The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
CORRECTED DECISION and ORDER*fn1
Plaintiff, Susan McLaughlin, brought the instant action seeking injunctive relief and damages for retaliation pursuant to the First Amendment of the United States Constitution, 42 U.S.C. § 1983, Article 1, § 8 of the New York State Constitution, and New York State Labor Law § 741, and for attorney's fees pursuant to 42 U.S.C. § 1988 and New York State Labor Law § 741. Plaintiff alleges that: (1) Defendants, past and present employees of the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) and OMRDD itself and past and present employees of the Willowbrook Consumer Advisory Board (CAB) and CAB itself, retaliated against her protected speech in violation of the First Amendment and of Article 1, § 8 of the New York State Constitution; and (2) Defendant OMRDD retaliated against Plaintiff for repeatedly reporting to her supervisors, the New York Civil Liberties Union (NYCLU), and OMRDD instances of improper quality of patient care, and for objecting to or refusing to participate in activities, policies, and/or practices that Plaintiff reasonably believed constituted improper quality of patient care, in violation of Labor Law § 741.
The OMRDD and the Defendants employed by that entity (Pezzolla, Colarusso, Broderick, and McGrath) have moved for summary judgment arguing that: (1) Plaintiff cannot substantiate a First Amendment retaliation claim under 42 U.S.C. § 1983; (2) Plaintiff cannot demonstrate that OMRDD Defendants intended to cause, or caused, a hostile work environment; (3) the doctrine of qualified immunity bars Plaintiff's claims for compensatory relief; (4) OMRDD Defendants were not personally involved in Plaintiff's dismissal; and (5) Plaintiff's relief as to OMRDD is barred by the Eleventh Amendment. Plaintiff opposes the motion.
The CAB and the Defendants employed by that entity (Martin, Ferguson, Nehrbauer, and Turner) have also moved for summary judgment arguing that: (1) Plaintiff's claims are barred by the Eleventh Amendment; (2) Plaintiff's § 1983 claim is subject to dismissal because Plaintiff's speech was made in the course of her official duties; (3) Plaintiff cannot show that the letters at issue were a motivating factor in her termination; (4) the individual CAB Defendants were not personally involved in Plaintiff's termination; and (5) the individual CAB Defendants are entitled to qualified immunity. Plaintiff opposes the motion.
Plaintiff was employed by CAB as a consumer advocate. The CAB was established pursuant to the terms of the Willowbrook Injunction. This Willowbrook Injunction was the end result of a class action lawsuit, New York State Association for Retarded Children, et al. v. Mario Cuomo, et al., 393 F. Supp. 715 (E.D.N.Y. 1975), brought by the New York Civil Liberties Union (NYCLU) on behalf of disabled individuals at the Willowbrook State School in Staten Island, New York. The CAB serves on behalf of the disabled individuals who had resided at the Willowbrook State School prior to 1972 and who did not have family members or other individuals willing or able to serve as their guardians and provide active representation for them. The mandate of the CAB is to act in loco parentis and to provide all necessary and appropriate representation and advocacy services to all non-correspondent class members for as long as any such class member shall live.
Plaintiff was employed as a CAB Program Associate and was assigned responsibility for between 87 and 125 Willowbrook non-correspondent class members ("consumers") who resided in facilities in upstate New York. Plaintiff's job duties and responsibilities included, but were not limited to, conducting visits to OMRDD facilities, attending meetings of the OMRDD team charged with her consumer's care, planning for her consumer's care, interacting with service providers to assure that appropriate care is given, and granting or withholding consent for her consumers' medical care.
Plaintiff alleges that in addition to managing her caseload she began reporting what she believed were systemic problems related to the treatment of all individuals served by the Sunmount DDSO, an OMRDD operated facility.*fn2 Plaintiff's complaint alleges that instead of conducting investigations of the systemic problems that exist for the patients in OMRDD run facilities, Defendants retaliated against her by engaging in investigations of her work performance, conducting a OMRDD and CAB joint investigation of her, and finally interrogating and terminating her in 2005.
Specifically at issue in this case are two letters dated February 20, 2004 and February 17, 2005. They were both written on Plaintiff's personal letterhead during non-working hours. The first of these letters was written to CAB Chairperson Nehrbauer and OMRDD Commissioner Maul. This letter reported abusive and neglectful acts, systemic cover-up, and Medicaid fraud extending beyond the members of the Willowbrook class. This letter resulted in a chain of correspondence with the Director of OMRDD Internal Affairs throughout the summer of 2004. In these letters, Plaintiff alleges systemic abuse and cover up involving both her consumers and consumers not within her specific caseload. The second letter, dated February 17, 2005, was also written to Chairperson Nehrbauer and OMRDD Commissioner Maul. In this letter, Plaintiff reported that she was unsuccessful in initiating an investigation through Internal Affairs, and continued to assert that there existed abuse and neglect of consumers, this time including specific examples.
Defendants allege that Plaintiff was terminated in July 2005 as a result of unprofessional behavior causing Plaintiff to be an ineffective representative for her consumers. Specifically, over the years it was brought to CAB's attention that Plaintiff's style and temperament in performing her advocacy duties often led to unnecessary conflict with the treatment teams. This led to various complaints regarding Plaintiff's behavior and raised concerns as to whether CAB consumers were being served effectively.*fn3 Plaintiff also allegedly failed to follow proper protocol when attempting to advocate on behalf of consumers.
As a result of these issues, CAB received a fax from OMRDD requesting that CAB place Plaintiff on administrative leave. CAB requested the documentation and information on the nature of these complaints, and subsequently received a variety of documentation critical of Plaintiff's behavior. This included instances of Plaintiff authorizing unilateral changes to consumers' medical care without proper involvement or consultation with the treatment teams, and Plaintiff's refusal to allow team leaders to participate in meetings. CAB took steps to remove the affected consumers from Plaintiff's caseload as it reviewed the situation. On April 11, 2005, Turner and Plaintiff had a meeting which included the possibility of transitioning Plaintiff's caseload back to her.
On May 23, 2005, another complaint regarding Plaintiff's behavior was filed. The complaint alleged that Plaintiff acted unprofessionally at a team meeting. Plaintiff was placed on administrative leave pending an investigation. Defendants contend that the ensuing investigation found support for the most recent allegations of unprofessional conduct, and further that it revealed a work environment marred by conflict and dysfunction. Defendants maintain that Plaintiff was then terminated as a result of her unprofessional behavior.
Summary judgment, pursuant to Fed. R. Civ. P. 56(c), is warranted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Major League Baseball Properties, Inc. v. Salvino, 542 F.3d 290, 309 (2d Cir. 2008). Only after the moving party has met this burden is the non-moving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). The nonmoving party must do more than "rest upon the mere allegations ... of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also Fed. R. Civ .P. 56(e) ("When a motion for summary judgment is made [by a defendant] and supported as provided in this rule, the [plaintiff] may not rest upon the mere allegations ... of the [plaintiff's] pleading ...."). Rather, "[a] dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Ross v. McGinnis, 00-CV-0275, 2004 WL 1125177, at *8 (W.D.N.Y. Mar. 29, 2004) [internal quotations omitted] [emphasis added]. It must be apparent that no rational finder of fact could find in favor of the non-moving party for a Court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) [citation omitted]; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) [citation omitted].
a. Threshold Issue: The Eleventh Amendment
The Defendants argue that Plaintiff's § 1983 claims against OMRDD and CAB, both of which are government agencies, are barred by the Eleventh Amendment. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI; See Seminole Tribe of Florida, 517 U.S. 44, 54 (1996) (The Eleventh Amendment bars suits against a state by its own residents as well as by those of other states.); Schallop v. New York State Dept. of Law, 20 F. Supp.2d 384, 390 (N.D.N.Y. 1998) ("Claims brought against state agencies . . . constitute direct claims against the state and are barred by the Eleventh Amendment.") (citing Komlosi v. New York State Office of Mental Retardation & Developmental Disabilities, 64 F.3d 810, 815 (2d Cir. 1995)). "Rather than an absolute bar to federal court jurisdiction, the Eleventh Amendment establishes a sovereign immunity from suit which may be waived by a state or abrogated by Congress."
Schallop, 20 F. Supp.2d at 390. It is well settled that Congress did not abrogate the immunity provision in adopting § 1983, and there is no contention here that New York has waived its immunity by consenting to be sued in these circumstances. Quern v. Jordan, 440 U.S. 332, 338 (1979).
Plaintiff concedes that the Eleventh Amendment entitles the OMRDD to governmental immunity, and therefore, the § 1983 cause of action brought against the OMRDD must be dismissed. Plaintiff argues, however, that the CAB is not entitled to Eleventh Amendment immunity because, although a state agency, it was formed by the Federal Government and not the State of New York, and, therefore, there is no interference with state sovereignty.*fn4 Furthermore, Plaintiff argues that the funding level for CAB was determined by the Federal Court and not the State of New York.
It is established that "a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." Edelman v. Jordan, 415 U.S. 651, 663 (1974). The Supreme Court found that this includes retroactive payments wrongfully withheld. Id. at 678. Therefore, because any liability imposed upon CAB would come from the state treasury, the Eleventh Amendment bars any award of damages against CAB including front pay, back pay, and reimbursement for lost benefits.
In this case, Plaintiff also demands reinstatement. "A plaintiff may sue a state official acting in his official capacity - notwithstanding the Eleventh Amendment - for prospective, injunctive relief from violations of federal law." State Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 95 (2d Cir. 2007) (citing In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007) (internal quotation marks omitted)). The Second Circuit has concluded that a state employee's constitutional challenge to his termination . . . was barred by the Eleventh Amendment to the extent he sought a retroactive award of back pay . . . [b]ut his equitable claim for reinstatement was not so barred." Dotson v. Griesa, 398 F.3d 156, 178 (2d Cir. 2005) (citing to Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir. 1986).*fn5
CAB Defendants argue that "[w]hile a party may seek injunctive relief to stop an ongoing violation of federal law, to obtain such relief, a plaintiff must still present evidence of a policy or practice that was the driving force behind the alleged constitutional wrong." See Docket No. 89. They argue that "[a]t no point in the course of this litigation has Plaintiff produced any evidence of a policy or practice that served as the driving force behind the alleged wrongs in this case." Id.
For reasons to be discussed, the Court finds that Plaintiff has produced sufficient evidence to create a triable issue as to whether CAB terminated Plaintiff in retaliation for her constitutionally protected speech and, therefore, there is no Eleventh Amendment bar to that portion of Plaintiff's § 1983 cause of action against CAB seeking reinstatement.Accordingly, Plaintiff's claims against the OMRDD and CAB seeking monetary damages must be dismissed.The Eleventh Amendment does not bar Plaintiff's claim against CAB seeking reinstatement.
b. First Amendment Retaliation Claim
Plaintiff, a public employee, has asserted a First Amendment retaliation claim. Specifically, Plaintiff identified the two letters she wrote to Maul and Nehrbauer, in February 2004 and February 2005, as the speech at issue in her retaliation claim. She maintains that Defendants retaliated against her for these communications culminating in her termination in July 2005.
A public employee who makes a First Amendment claim of employment retaliation pursuant to §1983 must show that: (1) the plaintiff engaged in protected speech; (2) she suffered an adverse employment decision, and (3) there is a causal connection between her speech and that adverse employment decision, so that it can be said that the plaintiff's speech was a motivating factor in the adverse employment action. See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Cioffi v. Averill Park Central School Dist. Board of Ed., 444 F.3d 158, 162 (2d Cir. 2006). "If a plaintiff makes a sufficient showing of each of these elements, summary judgment is not appropriate unless the defendant establishes as a matter of law that he would have taken the same adverse employment action even absent the protected conduct." Dillion v. Morano, 497 F.3d 247, 251 (2d Cir. 2007). Specifically, the Second Circuit in Cioffi, 444 F.3d at 162-163, held that:
[e]ven if the plaintiff establishes these three elements, his claim remains subject to several defenses. First, the state may defend its actions by showing the employee's speech disrupted the workplace. Rankin v. McPherson, 483 U.S. 378, 388 (1987); see Connick v. Myers, 461 U.S. 138, 151-52 (1983). To prevail with this defense the public employer must demonstrate that its interest in promoting an efficient workplace outweighs the employee's interest in commenting on matters of public concern. Connick, 461 U.S. at 140. Also, the employer may avoid liability by demonstrating that it would have taken the same adverse employment action "even in the absence of the protected conduct." Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
1. Whether Plaintiff's Speech was Protected
A public employee's speech may be constitutionally protected only if the plaintiff has spoken out as a citizen, not as an employee, on matters of public concern, rather than on matters of personal interest, and the state lacks an adequate justification for treating the employee differently from any other member of the general public. See Garcetti, 547 U.S. 410; Pickering v. Board of Educ., 391 U.S. 563, 568 (1968); Cotarelo v. Sleepy Hollow Police Dept., 460 F.3d 247, 252 (2d Cir. 2006); Grillo v. New York City Transit Authority, 291 F.3d 231, 235 (2d Cir. 2002); Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). "If the court determines that the plaintiff either did not speak as a citizen or did not speak on a matter of public concern, "the employee has no First Amendment cause of action based on his or her employer's reaction to the speech" and summary judgment is appropriate. Sousa v. Roque, 578 F.3d 164, 170 (2d Cir. 2009) (citing Garcetti, 547 U.S. at 418).
a. Plaintiff Must Speak as a Citizen not as a Government Employee
In Garcetti v. Ceballos, 547 U.S. 410, 426 (2006), the Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."*fn6 The parties dispute whether Plaintiff's speech was part of her official duties as a CAB consumer advocate.
The Garcetti Court did not articulate a comprehensive framework for determining whether an employee's speech is pursuant to her official duties as opposed to as a citizen because the "parties in [that] case [did] not dispute that Cebellos wrote his disposition memo pursuant to his employment duties." Garcetti, 547 U.S. at 424. Since Garcetti, courts have found the test to be a practical one and have articulated a number of factors, none of which are dispositive, to consider in determining whether the employee spoke pursuant to official duties. These factors include "the plaintiff's job description; the person or persons to whom the plaintiff's speech was directed; and whether the speech resulted from special knowledge gained through the plaintiff's employment". Caraccilo v. Village of Seneca Falls, N.Y., 582 F. Supp.2d 390, 405 (W.D.N.Y. 2008). In Rankin, 483 U.S. 378, the Supreme Court found that to determine whether speech was made as an employee or as a private citizen entails an examination of the "content, form, and context of [the] statements, as revealed by the whole record." Courts have clarified, however, that this determination can not be made solely on the basis of written job descriptions because public employers would be able to restrict employees' rights by creating excessively broad job descriptions. Dorcely v. Wyandanch Union Free School Dist., 2009 WL 3232866 at *23 (E.D.N.Y. Sept. 30, 2009). Finally, in Hoover v. County of Broome, 2008 WL 1777444 at *4 (N.D.N.Y. April 16, 2008), this Court stated that:
[d]etermining whether speech is made in the course of one's employment or as a citizen is a fact intensive inquiry. Garcetti, 126 S. Ct at 1961. "[A]d hoc or de facto duties fall within the scope of an employee's official responsibilities." Weisbath v. Geauga Park Dist., 499 F.3d 538, 544 (6th Cir. 2007). Similarly, that fact that the speech may have been outside of their workplace or that the speech concerned the employee's employment is not dispositive.
In this case, Plaintiff's letters, dated February 20, 2004 and February 15, 2004, are the speech at issue. The Defendants argue that Plaintiff's speech is not entitled to First Amendment Protection because her "letters [were] merely extensions of the same type of complaints Plaintiff not only did make, but was expected to make, as a CAB representative" and, therefore, were made in the course of her official duties. See Docket No. 89. Plaintiff argues that the holding in Garcetti does not bar Plaintiff's claims because the facts of the instant case are distinguishable from Garcetti. Plaintiff argues that, unlike her letters, Cebellos' statements were made solely in his capacity as a government employee, rendering his statements pursuant to his official duties. Plaintiff argues that her ...