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Kregler v. City of New York

August 17, 2009


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.


Plaintiff William Kregler ("Kregler") brought this action pursuant to 42 U.S.C. § 1983 ("§ 1983") alleging that defendants violated his rights under the First and Fourteenth Amendments of the United States Constitution. Defendants consist of the City of New York (the "City") and five individuals who at all relevant times were employees of the City's Fire Department ("FDNY") or Department of Investigation ("DOI") (collectively with the City, "Defendants"). Defendants moved pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") to dismiss Kregler's amended complaint for failure to state a claim upon which relief can be granted. By Decision and Order dated March 16, 2009,*fn1 the Court deferred ruling on the motion pending the outcome of a preliminary hearing it scheduled pursuant to Federal Rule of Civil Procedure 12(i) ("Rule 12(i)"). The Court conducted that proceeding on July 16, 2009 and heard the parties' further oral arguments on July 28, 2009. For the reasons stated below, the Court grants Defendants' motion.


In its earlier Decision and Order, familiarity with which is assumed, the Court fully stated the facts relevant to this litigation as presented in the amended complaint, dated November 7, 2008 ("Amended Complaint"). See Kregler, 608 F. Supp. 2d at 468-69. However, insofar as necessary for a proper understanding of this ruling, a factual summary follows.

In March 2004, one month after retiring from his position as Fire Marshal with the FDNY after being employed there for 20 years, Kregler filed a preliminary application for appointment by the City's Mayor as a City Marshal. Candidates for appointment as City Marshals are subject to a DOI investigation of personal and financial background, and must complete a training program administered by DOI. In January 2005, Kregler was interviewed by representatives of the Mayor's Committee on City Marshals and was later notified by defendant Keith Schwam ("Schwam"), an Assistant Commissioner at DOI, that DOI would commence its personal and financial review of Kregler's background. As a follow-up, Kregler met in April 2005 with defendant Darren Keenaghan ("Keenaghan"), a DOI investigator, to discuss Kregler's preliminary application. Kregler then made minor modifications on the application, signed the revised form, and provided authorizations for release of personal information.

On May 25, 2005 Kregler, in his capacity as President of the Fire Marshals Benevolent Association ("FMBA"), publicly endorsed the candidacy of Robert Morgenthau ("Morgenthau") for re-election as District Attorney for New York County. Kregler asserts that at that time all other law enforcement associations in the City, including two unions of firefighters, supported Morgenthau's opponent, Leslie Crocker Snyder ("Snyder"). An article that appeared in a June 2005 edition of The Chief, a local newspaper, reported on Kregler's endorsement of Morgenthau. According to Kregler, defendant Brian Grogan ("Grogan"), an FDNY Supervising Fire Marshal, posted a copy of that article in a public area within one of the FDNY offices. Kregler further alleges that Grogan "berated" him for the endorsement, stating: "who the f--- do you think you are. Louie [Garcia] makes the endorsement." (Amended Complaint ("Compl.") ¶ 28.) Defendant Louis Garcia ("Garcia") was then Chief Fire Marshal of the FDNY's Bureau of Fire Investigation. Kregler alleges that both Garcia and Grogan politically supported Snyder's campaign against Morgenthau, that Garcia was "personally and socially acquainted" with defendant Rose Gill Hearn ("Gill Hearn") (Compl. ¶ 39), the DOI Commissioner, and that Gill Hearn also politically supported Snyder's candidacy.

On July 7, 2005, Kregler was interviewed by staff of the Mayor's Office in connection with his Fire Marshal application and the following day was told by Schwam that the next step in the process would be the completion of the DOI background check. To that end he met a second time with Keenaghan to update and refile his application. In September 2005, Kregler and four other candidates began the DOI training classes, which Kregler states he successfully completed in October 2005. In November 2005, Kregler satisfied the last requirement for appointment by demonstrating his ability to obtain a bond.

In March 2006, Kregler was informed by letter from Schwam that he would not be appointed as a Fire Marshal. Kregler filed this action in August 2008, raising a claim of First Amendment retaliation in violation of § 1983. In the Amended Complaint, Kregler alleges that Garcia and Gill Hearn "agreed to cause Kregler's application for appointment as a City Marshal to be rejected by DOI in retaliation for Kregler's support of Morgenthau." (Compl. ¶ 41.) He further asserts that Garcia, Grogan and other FDNY employees requested that Gill Hearn, Schwam, Keenaghan, and other DOI employees misuse their authority to cause the rejection of his application. Responding to the reason Defendants proffered to him for denying his application -- Kregler's failure to disclose details of a Command Discipline he had received in 1999 during his employment by the FDNY -- Kregler contends that this explanation was merely a pretext for Defendants' unlawful retaliation.


In scheduling the Rule 12(i) hearing in this matter as a step to further inform the Court's evaluation of Defendants' motion to dismiss the Amended Complaint, the Court applied the standard of review for such motions articulated by the Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). There, the Supreme Court stated that to be sufficient under Federal Rule of Civil Procedure 8(a) ("Rule 8(a)") and survive a Rule 12(b)(6) motion to dismiss, the factual allegations in a complaint must be "enough to raise a right to relief above the speculative level," id. at 555, and state a claim "plausible on its face," id. at 570.

As interpreted and applied by the Second Circuit in Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), Twombly enunciated "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." 490 F.3d at 157-58 (emphasis in original). The Second Circuit in Iqbal concluded that to survive a motion to dismiss under Twombly's plausibility standard, "a conclusory allegation concerning some elements of a plaintiff's claims might need to be fleshed out." Id. at 158. To that end, the Circuit Court counseled that a district court consider "exercising its discretion to permit some limited and tightly controlled reciprocal discovery so that a defendant may probe for amplification of a plaintiff's claims and a plaintiff may probe such matters as a defendant's knowledge of relevant facts and personal involvement in challenged conduct." Id.

In prior proceedings in this action, the Court, in response to Defendants' pre-answer motion to dismiss Kregler's original complaint, and in an effort to resolve serious charges of official misconduct as expeditiously as possible with a minimum of motion practice, permitted Kregler to file an Amended Complaint. The revised pleadings Kregler submitted prompted Defendants' renewed motion to dismiss.

Upon review of the Amended Complaint the Court found that under Twombly's plausibility standard Kregler's pleadings remained borderline at best in stating a First Amendment retaliation claim. See Kregler, 608 F. Supp. 2d at 474. The Court stated that to survive Defendants' new motion to dismiss, the pleadings as modified would require the Court to accept as true numerous conclusory allegations, to make substantial inferential leaps, and to resolve considerable doubts in Kregler's favor. Specifically, the Court noted that Kregler did not allege that Gill Hearn had any direct knowledge of Kregler's endorsement of Morgenthau. Thus, the plausibility of Kregler's retaliation claim would turn on a finding that because Garcia and Gill Hearn were "personally and socially acquainted" (Compl. ¶ 39), and because allegedly they both supported Snyder, then by inference, Garcia used his contacts with Gill Hearn improperly to influence her determination on Kregler's application, and Gill Hearn and Garcia then agreed to cause Kregler's appointment to be rejected by DOI in retaliation for Kregler's support of Morgenthau.

This Court envisioned the Rule 12(i) hearing as an opportunity to provide, as the Second Circuit suggested in Iqbal, 490 F.3d at 158, the "amplication" or "flesh[ing out]" of Kregler's claims in respect of two threshold issues which his Amended Complaint addressed in generalized or conclusory terms: the various Defendants' direct involvement in the alleged retaliatory conduct, and the causal connection between Kregler's protected speech and Defendants' alleged adverse employment action of denying Kregler's application for appointment as a City Marshal.

Recently, and prior to this Court's scheduled Rule 12(i) hearing, the Supreme Court further elaborated on Twombly's plausibility standard. In Ashcroft v. Iqbal, reversing one aspect of the Second Circuit's application of Twombly, the Supreme Court explained that a claim has facial plausibility "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 129 S.Ct. 1937, 1949 (2009). Further, the Supreme Court noted that the standard "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). Rather, the Supreme Court continued, where a complaint pleads facts "that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

The Supreme Court then reiterated two longstanding basic principles governing a court's evaluation of a motion to dismiss. First, the rule that a court must accept as true all well-pleaded allegations in a complaint does not apply to legal conclusions or to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. And second, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. This determination, the Supreme Court counseled, is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. Concluding this analysis and instructions, the Supreme Court stated that "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Id. (quoting Fed. R. Civ. P. 8(a)(2)).

The Court recites the Supreme Court's discussion of the standard of review governing a motion to dismiss in Iqbal at such length because the decision provides an additional explanation of the controlling standard to guide this Court's review of Kregler's Amended Complaint with and without the benefit of the record produced at the Rule 12(i) hearing. The Court finds that under either factual basis, in the light of Iqbal's elaboration of the Twombly plausibility standard, Kregler's pleadings are insufficient to state a retaliation claim under the First Amendment.



A facial examination of the Amended Complaint reveals numerous allegations Kregler makes which amount to "[t]hreadbare recitals" of the elements of a cause of action "supported by mere conclusory statements," to which the Court need not accord a presumption of truth. Id. at 1949. These deficient pleadings include Kregler's speculation that because Garcia and Gill Hearn were "personally and socially acquainted" (Comp. ¶ 39), they "agreed to take steps to interfere with and prevent Kregler's appointment," and that they "agreed to cause Kregler's appointment as a City Marshal to be rejected by DOI, in retaliation for Kregler's support of Morgenthau" (id. ¶¶ 40, 41); and that Garcia and Grogan requested Gill Hearn, Schwam, ...

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