The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
On May 7, 2003 Plaintiff Louis J. Perfetto, Jr. ("Perfetto") filed this lawsuit against his former employer, the Erie County Water Authority ("the ECWA"), in which he alleges that the ECWA violated his Due Process rights as secured by the Fifth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §1983, violated §75-b of the New York Civil Service Law and §740 of the New York Labor Law and breached a contract it had made with him and intentionally inflicted emotional distress upon him when it retaliated against him because he informed members of the ECWA that other employees were allegedly committing improper acts. Pending before the Court are ECWA's Motion for Summary Judgment as well as Perfetto's Motion for Partial Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). Each party asserts that there exist no genuine issues of material fact and that each is entitled to judgment as a matter of law.
Perfetto began his employment with the ECWA as a meter service worker in July 1997. Thereafter he became active in the union and, at the time of the relevant events, was the chief union steward of Local 930, AFSCME, ("the Union"). In August 2000, Perfetto was brought up on various disciplinary charges which are unrelated to the instant lawsuit. On November 9, 2000 Perfetto allegedly met with James Lisinski ("Lisinski")*fn3, the Coordinator of Employee Relations for the ECWA, and advised him of several events which Perfetto contends were instances of improper conduct at ECWA including, inter alia, a plot to terminate the employment of ECWA employee Annette Juncewicz in retaliation for her husband's political activity and an alleged decision by Robert A. Mendez ("Mendez"), the Executive Director of the ECWA, to install at the ECWA's expense a water main servicing certain private property to be developed in Lackawanna.*fn4 Perfetto also allegedly informed Lisinski that Clarence Lott ("Lott"), the EEO Officer for ECWA, had conducted political activities on ECWA time and had used the ECWA computer equipment to visit inappropriate internet websites. On November 27, 2000 Perfetto met with Lott and allegedly advised him of the plot to terminate Ms. Juncewicz, Mendez's conduct with respect to the water main, as well as improper conduct by Lisinski, - specifically, that Lisinski had improperly received full tuition reimbursement from the ECWA for classes in which Lisinski had not achieved the required grade necessary to be eligible for such reimbursement.
On December 12, 2000 Perfetto and the ECWA entered into an agreement resolving the August 2000 disciplinary charges ("the Agreement"). Under the terms of the Agreement, Perfetto served a one-week suspension in January 2001 and, in exchange, the ECWA agreed not to sanction Perfetto for any alleged misconduct that may have occurred prior to December 12, 2000.
On May 7, 2001 the ECWA filed disciplinary charges against Perfetto alleging that, because he failed to provide documentation of his appearance before a Grand Jury on November 1, 2000, he was absent from work without authorization on November 1, 2000. Perfetto was also charged with failing to provide documentation of his Grand Jury appearance when again requested to do so in March 2001. The disciplinary charges were amended on May 31, 2001 and amended a second time on June 12, 2001 to add a third charge of falsifying sick time.
Pursuant to the collective bargaining agreement between the Union and the ECWA and Article 75 of New York State Civil Service Law, the disciplinary charges were heard by an impartial Hearing Officer and, on September 28, 2001, the Hearing Officer recommended that the ECWA's charges be dismissed Specifically, the Hearing Officer concluded that the first two charges - relating to the documentation of Perfetto's Grand Jury appearance on November 1, 2000 - were precluded by the Agreement and that the evidence did not support the third charge regarding Perfetto's alleged misuse of sick leave. On November 14, 2001, despite the Hearing Officer's recommendation, the ECWA found Perfetto guilty of all three charges and imposed a 30-day suspension.
On May 11, 2001, Perfetto commenced an Article 78 proceeding in New York State Supreme Court, Erie County, which he amended in December 2001, alleging that the ECWA had acted arbitrarily and capriciously by finding him guilty of the disciplinary charges and that the ECWA had made such finding in retaliation for his whistleblowing activity. Perfetto's petition was transferred to the New York State Supreme Court, Appellate Division, Fourth Department, ("the Appellate Division") which, on October 1, 2002, annulled the ECWA's guilty determination, dismissed all disciplinary charges against Perfetto, reinstated Perfetto to his former position and awarded him lost wages and benefits. On August 8, 2002, while his Article 78 petition was pending before the Appellate Division, Perfetto resigned his employment with the ECWA. He thereafter commenced this action on May 7, 2003 in New York State Supreme Court, Erie County, and the ECWA removed the action to this Court on June 9, 2003.
Perfetto's first claim seeks the entry of judgment, reinstatement, back pay, lost benefits, and front pay based on the Appellate Division's ruling that the ECWA's finding of guilt was arbitrary and capricious. Perfetto's second claim seeks a determination that, by instituting and prosecuting the May 2001 disciplinary charges, the ECWA retaliated against him for his "whistleblowing" activity in violation of §75-b of the New York Civil Service Law. Perfetto's third claim asserts that, because the Appellate Division ruled that the ECWA breached the Agreement by instituting and prosecuting the May 2001 disciplinary charges, Perfetto is entitled to a return of his consideration for the Agreement - viz. the value of the one-week suspension he served. Perfetto's fourth, fifth and sixth claims for intentional infliction of emotional distress have been previously dismissed by the Court. Finally, Perfetto's seventh claim alleges that the ECWA's actions violated his Fifth and Fourteenth Amendment Due Process rights.
On April 5, 2005, both parties filed Motions for Summary Judgment. Perfetto seeks partial summary judgment on the grounds that: (1) the ECWA is collaterally estopped from arguing that it had a legitimate reason for disciplining him; (2) Perfetto was subjected to a continuing course of retaliatory conduct such that he is entitled to summary judgment on his retaliation claim under the First Amendment*fn5 and his due process claim under the Fourteenth Amendment; and (3) the ECWA breached the Agreement by attempting to discipline him for conduct occurring before December 13, 2000.
The ECWA seeks summary judgment on the grounds that: (1) the first and third claims are barred by the Rooker-Feldman doctrine*fn6 ; (2) Perfetto's second claim must be dismissed because he fails to satisfy the requirements for bringing a section 75-b claim; and (3) Perfetto's section 1983 claim must be dismissed because he failed to assert a deprivation of a federally protected right pursuant to an official policy or custom of Erie County and because, to the extent he did allege such a policy or custom, Perfetto cannot establish a due process violation because he received all the process due him.
A motion for summary judgment will be granted when "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." FRCvP 56(c). In determining whether genuine issues of material fact exist, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (internal citation omitted). However, to defeat a motion for summary judgment, the non-movant cannot simply rely on allegations in the pleadings that merely raise "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant must offer "concrete evidence from which a reasonable juror could return a verdict in [its] favor." Anderson, at 256.
"When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1223-24 (2d Cir. 1994). Upon a motion for summary judgment, the Court's role is limited to determining whether there exists any genuine issue of material fact requiring trial.
In his first and third claims, Perfetto seeks entry of judgment based on the conclusions reached by the Appellate Division in his Article 78 proceeding. Perfetto contends that, because the Appellate Division dismissed the disciplinary charges against him and concluded that the ECWA's institution of at least the first two disciplinary charges violated the Agreement, he is entitled to judgment awarding him back pay, front pay and, with respect to the breach of the Agreement, a return of the value of his one-week suspension.
In its Motion for Summary Judgment, ECWA argues that claims one and three must be dismissed because this Court lacks jurisdiction to enter judgments in accordance with decisions of New York State courts pursuant to the RookerFeldman doctrine. Perfetto did not respond to this argument.
1. Rooker-Feldman Doctrine
The Supreme Court recently further defined the contours of the Rooker- Feldman doctrine. In Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. - --, 125 S.Ct. 1517 (2005), the Supreme Court:
"confined [the application of the doctrine] to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments."
544 U.S. at - - -, 125 S.Ct. at 1521-22. The Second Circuit Court of Appeals in Hoblock v. Albany County Bd. of Elections, 422 F.3d 77 (2d Cir. 2005), further distilled the Supreme Court's instructions into four elements which must be satisfied in order to apply the Rooker-Feldman doctrine.
"First, the federal-court plaintiff must have lost in state court. Second, the plaintiff must complain of injuries caused by a state-court judgment. Third, the plaintiff must invite district court review and rejection of that judgment. Fourth, the state-court judgment must have been rendered before the district court proceedings commenced."
Hoblock, 422 F.3d at 85 (internal alterations and quotation marks omitted).
The Rooker-Feldman doctrine does not apply to the instant case. First, Perfetto is not a state-court loser. Perfetto prevailed on his claim before the Appellate Division and the ECWA was found to have acted arbitrarily and capriciously in disciplining Perfetto. Next, Perfetto's alleged injury - the violation of his rights and the accompanying damages - was not caused by the state-court judgment. On the contrary, the injury is alleged to have been caused by the ECWA's commencement of disciplinary charges and alleged retaliation - conduct which occurred prior to the commencement of the state-court action and accordingly, could not have been caused by a judgment rendered in that action. Finally, Perfetto's lawsuit does not seek review and rejection of the state-court judgment. To the contrary, Perfetto seeks an order entered in accordance with that judgment. Accordingly, Perfetto's lawsuit is not barred by the Rooker-Feldman doctrine.
Nevertheless, claims one and three must be dismissed for failure to state a claim. Other than alleging the facts surrounding the institution of the disciplinary charges and the Appellate Division's ruling, Perfetto has alleged no legal basis upon which to receive a judgment from this Court. In his Article 78 proceeding, Perfetto challenged the ECWA's determination of his disciplinary charges. Among other things, Perfetto argued that two of the three charges were precluded by the terms of the Agreement. The Appellate Division agreed, enforced the Agreement and dismissed the first two charges. With respect to the third charge, which was not precluded by the Agreement, the Appellate Division concluded that the ECWA's determination - which lacked specific findings justifying it - was arbitrary and capricious and the Appellate Division dismissed that charge. The Appellate Division ordered that Perfetto be reinstated and awarded back pay and benefits for the period of time for which he was suspended and Perfetto received all the relief available to him.
To the extent Perfetto seeks a return of his consideration for the Agreement in light of ECWA's breach thereof, Perfetto already received his remedy of specific performance. By dismissing the disciplinary charges that were based on Perfetto's conduct prior to December 12, 2000, the Appellate Division enforced the Agreement. Perfetto is not entitled to a return of his consideration. Finally, to the extent Perfetto seeks reinstatement and/or back pay from the time of his resignation in August 2002, no such relief can be awarded based on the Appellate Division's ruling because the necessity of Perfetto's resignation was not at issue before the Appellate Division and thus its ruling provides no basis for an award of that relief.
Accordingly, Perfetto's first and third claims will be dismissed for failure to state a claim upon which relief can be granted.
B. Claim Two -- Violation of New York Civil Service Law §75-b
The ECWA contends that this claim must be dismissed because the statute permits Perfetto to raise retaliation only as a defense to disciplinary charges and does not permit a separate claim for damages.*fn7 Perfetto makes no argument in opposition.
New York Civil Service Law §75-b(3)(c) provides: "Where an employee is not subject to any of the provisions of paragraph (a) or (b) of this subdivision, the employee may commence an action in a court of competent jurisdiction under the same terms and conditions as set forth in article twenty-C of the labor law."
The ECWA contends that Perfetto is subject to the provisions of §75-b(3)(a) and therefore cannot maintain an action under §75-b(3)(c). Section 75-b(3)(a) states:
"Where an employee is subject to dismissal or other disciplinary action under a final and binding arbitration provision, or other disciplinary procedure contained in a collectively negotiated agreement, or under section seventy-five of this title or any other provision of state or local law and the employee reasonably believes dismissal or other disciplinary action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a defense before the designated arbitrator or hearing officer. If there is a finding that the dismissal or other disciplinary action is based solely in a violation by the employer of such subdivision, the arbitrator or hearing officer shall dismiss or recommend dismissal of the disciplinary proceeding, as appropriate, and, if appropriate, reinstate the employee with back pay, and, in the case of an arbitration procedure, may take other appropriate action as is permitted in the collectively negotiated agreement."
Section 75-b(3)(a) applies to individuals subject to "other disciplinary procedure contained in a collectively negotiated agreement, or under section 75 of this title %%%." It is undisputed that Perfetto faced disciplinary charges pursuant to §75 of the Civil Service Law and that certain aspects of those proceedings were governed by the provisions of a collectively negotiated agreement. Accordingly, Perfetto is subject to the provisions of §75-b(3)(a) and may not pursue a private cause of action for retaliation pursuant to §75-b(3)(c). See e.g., Singh v. City of New York, 418 F. Supp.2d 390, 403 (S.D.N.Y. 2005); Taylor v. New York, 608 N.Y.S.2d 371, 377 (Ct. Claims 1994) (citing Governor Cuomo's Memorandum approving the bill adding §75-b to the Civil Service Law in ...