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Morrison v. Johnson

September 28, 2006


The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge


Plaintiff Joan Morrison brings a civil action pursuant to 42 U.S.C. § 1983, alleging retaliation in violation of her First Amendment right to free speech when she apparently attempted to "address a matter of public concern by reporting what she viewed to be corrupt and fraudulent behavior within the New York State Central Register of Child Abuse and Maltreatment." Dkt. No. 28, Second Am. Compl. at ¶¶ 25-28. Defendants bring a second Motion for Summary Judgment. Dkt. No. 105. Plaintiff opposes the Motion. Dkt. Nos. 109-11. For the reasons that follow, Defendants' Motion for Summary Judgment is Denied in part and Granted in part.


Since the procedural history of this case is relevant, the Court will provide a brief recitation of the events that have occurred. Previously, the Honorable Lawrence E. Kahn, United States District Judge, granted in part and denied in part Defendants' Motion for Summary Judgment. Dkt. Nos. 50-62, Mot. for Summ. J. & 71, Mem. Decision and Order, dated Mar. 2, 2004. Summary Judgment was granted to all the named Defendants dismissing Plaintiff's First Amendment retaliation claim and the claim Under Article 1, Sections 8 and 9 of the New York State Constitution, the Fourteenth Amendment Equal Protection claims and claims under Article 1, Section 11 of the New York State Constitution as to Defendants Johnson, Smith, Bartley, Mahar, Lehner, Hulihan, and John and Jane Doe, and the Fourteenth Amendment and New York State Equal Protection claims as to Defendants Peters and Palumbo except for the claims denying Plaintiff equal protection by passing her over for promotions and conspiring to pass her over for promotion. Mem. Decision and Order, dated Mar. 2, 2004.*fn1 On February 15, 2005, a Stipulation of Discontinuance was filed by the Parties and Plaintiff discontinued with prejudice the claims, which were not dismissed by the District Court in its Memorandum-Decision and Order, dated March 2, 2004, specifically the Equal Protection claims under the Fourteenth Amendment and Article 1, Section 11 of the New York State Constitution, as well as the claim for conspiracy to deny Plaintiff equal protection against Peters and Palumbo. Dkt. No. 94, Stipulation, dated Feb. 15, 2005. Plaintiff retained her right to appeal the Memorandum-Decision and Order. Id.

On March 14, 2005, Plaintiff appealed the Memorandum-Decision and Order to the Second Circuit Court of Appeals. Dkt. No. 96, Notice of Appeal, dated Mar. 14, 2005. The Second Circuit issued its decision, affirming in part and vacating in part the Judgment of the District Court.*fn2 Dkt. No. 101, Mandate. The Second Circuit held that the statement of law as to the First Amendment analyzed by the District Court was incorrect and that other grounds asserted by Defendants on this cause of action had not been "well developed." Id. at p. 162. The Second Circuit, therefore, vacated the judgment, dismissing the First Amendment retaliation claim and remanded the matter for further proceedings. Id. In addition, the Second Circuit found that although Plaintiff appealed all aspects of the final judgment, the appeal contained no argument that the District Court had incorrectly dismissed the Equal Protection claims. Id. Thus, the Court stated that any challenge to the Equal Protection claims were abandoned. Id. The judgment was affirmed in all other respects. Id.

Once the Mandate was issued, this Court asked for a status report from the Parties and held a brief conference on January 12, 2006, regarding the outstanding issues. Text Order, dated Dec. 30, 2005, Dkt. Nos. 102, James Resila, Esq., Lt., dated Jan. 5, 2006, & 103, Stephen Kerwin, Esq., Lt., dated Jan. 6, 2006, and Minute Entry, dated Jan. 12, 2006. On February 24, 2006, Defendants filed the current Motion for Summary Judgment as to Plaintiff's First Amendment retaliation claims. Dkt. No. 105.


Plaintiff is an employee of the New York State Office of Children and Family Services ("OCFS"). Dkt. No. 105, Defs.' 7.1 Statement at ¶ 1; Dkt. No. 110, Pl.'s 7.1 Statement at ¶ 1. Morrison has worked as a Child Protective Specialist I ("CPS") at the State Central Register of Child Abuse and Maltreatment ("SCR") since 1996. Defs.' 7.1 Statement at ¶¶ 2 & 3; Pl.'s 7.1 Statement at ¶¶ 2 & 3. For those who are hired as CPS Is, classroom training is provided along with detailed procedures manuals, which are retained by the employees. Defs.' 7.1 Statement at ¶¶ 4, 5, & 6; Pl.'s 7.1 Statement at ¶¶ 4, 5, & 6. Plaintiff received some training and a manual.*fn4 Defs.' 7.1 Statement at ¶ 7; Pl.'s 7.1 Statement at ¶ 7.

At some point, Plaintiff became concerned with corruption and fraud within SCR, namely abuse of overtime, intentional mishandling of calls to the SCR hotline, and office gambling. Defs.' 7.1 Statement at ¶¶ 9 & 10; Pl.'s 7.1 Statement at ¶¶ 9 & 10. These concerns were relayed to Emmanuel Ned of the State Inspector General's Office in 1998. Defs.' 7.1 Statement at ¶ 11; Pl.'s 7.1 Statement at ¶ 11. In November 1999, Plaintiff addressed her concerns regarding the activities at SCR with the New York State Welfare Inspector General ("WIG"), specifically Sean Courtney. Defs.' 7.1 Statement at ¶¶ 12 & 124; Pl.'s 7.1 Statement at ¶¶ 12 & 124. In 1999, Plaintiff also met with Mr. Kirwin and Mr. Calhoun of the New York State Assembly, who in turn arranged for her to meet with a member of the Governor's staff. Defs.' 7.1 Statement at ¶ 13; Pl.'s 7.1 Statement at ¶ 13. Plaintiff had two face-to-face meetings with Courtney and spoke to him on the telephone several times. Defs.' 7.1 Statement at ¶ 14; Pl.'s 7.1 Statement at ¶ 14. Neither Courtney nor Kirwin disclosed that Plaintiff was their source of information as to either SCR or OCFS nor did anyone at SCR tell her they knew she was meeting with Kirwin, Calhoun, Courtney, or Acenowr, another representative from the State Inspector General's Office. Defs.' 7.1 Statement at ¶¶ 15 & 16; Pl.'s 7.1 Statement at ¶¶ 15 & 16. Furthermore, Defendants did not relay to Plaintiff that they knew of any meetings she had with outside agencies nor did Plaintiff have any knowledge as to whether any of the Defendants were aware of her conversations with these individuals. Defs.' 7.1 Statement at ¶¶ 17, 18, 126, & 127; Pl.'s 7.1 Statement at ¶¶ 17, 18, & 126.

Plaintiff not only spoke to outside agencies, but she further expressed her concerns about fraud and corruption at SCR with Carl Strock, a reporter for the Schenectady Daily Gazette, prior to the publication of an article in August 1999 regarding SCR. Defs.' 7.1 Statement at ¶¶ 20 & 123; Pl.'s 7.1 Statement at ¶¶ 20 & 123; Dkt. No. 62, Dep. Ex. 3, Article. A former co-worker, Donna Gonzalez, also spoke to Strock about an alleged overtime scam at SCR. Defs.' 7.1 Statement at ¶ 21; Pl.'s 7.1 Statement at ¶ 21. After the article was published on August 5, 1999, supervisory personnel at SCR, namely Defendant Peters, conducted a meeting to discuss the article. Defs.' 7.1 Statement at ¶¶ 22 & 23; Pl.'s 7.1 Statement at ¶¶ 22 & 23. There was speculation that Plaintiff was the source of Strock's information, but when Peters conveyed this conjecture to Defendant Smith, OCFS Deputy Commissioner in charge of SCR, it was dismissed as pure speculation. Defs.' 7.1 Statement at ¶¶ 24 & 25; Pl.'s 7.1 Statement at ¶¶ 24 & 25. Plaintiff filed grievances against her supervisors, which included Defendant Palumbo. Defs.' 7.1 Statement at ¶ 26; Pl.'s 7.1 Statement at ¶ 26.

On December 24, 1998, Plaintiff "took a law enforcement referral" ("LER") for an incident involving her son and a substitute teacher. Defs.' 7.1 Statement at ¶ 27; Pl.'s 7.1 Statement at ¶ 27. This LER was completed on a SCR form by Plaintiff during working hours and was telefaxed to the State Police. Defs.' 7.1 Statement at ¶ 28; Pl.'s 7.1 Statement at ¶ 28. Plaintiff did not consult any of her colleagues or supervisors before sending the LER.*fn5 Defs.' 7.1 Statement at ¶ 29; Pl.'s 7.1 Statement at ¶ 29. The State Police received the LER which was forwarded to the Rensselaer County Sheriff and then to the Nassau Town Police. Defs.' 7.1 Statement at ¶ 30; Pl.'s 7.1 Statement at ¶ 30. The substitute teacher was charged with a crime, though the charges were eventually dismissed in the Nassau Town Court. Defs.' 7.1 Statement at ¶ 31; Pl.'s 7.1 Statement at ¶ 31. In February 1999, Plaintiff told her supervisor, Defendant Lehner, a CPS II, that she filed the LER against the teacher for the incident involving her son. Defs.' 7.1 Statement at ¶ 32; Pl.'s 7.1 Statement at ¶ 32. After this self-reporting, the matter was purportedly reported to Lehner's supervisor, Richard Piche, a CPS III, who did not act on the information. Defs.' 7.1 Statement at ¶¶ 33 & 34; Pl.'s 7.1 Statement at ¶ 34.

Defendant Lehner was Plaintiff's supervisor from January 7, 1999 until July 21, 1999. Defs.' 7.1 Statement at ¶ 35; Pl.'s 7.1 Statement at ¶ 35. The beginning of their relationship was cordial but then deteriorated. Defs.' 7.1 Statement at ¶ 36; Pl.'s 7.1 Statement at ¶ 36. In July 1999, Defendant Lehner had a counseling session with Plaintiff over the use of her sick leave and subsequently, Lehner received an email from Plaintiff stating that Plaintiff would not tolerate harassment from Lehner. Defs.' 7.1 Statement at ¶ 38; Pl.'s 7.1 Statement at ¶ 38. In October 1999, purportedly concerned over fear of retribution by Plaintiff, Lehner met with OCFS' Labor Relations Office, namely Walter Greenberg and William Robinson. Defs.' 7.1 Statement at ¶¶ 39 & 40; Pl.'s 7.1 Statement at ¶¶ 39 & 40.*fn6 During the course of her conversation with Greenberg, Lehner disclosed the incident regarding the LER filed by Plaintiff. Defs.' 7.1 Statement at ¶ 41. Apparently Greenberg and Robinson conveyed Lehner's information to Defendant Smith who in turn told his supervisor, Defendant Bartley, the Executive Deputy Commissioner. Defs.' 7.1 Statement at ¶¶ 43 & 45.

Defendant Bartley then assigned Defendant Mahar, Director of OCFS' Special Investigation Unit, to investigate the incident. Defs.' 7.1 Statement at ¶ 47; Pl.'s 7.1 Statement at ¶ 47. Defendant Mahar interviewed some individuals and in December 1999, met with Defendant Smith, Denise Matrazzo, Defendant Smith's assistant, Walter Greenberg, and William Robinson. Defs.' 7.1 Statement at ¶¶ 48 & 49; Pl.'s 7.1 Statement at ¶¶ 48 & 49. It was decided that disciplinary action should be taken against Plaintiff and Defendant Smith signed the Notice of Discipline. Defs.' 7.1 Statement at ¶¶ 50, 52, 53, 56 & 57; Pl.'s 7.1 Statement at ¶¶ 50, 52, 53, 56 & 57.*fn7 The Notice of Discipline charged Plaintiff with seven counts of misconduct, four which related to the filing of the LER and three relating to Plaintiff's lack of candor during Mahar's interrogation of Plaintiff on December 15, 1999. Defs.' 7.1 Statement at ¶ 76; Pl.'s 7.1 Statement at ¶ 76; Dep. Ex. 4, Notice of Discipline. The Notice sought Plaintiff's termination from employment. Defs.' 7.1 Statement at ¶ 77; Pl.'s 7.1 Statement at ¶ 77; Dep. Ex. 4, Notice of Discipline. The Notice was then served on Plaintiff by two SCR employees on December 23, 1999, one day prior to the expiration of the one-year limit provided for in the collective bargaining agreement. Defs.' 7.1 Statement at ¶¶ 55 & 62; Pl.'s 7.1 Statement at ¶¶ 55 & 62. Despite a request from the Governor's office that the Notice be retracted, Defendant Smith did not withdraw the Notice. Defs.' 7.1 Statement at ¶ 58; Pl.'s 7.1 Statement at ¶ 58. Plaintiff is unsure of Defendant Bartley's role regarding the Notice and only assumes Defendant Johnson, as Commissioner, knew about it because of his position. Defs.' 7.1 Statement at ¶ 60; Pl.'s 7.1 Statement at ¶ 60.

During the pendency of the Notice, Plaintiff was placed on unpaid leave. However, on the same day that the Notice was served, Plaintiff was placed on administrative leave with pay. Defs.' 7.1 Statement at ¶ 78; Pl.'s 7.1 Statement at ¶ 78; Dep. Ex. 10, Smith Lt. Re: Suspension, dated Dec. 23, 1999. Pursuant to the collective bargaining agreement, Plaintiff received a hearing before an arbitrator regarding the matter on March 22, April 18, May 19, June 26, and July 17, 2000. Defs.' 7.1 Statement at ¶ 82; Pl.'s 7.1 Statement at ¶ 82; Dep. Ex. 12, Arbitrator Form. On November 15, 2000, the arbitrator ruled that dismissal was not justified and following the arbitrator's decision, Plaintiff returned to her position as a CPS I in January 2001 with restoration of all accrued benefits. Defs.' 7.1 Statement at ¶¶ 83 & 84; Pl.'s 7.1 Statement at ¶¶ 83 & 84. Once Plaintiff returned to work in January 2001, she also received all her back pay and accrued annual leave. Defs.' 7.1 Statement at ¶ 85; Pl.'s 7.1 Statement at ¶ 85.

According to the Plaintiff, she was given "retaliatory" counseling memoranda in response to grievances she had filed against her supervisors and that Defendants Peters, Palumbo, Lehner, and Hulihan conspired to serve her with the memoranda. Defs.' 7.1 Statement at ¶¶ 87& 89; Pl.'s 7.1 Statement at ¶¶ 87 & 89. Plaintiff states that within a week of publication of Strock's article, Plaintiff received a counseling memorandum by Defendant Hulihan in regards to Plaintiff's use of sick leave and was made to justify all unscheduled leave with a doctor's note. Defs.' 7.1 Statement at ¶ 90; Pl.'s 7.1 Statement at ¶ 90. Plaintiff received another counseling memorandum when she arrived late to work on her son's first day of school after having called to report her tardiness. Defs.' 7.1 Statement at ¶ 91; Pl.'s 7.1 Statement at ¶ 91. An additional counseling memorandum was given to Plaintiff by Hulihan's supervisor regarding interactions with Hulihan. Defs.' 7.1 Statement at ¶ 92; Pl.'s 7.1 Statement at ¶ 92. In July 1999, Plaintiff was counseled by Defendant Lehner about her use of sick leave and then on July 21, 1999, Plaintiff was removed from Lehner's supervision. Defs.' 7.1 Statement at ¶¶ 93 & 95; Pl.'s 7.1 Statement at ¶¶ 93 & 95. Prior to this removal, Plaintiff also called in sick twice after being denied time off. Defs.' 7.1 Statement at ¶ 94; Pl.'s 7.1 Statement at ¶ 94.

Plaintiff further alleges that after the Notice of Discipline was served, she was passed over for promotion. Defs.' 7.1 Statement at ¶ 96; Pl.'s 7.1 Statement at ¶ 96. Plaintiff learned that a co-worker, Testo, was provisionally promoted over her to a CPS II position, though she believed she was more qualified due to her age, as well as the fact that she has a master's degree and is experienced in counseling. Defs.' 7.1 Statement at ¶ 97; Pl.'s 7.1 Statement at ¶ 97. However, Plaintiff does acknowledge that both started work at the OCFS on the same date and that she did not know Testo's level of education. Defs.' 7.1 Statement at ¶ 98; Pl.'s 7.1 Statement at ¶ 98.

Child Protective Specialist positions are competitive class employment and a permanent promotion is received through an appointment from an eligibility list, which follows a competitive examination. Defs.' 7.1 Statement at ¶¶ 99 & 100; Pl.'s 7.1 Statement at ¶¶ 99 & 100. Promotions for the CPS II position were made from a list compiled of applicants who took a promotion examination in 1996.*fn8 Defs.' 7.1 Statement at ¶ 101; Pl.'s 7.1 Statement at ¶ 101. The list became non-viable in 2000, as there were fewer than three (3) names on the list, and expired in 2001.*fn9 Defs.' 7.1 Statement at ¶ 103. A new promotion list was issued by the Department of Civil Service in 2002. Id. at ¶ 104.*fn10

During the time period where the list became non-viable until a new list was issued (2000-2002), OCFS made fourteen provisional appointments to CPS II positions. Id. at ¶ 106.

A provisional appointment is one that can become permanent if the appointee successfully takes the promotion examination so that he or she is among the three highest-ranked candidates willing to accept the position, which is referred to as "reachable." Id. at ¶ 108. If the appointee is not "reachable" on the promotion list, then he or she is returned to his or her prior position and someone who is "reachable" can be appointed to the position. Id. at ¶ 109. OCFS' practice was to make provisional appointments from those responding to an Employment Opportunity Announcement, which was posted by the OCFS. Id. at ¶¶ 111 & 112. Testo received a provisional appointment in March 2001. Id. at ¶ 113. In 2001, Plaintiff responded to an Announcement for three CPS II positions and was considered for another single provisional appointment in 2002. Id. at ¶ 114.*fn11

In order to determine who is chosen for the provisional appointment, the candidates would be interviewed by a panel of CPS IIIs. Id. at ¶ 115. The panel would then make a recommendation to Defendant Palumbo who would in turn pass on the name of the recommended candidate to Defendant Peters for final approval. Peters evidently approved the recommendations made by the committee. Id. at ¶¶ 116, 117 & 118. Plaintiff, however, was not presented to Defendant Palumbo as a candidate for promotion on the four occasions that she applied for a provisional appointment. Id. at ¶ 119. Even if Plaintiff had received the promotion, as her name did not appear on the new CPS II promotion list, she would have been returned to her CPS I position in 2002. Id. at ¶ 120.*fn12


A. Summary Judgment Standard

Pursuant to FED. R. CIV. P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).

To defeat a motion for summary judgment, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts submitted by the moving party. FED. R. CIV. P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) and Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).

When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any 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 v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Stated another way, [t]he function of the district court in considering the motion for summary judgment is not to resolve disputed issues of fact but only to determine whether there is a genuine issue to be tried. Assessments of credibility and choices between conflicting versions of events are matters for the jury, not for the court on summary judgment. Any weighing of the evidence is the prerogative of the finder of fact, not an exercise for the court on summary judgment.

Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 558 (2d Cir. 2001) (quoting Vital v. Interfaith Med. Ctr., 168 F.3d 615, 622 (2d Cir.1999).

1. Compliance with Local Rule 7.1(a)(3)

Defendants contend that Plaintiff has failed to properly respond to Defendants' Statement of Undisputed Material Facts and therefore judgment should be granted in their favor. Dkt. No. 114, Defs.' Reply Mem. of Law at pp. 2-9; see also supra ...

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