The opinion of the court was delivered by: Conner, Sr. D.J.
Plaintiff, Gina Amorosano-Lepore brings this action against defendants James Generoso ("Generoso"), Victoria L. Kane ("Kane"), Barbara Coleman ("Coleman") (collectively "State defendants"), Matthew Iarocci ("Iarocci") and the City of New Rochelle (the "City") (collectively "City defendants") pursuant to 42 U.S.C. § 1983. She alleges that defendants violated her First and Fourteenth Amendment rights when they preferred disciplinary charges against her resulting in her termination as employee of the New Rochelle City Court (the "City court"). All defendants moved for summary judgment on various grounds. For the following reasons, defendants' motions are granted in part and denied in part.
Unless otherwise indicated, the following facts are undisputed. Plaintiff was employed as a clerk of the City court from February 5, 1996 to August 4, 2006; she was interviewed and recommended for hire by Generoso. (State Defs. R. 56.1 Stmt. ¶¶ 1, 7; City Defs. R. 56.1 Stmt. ¶ 15.) At all relevant times, Generoso, Kane and Coleman were employed by the State. (State Defs. R. 56.1 Stmt. ¶¶ 2-4.) Generoso was the Chief Clerk of the court, Kane was the Deputy Chief Clerk and Coleman was the judges' secretary. (Id.) Iarocci was employed by the City as Personnel Director for the City. (Id. ¶ 5.) As Chief Clerk, Generoso was responsible for managing approximately twenty to thirty employees, interviewing and hiring clerical staff for the City court and determining whether to prefer disciplinary charges against court employees of both the City and the State. (Id. ¶ 6).*fn1
Since April 1977, operations of the City court have been financed by the State and the court employees became employees of the State, although, a small number of the staff are employed by the City. (City Defs. R. 56.1 Stmt. ¶¶ 7-8.) During her employment at the City court, plaintiff became a member of the Civil Service Employees Association ("CSEA"), a labor union. (Id. ¶ 21.) Effective January 1, 2001, plaintiff's position was reclassified from clerk to Customer Service Representative. (Id. ¶ 17.)
Sometime during the week of March 29, 2004, Generoso and Judge Preston Scher interviewed plaintiff for a potential promotion. (Id. ¶ 28.) Generoso felt plaintiff's "temperament and demeanor were not appropriate for the new position" and she did not get the promotion. (State Defs. R. 56.1 Stmt. ¶ 10 (citing Generoso Decl. ¶ 7).) That weekend, Coleman received several telephone calls at home from plaintiff. (Id. ¶ 11.) In those calls, plaintiff stated how angry and annoyed she was about not getting the promotion, and stated "if she had a gun, she would kill everyone in the office." (Id.) Plaintiff also giggled and said she was just kidding. (Pl. R. 56.1 Stmt. ¶ 11.) Coleman relayed this to Kane who asked her to inform police Lieutenant Jackson, which Coleman did on that Monday morning. (State Defs. R. 56.1 Stmt. ¶ 12.) Kane then told Generoso. (Id.) Beginning on Monday April 5, 2004 plaintiff was required to go through a magnetometer for approximately one week; she had never been required to do so previously. (Pl. R. 56.1 Stmt. ¶ 90.)
On Monday April 5, 2004, plaintiff called Iarocci and asked to meet with him to discuss a problem she had relating to her job. (City Defs. R. 56.1 Stmt. ¶ 31; Iarocci Aff. ¶ 23.) Plaintiff and her husband met with Iarocci, and plaintiff told Iarocci she was unhappy that she did not receive the promotion, and that she believed she was treated unfairly in her interview with Generoso and Judge Scher. (City Defs. R. 56.1 Stmt. ¶¶ 32-33.) Iarocci states that he told plaintiff he would try to schedule a meeting to discuss her concerns. (Id. ¶ 35.) According to plaintiff and her husband, at this meeting plaintiff also expressed concerns that employees at the court falsified documents and padded tickets, that Generoso received gifts for dismissing or reducing tickets and violations, that Coleman stole approximately $3,500, that Generoso's aunt who was also a court employee repeatedly curses and refers to people as niggers and that the City Marshal was running a private law office from the City on City time. (Pl. R. 56.1 Stmt. ¶¶ 33, 92-97; Nicaj Aff'm, Ex. 26 at 26-27.) Plaintiff felt that her relationship with Generoso deteriorated after this meeting. (Pl. R. 56.1 Stmt. ¶¶ 33, 102.) Generoso recalled that Iarocci told him he met with plaintiff and her husband but he did not recall the content of the meeting or whether Iarocci told him what was said. (Nicaj Aff'm, Ex. 21 at 113.)
Plaintiff and her husband also met with City Mayor Timothy Idoni ("Idoni") in May 2004. (Pl. R. 56.1 Stmt. 105.) They state that plaintiff told Idoni of the corruption in the Clerk's office, the falsification of records at the City court, that the City Marshal was performing private work during court hours and that the City court was operating in a dysfunctional manner. (Id.; Nicaj Aff'm, Ex. 26 at 77.) She states that Idoni told her "his hands were tied" and he would speak to Iarocci and Generoso. (Pl. R. 56.1 Stmt. ¶¶ 105, 107.)
On July 9, 2004, a meeting was held among plaintiff, Iarocci, Generoso, Kane and plaintiff's union representative, Carl Hochberger ("Hochberger"), to discuss plaintiff's concerns over the decision not to promote her. (City Defs. R. 56.1 Stmt. ¶¶ 36-37.) Plaintiff stated that she was unhappy at the court, complained that co-workers screamed at her and each other and claimed that Generoso was a liar and took the word of liars concerning her; she was also angry for having been forced to go through the court magnetometers for a period of time following the decision not to promote her. (Id. ¶ 38.) Hochberger suggested that plaintiff take a few days off and consider consulting with members of the Employee Assistance Program. (Id. ¶ 39.)
According to plaintiff, Iarocci stated that she should make a "fresh start" and mentioned resignation. (Pl. R. 56.1 Stmt. ¶¶ 36, 110.) According to Iarocci, he told plaintiff that resignation was one possibility if her job was too onerous, but that another possibility he hoped she would avail herself of was to do a good job and pursue opportunities for promotion. (City Defs. Reply Mem. Supp. Mot. Summ. J. at 3 (quoting Loomba Aff., Ex. U at 90).) Plaintiff also states that at this meeting she again expressed her concerns that employees were padding tickets and requested that Iarocci transfer her to a different department. (Pl. R. 56.1 Stmt. ¶¶ 38, 109.) Iarocci told her they would not consider transfer because they would not transfer an employee who is having problems in one department to another department. (Nicaj Aff'm, Ex. 24 at 104.)
On March 3, 2005 plaintiff sent a letter to Judge Nicolai, Administrative Judge for the Ninth Judicial District, requesting a meeting to discuss the difficulties she was having working for Generoso and plaintiff's belief that she was singled out and treated differently than other employees. (Pl. R. 56.1 Stmt. ¶ 111.) In March 2005 plaintiff and her husband met with Berg, and they state that plaintiff communicated to Berg concerns similar to those she had expressed to Iarocci and Idoni; she informed Berg that Generoso accepted gifts in exchange for fixing tickets and appointed individuals who failed civil service tests, that City employees were assigned State functions and State employees assigned City functions, that Generoso and Kane were repeatedly tardy, creating problems in the workplace, that employees were required to pay for shortages in their registers from their own funds, that the City Marshal was running a private law practice from the City court and that parking tickets were improperly dismissed and/or reduced. (Id. ¶¶ 112-15; Nicaj Aff'm, Ex. 26 at 55.) Berg states that plaintiff conveyed her unhappiness with her job, her feeling that she was not being treated well, a specific issue about a cash shortage and some "vague and undetailed allegations about how the court was being run." (Nicaj Aff'm, Ex. 25 at 8-9.) Following this meeting, Berg contacted Generoso because she wanted to meet with him to discuss the procedures about shortages and overages in the registers. (Id. at 23.)
There was a meeting on March 16, 2005 with Generoso, Kane, Berg, Rita Leone ("Leone") from Berg's office, Judge Scher and Iarocci. (Pl. R. 56.1 Stmt. ¶ 118.) Plaintiff states that she was directed to join the meeting just before it ended and that Generoso and Iarocci pressured her to resign. (Id.) She also states that she expressed concern at the meeting that defendants were lying about her. (Id. ¶ 119.) Generoso states that the purpose of the meeting with Kane, Berg, Leone, Iarocci and Judge Scher was for Berg and Leone to instruct the City court on procedures for handling register shortages. (Nicaj Aff'm, Ex. 21 at 148-49.) Plaintiff did not join the meeting until the end. (Id.)
Plaintiff wrote letters to Hochberger on April 5 and 6, 2005 about her time sheet being altered and about feeling "hurt" when Generoso told her in a meeting with other employees that she had "short term memory." (Pl. R. 56.1 Stmt. ¶¶ 120-21; Nicaj Aff'm, Exs. 15 & 16.) Another meeting was held on April 18, 2005 between Iarocci, Iarocci's assistant Valeri Martin, plaintiff, Hochberger and CSEA President John Caldararo. (City Defs. R. 56.1 Stmt. ¶ 40.) At this meeting, plaintiff complained that her time sheet for February 23, 2005 had been improperly erased, that she was asked to provide a doctor's note to explain the sick leave she took on February 24 and 25, 2005 and that City employees were tracking their time on forms created for State employees. (Id. ¶ 41.) Following this meeting, Iarocci suggested to Generoso that the time sheet issue did not deserve further attention because plaintiff had not lost any leave time, that Generoso should drop the request for a doctor's note and that City time forms should be used for City employees. (Id. ¶ 42.)
Sometime prior to April 26, 2007, Coleman, Kane and other staff members witnessed an incident between plaintiff and another employee. (State Defs. R. 56.1 Stmt. ¶ 13; City Defs. R. 56.1 Stmt. ¶¶ 43-45.) Plaintiff was arguing with this employee because plaintiff wanted her to count the deposit money faster. (State Defs. R. 56.1 Stmt. ¶ 13; Kane Decl. ¶ 5.) According to witnesses, plaintiff told this employee: "No wonder your husband punched your eye out. You deserve it. I'm going to remind you that every day so you have nightmares." (State Defs. R. 56.1 Stmt. ¶ 13.) Apparently, this employee is in fact a victim of domestic abuse. (Kane Decl. ¶ 7.)
Upon learning of the event, Generoso requested that the witnesses write their recollections, and upon receiving them he drafted a report of the incident and gave it to Iarocci.*fn2 (State Defs. R. 56.1 Stmt. ¶ 14.) After reviewing the witnesses' written statements, Iarocci considered the incident very serious. (City Defs. R. 56.1 Stmt. ¶¶ 51-52.) Iarocci and Vincent Toomey ("Toomey"), labor counsel for the City, recommended to Generoso that disciplinary charges be brought against plaintiff.*fn3 (State Defs. R. 56.1 Stmt. ¶ 15.) Generoso agreed and signed the charges prepared by Toomey on April 29, 2005 and executed a Personnel Action Form approving plaintiff's suspension from her duties on May 6, 2005.*fn4 (Id.; City Defs. R. 56.1 Stmt. ¶¶ 54-55.) Iarocci reviewed these charges only after they were signed by Generoso. (City Defs. R. 56.1 Stmt. ¶ 56.) According to plaintiff, on April 29 Iarocci and Generoso asked her to resign and stated that if she did not she would be suspended and would not be returning. (Pl. R. 56.1 Stmt. ¶ 128.) Plaintiff was presented with these charges on May 6, 2005, on which date she was suspended without pay. (City Defs. R. 56.1 Stmt. ¶ 57.) Her regular salary was reinstated after 30 days. (Id. ¶ 59.)
Because she was a member of the CSEA, the disciplinary proceedings against plaintiff were governed by the collective bargaining agreement ("CBA"). (Id. ¶ 22.) By letter dated June 8, 2005, and in accordance with the CBA, Generoso appointed a hearing officer in charge of the disciplinary proceedings. (Id. ¶ 60.) Hearing sessions for these charges were conducted on July 19, August 30, November 9 and December 22, 2005 and January 5 and 18, 2006. (State Defs. R. 56.1 Stmt. ¶ 16.) Kane and Coleman were among the witnesses that testified about the events they witnessed. (Id. ¶ 18.) On July 28, 2006, the Hearing Officer issued his report finding that the disciplinary charges were sustained and terminating plaintiff's employment.*fn5 (Id. ¶ 17.)
Plaintiff filed a petition in the Supreme Court, Westchester County, on October 12, 2006 seeking a ruling that the Hearing Officer's report was arbitrary and capricious. (City Defs. R. 56.1 Stmt. ¶ 65.) By decision dated July 17, 2007, the court granted the City's motion to dismiss on the grounds that plaintiff failed to exhaust her administrative remedies.*fn6 (Id. ¶ 66.) Plaintiff commenced this action on February 16, 2006. She filed a Supplemental Complaint dated September 20, 2006. Plaintiff alleges that as a result of her reporting concerns about the corruption at the City court-including the theft of over $3,000, the falsification of records, Generoso's receipt of gifts in exchange for dismissing tickets, criminal mischief in connection with the keying of an employee's car, the City Marshal's conduct, the illegal possession and sale of controlled substances, the unlawful retention of Generoso's aunt and Generoso's violation of the laws governing Civil Service-defendants entered into an agreement to terminate her employment and in that connection Generoso preferred the disciplinary charges. (Suppl. Complt. ¶¶ 9-12.) She also alleged that Kane, Coleman and Iarocci, among others, gave false testimony against her during the disciplinary hearings and that the appointed Hearing Officer was known to render determinations favorable to the local municipality. (Id. ¶¶ 12-13.)
Summary judgment is appropriate when there is no genuine issue of material fact and one party is entitled to judgment as a matter of law. See FED. R. CIV. P 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986). The burden is on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether to grant summary judgment, the Court resolves all ambiguities and draws all permissible factual inferences in favor of the non-moving party. See Anderson, 477 U.S. at 255.
II. First Amendment Claim
"[A] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Connick v. Myers, 461 U.S. 138, 140 (1983) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). To establish a violation of those rights, a government-employee plaintiff "must initially demonstrate by a preponderance of the evidence that: (1) his speech was constitutionally protected, (2) he suffered an adverse employment decision,*fn7 and (3) a causal connection exists between his speech and the adverse employment determination against him." Hale v. Mann, 219 F.3d 61, 70 (2d Cir. 2000) (internal quotation marks and citation omitted). To establish a causal connection, a plaintiff must demonstrate that the speech was a substantial or motivating factor in the adverse employment action. See Burkybile v. Bd. of Educ. of Hastings-on-Hudson Union Free Sch. Dist., 411 F.3d 306, 313 (2d Cir. 2005) (citing Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)).
"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48 & n.7); see Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002). Speech touches a matter of public concern when it can "be fairly considered as relating to any matter of political, social, or other concern to the community." Connick, 461 U.S. at 146. "In reaching this decision, the court should focus on the motive of the speaker and attempt to determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose." Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir. 1999). "The key inquiry is whether the statements were made by plaintiff in her role as a disgruntled employee or her role as a concerned citizen." Woods v. Enlarged City Sch. Dist. of Newburgh, 473 F. Supp. 2d 498, 530 (S.D.N.Y. 2007) (Conner, J.) (determining plaintiff's speech was not protected by the First Amendment because she made complaints in private regarding the performance evaluations that she received and the racial discrimination to which she was subjected; her speech was not designed to reveal District-wide racism, or address the impact of racism on the school environment).
According to plaintiff, at the April 5, 2004 meeting with Iarocci, in addition to her unhappiness about not receiving the promotion, she expressed concern that employees at the City court falsified documents and padded tickets, that Generoso received gifts for dismissing or reducing tickets, that Coleman stole approximately $3,500 and that the City Marshal was running a private law office from the City on City time. Plaintiff also states that she expressed similar concerns to Idoni at their meeting in May 2004. During the July 9, 2004 meeting with plaintiff, Iarocci, Generoso, Kane and Hochberger, plaintiff stated that she was unhappy at the City court, complained that co-workers screamed at her and each other and claimed that Generoso was a liar and took the word of liars concerning her; and according to plaintiff, she also stated again her concerns that employees were padding tickets. In March 2005 plaintiff and her husband met with Berg, and plaintiff states that she communicated concerns to Berg similar to those she expressed to Iarocci and Idoni. On March 16, 2005 she was called to a meeting with Generoso, Kane, Berg, Leone, Judge Scher and Iarocci. The purpose of the meeting was to discuss the procedure for handling money shortages. Plaintiff states that she was directed to join the meeting just before it ended and that Generoso and Iarocci pressured her to resign and she expressed concern that ...