The opinion of the court was delivered by: John G. Koeltl, Usdj
This dispute arises from a public employee's claim that his employer terminated him in retaliation for his protected speech. The plaintiff, Ron Benvenisti, was employed as a computer operations manager by the City of New York (the "City") in its Department of Investigations ("DOI") from July 2001 until December 18, 2002, when he was terminated. Benvenisti commenced this action in March 2004 against the City and Elizabeth Glazer, the DOI Chief of Staff, contending that his alleged retaliatory discharge violated the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and the New York City Whistleblower Law, Administrative Code of the City of New York § 12-113 ("Whistleblower Law").*fn1
The defendants move for summary judgment, arguing that the plaintiff cannot satisfy the requisite elements of a First Amendment retaliation claim under Section 1983, cannot establish liability for the City and Glazer in her official capacity, and has no claim under the New York City Whistleblower Law because there is no private right of action under that statute. The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367.
For the reasons set forth below, the defendants' motion for summary judgment is granted.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998).
The following facts are undisputed unless otherwise noted. The plaintiff, Ron Benvenisti, was employed as a computer operations manager in the Citywide Informational Security Architecture Formulation Enforcement ("CISAFE") unit of DOI from July 2001 until December 18, 2002, when he was discharged. (Defendants' Local Civil Rule 56.1 Statement of Undisputed Facts ("Defs.' Stmt.") ¶¶ 1-2; Plaintiff's Counter-Statement Pursuant to Local Rule 56.1 ("Pl.'s Stmt.") ¶¶ 1-2; Compl. ¶ 9.) Although many of the facts preceding the plaintiff's discharge are undisputed, the parties fundamentally disagree about the ultimate reason for the plaintiff's discharge.
The plaintiff alleges that he was discharged because he complained about and eventually threatened to report formally a conflict of interest involving DOI's employment of Eli Khedouri, a nephew of DOI Chief of Staff Elizabeth Glazer. (See Compl. ¶ 26; Pl.'s Stmt. ¶¶ 4, 14, 26, 37, 38-39, 41-42, 45.)
As a computer operations manager, the plaintiff was responsible for managing the City's information security. (See Defs.' Stmt. ¶ 3; Pl.'s Stmt. ¶ 3; Ex. D to Aff. of Ron Benvenisti, May 5, 2006 ("Ben. Aff.").) His duties included managing engineers, analysts, consultants, and technical staff. (Id.) The plaintiff's performance evaluation, which the plaintiff signed on November 18, 2002, also evaluated the plaintiff on his "[p]resenting, explaining, and marketing the work unit's activities to higher level supervisors in the agency and/or persons and groups outside the agency." (Ex. D to Ben. Aff.)
One of the individuals that the plaintiff was responsible for supervising was Khedouri. (Defs.' Stmt. ¶ 4; Pl.'s Stmt. ¶ 4.) Khedouri was the nephew of the defendant Elizabeth Glazer. (Defs.' Stmt. ¶ 4; Pl.'s Stmt. ¶ 4; Decl. of Elizabeth Glazer, Oct. 28, 2005 ("Glazer Decl."), at 14.)
DOI first offered Khedouri a position as a volunteer intern in the CISAFE unit during the summer of 2002. (See Defs.' Stmt. ¶ 5; Pl.'s Stmt. ¶ 5.) Several weeks into the internship, DOI began considering Khedouri for a paid, full-time position. At the time, Benvenisti supported Khedouri for the position.*fn2 (See Defs.' Stmt. ¶ 5; Pl.'s Stmt. ¶ 5; Ex. C to Depo. of Ron Benvenisti, May 25, 2005 ("Ben. Depo. I"), attached as Ex. C to Decl. of Terri Feinstein Sasanow, Oct. 28, 2005 ("Sasanow Decl.").)
Before hiring Khedouri as a paid employee, DOI sought and received an official opinion from the City's Conflict of Interest Board ("COIB") to determine whether hiring Khedouri would violate any of the City's conflict rules because Khedouri was Glazer's nephew. (Defs.' Stmt. ¶ 6; Pl.'s Stmt. ¶ 6.) Based in part on the representation that Glazer would recuse herself from the day-to-day operations of CISAFE, the COIB advised DOI that hiring Khedouri would not violate any of the City's conflict rules. (Ex. T to Glazer Decl. at 2.) DOI then hired Khedouri as a paid, full-time employee in the CISAFE unit in August 2002.*fn3 (See Glazer Decl. at 14; Ex. C to Ben. Aff.)
According to the plaintiff, Khedouri's employment created a number of problems within CISAFE. (See Pl.'s Stmt. ¶ 4.) Khedouri worked less than other employees. (Ben. Depo. I at 15-16.) He often did not have his identification or his DOI-issued cell phone. (Id. at 16; Pl.'s Stmt. ¶ 4.) The plaintiff regularly could not locate Khedouri or determine the work he was doing. (Id.) When the plaintiff inquired about Khedouri's whereabouts, his staff would tell him that Khedouri was dining with Glazer or DOI Commissioner Rose Gill Hearn or working on special assignments for Glazer. (Ben. Depo. I at 16.)
In addition, the plaintiff alleges that the appearance that Khedouri received specialized treatement lowered office morale. (Id. at 17; Pl.'s Stmt. ¶ 26.) Khedouri received a larger salary than more senior employees.*fn4 (See Ben. Depo. I at 16, 35; Depo. of David VanderNaalt, June 28, 2005 ("Vander. Depo."), at 80--81, attached as Ex. G to Sasanow Decl.) DOI allegedly hired Khedouri quickly despite the lack of documentation that had delayed past applications. (Ben. Depo. I at 20--21.) The plaintiff also testified that the Commissioner once personally inspected Khedouri's office to ensure that he was comfortable. (Id. at 79.)
In October 2002, the plaintiff began complaining (and referring his staff's complaints) about Khedouri to his supervisor, David VanderNaalt. (See id. at 7--8, 11; Pl.'s Stmt. ¶ 17.) These complaints concerned the alleged negative impact of Khedouri's performance on CISAFE's productivity, efficiency, and functionality. (See Ben. Depo. I at 18, 34--35; Pl.'s Stmt. ¶ 26.) The plaintiff complained that Khedouri's salary and actions lowered office morale. (See Ben. Depo. I at 17--18; Pl.'s Stmt. ¶ 26.) The plaintiff also alleges that he complained that Khedouri's salary was exorbitant and prevented DOI from hiring additional employees. (See Pl.'s Stmt. ¶ 26.)
The plaintiff claims that he lodged these complaints on at least a weekly basis in formal status meetings with his supervisor, David VanderNaalt and on an ad hoc basis at other times. (Ben. Depo. I at 21; see also Pl.'s Stmt. ¶ 17.) The plaintiff alleges that he voiced similar complaints to other supervisors, Vincent Green and Robert Joyce.*fn5 (Id. at 28--30.)
On the afternoon of December 17, 2002, after several months of inaction, the plaintiff told VanderNaalt that he planned to take his complaints to the New York City Council, the Conflict of Interest Board, or the Public Advocates Office. (Ben. Depo. I at 25--26; Pl.'s Stmt. ¶ 42.) This was the first time that the plaintiff told VanderNaalt that he was intent on making a formal written complaint about Khedouri. (Ben. Depo. I at 37; Pl.'s Stmt. ¶ 42.)*fn6 According to the plaintiff, VanderNaalt advised him to wait until the following day. (Ben. Depo. I at 26; Pl.'s Stmt. ¶ 42.) The following morning, the plaintiff was discharged. (Id.)
The defendants dispute the plaintiff's claim that he was terminated because of his alleged complaints. The defendants first present a different set of events, which they allege actually led to the plaintiff's discharge. Second, the defendants allege that the relevant decision makers knew nothing of the plaintiff's complaints when they ordered his discharge.
The defendants deny that the plaintiff was discharged because of his complaints about Khedouri. According to the defendants, the plaintiff's discharge concluded a series of progressive disciplinary measures dating back to July 2002, which were unrelated to the plaintiff's alleged complaints.
In November 2001, the plaintiff purchased a 2000 Ford Crown Victoria, Model P71 "Police Interceptor" and installed additional emergency equipment in the vehicle. (Defs.' Stmt. ¶¶ 11-12; Pl.'s Stmt. ¶¶ 11-12.) He used the lights and sirens he installed in the car to pass other motorists on his way to work, travel quickly to a "computer emergency," and pull over motorists who he believed to be driving erratically. (Defs.' Stmt. ¶ 14; Pl.'s Stmt. ¶ 14.)
The plaintiff was not a police officer, peace officer, or emergency medical technician. (Defs.' Stmt. ¶ 8; Pl.'s Stmt. ¶ 8.) The plaintiff also owned several handguns, which he was licensed to carry, and a pair of handcuffs, which he may have carried on his person while working at DOI. (Defs.' Stmt. ¶ 9; Pl.'s Stmt. ¶ 9.)
On July 11, 2002, two Assistant Commissioners of DOI met with the plaintiff to discuss his vehicle and his manner of dress, which the defendants contend suggested that the plaintiff was conveying the impression that he was acting as a law enforcement officer. (See Defs.' Stmt. ¶¶ 10, 15--16; Pl.'s Stmt. ¶¶ 10, 15--16; Ben. Depo. I at 158.) The plaintiff disputes that he was told to remove the emergency equipment from his vehicle. (Pl.'s Stmt. ¶ 16.) The plaintiff claims that he was told that he could keep his emergency lights, as long as he moved them from his dashboard to the floor of his car. (Id.) The plaintiff does not however dispute that he was told to tone down his appearance at the meeting. (Id.) After the meeting, the plaintiff showed one of the Assistant Commissioners that he had met with, Vincent Green, that the police package on his vehicle had been disconnected and was inoperable. (Defs.' Stmt. ¶ 18; Pl.'s Stmt. ¶ 18.)
The defendants allege that on October 1, 2002, the plaintiff flashed his emergency lights at a DOI employee. (Defs.' Stmt. ¶ 20.) The plaintiff does not recall this incident. (Pl.'s Stmt. ¶ 20.) However, it is undisputed that on October 4, 2002, the plaintiff had another meeting with supervisors where he was given a written warning directing him to remove the emergency equipment from his vehicle. (Defs.' Stmt. ¶ 21; Pl.'s Stmt. ¶ 21.) The warning contained in the memorandum advised the plaintiff that failure to comply with ...