The opinion of the court was delivered by: David G. Larimer United States District Judge
This civil rights action was brought by a husband and wife, Charles and Deborah Campanella ("plaintiffs") under 42 U.S.C. § 1983. Plaintiffs have sued The County of Monroe ("County"), the Monroe County Sheriff's Office ("MCSO"), and four individuals, alleging that defendants have violated plaintiffs' constitutional rights. In short, plaintiffs allege that Charles Campanella ("Campanella") is a deputy sheriff in the MCSO, and that defendants, all of whom are officials or employees of the MCSO, have taken adverse actions against him in connection with his job. Plaintiffs allege that defendants have done so in retaliation for Deborah Campanella's employment with a company owned by a political rival of defendant Patrick O'Flynn, the Monroe County Sheriff.
Defendants have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiffs have cross-moved for an award of attorney's fees under 28 U.S.C. § 1927.
According to the complaint, Deborah Campanella ("Deborah"), who for some time had been involved in the local Republican Party, began working in June 2008 for Leader Security Services, Inc. ("Leader"). The founder and president of Leader was Daniel R. Greene, a former Monroe County undersheriff who resigned from the MCSO in 2007. Apparently Greene had previously been a member of the Republican Party, but at some point changed parties and became the Democratic Party candidate for sheriff in 2009. Greene's opponent in the election would be O'Flynn, who was running for re-election as the Republican candidate.
Plaintiffs allege that in August 2008, MCSO Investigator Scott Walsh approached Campanella and warned him that Undersheriff Gary Caiola had made comments about the actual or perceived connection between Campanella and Greene, saying, "in sum," "Are we going to have trouble with this Campanella kid?," "What's this kid doing with Greene?," and "What's his affiliation with Leader?" Complaint ¶ 20. Walsh also informed Campanella that O'Flynn and Caiola were "watching everyone" at Leader, that they monitored Leader's website on a daily basis, and that Caiola had told Walsh that "Leader was going to 'go down' along with everyone associated with it." Complaint ¶ 20.
Around September 2008, Campanella was informed by Chief Deputy Stephen Scott that "MCSO would repost his position as C-Zone 'Crime Prevention Officer' ('CPO') and reassign" him to a different position. Complaint ¶ 21. It is not clear from the complaint if Campanella was actually reassigned at that time, or simply informed that he was going to be reassigned at some later date, but he alleges that this was contrary to the usual practice at MCSO, in that deputies were typically not reassigned for non-disciplinary reasons. Id.
Plaintiffs also allege that in October 2008, Scott sought to remove Campanella from his participation in the "Operation Safe Child" program. Although Scott's request was denied initially by the state, Scott was ultimately successful, and Campanella was replaced by another deputy in Operation Safe Child around July 2009. Campanella lost some earnings as a result. Complaint ¶¶ 24-26.
In October 2008, Campanella met with Sheriff O'Flynn to discuss these events, which he perceived as retaliation for Deborah's employment at Leader. During this meeting, O'Flynn allegedly told Campanella that while Deborah Campanella could "work for whomever she likes, ... [t]he problem is that if Dan [Greene] is going to run, then that puts you in a box, ... [b]ecause then it will be a problem for you and your wife, and your working here. It's going to be tougher on your wife being in the Republican Party if he's going to run." Complaint ¶ 28.
Around February 2009, Campanella was informed that he was being reassigned to the C-Zone night shift effective March 7, but before that date arrived, Scott "changed his mind" and assigned Campanella to the Crime Prevention unit. Scott later again reassigned Campanella to firearms training and yet again to the C-Zone morning shift.*fn1 Plaintiffs allege that all these reassignments were retaliatory, although they do not articulate how or why.
In April 2009, plaintiffs attended a social event at which they discussed how O'Flynn and Caiola had allegedly compelled Court Deputy DiPonzio to provide a doctor's note when he wanted to take time off from work after DiPonzio's son, a Rochester police officer, had been severely wounded in the line of duty. A sergeant in the MCSO (who is not a defendant here) "eavesdropped" on plaintiffs' conversation and reported it to his superiors. Complaint ¶ 32.
This led to an internal investigation, primarily conducted by Scott, into a potential charge of "gossip" against Campanella. Scott and Investigator Pat Crough also looked into whether Campanella had discussed with anyone the ongoing investigation into Robutrad, a local company (now defunct) that had contracts to perform work for the County, but which allegedly had its employees work, while on the County "clock," on private jobs for County officials and other politically connected individuals. This federal investigation later resulted in state and criminal charges filed against several County employees.
The internal investigation led in May 2009 to the issuance of a "memorandum of record" ("MOR") against Campanella. The MOR, which was written by Lt. Lou Tomassetti, charged Campanella with violating MCSO rules concerning gossip, "conduct unbecoming," and "truthfulness." The "gossip" and "truthfulness" charges related to the DiPonzio matter, and although the MOR did not mention Robutrad by name, plaintiffs allege that the "conduct unbecoming" and "truthfulness" charges related to the Robutrad investigation. Complaint ¶34.
Plaintiffs allege that MCSO procedures were not followed during the preparation of the MOR. They allege that an MOR is supposed to be preceded by "coaching and counseling," neither of which occurred here. Plaintiffs also allege that Tomassetti later tried to make the record appear, falsely, as if Campanella had been offered counseling in connection with the MOR. Complaint ¶¶ 35, 36.
On May 27, 2009, Campanella wrote a "special report," addressed to Tomassetti, responding to the MOR. Plaintiff asserted that the MOR was unjustified and asked that it be rescinded. Complaint ¶ 37. The complaint does not state what, if any, action was taken in response to Campanella's "report."
In June 2009, Campanella unsuccessfully applied for a firearms training position that had recently become vacant. It is not clear if that was the same firearms training position that Scott is alleged to have temporarily reassigned Campanella to. See Complaint ¶ 31. Campanella had applied for and been turned down for the position in the past, but on those occasions the position was given to employees with more seniority. This time, the position was awarded to a deputy with less seniority than Campanella. Complaint ¶ 38.
Through his union, Campanella grieved this matter. The grievance was denied, and after plaintiff, through his union, requested arbitration, a hearing was held before an arbitrator, who had been jointly selected by the parties, in October 2011.
In January 2012, the arbitrator issued a decision denying the grievance.*fn2 Plaintiff's principal claim had been that he should have been awarded the position based on his seniority, but the arbitrator found that under the terms of the collective bargaining agreement governing plaintiff's employment, seniority was not required to be considered as a factor with respect to the position in question. Dkt. #23 at 9-10.*fn3
Campanella also alleges that he has repeatedly been denied overtime work ever since these events began. Complaint ¶ 42. He states that he also "fears additional retaliation based on conversations with fellow deputies ... ." Complaint ¶ 43.
Based on these allegations, plaintiffs have sued the County, the MCSO, Sheriff O'Flynn, Undersheriff Caiola, Deputy Scott, and Lt. Tomassetti. Plaintiffs assert seven claims: (1) by both plaintiffs against all defendants for violating plaintiffs' First Amendment rights to free speech and free association; (2) by Charles Campanella against all defendants for violating his due process rights; (3) by Charles against all defendants for libel, (4) slander and (5) defamation per se; (6) by Charles against the County and MCSO for negligent failure to train and supervise MCSO employees; and (7) a claim for attorney's fees under 42 U.S.C. § 1988.
Plaintiffs' third, fourth and fifth causes of action allege libel, slander and defamation per se, respectively. All three are based on certain statements contained in the MOR prepared by defendant Tomassetti. See Plaintiffs' Mem. of Law (Dkt. #16) at 16. The gist of plaintiffs' claims is that Tomassetti falsely accused Campanella of violating MCSO rules concerning gossip, conduct unbecoming an employee, and lying. See Complaint ¶¶ 54-67.
The elements of a cause of action for defamation under New York law are: (1) a defamatory statement of fact about the plaintiff, (2) that is false, and (3) published to a third party; (4) fault on the part of the speaker (either negligence or actual malice, depending on the status of the libeled party); and (5) either special harm or slander per se. Albert v. Loksen, 239 F.3d 256, 265-66 (2d Cir. 2001); Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 176 (2d Cir. 2000). Under New York law, words are per se defamatory if they import criminal activity, impute certain types of disease, would tend to injure a party's trade, occupation or business, or impute certain sexual conduct. Epifani v. Johnson, 65 A.D.3d 224, 233-34 (2d Dep't 2009); Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, ___ F.Supp.2d ___, 2011 WL 4035751, at *51-*52 (S.D.N.Y. 2011).
In the case at bar, defendants argue that Tomassetti's statements were protected by the "common interest" privilege. The law in New York is that "[e]ven though a statement is defamatory, there exists a qualified privilege where the communication is made to persons who have some common interest in the subject matter." Foster v. Churchill, 87 N.Y.2d 744, 751 (1996). "The rationale for applying the privilege in these circumstances is that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded." Liberman v. Gelstein, 80 N.Y.2d 429, 437 (1992).
Work-related communications within a workplace about an employee may fall within the scope of the privilege. See Meloff v. New York Life Ins. Co., 240 F.3d 138, 146 (2d Cir. 2001) ("This 'common interest' privilege has been applied to communications within a firm concerning the actions of its employees") (citing Liberman, 80 N.Y.2d at 437; Albert v. Loksen, 239 F.3d 256, 272 (2d Cir. 2001) ("Communications by supervisors or co-workers made in connection with the evaluation of an employee's performance, including allegations of employee misconduct and communications regarding the reasons for an employee's discharge, fall within the privilege"). When it applies, the privilege covers statements that would otherwise be defamatory per se. See, e.g., Foster, 87 N.Y.2d at 751 ("We find the statements made by respondents Churchill and Croll ..., although per se defamatory, were protected under the [common interest] privilege").
This defense can "be defeated by demonstrating a defendant spoke with malice." Foster, 87 N.Y.2d at 751. Accord Curren v. Carbonic Systems, Inc., 58 A.D.3d 1104, 1107 (3d Dep't 2009). Malice requires a showing that the defendant "acted out of spite or ill will, with reckless disregard for the statements' truth or falsity, or with a high degree of belief that [his] statements were probably false." Foster, 87 N.Y.2d at 752. Although, "[a]t the pleadings stage, a plaintiff can overcome the common interest privilege by alleging that the defamatory statement was motivated solely by ... malice," Thai v. Cayre Group, Ltd., 726 F.Supp2d 323, 330 (S.D.N.Y. 2010), some facts must be alleged that support such an allegation. "Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege." Id. (quoting Golden v. Stiso, 279 A.D.2d 607 (2d Dep't 2001)). See, e.g., Panghat v. New York Downtown Hosp., 85 A.D.3d 473, 474 (1st Dep't 2011) (defendant's statements were "protected by the common interest privilege," since "[p]laintiff merely asserted in conclusory fashion that the statements at issue were made with malice, which is insufficient to overcome the privilege"), leave to appeal denied, ___ N.Y.3d ___, 2012 WL 117992 (Jan. 17, 2012).
In the case at bar, defendants clearly shared a common interest in the subject matter of Tomassetti's statements about Campanella. The entire contents of the MOR dealt with matters relating to Campanella's alleged violation of the rules governing his conduct as an employee of the MCSO. In addition, the MOR was not published to anyone outside the MCSO, but was only provided to plaintiff, O'Flynn, Caiola, Scott, and the MCSO Internal Affairs division, and a copy was placed in plaintiff's personnel file. See Plaintiff's Cross-Motion (Dkt. #17) Ex. B. See Albert v. Loksen, 239 F.3d 256, 272 (2d Cir. 2001) ("Communications by supervisors or co-workers made in connection with the evaluation of an employee's performance, including allegations of employee misconduct ... , fall within the [common interest] privilege"); Moore v. New York City Dep't of Educ., No. 03 CIV.2034, 2004 WL 691523, at *2 (S.D.N.Y. Mar. 31, 2004) (dismissing defamation claim based on content of report prepared by investigator for city education department, where ...