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Blackman v. New York City Transit Authority

September 13, 2006

CARLOS BLACKMAN, ET AL., PLAINTIFFS,
v.
NEW YORK CITY TRANSIT AUTHORITY, DEFENDANT.



The opinion of the court was delivered by: Gold, S., United States Magistrate Judge

MEMORANDUM AND ORDER

Introduction

On May 10, 2004, plaintiffs Carlos Blackman, Mark Winslow, Robert Davenport, Joseph Semien, Luis Santana and Roger Toussaint, as President of the Transport Works Union, Local 100 (the "TWU" or "Local 100"), commenced this action against defendant New York City Transit Authority (the "NYCTA" or the "Transit Authority"), alleging a violation of plaintiffs' First Amendment rights. Pursuant to a Stipulation of Partial Dismissal, dated January 5, 2005, plaintiffs Winslow, Davenport, Semien, Santana and Toussaint dismissed their pending claims with prejudice, leaving Blackman as the only plaintiff. Docket Entry 11.

In the only remaining cause of action, Blackman, who was formerly employed by the NYCTA as a Subway Car Inspector, alleges that the NYCTA wrongfully terminated his employment in retaliation for his exercise of his First Amendment right to free speech. Docket Entry 1, Complaint ("Compl.") ¶ 11. Blackman is seeking (1) a permanent injunction enjoining the NYCTA from taking any further disciplinary actions against him and voiding his termination; (2) a judgment against the NYCTA in the amount of the wages and benefits Blackman lost as a result of his discharge; and (3) reimbursement of Blackman's attorneys' fees and costs.*fn1 Compl. at 5-6.

Defendant now moves for summary judgment, asserting that the NYCTA's decision to terminate Blackman's employment did not violate the First Amendment. Defendant acknowledges that Blackman was fired because of the statements he made. Defendant argues, however, that (1) the only statement at issue did not address a matter of public concern and was therefore not protected by the First Amendment and (2) even if Blackman's statement did in fact address a matter of public concern, his right to free speech was outweighed by the NYCTA's interest in maintaining a safe, orderly, productive and respectful working environment. Docket Entry 15, Defendant's Memorandum of Law in Support of Defendant's Motion for Summary Judgment ("Def.'s Mem.") at 1-2, 6-8, 13-15. Blackman opposes defendant's motion, arguing that (1) Blackman's statement did address a matter of public concern and (2) Blackman's right to free speech outweighed the NYCTA's interest in suppressing the speech or, at a minimum, this balancing test raises a genuine issue of material fact for trial. Docket Entry 19, Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp.") at 1, 3-8, 9-14.

The parties have consented to have the undersigned decide defendant's motion for summary judgment. Minute Entry for Feb. 11, 2005; Declaration of Richard Schoolman ¶ 2, Docket Entry 17. Having considered the submissions of the parties, defendant's motion for summary judgment is granted.

Facts*fn2

During 2003 and 2004, Blackman, a fifteen-year veteran of the NYCTA, was employed as a Subway Car Inspector and assigned to the 240th Street Car Equipment Maintenance Shop (the "240th Street Shop"). Bennett Decl., Ex. 1 at 3. The 240th Street Shop is where subway cars are "cleaned, inspected, maintained, and repaired," and entry is limited to employees and other individuals transacting business with the NYCTA. Bennett Decl. ¶ 2. Beginning in 2003, Blackman also served as Local 100's Chairman of the 240th Street Shop, an elected union position. Bennett Decl., Ex. 1 at 3. Local 100 represents various employees of the NYCTA for purposes of collective bargaining. Bennett Decl. ¶¶ 1, 3.

A. Blackman's December 4, 2003 Statement

On December 4, 2003, Blackman approached his Maintenance Supervisor I, Pablo Perez, to express his concern that the hydraulic jacks which Blackman and two other employees were preparing to use to jack up a subway car were unsafe. Bennett Decl., Ex. 1 at 3-4. After Perez and his immediate manager examined the jacks and concluded that the equipment was safe, Blackman refused to use the hydraulic jacks and was eventually taken off the clock. Bennett Decl., Ex. 1 at 4-5.

Perez then asked Blackman to leave the work area. In response, Blackman stated, "I may lose a couple of hours, but you will lose a lot more than that." Bennett Decl., Ex. 1 at 5. Blackman remained in the work area and, after Perez repeatedly asked Blackman to leave, Blackman responded, "Call the cops on me, go ahead and call the cops. . . . I wish that some day I'll read in the newspaper that something bad has happened to you and also to your kids." Id. at 5-6. When Perez again asked Blackman to leave the work area, Blackman stated, "I am not leaving; I have a TA pass, a Union card and a .38 and I'll call my brother." Id. at 6.

Perez was "upset" and "frightened" by Blackman's statements. Bennett Decl., Ex. 1 at 6. Based upon Blackman's remarks, the NYCTA prepared and filed a Disciplinary Action Notice ("DAN") against Blackman.*fn3 Bennett Decl. ¶ 4. The NYCTA recommended that Blackman receive a 30-day suspension for his statements and conduct on December 4, 2003. Bennett Decl., Ex. 1 at 2. On Blackman's behalf, Local 100 objected to the DAN and pursued the grievance process outlined in the CBA.*fn4 Bennett Decl. ¶ 4. Although two employee witnesses testified at the arbitration hearing that they did not hear Blackman's threatening statements, the arbitrator ultimately concluded that Blackman made the alleged statements. Bennett Decl., Ex. 1 at 15-16.

B. Blackman's March 1, 2004 Statement

Blackman made a second statement on March 1, 2004. The statement was made during a discussion about the fatal shooting of two NYCTA supervisors. According to the Kings County Office of the District Attorney, on February 27, 2004, Darryl Dinkins, who had recently been fired from his position with the NYCTA as a Car Cleaner, shot and killed two of his former Maintenance Supervisor I's involved in his dismissal. Bennett Decl. ΒΆ 4. Dinkins had been terminated for playing ...


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