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DeFilippo v. Carey

March 27, 2006


The opinion of the court was delivered by: Garaufis, District Judge.



Before the court are cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 brought by the Plaintiff in this action, Gary DeFilippo ("Plaintiff"), and by the Defendants (collectively "Defendants"), the Honorable Joan B. Carey, Deputy Chief Administrative Judge of the New York City Courts ("Carey"), Patrick Russo ("Russo"), Erin Corcoran ("Corcoran"), and Robert Singer ("Singer"). The Plaintiff, who is pro se but a licensed and practicing attorney, has brought suit against the Defendants pursuant to 42 U.S.C. § 1983 alleging violations of his rights under the First and Fourteenth Amendments, specifically that the Defendants retaliated against him for speaking out against fellow employees of the New York State Unified Court System.

For the reasons set forth below, the Plaintiff's motion for summary judgment is denied in its entirety, and the Defendants' motion for summary judgment is granted in full.

I. Factual Background

A. The Parties Briefings on the Cross-Motions for Summary Judgment

Before turning to the material facts underlying this action and the pending motions, I find it helpful to outline the motion papers filed in support of and in opposition to the motions as the submissions have been voluminous, and in some instances, contested.

On June 3, 2005, the Plaintiff and the Defendants cross-moved for summary judgment. In support of their motion, the Defendants submitted via ECF a statement pursuant to EDNY Local Rule 56.1 (Defs.' Rule 56.1 Stmt.),*fn1 declarations of each defendant, an affirmation of defense counsel, Constantine A. Speres, with accompanying exhibits A through XX ("Defs.' Exs."), and Defendants' Memorandum of Law in Support of their Motion for Summary Judgment ("Defs.' Mem."). (See Docket Entry Nos. 104, 105, 106, 107).

The Plaintiff, on that same date, submitted via ECF a Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment ("Pl.'s Mem.") and an Affirmation in Support of Plaintiff's Motion for Summary Judgment ("Pl.'s Aff."), accompanied in hard copy by Plaintiff's Exhibits A through G. (See Docket Entry No. 103, 108). Notably, the Plaintiff did not submit a Statement Pursuant to Rule 56.1 to support his motion for summary judgment as is required by Local Civil Rule 56.1.*fn2

On July 22, 2005, the parties submitted responses to the cross-motions. The Plaintiff filed via ECF a Memorandum of Law in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Resp."), a Declaration of Plaintiff submitted both in support of Plaintiff's motion and in opposition to Defendants' motion ("Pl.'s Decl."), and in hard copy supplemental exhibits 1-8.*fn3 (See Docket Entry Nos. 120, 121, 122, 125). The Defendants submitted a Memorandum of Law in Opposition to Plaintiff's Cross-Motion for Summary Judgment and in Further Support of their Motion for Summary Judgment ("Defs.' Resp."), and several supplementary exhibits. (See Docket Entry Nos. 123, 124). In their responsive Memorandum of Law, the Defendants drew the court's (and the Plaintiff's) attention to the fact that Plaintiff had failed to file a Rule 56.1 Statement with his motion for summary judgment in violation of the local rule. Defendants argued that the Plaintiff's motion was procedurally defective and therefore should be summarily denied. (See Defs.' Resp. at 2-3).

On July 27, 2005, the Plaintiff ECF filed an 89-paragraph Statement Pursuant to Rule 56.1 ("Pl.'s 56.1 Stmt."). (See Docket Entry No. 127). The document is dated June 3, 2005. (Id.). In a series of letters to the court which followed, the Plaintiff and Defendants' counsel debated whether the Plaintiff had merely inadvertently failed to ECF file his Rule 56.1 Statement on June 3, 2005, as Plaintiff claims, or whether he had created the document in July after the Defendants served their response to Plaintiff's motion, as Defendants maintain. (See Docket such a statement may constitute grounds for denial of the motion. Entry Nos. 130, 131, 132, 133). By Order dated August 3, 2005, this court denied Defendants' motion to strike the Plaintiff's Rule 56.1 Statement.

On August 12, 2005, the parties submitted their final replies to the cross-motions. The Plaintiff submitted additional exhibits numbered 9-14, and a Memorandum of Law in Reply and in Further Support of Plaintiff's Motion for Summary Judgment ("Pl.'s Reply"). (See Docket Entry Nos. 137, 138, 143). Defendants submitted a further affirmation from defense counsel, which again challenged the Plaintiff's Rule 56.1 Statement, Defendants' Reply Memorandum of Law in Further Support of their Motion for Summary Judgment ("Defs.' Reply), and Defendants' Counter-Statement Pursuant to Local Rule 56.1(b) ("Defs.' 56.1 Ctr-Stmt."). (See Docket Entry Nos. 139, 140, 141). The above-mentioned papers represent the universe of argument and evidence considered on these cross-motions.

I will now briefly address the issue of Plaintiff's Rule 56.1 Statement and his alleged failure to comply with the EDNY local rules governing summary judgment motions. I note at the outset that Plaintiff is a pro se litigant in that he is not represented by independent counsel. In general, a pro se litigant is entitled to a certain amount of latitude in his pleadings and motion practice. Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) ("It is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read 'to raise the strongest arguments that they suggest.'") (citing Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996)). That a plaintiff is pro se, however, "does not allow him to rely on conclusory allegations or unsubstantiated speculation to overcome a motion for summary judgment." Almonte v. Florio, No. 02 Civ. 6722, 2004 WL 60306, at *3 n.10 (S.D.N.Y. Jan. 13, 2004).

Moreover, in the present case, the Plaintiff is not a traditional pro se litigant because he is a practicing attorney himself. All of the Plaintiff's correspondence with opposing counsel and the court is on stationary which reads "Law Offices of Gary R. DeFilippo, Esq." at the top. As a licensed attorney, the Plaintiff is not entitled to the latitude typically afforded to a pro se litigant. See Levine v. McCabe, 357 F.Supp.2d 608, 613 -614 (E.D.N.Y. 2005) ("practicing attorneys who choose to represent themselves cannot claim the special considerations normally afforded to pro se litigants") (citing Harbulak v. Suffolk Cty, 654 F.2d 194, 198 (2d Cir.1981)); see also Robert v. Dep't of Justice, No. 99-CV-3649, 2001 WL 34077473, at *1 (E.D.N.Y. Mar. 22, 2001) ("plaintiff is an attorney licensed to practice law and therefore is not entitled to special treatment").

The Defendants claim that the Plaintiff violated Local Rule 56.1(a) by his failure to submit a Rule 56.1 Statement of Material Facts at the time his motion was noticed. I have already denied the Defendants' motion to strike Plaintiff's untimely filed Rule 56.1 Statement, and I adhere to that ruling today. I will assume that Plaintiff inadvertently failed to timely file the document and credit his explanation as to the conflicting dates of submission, and I will consider Plaintiff's Rule 56.1 Statement in deciding the Plaintiff's cross-motion.

Although I find that Plaintiff has not violated subsection (a) of Rule 56.1, he has nonetheless failed to comply with other subsections of the Rule, which state:

(b) The papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.

(d) Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e).

In response to the Defendants' Rule 56.1 Statement, the Plaintiff failed to submit a Counter-Statement of Material Facts, which violates Rule 56.1(b) and permits the court to deem the facts submitted by the moving party in its 56.1 Statement as "admitted for the purposes of the [Defendants'] motion" because they have not been "specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." Local Civil Rule 56.1(c). Of course, in light of the fact that there are cross-motions for summary judgment before the court, the absence of a counter-statement of material facts by one party is significantly less problematic in terms of culling the facts that the parties deem material and not in dispute.

Additionally, in Plaintiff's Rule 56.1 Statement in support of his cross-motion for summary judgment, many of the numbered paragraphs are not followed by citations to admissible evidence as is required by Local Rule 56.1(d); these proffered facts will not be considered. See Gallimore-Wright v. Long Island R.R. Co., 354 F. Supp. 2d 478, 483 (S.D.N.Y. 2005). To the extent that the Plaintiff has put forward statements of material fact supported by citation to admissible evidence in the record, I will consider whether there are triable issues arising from those facts in accordance with the summary judgment standard. To the extent that the Plaintiff has failed to controvert material facts put forward by the Defendants in compliance with the local rule, those facts -- but not the conclusions defendants draw therefrom -- will be deemed admitted for purposes of the Defendants' motion. Onanuga v. Pfizer, Inc., 369 F. Supp. 2d 491, 493 n.1 (S.D.N.Y. 2005) (citing Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 72 (2d Cir. 2001)).

I also note for the record, and will reference infra, that the Plaintiff has inappropriately presented argument in his statement of facts. Furthermore, in his memoranda of law submitted both in support of his motion and in opposition to the Defendants' motion, the Plaintiff has raised facts that he did not offer in his Rule 56.1 Statement or his affirmations. Many, if not all, of these facts are also unsupported in the record, and in any event, not properly presented to the court for consideration on a motion for summary judgment.

B. Plaintiff's Employment History

The following relevant facts have been offered for the court's consideration, many of which are in dispute. The Plaintiff is a former employee of the New York State Unified Court System ("UCS"), who was hired by UCS in 1990 and employed as a Senior Court Officer ("SCO") in Supreme Court, Kings County beginning in 1994. (See Pl.'s Decl. ¶¶ 2, 3). Defendant Carey serves as the Deputy Chief Administrative Judge of the New York City Courts for UCS. (Carey Decl. ¶ 2). In that role, she is responsible for supervising the day-to-day operations of all New York City courts. Her duties include assigning judges and other support personnel to courts, overseeing disciplinary actions brought against UCS employees, and implementing the rules, regulations and procedures of the Chief Judge of the State of New York and the Chief Administrative Judge of the New York State Courts. (Id. ¶ 4). The other defendants are employees and former employees of UCS, all of whom were employed at the time the alleged cause of action arose: Russo served as a SCO Major in Supreme Court Kings County; Corcoran and Singer both served as SCO Sergeants in Supreme Court Kings County. (See Russo Decl. ¶ 2; Corcoran Decl. ¶ 2; Singer Decl. ¶ 2).

The Plaintiff was promoted from Uniform Court Officer to Senior Court Officer in November 1994, at which time he was transferred to Supreme Court Kings County, where the defendants worked. (Defs.' Ex. C). In approximately February 1995, the Plaintiff was assigned a "special security post" within the offices of the Supreme Court Kings County Court Reporters. (Pl.'s Decl. ¶ 5). The Plaintiff declares that he was assigned to this position because of "the large number of break-ins, thefts and other security problems at that location" which he states were believed to have been perpetrated by employees or other persons with knowledge of the courthouse's security procedures. (See Pl.'s Decl. ¶¶ 5-7). The Plaintiff offers no admissible evidence, beyond his statement, to support the fact that he was assigned to this special position or the fact that there was a security problem at the courthouse at this time.

On November 3, 1995, or a date close to it, the Plaintiff was counseled by Russo concerning an incident which had occurred on the morning of November 1, 1995 during which the Plaintiff was involved in a verbal and physical altercation with another SCO by the name of Edward Zottarelli. (Defs. Ex. D; Russo Decl. ¶ 6). The Plaintiff attests that Zottarelli approached him in a "hostile and threatening manner" at the behest of SCO Richard Glock, who "precipated the confrontation as part of some 'sick' prank to cause a confrontation between Plaintiff and Zotarelli." (Pl.'s Decl. ¶¶ 9-10). In an Evaluative Statement of Work Performance and/or Conduct prepared by Russo in connection with the counseling, the Plaintiff was warned that "should this type of behavior continue on your part, I will not hesitate to have strict disciplinary action taken by either transferring you to another command or referring you to the Deputy Chief Judge for the City of New York for stipulations." (Defs.' Ex. D).

Approximately one month later, on December 11, 2005,*fn4 the Plaintiff was involved in a situation at the courthouse at 360 Adams Street, Brooklyn, concerning a stalled elevator. On that morning, the Plaintiff was operating a manual elevator when it stalled approximately two to four feet off the second floor lobby. (Corcoran Decl. ¶ 5; Pl.'s Decl. ¶ 22). Corcoran attests that when she arrived at the scene she instructed the Plaintiff to assist the passengers off the elevator. She declares that Plaintiff refused to comply with her order and shouted out loud at Corcoran "don't give me fucking orders." (Id. ¶¶ 6, 7). Corcoran submitted a Supervisors Complaint Report to Russo after the incident occurred, which stated that Plaintiff failed to comply with a directive given by Corcoran and yelled profanities at her in public. (Defs.' Ex. E; see also Pl.'s Decl. ¶ 22).

Nowhere in the Plaintiff's Rule 56.1 Statement, his Declaration or his Affirmation does the Plaintiff draw the court's attention to admissible evidence that disputes the facts offered by Corcoran regarding the elevator incident. In his Amended Complaint, the Plaintiff alleges that when the elevator malfunctioned he radioed a Sergeant Dave Costanzo to seek guidance in how to proceed, consistent with his elevator operating training and elevator emergency procedure training. (Am. Compl. ¶ 15). The Plaintiff claims Costanzo advised him to remain in the elevator, and that when Corcoran approached he explained to her that her directions contradicted Costanzo's and his own knowledge from emergency training. (See id. ¶¶ 18-21). This version of events, however, is not in the record in admissible form, and therefore will not be considered on the Plaintiff's motion for summary judgment or in opposition to Defendants' motion for summary judgment. And, even if I were to determine that a triable issue of fact exists as to what occurred with regard to this elevator incident, the facts are nonetheless immaterial to the finding of whether Plaintiff or Defendants are entitled to judgment as a matter of law in this case.

Upon Russo's request, an investigation into Corcoran's allegations was undertaken by SCO Lieutenant W. Berwick, who interviewed six witnesses to the incident. (Russo Decl. ¶ 12). In a memorandum dated December 12, 2005 written by Berwick to Russo, the following investigative results were presented: SCO Sergeant Ray Butler heard the Plaintiff say to Corcoran "Don't give me any (fucking) orders" in a loud voice; SCO Sergeant Dave Costanzo did not hear any words spoken between the parties; SCO Karen Boyd-Gillen reported that both parties were speaking loudly and the Plaintiff said "Don't give me any (fucking) orders"; SCO Pat DeVito heard no argument; and two court reporters who had been on the elevator stated that the Plaintiff acted in a "courteous and professional manner" while on the elevator and that they did not know of an incident between Plaintiff and Corcoran. (See Defs.' Ex. F). On December 12, 2005, Russo gave the Plaintiff a verbal reprimand for disobeying Corcoran's order the previous day. (Russo Decl. ¶ 14).

A second incident between the Plaintiff and Corcoran occurred on January 31, 1996. On that date, Corcoran asked the Plaintiff to answer a ringing telephone located at the main desk in the courthouse lobby at 360 Adams. (Corcoran Decl. ¶ 9). According to Corcoran, the Plaintiff refused to answer the phone, indicating that the main desk was not his post and that the phone was not his responsibility. (Id.). Corcoran directed the Plaintiff to return to his post, at which point the Plaintiff stated "I'm warning you not to give me orders." (Id.). Again, Corcoran submitted a Supervisor's Complaint Report to Russo detailing the incident. (Defs.' Ex. G). Russo directed SCO Captain Sanford Finkelstein to investigate; Finkelstein interviewed Corcoran and two other SCOs who witnessed the incident. (Russo Decl. ¶ 16; Defs.' Ex. H). Finkelstein reported by handwritten note to Russo that SCO Sergeant Mahoney stated that Corcoran's voice when she spoke with the Plaintiff was "normal," and that SCO Sergeant Divila stated that her voice was "somewhat raised." (Defs.' Ex. H). Mahoney also prepared a handwritten report for Finkelstein, which stated that he overheard a conversation between Corcoran and Plaintiff "in which Sgt. Corcoran asked SCO DeFilippo to answer a ringing phone, to which Off. DeFilippo replied in essence that it wasn't his post." (Id.).

Once again, the Plaintiff does not offer factual assertions with citation to admissible evidence that challenge the version of events offered by the Defendants with regard to the ringing phone incident.

On February 8, 1996, Russo notified Chief Clerk Gabriel J. Plumer in writing of the incidents that had occurred between Corcoran and the Plaintiff. Russo attached to his memorandum the reports filed concerning the previous incidents. (Russo Decl. ¶ 17; Defs.' Ex. I). In the memorandum, Russo explained that the Plaintiff requested that his matter be forwarded to the Office of the Inspector General for further investigation. (Defs.' Ex. I). Russo advised Plumer that he did not think investigation by the Inspector General's office was warranted as he found that the Plaintiff was "insubordinate to Sgt. Corcoran on two separate occations [sic]." (Id.).

Another incident took place on February 29, 1996. Again, the parties' recollections of the event differ. According to Corcoran, at approximately 8:30 a.m., she noted that the Plaintiff was not at his assigned post. (Corcoran Decl. ¶ 10). About twenty minutes later, she saw the Plaintiff in the lobby of the courthouse and asked him if he was assigned to the Johnson Street Entrance, to which the Plaintiff responded in the negative. (Id. ¶ 11). Corcoran asked who was assigned to that entrance, and attests that Plaintiff responded, "don't ask" and walked away. (Id. ¶ 12). Corcoran attempted to contact the Plaintiff via portable radio, but did not receive a response. (Id. ¶ 13).

The Plaintiff explains that at approximately 8:52 a.m. on the date in question, Corcoran entered the courthouse and accused the Plaintiff of not being at his assigned position earlier at the Johnson Street security post. (Pl.'s Decl. ¶ 32). According to the Plaintiff, Corcoran yelled across the lobby to the Plaintiff questioning about why he was not at the Johnson Street post. (Id.). The Plaintiff responded, "ask Lieutenant Hurley, he gives me my assignments." (Id.). The Plaintiff then continued on his way to his next assignment post in the County Clerk's Office. (Id.).

Corcoran's version of the incident was detailed in a third Supervisor's Complaint Report filed by SCO Sergeant Raymond Butler dated February 29, 1996. (See Defs.' Ex. J). The incident was investigated by Captain Finkelstein, who spoke with Sergeant Mahoney and SCO Raymond Wolff about the occurrence. (Russo Decl. ΒΆΒΆ 23, 24). Finkelstein reported the following to ...

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