The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
In February 2002, Plaintiff Natalie Worthington ("Worthington" or "Plaintiff") filed a complaint against numerous defendants alleging violations of Title VII of the Civil Rights Act, 18 U.S.C. §§ 1981, 1983, 1985, and 1986, the Fourtheenth and Fifth Amendments, and the New York State Human Rights Law ("NYSHRL") as well as state law tort and contract claims. Over the ensuing five years, both of Worthington's claims and the number of defendants have been whittled down. In January 2003, U. S. District Judge Joanna Seybert dismissed Worthington's §§ 1981, 1985 and 1986 claims, Title VII claims against individuals defendants and the state law claims. In August 2004, Judge Seybert dismissed all of Worthington's claims, except for the Title VII retaliation claims and NYSHRL claims. Worthington v. County of Suffolk, et al., 02 CV 0723 (E.D.N.Y. Aug. 4, 2004). After this motion practice and several voluntary dismissals, the remaining defendants are the County of Suffolk, John Gallagher, Peter Quinn, Philip Robilotto, the Suffolk County Police Department, and Armondo Valencia (collectively referred to as "Defendants").
Presently before the court is Defendants' motion in limine to preclude Worthington from introducing the testimony of Felicia Collins, Jackie Fioribello, Donald Longo, George Smith, and John Weeks. Defendants argue that the testimony is (1) not relevant to Plaintiff's § 1983 claims, since those claims have been dismissed; (2) is not relevant to Plaintiff's Title VII and NYS Human Rights Law retaliation claims; (3) inadmissible under Fed. R. Evid. 404(b)as evidence of prior bad acts; and (4) inadmissible under Fed. R. Evid. 403 as unduly prejudicial. Worthington opposes Defendants' motion contending that the testimony is relevant to her retaliation claims. For the following reasons, Defendants' motion is denied in part and granted in part. The testimony is admissible as to Plaintiff's Title VII retaliation claim but not as to her § 1983 claim.
In order to demonstrate liability under 18 U.S.C. § 1983, the alleged constitutional violation must result from a government custom, policy, pattern or practice. See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91 (1978). Plaintiff asserts that she has stated a § 1983 claim for retaliation in violation of the Fourteenth and First Amendment that permits her to introduce the testimony of Collins, Fioribello, Longo, Smith, and Weeks for purposes of showing Suffolk County's policy and practice of retaliating against employees who make complaints of discrimination. Worthington is incorrect because her Fourteenth and First Amendment claims are no longer viable.
Worthington's original complaint contained a § 1983 claim alleging that Suffolk County and the individual Defendants violated her Equal Protection rights under the Fourteenth Amendment to be free from gender discrimination. A copy of the complaint is annexed to the Colleen Meenan's June 6, 2006, Letter Opposition to Defendants' Motion In Limine ("Worthington Opp.") as Exhibit E. However, in August 2004, Judge Seybert dismissed Worthington's § 1983 discrimination claim because Worthington had failed to proffer evidence of a hostile work environment to support her Title VII and Fourteenth Amendment discrimination claims. See Worthington v. County of Suffolk, et al., supra. The parties appear to agree that Worthington's § 1983 discrimination claim has been dismissed.
The question remains, however, whether Worthington has a viable § 1983 claim for retaliation (as opposed to discrimination) in violation of her Fourteenth and her First Amendment rights. Section 1983 itself creates no substantive rights; it is rather "a method for vindicating federal rights elsewhere conferred." Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). Moreover, "a § 1983 action may not . . . be brought to vindicate rights conferred only by a statute that contains its own structure for private enforcement, such as Title VII." Id.
A Title VII Plaintiff can state a cause of action under § 1983 for a separate constitutional violation -- the most common example is a Title VII hostile work environment claim that shadows a Fourteenth Amendment Equal Protection claim brought via § 1983 -- but a Plaintiff may not use § 1983 simply to reassert a Title VII claim. See Id; Dawson v. County of Westchester, 351 F. Supp. 2d 176, 193 (S.D.N.Y. 2004) (finding that because Equal Protection, not Title VII, was the distinct right alleged to have been denied, Plaintiffs may assert their claims under § 1983). Here, Worthington's retaliation claim is brought under Title VII and therefore is not cognizable as a § 1983 claim. See Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d Cir. 1993) (holding that a Title VII claim precludes a § 1983 claim, unless the § 1983 claim is based on an alleged violation of some law other than Title VII); Igielnik v. NYC Human Resources Admin., 94 CV 0810, 1996 WL 137303, *3 (S.D.N.Y., Mar. 27, 1996) (finding no § 1983 claim where the Plaintiff did not allege that Defendants violated any law distinct from Title VII).
To the extent that Worthington argues that she may assert a § 1983 claim for retaliation in violation of the Equal Protection Clause of the Fourtheenth Amendment, she is incorrect. Retaliating for complaining of gender discrimination is not an Equal Protection Clause violation. See Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996) ("although claims of retaliation are commonly brought under the First Amendment, and may also be brought under Title VII . . . we know of no court that has recognized a claim under the Equal Protection Clause for retaliation following complaints of racial discrimination."); Lange v. Town of Monroe, 213 F. Supp. 2d 411, 419 (S.D.N.Y. 2002) (alleged retaliation in response to Plaintiff's sexual harassment complaints is not cognizable as an equal protection violation).
In an attempt to circumvent these legal principles, Worthington now alleges that, in fact, her complaint actually contains a claim for retaliation under the First Amendment. The court is cognizant that the general pleading requirements in Fed. R. Civ. P. 8 require the Plaintiff to provide a "short and plain statement of the claim." See, e.g., Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993) (no heightened pleading standard in civil rights cases alleging municipal liability). However, even under the general pleading requirements, the court does not read Worthington's complaint to assert a cause of action for a violation of her First Amendment rights because Worthington's complaint was entirely personal in nature and not a matter of public concern. See Nolan v. Epifanio, 96 CV 256, 1998 WL 665131, * 5 (S.D.N.Y., Sept. 28, 1998).
The First Amendment only protects public employees' speech if the speech relates to matters of public concern. Connick v. Myers, 461 U.S. 138 (1983)("when an employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of a personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."). Therefore, retaliation against an employee of a public agency for speech on matters of public concern is actionable under the First Amendment unless the government has "adequate justification" for limiting the speech. See Garcetti v. Ceballos, 126 S.Ct. 1951, 1958 (2006). Retaliation for speech on matters of personal interest is never a First Amendment violation since the employer has "adequate justification" for limiting it.*fn1 See Saulpaugh, 4 F.3d at 143.
A review of the complaint reveals that Worthington never alleged she complained about a pattern or practice of retaliation or discrimination within the Suffolk Country Police Department. Rather, her complaints were merely about her treatment. Id. ("[h]ad Saulpaugh's complaints to her supervisors implicated system-wide discrimination, they would have unquestionably involved a matter of 'public concern.'"); Pappas v. Giuliani, 290 F.3d 143, 152 (2d Cir. 2002) (collecting cases demonstrating that complaints of racial discrimination by public employees were not matters of public concern for purposes of stating a First Amendment retaliation claim); DeFilippo v. New York State Unified Court System, 00 CV 2109, 2006 WL 842400, *15 (E.D.N.Y. Mar. 27, 2006); but see McGrath v. Nassau Health Care Corp, 217 F. Supp. 2d 319, 327-328 (E.D.N.Y. 2002) (holding that because the Plaintiff complained about her own treatment and the treatment of other female employees, her speech addressed matters of public concern).
The court finds that Worthington does not have a cause of action under § 1983 for alleged violations of her First or Fourteenth Amendment rights. Accordingly, the proposed testimony is not admissible to support the non-existent § 1983 cause of action.
The Testimony is Permissible to Prove Plaintiff 's Title VII Retaliation Claim Judge Seybert has already determined that Worthington set fourth a prima facia case of retaliation for purposes of defeating Defendants' motion to dismiss, a finding what is now the law of the case. See Worthington v. County of Suffolk, et al., supra. However, Judge Seybert found genuine issues of fact regarding Defendants' "motivation" in taking certain actions. Id. Issues of motivation are ...