The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Represented by counsel, plaintiffs Jason Deal ("Deal") and Robert Lahr ("Lahr") filed this action pursuant to 42 U.S.C. § 1983 against defendants Seneca County ("the County"), the Seneca County Sheriff's Department ("the Sheriff's Department"), Seneca County Sheriff Leo T. Connolly ("Connolly"), the Seneca County District Attorney's Office ("the SCDA"), former Seneca County District Attorney Richard Swinehart ("Swinehart"), and former Seneca County Undersheriff James Larson ("Larson"). At all relevant times, plaintiffs Deal and Lahr have been employed, and continue to be employed, as criminal investigators by the Sheriff's Department.
The claims presently pending against the County, the Sheriff's Department, Larson, and Connolly involve alleged retaliation against plaintiffs for exercise of their First Amendment rights.
Specifically, in their Amended Complaint,*fn1 plaintiffs allege that defendants harassed, intimidated, and took adverse employment actions against them in an attempt to quash their rights to speak out regarding matters of public concern. Also pending are plaintiffs' claims alleging the intentional infliction of emotional distress ("IIED") against Connolly only. Swinehart and the SCDA are no longer defendants in this action. See Decision and Order dated February 26, 2009 (Docket No. 61) (denying without prejudice plaintiffs' motion to amend to include claims of retaliation against defendants Swinehart and the SCDA for the violation of their First Amendment rights, as set forth in plaintiffs' Second and Fifth Causes of Action of the Proposed Amended Complaint).
After the close of discovery, the remaining defendants all filed motions for summary judgment pursuant to Fed. R. Civ. P. 56. Defendants argue that the First Amendment retaliation claims should be dismissed as a matter of law because plaintiffs did not speak as private citizens but rather as public employees, no adverse employment action was taken against plaintiffs, and any adverse employment action was not causally connected to the speech at issue. Larson and Connolly contend that they are entitled to qualified immunity, while the County and the Sheriff's Department assert the defense of limited municipal liability under 42 U.S.C. § 1983. Larson also argues that he lacked the supervisory authority over plaintiffs to engage in the retaliatory conduct alleged. Connolly contends that plaintiffs have not alleged conduct that qualifies as extreme and outrageous for purposes of establishing a claim of IIED.
Plaintiffs have opposed each defendants' motion for judgment on the pleadings. The matter is now fully submitted and ready for decision. For the reasons that follow, defendants' motions for summary judgment are granted, as there are no genuine issues of material fact with regard to the First Amendment retaliation claims. In particular, the Court finds that plaintiffs have not established the required elements of "adverse employment action" and causation. With regard to the IIED claims, the Court finds that plaintiffs have not establish a prima facie case. Therefore, the Amended Complaint is dismissed in its entirety.
Because of the procedural posture of the case, the Court reviews the facts in the light most favorable to the non-moving party. Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The evidence of the non-movant is to be believed [when resolving a summary judgment motion], and all justifiable inferences are to be drawn in his favor.") (citation omitted)). Accordingly, the following facts, unless otherwise noted, are undisputed or drawn from plaintiffs' testimony and affidavits. In the event of a dispute, the facts are construed in the light most favorable to plaintiffs. E.g., Anemone v. Metropolitan Transp. Auth., 629 F.3d 97, 99 n.1 (2d Cir. 2011) (citation omitted).
Plaintiff Lahr became an Investigator with the Sheriff's Department's Criminal Investigations Department ("CID") in 1996, and plaintiff Deal became an Investigator with the CID in 2000. Defendant Connolly was elected to the position of Seneca County Sheriff in November of 2003 and served a four-year term as Sheriff from January 1, 2004, through December 31, 2007. Defendant Larson became a full time deputy at the Sheriff's Department in October of 2000; was appointed Undersheriff by Connolly in 2004; and, effective January 1, 2006, stepped down to the position of Road Deputy and was no longer in a position superior to plaintiffs in the Sheriff's Department hierarchy. Larson left the Sheriff's Department on March 1, 2006.
B. Plaintiffs' Investigations
1. The Preferred Auto Investigation by Plaintiff Lahr
In the late 1990s and early 2000s, Preferred Auto ("PA") provided automotive maintenance and repair services for the Sheriff's Department's vehicles. Lahr noticed that when he brought his County-issued vehicle to PA for an oil change, the oil and oil filter were not being changed, but the County nevertheless was being charged. On his own initiative, and without notifying his supervisors, Lahr began an investigation of PA and gathered proof that PA was defrauding the Sheriff's Department. Lahr's investigation continued through 2003. At that time, then-sheriff Tom Fox ("Fox"), a close friend of PA's owner, learned of Lahr's activities. Lahr asserts that Fox ordered him to stop and threatened to fire him, although Lahr admits that Fox did not fire, suspend, discipline, or demote him.
The New York State Attorney General's Office ("the AG's Office") eventually began conducting an investigation into PA's business practices. Lahr did not contact the AG's Office; he surmised that Jim Stevers, who owned another local auto repair business and had had problems with PA, informed the AG's Office about PA. Lahr could only recall that the official investigation occurred between 2000 and 2004, and he thought that Fox was still Sheriff. In any event, Lahr spoke with two representatives from the AG's Office during work hours at the CID office. This conversation is one instance of speech which Lahr claims resulted in retaliatory treatment. Lahr admits, however, that the PA investigation "had nothing to do with [Connolly]," as it occurred prior to Connolly's tenure as sheriff. Deposition of Robert Lahr ("Lahr Dep.") at 80:15-22.
2. The Illegal Deer Hunt at Seneca Falls Army Depot
In 2005, Lahr learned that the Sheriff's Department was offering its members a security detail patrolling a deer-hunt at Seneca Falls Army Depot ("the Depot"). The Sheriff's Department members who signed up were permitted to hunt deer while being paid to act as security. Concerned that this was illegal and at least unethical, Lahr attempted to sign up for these details to monitor what was occurring. Although, based on his seniority and availability, Lahr should have received a security detail assignment, he never received a response to his request and was not afforded the opportunity to participate. Later, the deputy sheriff who had sent out the email concerning the security detail, Chris Constable ("Constable"), told Lahr that he "didn't get to go . . . because the sheriff [Connolly] and undersheriff [Larson] were pissed off at [him] for some reason[.]" Lahr Dep. at 106:13-17.
Believing that his only course of action was to refer the matter to an outside law enforcement agency, Lahr then contacted Federal Bureau of Investigation ("FBI") Agent Mark Thompson ("Thompson"), with whom he had worked in the past. Lahr met Thompson, off-hours, at a McDonald's parking lot and informed Thompson of his suspicions. Lahr did not know what, if anything, the FBI did in response to his allegations although he believes that the FBI did investigate. Lahr did not know whether he told Connolly, Larson, or Constable about his conversation with Thompson. He did not remember whether anyone told him that these individuals had been informed by someone else that he had spoken with the FBI. See Lahr Dep. at 108:20--109:3; 110:23-111:3. Lahr assumed that they somehow must have found out about it. Id. at 111:9-12 ("I don't think that they would have had this campaign of harassment against me and Jason [Deal] for no reason. They obviously knew something was going on or why would they be coming after us.").
3. Plaintiffs' Investigation into the Theft of County Property
In 2005, Lahr and Deal became suspicious that members of the Sheriff's Department, including Larson and Deputy Sheriffs Constable, Josh Zona ("Zona"), and Scott Buck ("Buck"), were stealing County property. Plaintiffs also learned that Larson, who had resigned from his position as Undersheriff, was arranging for sheriff's deputies to perform civilian duties while on county time and then paying them out-of-pocket for this work.
Lahr and Deal began their own investigation into the matter, without informing any of their supervisors. Through the course of the investigation, Plaintiffs discovered some of the County property at issue had been held in a storage facility at Sampson State Park. Larson, along with Constable, Zona, and Buck, were responsible for transferring the property to the Seneca County Army Depot ("the Depot") in the late summer or fall of 2005. Plaintiffs also learned that Larson had moved the PA invoices to the Depot.
In late January of 2006, Plaintiffs Deal and Lahr decided to inform their immediate supervisor, Lieutenant James Spike ("Spike"), what they had discovered. Plaintiffs were authorized to continue their confidential inquiries, although Plaintiffs claim they were expressly denied permission by Spike to interview Larson and Zona. Ultimately, as a result of plaintiffs' investigation, Connolly determined that Larson would be arrested and criminally prosecuted. With respect to the other Sheriff's Department members involved in the theft, Connolly deferred decision on whether to handle their misconduct administratively or through criminal prosecution.
In the meantime, on February 5, 2006, a fire of suspicious origin occurred at the Depot, damaging or destroying evidence relating to the stolen County property and the PA invoices. At that point, Connolly notified the New York State Police and requested their assistance because Larson, who was still employed as a road deputy, was the primary suspect.
The investigation was turned over to the State Police, who executed a search warrant on Larson's home on February 7, 2006. Larson ultimately was arrested and charged with several crimes. He pled guilty to petit larceny, grand larceny, possession of stolen property, and official misconduct.*fn2 Four deputies also were charged criminally.
C. The Instances of Protected Speech
Plaintiff Lahr claims that he engaged in protected speech when he was interviewed by Ontario County District Attorney's Office Special Investigator Michael Tantillo ("Tantillo") regarding Tantillo's investigation into the theft of County property. He also asserts he engaged in protected speech when he testified before the grand jury impaneled in connection with the investigation.
Deal claims that he engaged in speech when he tried to contact the New York State Office of Governmental Affairs and the New York State Civil Service to report his investigative findings regarding the theft of County property. However, neither of these agencies ever returned his calls.
Deal claims that he engaged in speech when he spoke with Patsy Amidon ("Amidon"), the Town Supervisor of Tyre, in Seneca County, on five or six occasions during non-work hours, about information he had obtained in the course of his and Lahr's investigation in an attempt to gain her assistance. To Deal's knowledge, Amidon did nothing with the information he provided. Deal also admitted that he did not know whether Connolly and Larson ever learned he had spoken to Amidon.
Finally, both plaintiffs also spoke with the press, specifically Craig Fox ("Fox"), a reporter with the Finger Lakes Times ("the FLT"), on numerous occasions both during and after the investigation concluded. The FLT published reports concerning the theft of County property and the warehouse fire, based partially on information that Plaintiffs provided to them, both before and after they concluded their investigation. Both plaintiffs told Fox that the Sheriff's Department was attempting to cover-up and halt the investigation into the theft of County ...