ 182-83). The vigil was held on December 1, 1998. (King Decl., ¶ 183).
Aside from demonstrations, Housing Works also filed a number of lawsuits against the City. (Giuliani Am. Compl., ¶ 47). It filed Henrietta v. Giuliani in February 1995 to challenge the City's cutbacks in HIV and AIDS services. Mixon v. Grinker was filed prior to the Giuliani administration but prosecuted thereafter, and it alleged a failure to provide medically appropriate housing for homeless people with HIV and AIDS. Hernandez v. Barrios-Paoli was filed in August 1997 to challenge eligibility review procedures under Local Law No. 49. Housing Works, Inc. v. Safir was filed in July 1998 to challenge the City's denial of a permit for the plaintiff's World AIDS Day vigil. (King Decl., ¶ 182). The state-court predecessor to one of the instant actions, Housing Works, Inc. v. Giuliani, was filed in November 1997. (Giuliani Am. Compl., ¶ 128).
Finally, Housing Works has published a weekly newsletter entitled "AIDS Issues Update" since 1995 (King Decl., ¶ 67), and it has attended City Council hearings concerning a variety of issues, including DASIS restructuring and eligibility procedures for AIDS-related services. (King Decl., ¶¶ 102-03).
C. Housing Works' Financial Crisis
In 1995-96, Housing Works encountered fiscal difficulties and was unable to make timely rent payments to several of its "scattered site" landlords. (Pl. 56.1(b) Statement, ¶¶ 31-32; Def. 56.1 Statement, ¶¶ 105-07). Upon discovering the problem in 1996, HRA ordered an audit for Fiscal Years 1992-94, and the City's Department of Investigation ("DOI") conducted an audit covering the first half of FY 1996. (Pl. 56.1(b) Statement, ¶¶ 36-37; Def. 56.1 Statement, ¶ 154). The DOI issued a memorandum dated June 24, 1996, recommending a comprehensive audit and possible replacement of Housing Works as a vendor. (Pl. 56.1(b) Statement, ¶ 37; Def. 56.1 Statement, ¶¶ 157, 161). Housing Works proposed a corrective action plan to HRA, under which it would hire an accounting firm to revamp its fiscal tracking and accounting systems. (Pl. 56.1(b) Statement, ¶ 34; Def. 56.1 Statement, ¶ 145).
In January 1997, Mr. Caldwell was appointed as the new Commissioner of DASIS. (Pl. 56.1(b) Statement, ¶ 176; Def. 56.1 Statement, ¶ 195). He and Mr. Dereszewski ordered a second audit of Housing Works for FY 1995-96 and the first half of FY 1997, after which the auditor concluded that Housing Works owed substantial sums to the HRA. (Pl. 56.1(b) Statement, ¶¶ 185, 359; Def. 56.1 Statement, ¶¶ 199, 224). The DOI also conducted a second audit and eventually issued a second memorandum dated March 17, 1998. (Pl. 56.1(b) Statement, ¶¶ 382-83; Def. 56.1 Statement, ¶¶ 326, 345). The 1998 DOI memorandum reported that Housing Works could not account for all of its city funds, and that a full reconstruction of its books would be necessary. (Def. Exh. 125).
In June 1997, one of Housing Works' HRA contracts, the "scattered site contract," came to term and was subject to renewal negotiations. (Pl. 56.1(b) Statement, ¶ 236; Def. 56.1 Statement, ¶ 52). In June and July 1997, the plaintiff also negotiated the terms of a new operating contract with HRA for two residential facilities on 9th Street in Manhattan and in East New York. (Pl. 56.1(b) Statement, ¶¶ 282-84; Def. 56.1 Statement, ¶¶ 62-63). In the spring and summer of 1997, the plaintiff negotiated two new contracts with the DOH: one to provide intake services and another to provide day treatment services under a subcontract with the Medical and Health Research Association ("the MHRA"). (Pl. 56.1(b) Statement, ¶¶ 269, 277; Def. 56.1 Statement, ¶¶ 105-07). The intake contract was executed in August or September 1997. (Pl. 56.1(b) Statement, ¶ 271; Def. 56.1 Statement, ¶ 311). On October 16, 1997, the plaintiff filed a Notice of Claim with the City, alleging that it had not received reimbursements on its scattered site contract. (Giuliani Am. Compl., ¶ 115). On October 22 and 29, 1997, Housing Works organized public demonstrations to protest the City's withholding of contract funds. (Giuliani Am. Compl., ¶¶ 43, 123-24). On October 22, 1997, the City issued a press release, stating that the "HRA could not renew the Housing Works scattered site contract which expired on June 30, 1997 or enter into new contracts." (Def. Exh. 121). Subsequently, the plaintiff's two DOH contracts were withdrawn from the City Comptroller's office.
In June 1998, the HRA's Contracting Officer, Mr. Bonamarte, issued a finding of "non-responsibility" with respect to Housing Works (Def. Exh. 127), and in July 1998, Mr. Capoziello issued a similar finding on behalf of the DOH (Def. Exh. 132). The appeals of the HRA and DOH findings were decided by HRA's Acting General Counsel, Mr. McKay (Def. Exh. 130), and DOH Commissioner Mr. Cohen (Def. Exh. 134) in September 1998 and February 1999 respectively, and a further appeal was taken to Mayor Giuliani by the plaintiff.
In October 1998, the plaintiff responded to RFP's issued by the New York State Department of Labor ("NYSDOL") and the New York State Department of Health ("NYSDOH") to provide job training services through the state's Welfare-to-Work Initiative. A letter of certification signed by HRA Commissioner Turner was included in the application. (Def. Exh. 136). Subsequently, in February 1999, Commissioner Turner withdrew his letter of certification (Def. Exh. 137), and Housing Works was denied the NYSDOL/NYSDOH contract. Discussion
The defendants have moved to strike certain submissions and evidence relied on by the plaintiff -- namely, (1) the Declaration of Charles King, Executive Director of Housing Works, (2) Plaintiff's Exhibits 1 and 2, (3) the "Fran Hates Them" memo (Pl. Exh. 12),*fn2 (4) the testimony of Hector Cruz (Pl. Exh. 78),*fn3 (5) the plaintiff's Rule 56.1(b) Statement, and (6) a prior ruling of this Court issuing a preliminary injunction in a related action, Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402 (S.D.N.Y. 1999). These arguments will be considered in turn.
Rule 56 of the Federal Rules of Civil Procedures requires that in a summary judgment motion, "[s]supporting and opposing affidavits shall be made on personal knowledge, [and] shall set forth such facts as would be admissible in evidence[.]" Under Rule 802 of the Federal Rules of Evidence, hearsay is inadmissible unless an exception is specified by rule or statute.
The defendants first assert that Mr. King's declaration is not based on personal knowledge, as it describes events at which he was not present, relies on media coverage to prove facts, and attributes motives to others; the defendants also assert that the declaration contains hearsay. (Memorandum of Law in Support of Defendants' Motion to Strike ("Def. Mot. Strike Memo.") at 1-2; Reply Declaration of John P. Woods in Support of Defendants' Motion for Summary Judgment and Motion to Strike dated January 9, 2004 ("Woods Reply Decl."), ¶¶ 8-12). To the extent that the declaration is not based on personal knowledge or contains hearsay, I have disregarded those faulty portions. Accordingly, the defendants' motion should be denied as moot. Zavatsky v. Anderson, No. 00 Civ. 844, 2004 WL 936170, at *5 n.4 (D. Conn. March 9, 2004).
The defendants next challenge on grounds of hearsay Plaintiff's Exhibits 1 and 2, which contain, respectively, a compilation of Housing Works' weekly newsletter, "AIDS Issues Update," and a collection of newspaper articles and other media coverage of the plaintiff's protected activities. These materials cannot be defined as hearsay under Rule 801(c) because the plaintiff have not cited them to prove the truth of the statements they contain; to the extent they have been cited for that purpose, I have ignored them.
The defendants also contend that these materials cannot be used to show knowledge of the plaintiff's protected activities on the part of individual defendants, and they argue that much of the material submitted is irrelevant because it makes no mention of Housing Works. (Def. Mot. Strike Memo. at 3). As discussed below, however, the plaintiff has supported its contentions as to knowledge with independent evidence, such as the handwritten notes of Ms. Kaswan created the day before the plaintiff's October 22, 1997 demonstration. (Pl. Exhs. 10, 11). To the extent that the "Updates" have been used to demonstrate knowledge of the plaintiff's activities, they have been supported by deposition testimony specifically indicating the defendants' knowledge of them. (Pl. Exh. 55 (Barrios-Paoli Dep.) at 41-42). Finally, these materials are relevant not only on the issue of knowledge, but also in providing background information pertinent to the underlying events in this case. See United States v. Pedroza, 750 F.2d 187 (2d Cir. 1984) (out-of-court statements properly admitted as background, where they are offered "not as proof of the truth of the matters asserted but rather to show the circumstances surrounding the events"). Accordingly, the defendants' motion is denied as to Plaintiff's Exhibits 1 and 2.
Similarly, the "Fran Hates Them" memo written by Ms. Barkan cannot be stricken on grounds of hearsay. The plaintiff has not offered this evidence to prove that former Deputy Mayor Reiter actually hated Housing Works -- a contention for which Housing Works has offered other evidence, such as deposition testimony attesting to Ms. Reiter's reaction to Housing Works' protests (Pl. Exh. 49 (Klasfeld Dep.) at 119-21, 122; Pl. Exh. 60 (Johnson Dep.) at 97-99; Pl. Exh. 62 (Fisher Dep.) at 128-30, 132, 134) -- but rather to show that Ms. Barkan may have had knowledge of Ms. Reiter's feelings towards Housing Works. In this regard, the memo merely serves as evidence that Ms. Barkan was told by Mr. David Klasfeld, who formerly worked for Ms. Reiter, that Ms. Reiter hated Housing Works. See United States v. Bellomo, 176 F.3d 580, 587 (2d Cir. 1999) (testimony regarding conversation between witness and third party is not hearsay, where witness merely recounted "the communication of words he heard and gestures he saw").
The defendants also seek to strike the prior sworn testimony of Hector Cruz at a November 9, 1999 hearing in a related action. See Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402, 415 (S.D.N.Y. 1999). The defendants appear to contend that Mr. Cruz's testimony would be inadmissible at trial as deposition testimony under Rule 32(a) or as an exception to hearsay. (Def. Mot. Strike Memo. at 4-5). However, Mr. Cruz's testimony is admissible because he is expected to testify at trial. (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Strike ("Pl. Mot. Strike Memo.") at 5). While Rule 56(e) requires that summary judgment materials be supported by "such facts as would be admissible in evidence," the submissions need not be in a "form that would be admissible at trial," Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (emphasis added). As with affidavits, a prior hearing transcript may not be in a form that is admissible, but the underlying testimony of Mr. Cruz will be admissible and may be considered here. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994) ("In considering a motion for summary judgment, the district court may rely on 'any material that would be admissible or usable at trial.'") (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2721 (2d ed. 1983)).
The defendants challenge Housing Works' submission of two documents pursuant to Local Rule 56.1: its "Counter-Statement Pursuant to Local Rule 56.1(b)" and its "Response to Defendants' Statement Pursuant to Local Rule 56.1(c)." The defendants' principal contention appears to be that the 56.1(b) statement ignores, and therefore fails to refute, many of the defendants' facts, and that the 56.1(c) statement also fails to refute those facts because it merely cites to the 56.1(b) statement. (Def. Mot. Strike Memo. at 5-6). The defendants also suggest that the 56.1 statement "inflate[s] or misrepresent[s]" the evidence. (Def. Mot. Strike Memo. at 7-8).
Local Rule 56.1(b) requires that a party opposing a motion for summary judgment submit a "short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." Local Rule 56.1(c) states that all material facts set forth by the moving party "will be deemed to be admitted" unless controverted by the opposing party's 56.1(b) statement. While the plaintiff was only required to file one statement under Rule 56.1(b), its 56.1(c) statement was obviously intended to ensure that reference was made to each fact set forth by the defendants, and thereby avoid such facts to be "deemed" admitted under Rule 56.1(c). To the extent that the plaintiff's 56.1(b) statement has "ignored," "inflated," or "misrepresented" the defendants' facts, it has been disregarded.
Finally, the defendants argue that a prior ruling issued in Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402 (S.D.N.Y. 1999), should be disregarded because it merely related to preliminary injunctive relief. However, the plaintiff has not argued, nor has this Court held, that that ruling should have issue-preclusive or estoppel effect on the instant actions. (Pl. Mot. Strike Memo. at 7-8). There is no reason to disregard that ruling as persuasive authority for these cases.
For the foregoing reasons, the defendants' motion to strike should be denied in its entirety.
B. Motion for Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "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 judgment as a matter of law." Fed. R. Civ. P. 56(c); Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002); accord Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the non-movant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations and citations omitted); accord Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (non-movant "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible"). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)).
The defendants have moved for summary judgment with respect to the plaintiff's claims under the First Amendment and Equal Protection Clause of the United States Constitution. They assert that: (1) the plaintiff's speech did not constitute a "matter of public concern," (2) the defendants' alleged retaliation was not causally related to the plaintiff's speech, (3) even if the plaintiff can show causation, the defendants have an affirmative defense under the Mt. Healthy and Pickering tests, (4) the plaintiff cannot establish that the defendants intentionally treated it differently from other contractors, that the other contractors were similarly situated, or that the defendants acted with illicit motives or without a rational basis, (5) the plaintiff's allegations are insufficient to establish the personal involvement of the individual defendants, (6) the individual defendants are entitled to qualified immunity, (7) the plaintiff cannot establish municipal liability under 42 U.S.C. § 1983, and (8) the plaintiff's damages claims are precluded as a matter of law. (Def. Memo. at 14-74).*fn4
To prevail on a claim of retaliation for First Amendment activity, a plaintiff must prove that the conduct at issue was constitutionally protected, and that it was a "substantial or motivating factor" in the adverse action. Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 675 (1996). If the plaintiff discharges that burden, "the government can escape liability by showing that it would have taken the same action even in the absence of the protected conduct." Id. (citing Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977)). Moreover, even if the adverse action was taken because of the protected conduct, it may still be justified if "legitimate countervailing government interests are sufficiently strong" to outweigh the plaintiff's interest in engaging in the protected conduct. Id. at 675-76 (citing Pickering v. Board of Education, 391 U.S. 563, 568 (1968)).
a. "Matter of Public Concern"
To be entitled to constitutional protection, the plaintiff must show that its activities related to a "matter of public concern." Umbehr, 518 U.S. at 675; (citing Connick v. Myers, 461 U.S. 138, 145-48 (1983)). Whether an individual's speech is of public concern is determined by the "content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48. The Court should focus on the "motive" of the speaker and determine "whether the speech was calculated to redress personal grievances or whether it had a broader public purpose." Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir. 1999).
In this case, the defendants contend that the plaintiff's demonstrations on October 22 and 29, 1997 did not relate to a matter of public concern because they "focused exclusively on [the plaintiff's] contractual dispute with the City." (Def. Memo. at 21). The defendants argue that the plaintiff's flyers stated, "Our Money and Our Contracts Now," indicating that the plaintiff's purpose in organizing the protests was to "voice anger and frustration for not being awarded certain contracts." (Def. Memo. at 21-22).
The defendants' argument lacks merit. While it is conceded that a key focus of the October 22 and 29 protests was the City's refusal to renew the plaintiff's contracts (Pl. 56.1(b) Statement, ¶¶ 127, 129), the very purpose of those contracts was to provide housing for homeless people with HIV and AIDS. The significance of the contract dispute to persons other than Housing Works is evidenced by the content of signs that read, "Homeless people with AIDS need housing," "Defend AIDS housing," "We need homes, not SRO's," and "I don't want to be homeless again." (King Decl., ¶ 133). Moreover, the flyer announcing the October 22 protest, aside from stating "We demand our money and our contracts" as noted by the defendants, also read, "Don't let the Giuliani administration drive 180 formerly homeless people with HIV and AIDS and their families out of their homes and back on the streets!... March to defend AIDS housing, Wednesday, Oct. 22." (Def. Exh. 151).
Aside from the content of the plaintiff's speech, the context of the plaintiff's advocacy throughout 1994-97 -- which related to issues such as the restructuring of DASIS (King Decl., ¶ 48), the City's alleged violations of the Open Meetings Law (King Decl., ¶ 98; Pl. Exh. 1 (6/21/96)), and eligibility verification procedures for the City's assistance to people with HIV and AIDS (King Decl., ¶ 117; Pl. Exh. 1 (8/8/97, 8/15/97)) further supports the inference that the October 1997 protests related to public concerns. Accordingly, this issue should be submitted to the jury.
The plaintiff can demonstrate a causal connection between its protected activities and the defendants' adverse actions either "indirectly by means of circumstantial evidence,... or directly by evidence of retaliatory animus." Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2003) (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)); Kantha v. Blue, 262 F. Supp. 2d 90, 103 (S.D.N.Y. 2003). Summary judgment is inappropriate when "questions concerning the employer's motive predominate the inquiry." Morris, 196 F.3d at 110. "Nonetheless, we have held that a plaintiff may not rely on conclusory assertions of retaliatory motive to satisfy the causal link... Instead, he must produce 'some tangible proof to demonstrate that [his] version of what occurred was not imaginary.'" Cobb, 363 F.3d at 108 (quoting Morris, 196 F.3d at 111)).
A plaintiff's circumstantial evidence of retaliation could include the timing of the defendant's actions, such as when the alleged retaliation closely follows the plaintiff's speech. Morris, 196 F.3d at 110; McCullough v. Wyandanch Union Free School District, 187 F.3d 272, 280 (2d Cir. 1999). The plaintiff can also proffer evidence of unequal treatment, or an ongoing campaign of retaliation. Hampton Bays Connections, Inc. v. Duffy, 127 F. Supp. 2d 364, 374 (E.D.N.Y. 2001); Economic Opportunity Commission of Nassau County, Inc. v. County of Nassau, 106 F. Supp. 2d 433, 437 (E.D.N.Y. 2000) (citing Gagliardi v. Village of Pawling, 18 F.3d 188, 195 (2d Cir. 1994)).
The defendants' arguments with respect to causation will be discussed in relation to each of the adverse actions alleged.
The defendants first challenge the most obvious causal connection asserted by the plaintiff, namely, that immediately after Housing Works organized a protest on October 22, 1997, the HRA issued a press release the same day, announcing that it would not renew its contracts with the plaintiff or enter into new ones. The defendants assert that the decision was actually made on September 23, 1997 during a meeting between Ms. Kaswan, the City's Chief Contract Officer, and officials from the City's Department of Investigation ("DOI"); therefore, the October 22 protest could not have motivated the non-renewal decision. (Def. Memo. at 23). The defendants also contend that the plaintiff, by its own admission, did not engage in any demonstrations between March and October 1997, and only organized two demonstrations in 1996. (Def. Memo. at 17). As measured from early 1996, the plaintiff's protected conduct therefore occurred nearly 20 months prior to September 23, 1997, a temporal gap that is too great to support an inference of retaliatory intent. (Def. Memo. at 17-18).
The defendants' arguments with respect to timing have little merit. First, the record reflects a factual dispute as to when the HRA contracts were terminated. The defendants' contention that the decision occurred on September 23, 1997 is contradicted by Ms. Kaswan's own affidavit, in which she states that she decided on that day to "delay the approval of the extension of the scattered site contract until I received the information I needed to approve the award." (Affidavit of Beth Kaswan dated Aug. 1, 2003 ("Kaswan Aff."), ¶ 45) (emphasis added). She also requested at the September 23 meeting that the DOI conduct a second audit of Housing Works (Kaswan Aff., ¶¶ 38-39); this suggests that no final decision would have been made until the results of that audit were received. At least one defendant, DASIS's Contracting Officer Mr. Dereszewski, recalls the date of termination as October 22, 1997. (Pl. Exh. 54 (Dereszewski Dep. 1998) at 76). October 22, of course, is also the date when the HRA issued its press release confirming its termination of the plaintiff's contracts. (Def. Exh. 121).
Moreover, even assuming that the termination decision was made before October 22, 1997, Housing Works has presented facts showing that it engaged in protected activities in late 1997. For instance, while the plaintiff acknowledges that it did not organize demonstrations between March and October 22, 1997 (Pl. 56.1(b) Statement, ¶ 106), it points out that its Hernandez v. Barrios-Paoli lawsuit was filed in August 1997. (Pl. 56.1(b) Statement, ¶ 116; Def. 56.1 Statement, ¶ 442). The plaintiff also continued to litigate the Henrietta v. Giuliani case in 1997, as the depositions of DASIS Commissioner Mr. Caldwell and of Ronald Johnson, former head of the Mayor's Office for AIDS Policy, were taken in June 1997. (Pl. 56.1(b) Statement, ¶¶ 109-10; King Decl., ¶¶ 110-11). On September 18, 1997, the plaintiff held a press conference to criticize the City's refusal to comply with the newly enacted Local Law No. 49, which codified the existence of DASIS. (King Decl., ¶ 124). Finally, the plaintiff continued to disseminate its "AIDS Issues Update" publication, which contained critical pieces concerning the Giuliani administration. (Pl. 56.1(b) Statement, ¶¶ 115-18; Pl. Exh. 1). While it must still be determined whether any of the individual defendants were aware of these various activities, see Nassau, 106 F. Supp. 2d at 437 (retaliation shown where defendants "are aware" of protected conduct and adverse action "closely follows"), the above facts at least present a dispute of fact as to whether such protected conduct occurred in 1997.
In challenging causation on the HRA contract termination claim, the defendants also contend that Ms. Kaswan, the official who they allege made the decision to terminate the scattered site contract, did not have knowledge of protected activities prior to the October 22 demonstration. (Def. Memo. at 23, 26). They further assert that Mayor Giuliani, Deputy Mayor Mastro, Ms. Barkan, HRA Commissioners Barrios-Paoli and Turner, Mr. Bonamarte, DOH Commissioner Cohen, and Mr. Capoziello lacked such knowledge. (Def. Memo. at 26). These defendants will be discussed in relation to the adverse action with which they are charged.
As to the HRA contracts, the defendants' argument with respect to Ms. Kaswan is flawed because, as with the timing issue, it is based on the assumption that she decided to refuse the renewal of the scattered site contract in September, not October, 1997; as discussed above, this fact is in dispute. If the October 22, 1997 date is accepted at trial, the defendants' argument fails because Ms. Kaswan has admitted to having prior knowledge of the plaintiff's October 22 demonstration. (Kaswan Aff., ¶ 54). The plaintiff has also submitted Ms. Kaswan's own notes taken on October 20-21, 1997, indicating that the plaintiff's demonstration was imminent. In one notation, she writes that Mr. Bonamarte reported a "strong rumor that Housing Works will be marching on City Hall tomorrow." (Pl. Exh. 10 at 11).
Moreover, there is some evidence to suggest that Ms. Kaswan knew of the plaintiff's Hernandez v. Barrios-Paoli lawsuit on September 23, 1997, when she allegedly made her non-renewal decision; the Hernandez lawsuit was filed shortly before that date in August 1997. Specifically, Ms. Kaswan inquired whether Housing Works was involved in any litigation, and was told of a lawsuit relating to the "eligibility of a client for services." (Pl. Exh. 46 (Kaswan Dep.) at 45). It can be fairly inferred that this was a reference to the Hernandez lawsuit, which related to the same subject matter.
Based on the foregoing, the plaintiff's theory of causation based on timing can be submitted to the jury with regard to Ms. Kaswan, regardless of whether her decision is construed as having occurred on September 23 or October 22, 1997.*fn5
Contrary to the defendants' contentions, the issue of which City official made the decision to terminate the HRA contracts is also disputed. In her deposition, Ms. Barkan, Deputy Mayor Mastro's Chief of Staff, stated that the decision to refuse renewal of the plaintiff's scattered site contract was made "jointly" by her and Ms. Kaswan. (Pl. Exh. 56 (Barkan Dep.) at 50). She also affirmed that Deputy Mayor Mastro participated in making that decision. (Pl. Exh. 56 (Barkan Dep.) at 50).
While Ms. Barkan does not indicate the date on which she and Ms. Kaswan, with input from Deputy Mayor Mastro, allegedly made their decision, the actions of Ms. Barkan and Mr. Mastro can be assessed at least from October 22, 1997, when the HRA press release was issued. The press release provides documentary evidence that the plaintiff's contracts were terminated on that date, and since the defendants' position is that Ms. Kaswan made the non-renewal decision "without any consultation with, or direction from, [Mr. Mastro and Ms. Barkan]" (Def. Memo. at 23), no alternative date is proffered by the defendants.
With respect to knowledge, there is evidence to suggest that Mr. Mastro and Ms. Barkan knew of the plaintiff's October 22 demonstration. Specifically, Ms. Kaswan's notes from October 20 or 21, 1997 indicate, immediately after noting a "strong rumor" of the Housing Works protest, that Deputy Mayor Mastro had instructed Commissioner Barrios-Paoli to organize a report of everything that Housing Works "did wrong," and that Barrios-Paoli should be "prepared to respond on camera tomorrow." (Pl. Exh. 10 at 11). A fair inference can be drawn from these notes that Deputy Mayor Mastro and Commissioner Barrios-Paoli, aside from announcing the City's termination decision, were preparing to defend themselves against an attack by Housing Works, i.e., through its planned demonstration. As Deputy Mayor Mastro's Chief of Staff, Ms. Barkan can reasonably be said to have shared this knowledge.
Accordingly, the plaintiff's theory of causation based on the close timing of Deputy Mayor Mastro's and Ms. Barkan's actions with the plaintiff's October 22 demonstration should be submitted to the jury.
In her deposition, HRA Commissioner Barrios-Paoli answered, "yes," when asked, "It was your decision, wasn't it, and no one else's, ultimately, to decide whether or not to pull Housing Works' request for scattered site extension and to state that you were not going to enter into any new contracts with Housing Works?" (Pl. Exh. 55 (Barrios-Paoli Dep.) at 71). As with Mr. Mastro and Ms. Barkan, Commissioner Barrios-Paoli's actions can be assessed as of October 22, 1997, since the HRA press release was issued on that date and the defendants have not proffered any alternative dates. As discussed above, Ms. Kaswan's notes from October 20 or 21 specifically mention Ms. Barrios-Paoli and are suggestive of her knowledge of the plaintiff's October 22 protest. These facts are sufficient to support the plaintiff's theory of causation based on timing.
Additionally, a review of Commissioner Barrios-Paoli's affidavit suggests that her actions were taken in close proximity to other protected conduct by Housing Works in late October 1997.
Specifically, she states that until October 16, 1997, HRA had taken a "wait and see" attitude with respect to Housing Works, but that on that date, she received a letter from Mr. King stating that Housing Works would suspend its scattered site program in November 1997 unless the HRA executed a contract with it. (Affidavit of Lilliam Barrios-Paoli dated Aug. 12, 2003 ("Barrios-Paoli Aff."), ¶¶ 29-30). She states that she subsequently held a meeting with her staff, who agreed that she should "send a letter to Housing Works advising it that HRA would not extend the scattered site contract." (Barrios-Paoli Aff., ¶ 30).
These statements strongly suggest that Ms. Barrios-Paoli's decision, at least with respect to the scattered site contract, was made in response to the plaintiff's October 16 letter. A review of that letter indicates that aside from purportedly threatening to suspend its services, Housing Works also notified Commissioner Barrios-Paoli of its Notice of Claim with the City; the letter states: "[We] are writing to advise you that today Housing Works filed the attached notice of claim with the Controller of New York City for damages resulting from HRA's continued refusal to reimburse Housing Works for expenses incurred[.]" (Def. Exh. 118). As the plaintiff's notice of claim would qualify as protected conduct under the First Amendment, see White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir. 1993) (acknowledging a "petition [to] the government for a redress of grievances" as First Amendment activity), the temporal proximity between its letter and Commissioner Barrios-Paoli's termination decision could also constitute circumstantial evidence of retaliation. This issue should be submitted to a jury.
Mayor Giuliani denies both that he was involved in the decision to terminate the plaintiff's contracts, and that he had knowledge of Housing Works' October 22 demonstration. (Affidavit of Rudolph Giuliani dated Aug. 26, 2003 ("Giuliani Aff."), ¶¶ 18, 33-35).
To satisfy the "personal involvement" requirement under § 1983, the plaintiff must show that Mayor Giuliani: "(i) personally participated in the alleged constitutional violation, (ii) was grossly negligent in supervising subordinates who committed the wrongful acts, or (iii) exhibited deliberate indifference to the rights of the plaintiff by failing to act on information indicating that unconstitutional acts were occurring." Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001). A supervisory official may be personally liable if he has "actual or constructive notice of unconstitutional practices and demonstrates gross negligence or deliberate indifference by failing to act." Morris v. Eversley, 282 F. Supp. 2d 196, 203 (S.D.N.Y. 2003) (quoting Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989)).
The plaintiff's evidence with respect to Mayor Giuliani's personal participation appears to be based primarily on his affiliation with the officials who testified that they participated in the HRA contract termination. For instance, Deputy Mayor Mastro, Ms. Barkan, and Ms. Kaswan were senior officials in the Giuliani administration. In his affidavit, Mayor Giuliani concedes that Deputy Mayor Mastro was "in regular contact" with him, and that he was advised "at some point" by Deputy Mayor Mastro about the contract issues concerning Housing Works. (Giuliani Aff., ¶ 13). The plaintiff also alleges that Mayor Giuliani held senior staff meetings at 8:00 a.m. daily, and that all deputy mayors attended those meetings. (Pl. 56.1(b) Statement, ¶ 149; Pl. Exh. 61 (Mastro Dep.) at 22).
However, these facts, which merely show that Mayor Giuliani was in contact with the officials who made the contract termination decision, are insufficient to suggest that Mayor Giuliani himself participated in that decision. Mayor Giuliani has denied such involvement, stating that he "generally delegated review of contract matters to others within my Administration." (Giuliani Aff., ¶ 33). The plaintiff fails to refute this statement other than to state in conclusory fashion that the "cast of characters" involved in the contract termination decision included Mayor Giuliani. (Pl. 56.1 Statement, ¶ 199).
The plaintiff's facts, however, may be sufficient on a theory of supervisory liability. Mayor Giuliani acknowledges that he was made aware of Housing Works' contract issues by Deputy Mayor Mastro. (Giuliani Aff., ¶ 13). There is also evidence that he knew of the history of animosity between Housing Works and former Deputy Mayor Reiter. For instance, three City officials testified in their depositions that they witnessed Deputy Mayor Reiter become angry when her face was depicted on Housing Works' posters with the label, "AIDS Criminal." (Pl. Exh. 49 (Klasfeld Dep.) at 119-21, 122; Pl. Exh. 60 (Johnson Dep.) at 97-99; Pl. Exh. 62 (Fisher Dep.) at 128-30, 134). Deputy Mayor Mastro testified that he was "sure" that Mayor Giuliani was made aware of that incident because it involved "security issues about [Reiter's] personal safety." (Pl. Exh. 61 (Mastro Dep.) at 199). There is also evidence that Deputy Mayor Reiter kept in regular contact with Mr. Klasfeld, her former Chief of Staff and later Assistant to Deputy Mayor ...