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Wiese v. Kelley

September 10, 2009

DANIEL WIESE, PLAINTIFF,
v.
ROGER B. KELLEY, DEFENDANT.



The opinion of the court was delivered by: Seibel, J.

MEMORANDUM DECISION AND ORDER

Plaintiff Daniel Wiese commenced this action against Defendant Roger Kelley, former President and Chief Executive Officer of the New York State Power Authority ("NYPA" or the "Authority"), Plaintiff's former employer, on July 15, 2008. He alleges, pursuant to 42 U.S.C. § 1983, that statements made public by Defendant during the course of his termination violated his Due Process rights. Defendant has moved to dismiss Plaintiff's Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) For the reasons stated below, Defendant's Motion is GRANTED.

I. Background

This action arises from the events leading up to Plaintiff's termination from the NYPA in May 2008 and related political intrigue surrounding a local scandal dubbed by the media as "Troopergate." The following facts are drawn from Plaintiff's Amended Complaint (Doc. 6), and are accepted as true for the purposes of Defendant's Motion to Dismiss.

Immediately prior to joining the NYPA, Plaintiff Daniel Wiese was employed by the New York State Police, and in 2002 retired, apparently without controversy, with the rank of Assistant Deputy Superintendent/Lieutenant Colonel. (Am. Compl. ¶ 3.) After leaving the New York State Police, Wiese served as Inspector General and Vice President of Corporate Security (IG/VP) at the NYPA from 2003 until his termination on May 23, 2008. (Id. ¶¶ 3, 14.) On April 3, 2008, Defendant Roger Kelley informed Wiese by letter that the New York State Attorney General had commenced an investigation "in connection with which [Wiese] . . . and Authority documents had been subpoenaed." (Id. ¶ 5.) As a result of the investigation, and in light of the sensitive nature of Wiese's position, Kelley advised that he would be immediately "i) placed on administrative leave with pay; ii) forbidden access to information and assets of the Authority; iii) required to relinquish his keys, key cards, computers, blackberrys [sic] . . . passwords, Authority vehicle and any other property of the Authority in his possession." (Id.) The April 3, 2008 correspondence was allegedly provided by Kelley or his subordinate to Fredric U. Dicker, a reporter for the New York Post. (Id. ¶ 6.) On April 5, 2008, the Post ran a piece by Dicker identifying Wiese by name, describing him as "[a] former State Police colonel under investigation for possible involvement with a renegade unit involved in political dirty tricks," and stating that investigators sought to determine if Wiese "had a role in . . . political espionage operations." (Id. ¶ 7.) Wiese denies playing any such role. (Id.)

On May 6, 2008, New York State Attorney General Andrew Cuomo wrote to Kelley advising that his office was "conducting an investigation of the New York State Police," and had "issued subpoenas to the [NYPA]." (Id. ¶ 8.) During the course of the investigation, Cuomo wrote, his office "learned that affirmative steps were taken by NYPA personnel to purposefully destroy responsive information, specifically, e-mails on the blackberry [sic] of Daniel Wiese . . . . This destruction took place on April 1, 2008, the day this investigation was announced in the media." (Id.) Cuomo wrote that the missing emails were "relevant to [the] investigation," and "request[ed] that [Kelley] take any and all steps necessary to recover the deleted Wiese e-mails and provide them to [the Attorney General's] Office immediately upon their recovery." (Id.) As with the April 3, 2008 correspondence, the May 6, 2008 correspondence was allegedly leaked to the press by Kelley or subordinates acting at his direction. (Id. ¶ 9.) A May 8, 2008 New York Post piece by Dicker revealed the destruction of the Wiese emails, quoted portions of the May 6, 2008 letter from the Attorney General, and reported that "the NYPA announced that, in light of Cuomo's letter, it had changed Wiese's status from suspended with pay to suspended without pay from his $180,000-a-year job." (Id.) The May 8 Dicker article also contained a statement from Christine Pritchard, Kelley's spokesperson, that the NYPA would "do everything in [its] power to get to the bottom of the matter and take appropriate action, including holding accountable any personnel who acted in an inappropriate manner." (Id.) Plaintiff also alleges that Kelley leaked to Dicker a May 7, 2008 letter from Kelley informing Wiese that as of May 7, 2008, he would be placed on an unpaid leave of absence from his position as IG/VP at the NYPA. (Id. ¶ 10)

Another Dicker article, titled "Something rotten in state police," appeared in the New York Post on May 10, 2008, and reported further upon Wiese's suspension without pay and the Attorney General's ongoing investigation. (Id. ¶ 11.) The May 10 Dicker piece described Plaintiff as "shadowy," and "[a] central figure in the suspected conspiracy." (Id.) The loss of data on Wiese's BlackBerry, Dicker wrote, was an "outrage," and those implicated in the deliberate data loss "should immediately lose their jobs and, quite possibly, face jail time." (Id.)

Plaintiff does not dispute that data on his BlackBerry was, in fact, lost. Plaintiff alleges, however, that he "did not delete (nor cause anyone to delete) and [sic] e-mails, past or present," and that "no e-mails were deleted as stated in Cuomo's [May 6, 2008] correspondence." (Id. ¶ 8.) Rather, Plaintiff claims that any loss of data was accidental, not directly attributable to him, and the result of advice from an NYPA technology specialist named Dominick Daniello. (Am. Compl. ¶ 12.) Apparently, Plaintiff's "BlackBerry had effectively 'frozen,'" and only after "numerous attempts to correct its malfunction were unsuccessful" did Daniello "determine[] that the BlackBerry could only be 'unfrozen' by 're-booting' it," an "action that would result in the deletion of all information stored in the BlackBerry," but not the deletion of backed-up emails and data that remained on NYPA's servers. (Id.)

On May 19, 2008, Wiese sent an email to Kelley and members of the Authority's Board of Trustees requesting they publicly disclose the "facts" relating to the alleged destruction of emails. No such disclosure was made by Kelley or the Authority. (Id. ¶ 12.) That same day, the New York Post published an article in which Dicker reported that Attorney General Cuomo had convened a Grand Jury in connection with the ongoing investigation. (Id. ¶ 13.)

By letter dated May 22, 2008, Kelley notified Wiese -- who does not dispute that he was an at-will employee -- that his employment with the NYPA was being terminated. (Id. ¶ 14.) An article written by Dicker and appearing in the New York Post the following day reported that "[t]he former trooper at the center of allegations that a rogue state police unit did dirty tricks for two New York governors has been fired from his job at the [NYPA]." (Id. ¶ 16.) Plaintiff alleges that this information was also obtained courtesy of a leak from Kelley's office.*fn1 Plaintiff further alleges that the leaks were pursuant to a plan by Kelley to smear Plaintiff, fire him, and make it impossible for him to find a new job. (Id. ¶ 4.) He does not suggest what Kelley's motive for such conduct might be.

Plaintiff's Amended Complaint alleges that copies of the Dicker articles, which contained unflattering characterizations of Plaintiff and his actions, were maintained in his personnel file. Plaintiff was not afforded a hearing prior to or after his termination from employment with the NYPA. (Id. ¶ 18.)

II. Discussion

A. Standard of Review for a Motion to Dismiss

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations and quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks a ...


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