The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Michael Reed and Lisa Reed commenced this action against the Medford Fire Department, Inc. ("the Department"), the Board of Fire Commissioners of the Medford Fire District ("the Board of Fire Commissioners"), Franklin Rivera, Henry Pinto, and unspecified members of the Department ("the Defendants") to recover damages associated with Michael Reed's discharge from his position as a volunteer firefighter with the Department. In addition, they are seeking damages associated with Michael Reed's request for records associated with his termination. Presently before the Court is the Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 ("Fed. R. Civ. P. 56") to dismiss the complaint in its entirety. For the reasons set forth below, the Court grants in part and denies in part the Defendants' motion.
The following constitute the undisputed facts in the case, with exceptions noted. As an initial matter, the Court notes that while both Michael Reed and Lisa Reed are plaintiffs in this action, most of the facts and causes of action relate solely to Michael Reed. Therefore, unless otherwise stated, all references to "Reed" or "the Plaintiff" are intended to refer to Michael Reed.
On February 3, 2008, Michael Reed, a volunteer member Medford Fire Department attended a Super Bowl party at the firehouse. On or about February 8, 2008, the Department received a letter from Kathleen Zaugg, the wife of a fellow volunteer firefighter, accusing Reed of inappropriately touching her at the Super Bowl party and requesting disciplinary action against him. In response to Zaugg's allegation, on February 17, 2008, the Department conducted an interview of Reed. In attendance at this interview were Reed, Chief Franklin Rivera, First Assistant Chief Norman Melcher, and Second Assistant Chief William Wyche. According to the Defendants, at this meeting Reed admitted to Zaugg's allegations of inappropriate conduct. However, Reed denies the allegations and denies making any admissions at the February 17, 2008 meeting.
On February 20, 2008, Rivera sent Reed a letter advising him that he was suspended from the Department until the next general meeting, which was to be held on March 7, 2008, for violating the Department's sexual harassment policy. The Department's sexual harassment policy is set forth in Article IV Section 3 Subdivision (A) of the Department's by-laws, which states that "conduct unbecoming of a member of the department in public" would be met with disciplinary action or expulsion. (Rodriguez Aff., Ex. E.) Rivera also sent a letter to Henry Pinto, president of the Department, recommending that the Department terminate Reed as a volunteer firefighter. In addition, on or about February 29, 2008, the Board of Fire Commissioners received correspondence from the law firm of Cartier, Bernstein, Auerbach, and Dazzo P.C., advising them that they had been retained by Zaugg in connection with the alleged groping incident.
On March 7, 2008, William Morrissey, Esq. ("Morrissey"), attorney for the Department, sent Reed a "Notice of Charges and Disciplinary Hearing" advising him that a hearing would be held pursuant to New York General Municipal Law § 209-l ("GML § 209-l") and the Department by-laws on March 26, 2008 at 8:00am in order to address the charges against him. However, at the Department's general meeting on March 7, 2008, the Department membership voted to withdraw the notice of the hearing and found Reed guilty of the charges. As reflected in the minutes of the March 7, 2008 Hearing ("March 7, 2008 Minutes"), the Department membership concluded that Reed was guilty because: (1) he had been given adequate notice of the March 7, 2008 meeting but failed to appear; (2) he had failed to request a trial; and (3) allegedly he admitted the charges against him at the February 17, 2008 interview. (Rodriguez Aff., Ex. I.) After the members voted that Reed was guilty, the Department's executive committee voted to terminate Reed from the Department. The next day, on March 8, 2008, on behalf of the Department, Morrissey sent a letter to Reed advising him that the executive committee had voted to remove him from the Department based on his violation of the Department's sexual harassment policy.
Not having been present at the March 7, 2008 Hearing, Reed attempted to obtain a copy of the minutes of the meeting. On April 5, 2008 Reed called Jim Guerrasio, who he believed was the president of the Department, to request a copy of the minutes. In addition, Reed sent a follow up written request for the minutes to Guerrassio on April 10, 2008. In response, Pinto, the actual president of the Department, sent a letter to Reed advising him that "all requests for monthly minutes must be requested through [his] lawyer" and that they would "wait for [his] lawyer's notification". (Stroble Aff., Ex. C.) Reed contends that at this point he retained a lawyer, Joseph Stroble, Esq. ("Stroble"), who then assisted him with filing a request for the March 7, 2008 Minutes with the Board of Fire Commissioners pursuant to New York's Freedom of Information Law ("FOIL"). On June 16, 2008, the Medford Fire District's Freedom of Information Officer Michelle Roston ("Roston") sent a letter to Stroble requesting additional information in order to comply with the request.
The record does not indicate whether Reed or Stroble responded to Roston's request for additional information. However, on or about June 19, 2008, Reed filed a petition pursuant to Article 78 of the New York Civil Practice Law and Rules challenging his termination as arbitrary and contrary to law because he was not provided with a hearing in accordance with the Department by-laws and GML §209-l (the "Article 78 Petition"). The Article 78 Petition also charged that the Defendants had violated FOIL by denying his request for a copy of the March 7, 2008 Minutes, and requested an order directing the Board of Fire Commissioners and the Department to produce the March 7, 2008 Minutes at their own cost, and to pay Reed's attorneys' fees in association with the request. The portion of the Department's response to the Article 78 Petition annexed to the Affidavit of Joseph Stroble in Opposition to the Motion for Summary Judgment ("Stroble Affidavit"), indicates that the Department attached a copy of the March 7, 2008 Minutes to its response to the Article 78 Petition.
On October 5, 2009, New York Supreme Court Justice Joseph Farneti granted the Article 78 Petition. In his decision, Justice Farneti rejected the Department's argument that Reed was not entitled to a hearing because he was discharged for a violation of the Department's by-laws, which is not governed by the municipal law. Instead, Justice Farneti held that the basis for removal was Reed's misconduct, which is governed by the municipal law. In particular, GML § 209-l provides in relevant part that:
3. Removals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges . . . . . . . .
4. a. Hearings upon such charges shall be held by the officer or body having the power to remove the person charged with incompetency or misconduct or by a deputy or employee of such officer, or body designated in writing for that purpose. . . .
b. The notice of such hearing shall specify the time and place of such hearing and state the body or person before whom the hearing will be held.
c. Such notice and a copy of such charges shall be served personally upon the accused officer or member at least ten days but not more than thirty days before the date of the hearing.
N.Y. Gen. Mun. Law § 209-l (McKinney 2011). However, Justice Farneti also stated that, even assuming arguendo that Reed's removal was governed by the Department by-laws, the by-laws also required notice and a hearing. See By-Laws of the Medford Fire Department Article IV Section 6 ("Any member facing charges shall be notified in writing at least 15 calendar days before such trial.") (Rodriguez Aff., Ex. J at 7). Thus, Justice Farneti ordered the Department to "conduct a hearing with respect to the allegations which served as the basis for petitioner's removal, in compliance with General Municipal Law section 209-l and Section 4 of the Fire Department's bylaws, within sixty (60) days" of service of the order. Reed v. Medford Fire Dep't, Inc. ("Reed I"), Index No. 19931/2008, at 5 (N.Y. Sup. Ct. Suffolk Cnty. Oct. 5, 2009). With respect to the FOIL claims, Judge Farneti held that because the Department had provided Reed with the March 7, 2008 Minutes in response to the Article 78 Petition, his FOIL claim was moot. Id. at 3. The decision does not address Reed's request for attorneys fees or other damages associated with his FOIL request. Reed did not appeal from this decision.
In accordance with Judge Farneti's order in Reed I, on November 20, 2009, on behalf of the Department, Morrissey sent to Stroble, Reed's attorney, who had represented Reed in conjunction with his FOIL request and his Article 78 Petition, a "Notice of Charges and Disciplinary Hearing" ("the Notice") via certified and regular mail stating that Reed's hearing would take place on December 9, 2009. However, contrary to the requirements of GML § 209-l, the Defendants did not personally serve Reed. The record is silent as to whether the Defendants mailed a copy of the Notice to Reed. Although Stroble admits to receiving notice of the hearing, he contends that he did not inform Reed of the hearing because he was not certain he was still representing him.
Prior to the hearing, Morrissey contacted Stroble with an offer to have an independent hearing officer preside over the hearing in lieu of the President of the Department. On December 8, 2009, Stroble left a voicemail for Morrissey stating that he did not have the authority to consent to an independent hearing officer. Morrissey then sent a follow up letter to Stroble on December 9, 2009 confirming the content of the voicemail, stating that the hearing that evening would be conducted in accordance with the Department's by-laws, and inviting Stroble to contact him if he wanted to discuss the matter further. (Rodriguez Aff., Ex. O.) The parties dispute whether Stroble's voicemail was an indication that he had discussed the offer with Reed.
Nevertheless, it is undisputed that, when the Department held the hearing on December 9, 2009, neither Reed nor Stroble were in attendance. Although the parties dispute whether the December 9, 2009 meeting met the definition of a "hearing", for the purposes of this motion only, the Court will refer to the December 9, 2009 meeting as the "December 9, 2009 Hearing". At the December 9, 2009 Hearing, Morrissey informed the voting members that they were entitled to find Reed guilty under the by-laws based on his failure to appear, and presented the evidence that he alleged indicated that Reed had notice of the hearing. In particular, Morrissey stated that Article 4 Section 6 of the Department's by-laws provide that "Any member facing charges shall be notified of the charges in writing at least two weeks before such trial. If the accused willfully neglects or refuses to stand trial he shall be deemed guilty." (Rodriguez Aff., Ex. J at 7.)
In addition, although noting that it was not required, Morrissey also presented exhibits and evidence purporting to establish Reed's guilt. The members attending the meeting then voted thirty-five to zero that Reed was guilty of the charges. The executive committee, which did not include either Rivera or Pinto, then met and voted to continue with Reed's existing termination based on the evidence presented and Reed's failure to appear. On December 10, 2009, Morrissey sent a letter to Stroble advising him that Reed had again been dismissed from the Department.
As a result, on February 19, 2010, Reed and his wife Lisa Reed commenced the instant action by filing a complaint against the Department, the Board of Fire Commissioners, Rivera, Pinto, and three John Does, and one Jane Doe who were allegedly involved in formulating or implanting the policies that resulted in his termination. Although it will be addressed more fully in the discussion, the complaint in this action was not a model of clarity. There is little to no differentiation between the various defendants as to what conduct is being attributed to them or what causes of action are being asserted against them.
Viewing the complaint in the light most favorable to the plaintiffs, the Court construes the complaint as asserting that: (1) the Department deprived Reed of his First Amendment, Eighth Amendment, and Fourteenth Amendment rights in violation of 42 U.S.C. §1983 and state civil rights laws in association with the December 9, 2009 Hearing; (2) all of the Defendants intentionally and/or negligently caused Reed severe emotional distress and pecuniary loss based on their conduct associated with both the March 7, 2008 Hearing and the December 9, 2009 Hearing; (3) all of the Defendants are either vicariously or directly liable for committing libel and slander against Reed based on Rivera's statements at the March 7, 2008 Hearing that Reed was guilty of the charges; (4) Lisa Reed is entitled to damages for loss of consortium; and (5) all of the Defendants violated the federal Freedom of Information Act, 5 U.S.C. § 552, and the New York Freedom of Information Law.
On December 29, 2010, the Defendants moved for summary judgment pursuant to Fed. R. Civ. P. 56, seeking the dismissal of the entire complaint. The Defendants first assert that the state common law tort claims fail because: (1) Reed did not file the requisite Notice of Claim pursuant to General Municipal Law § 50-e to sustain claims for intentional and negligent infliction of emotional distress, libel, and slander; (2) Reed admitted in his Rule 56.1 Statement of Facts that the statute of limitations on the libel and slander claims has expired; and (3) Lisa Reed's loss of consortium claim is derivative of the unsustainable state common law tort claims and Section 1983 does not permit derivative loss of consortium claims. Next, the Defendants contend that they are entitled to summary judgment on Reed's FOIA and FOIL claims because: (1) the FOIL claim is barred by res judicata pursuant to the decision in Reed I; and (2) Reed cannot state a claim under FOIA. Finally, with respect to the Section 1983 claims, the Defendants contend that they are entitled to summary judgment because: (1) Rivera or Pinto cannot be held personally liable under Section 1983 because they did not participate in the decision to terminate Reed at the December 9, 2009 Hearing; and (2) Reed's Section 1983 due process claim fails as a matter of law because he had an adequate post-termination remedy in the form of an Article 78 proceeding.
For his part, Reed contends that there are genuine issues of material fact as to: (1) whether the Defendants violated FOIA and FOIL by requiring the Plaintiff to have an attorney before the Department could respond to his request for the March 7, 2008 Minutes; (2) whether the December 9, 2009 Hearing complied with Justice Farneti's order in Reed I and satisfied the constitutional requirement for a pre-termination "hearing"; and (3) whether the decision to terminate him was arbitrary, an abuse of discretion, and disproportionate to the alleged misconduct.
It is well-settled that summary judgment under Fed. R. Civ. P. 56(c) is proper only "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" within the meaning of Fed. R. Civ. P. 56 when its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether an issue is genuine, "[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)).
Once the moving party has met its burden, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quoting Fed. R. Civ. P. 56(e)). However, the nonmoving party cannot survive summary judgment by casting mere "metaphysical doubt" upon the evidence produced by the moving party. Matsushita, 475 U.S. at 586, 106 S. Ct. 1348. Summary judgment is appropriate when the moving party can show that "little or no evidence may be found in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223--24 (2d Cir. 1994) (citations omitted).
B. As to Plaintiff's State Law Tort Claims
Michael Reed asserts various state law tort claims in his complaint, including intentional and negligent infliction of emotional distress, libel, and slander. In addition, plaintiff Lisa Reed asserts a claim for loss of consortium based on the underlying torts. However, despite the fact that these claims are included in the complaint, and were addressed by the Defendants in their summary judgment motion, the Plaintiff did not put forth any argument or evidence as to the existence of a genuine issue of material fact precluding the dismissal of these claims.
If the adverse party does not respond to the summary judgment motion, "summary judgment, if appropriate, shall be entered against the adverse party." Fed. R. Civ. P. 56(e). That the Plaintiff did not respond to the motion for summary judgment with respect to the state law tort claims does not mean the motion is automatically granted. Rather, "[s]uch a motion may properly be granted only if the facts as to which there is no genuine dispute 'show that the moving party is entitled to a judgment as a matter of law.'" Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) ...