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McLaughlin v. Pezzolla

March 4, 2010

SUSAN F. MCLAUGHLIN, PLAINTIFF,
v.
PETER F. PEZZOLLA, IN HIS INDIVIDUAL CAPACITY, JOSEPH J. COLARUSSO, IN HIS INDIVIDUAL CAPACITY, RITA M. MARTIN, IN HER INDIVIDUAL CAPACITY, ANTONIA J. FERGUSON, IN HER INDIVIDUAL CAPACITY, ANN T. NEHRBAUER, IN HER INDIVIDUAL CAPACITY, VICTOR M. TURNER, IN HIS INDIVIDUAL CAPACITY, KATHLEEN BRODERICK, IN HER INDIVIDUAL CAPACITY, THE STATE OF NEW YORK OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, THE WILLOWBROOK CONSUMER ADVISORY BOARD AND LAURA MCGRATH, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiff Susan McLaughlin brought this civil rights action alleging that: (1) Defendants, past and present employees of the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD), OMRDD itself, past and present employees of the Willowbrook Consumer Advisory Board (CAB), and CAB itself, retaliated against her for her protected speech in violation of the First Amendment of the United States Constitution. See Docket No. 14. On December 17, 2009, the Court ruled on Defendants' summary judgment motions dismissing Plaintiff's claims against the OMRDD, and individual Defendants McGrath, Pezzolla, Martin, and Colarusso, and denying Defendants' motion as to the CAB, and individual Defendants Broderick, Ferguson, Nehrbauer, and Turner. See Docket No. 108. On February 1, 2010, Defendant Broderick filed the instant motion for reconsideration. Defendants Ferguson, Nehrbauer, Turner and the CAB join the instant motion. See Docket No. 110.

In their motion for reconsideration, Defendants argue that the Court should grant summary judgment as to all Defendants. Id. They contend that the analysis and reasoning of the Second Circuit in Weintraub v. Board of Education of the City School District of New York, 2010 WL 262663 (2d Cir. 2010), when applied to the facts of this case, compel a finding that Plaintiff's alleged protected speech was made in furtherance of her core duties as a CAB representative and as such, was unprotected. Id. For the reasons that follow, Petitioner's motion is denied.

I. FACTS

Although the Court assumes familiarity with the facts of this case from the Court's recent Decision and Order, the Court will state the pertinent facts and events. See Docket No. 108. "Plaintiff was employed by CAB as a consumer advocate." Id. As a consumer advocate, her "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." Id. In Plaintiff's Complaint she alleged 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. Id.

At issue in this case are two letters dated February 20, 2004 and February 17, 2005. Id. Both letters were written on Plaintiff's personal letterhead during non-working hours. Id. The letters reported abusive and neglectful acts, systemic cover-up, and Medicaid fraud extending beyond the members of the Willowbrook class and involving both her consumers and consumers not within her specific caseload.Id.Plaintiff's Complaint alleges that instead of conducting investigations of the systemic problems reported in her letters, 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. Id.

In theDecember 17, 2009 Decision and Order, the Court ruled on Defendants' summary judgment motions, dismissing Plaintiff's claims against the OMRDD, and individual Defendants McGrath, Pezzolla, Martin, and Colarusso, and denying Defendants' motion as to the CAB, and individual Defendants Broderick, Ferguson, Nehrbauer, and Turner. Defendant Broderick filed the instant motion for reconsideration joined by Defendants Ferguson, Nehrbauer, Turner and the CAB.

II. STANDARD OF REVIEW

Pursuant to Fed. R. Civ. P. 60(b) the Court may relieve a party from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud... misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment." "'A motion for relief from judgment is generally not favored and is properly granted only upon a showing of exceptional circumstances.'" Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004) (quoting United States v. International Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001)). "The burden is on the party seeking relief from judgment." Id. "As a Rule 60(b) motion, [Petitioner's] motion [is] to be determined within the discretion of the District Court." United States v. Clark, 984 F.2d 31 (2d Cir. 1993).

III. DISCUSSION

Defendants argue that the Court should reconsider its earlier decision denying summary judgment as to Plaintiff's First Amendment retaliation claim. See Docket No. 110. They contend that the Second Circuit Court of Appeals decision in Weintraub v. Board of Education of the City School District of the City of New York, 2010 WL 262663 (2d Cir. 2010), represents a dramatic change in the controlling law narrowing the scope of protection afforded to an employee as defined in Garcetti v. Ceballos, 547 U.S. 410 (2006), and altering the basis of analysis utilized by this Court. Id. Additionally, Defendants argue that the Court applied the wrong standard to the inquiry of qualified immunity, wrongfully denying qualified immunity to the individual Defendants. Id.

a. Whether Plaintiff Spoke as a Citizen or 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 employee discipline." The decision to deny Defendant's Motion for Summary Judgment as to Plaintiff's First Amendment retaliation claim was based partly on the finding that "because Plaintiff's letters were written to individuals outside of Plaintiff's regular chain of command and parts of the letters concerned subjects outside of Plaintiff's job description there are material questions of fact concerning whether Plaintiff's letters were written pursuant to her official duties." See Docket No. 108. Defendants argue that ...


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