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Frankel v. New York State Office of Children & Family Services

United States District Court, Second Circuit

April 29, 2013



RONALD L. ELLIS, Magistrate Judge.


Pro se Plaintiff Harlan Frankel ("Frankel") filed this Complaint on November 3, 2011, against the New York State Office of Children & Family Services ("OCFS"), Gladys Carrion (Commissioner of OCFS), Richard Trudeau (former Facility Director at OCFS Pyramid Reception Center, now retired), Pola Eisenstein-Rosan (an employee with the New York State Office of Mental Health and Frankel's former supervisor), Keith Bergmann (a senior investigator with the OCFS Special Investigations Unit), Michael DeCelle (a former OCFS Special Investigations Unit employee), Bernett Marion (OCFS Acting Director of Equal Opportunity & Diversity Development), Emmiline Murphy (Chief Diversity Officer for the New York State Office of Mental Health), and Lois Shapiro (former OCFS Director of Behavioral Services, now retired) (collectively, the "Defendants"). Frankel, a former OCFS employee, brings this action under 42 U.S.C. § 1983 for purported retaliation in violation of the First Amendment to the United States Constitution, and Article 1, § 8 of the New York State Constitution. (Compl. ¶ 77.) He also claims that his rights were violated under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and Article 1, § 6 of the New York State Constitution. ( Id, at ¶ 84.) Lastly, Frankel asserts a state common law claim for intentional infliction of emotional distress. ( Id. at ¶ 91.) He seeks reinstatement at OCFS with all the privileges and seniority he held at the time he resigned, plus backpay, ( id. at 92(b)), as well as compensatory and punitive damages, ( id. at 92(d), (e).)

On March 23, 2012, Defendants filed a motion to dismiss all claims for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). On August 31, 2012, Frankel submitted a Memorandum of Law in Response to Defendants' Motion to Dismiss ("Pl. Mem.") (Doc. No. 41).[1] On October 5, 2012, Defendants filed a Memorandum of Law in Reply to Plaintiffs Response ("Defs. Mem.") (Doc. No. 44). For the reasons that folio recommend that Defendants' motion to dismiss (Doc. No. 21) be GRANTED, and that judgment be entered for Defendants. Specifically, I recommend that: 1) Frankel's federal claims against OCFS and the individual Defendants sued in their official capacities be DISMISSED because they are barred by the Eleventh Amendment; 2) Frankel's § 1983 claims that occurred before November 4, 2008, be DISMISSED because they are time-barred by the three-year statute of limitations; 3) Frankel's intentional infliction of emotional distress claim be DISMISSED because it is barred by New York's one-year statute of limitations; 4) Frankel's First Amendment retaliation claims be DISMISSED because the allegations in the Complaint do not establish that he engaged in constitutionally protected speech and was subjected to an adverse employment action as a result; 4) Frankel's due process claims be DISMISSED because he failed to pursue a New York Civil Practice Law and Rules Article 78 proceeding as an adequate post-resignation remedy; 5) Frankel's claims against Defendants Carrion and Murphy be DISMISSED because he fails to allege that they were directly or personally responsible for the relevant events; and 6) Frankel's claims against the individually named Defendants be DISMISSED because they are entitled to qualified immunity.


Frankel was employed as a psychologist with OCFS for over eleven years until he resigned on November 5, 2008. (Compl. at ¶¶ 1, 61.) In January 2008, Defendant Carrion announced plans to close the Pyramid Reception Center ("Pyramid") OCFS facility, where Frankel worked in the Bronx, and to relocate certain services to the Ella McQueen Residential Center in Brooklyn. ( Id at pp. 4-5 ("Statement of the Facts").) Between February 7 and 11, 2008, Frankel wrote two letters to members of the State legislature in support of keeping Pyramid open. ( Id. at ¶ 19.) Frankel asserts that the Public Employee Federation ("PEF") union and the staff at Pyramid came to rely on his letters when they met with members of the legislature in their campaign to keep Pyramid open. ( Id. at 18, 24, ) Hle claims that he was acting as a public citizen exercising his First Amendment right when he submitted the two letters to maintain Pyramid. (Pl. Mem. at ¶ 26.) Frankel argues that OCFS retaliated against him for the submission of his letters, although no formal action or meetings occurred between Frankel and Defendants regarding these two letters.

As part of his employment at OCFS, Frankel planned to attend a sex offender training conference that all OCFS employees were required to attend in Saratoga Springs, New York. ( Id. at ¶ 21.) The conference was scheduled for two days, but Frankel planned to take a week off by using his vacation credits. ( Id. at ¶¶ 21-22.) On May 9, 2008, before Frankel left for the conference, his supervisors, Defendants Trudeau and Eisenstein-Rosan, asked him why he planned to be out of the office the entire week, while a fellow OCFS employee attending the conference only planned to be out two days. ( Id. at ¶¶ 22, 25.) Frankel believed that Trudeau and Rosan's questions were unnecessary because his leave had been previously approved by Deputy Commissioner Burrell, but he gave them a copy of the approval. ( Id. at ¶ 25.) This discussion with Trudeau and Rosan caused Frankel "a lot of stress and anxiety." ( Id. at) When he returned from the conference, Trudeau and Rosan again asked Frankel about his attendance at the conference and his absence from the office during that week. ( Id at ¶ 28.) Although no formal action was taken by OCFS, Frankel "experienced many days of stress" regarding these events. ( Id. at ¶ 30.)

On May 23, 2008, Frankel sent an email complaint to various OCFS and State Office of Medical Health employees, including Defendant Shapiro, claiming that he experienced so much stress from his encounters with Trudeau and Rosan that he had developed cardiac arrithymias and had been "outfitted with a 30 day heart monitor, " ( Id. at pp. 9, 11.) In his email, Frankel stated that he suspected OCFS had "retaliated against [him] given the agency's history with [his] previous complaints." ( Id. at p. 10.) On June 5, 2008, Frankel met with Defendant Marion and another OCFS employee not named in the Complaint to discuss these issues. ( Id. at 4136.) Marion gave him the impression that he had concerns about Frankel's issues, but gave Frankel no recommendations or orders, and did not promise that any actions would be taken by OCFS. ( Id. ) Frankel asked for information from OCFS regarding this meeting under the Freedom of Information Law ("FOIL"), [2] but his request was denied. ( Id. ) Frankel argues that OCFS is withholding case-related material, and believes there exists an ongoing conspiracy to deny him due process, including a cover-up of these events. (Pl. Mem. at ¶ 36.)

On June 17, 2008, Frankel filed a grievance with PEF regarding actions taken by Rosan and Trudeau. ( Id. at ¶ 37.) On June 18, he was summoned without advance notice to a meeting about his email complaint. He did not get an opportunity to have union representation. ( Id. at L, 38.) Defendants Shapiro, Trudeau, and Marion accused him of sending the email complaint to others, including Defendant Carrion. ( Id. ) They told him "that the sending of any future complaints by [him] is not recommended" and they wanted to know if he had sent copies to others outside of OCFS. ( Id. ) Frankel's "stress levels increased" as a result of this meeting. ( Id. ) He requested information from OCFS regarding this meeting under FOIL, but the request was denied. ( Id. )

On June 23, Frankel was given notice that he would be subject to a formal "Interrogation" on June 26 (rescheduled to July 1, 2008). ( Id. at ¶ 39.) Trudeau refused to explain why Frankel was subject to this action, and no one told Frankel why the Interrogation had been requested. ( Id. ) On June 30, Frankel met with Defendant Murphy and an employee from the Equal Employment Opportunity and Diversity Office ("EEOD") of OCFS, and they agreed to work on a mediation agreement, but there was never any follow-up. ( Id. at ¶ 41.) Frankel requested information from OCFS regarding this meeting under FOIL, but his request was denied. ( Id. )

On July 1, 2008, with PEF representatives present, OCFS Special Investigations Unit ("SIU") staff member Bergmann interviewed Frankel about his attendance at the work conference and an anonymous letter that circulated in the office defaming Roman, ( Id. at ¶¶ 30, 43.) He "immediately got the impression that someone figured" that because he had made earlier complaints, that "this letter must have been written by [him]." ( Id. at ¶ 43.) Frankel told Bergmann that he had not seen the letter. ( Id. ) He requested information from OCFS regarding this interview under FOIL, but his request was denied. ( Id. )

On July 24, 2008, the SIU confiscated Frankel's OCFS computer to conduct a forensic analysis of the contents. ( Id. at ¶ 45.) Frankel asserts that his computer was seized because Rosan had convinced Trudeau that Frankel was using his office and computer at Pyramid to run his own mental health private practice. Rosan and Trudeau also believed that Frankel was the author of the negative document about Rosan, and that they could find it by seizing his computer. ( Id. at ¶ 46.) Because of the "overwhelming" stress Frankel experienced, he took the rest of the day off. ( Id. ) Trudeau "proceeded to lecture [him]" about the proper way to request time off. ( Id. ) Because he lacked any explanation for the series of events on July 24, 2008, his "sleep as well as his physical and emotional well-being" were negatively impacted. ( Id. ) Frankel asked for information from OCFS regarding the July 24, 2008 meeting under FOIL, but his request was denied. On July 30, Frankel was prescribed anti-anxiety medication by his doctor. ( Id. at ¶ 47.) On July 31, Frankel was given a replacement computer but despite his request, the case files on the computer that he needed to complete his mental health evaluations were not provided. ( Id. at ¶¶ 46-49.)

In October 2008, Rosan approached Frankel about inconsistencies between two different time monitoring systems, a daily sign-in book, and a "key log, " which reflects the time an employee enters the Pyramid facility and exchanges his personal keys for the facility keys. ( Id. at ¶ 54.) Rosan asked Frankel to edit his timesheet to reflect the time recorded in the key log. ( Id. ) Frankel alleges that Rosan harassed and retaliated against him after Rosan considered Frankel's revisions to be incomplete and asked him to round each time entry to the nearest quarter hour. ( Id. at ¶¶ 54-55.) On November 4, Frankel emailed "various PEF union officials, " but none of the Defendants, to complain that Rosan and Trudeau's actions impacted his health by causing emotional distress. ( Id. at ¶ 60.) In the summer of 2010, Frankel's request for copies of time sheets from OCFS under FOIL was denied. ( Id. at ¶ 57.)

On November 5, 2008, Bergmann, Trudeau, and DeCelle (another SIU staff member) interviewed Frankel about evidence of inappropriate and illegal activities ("searching the web for boys, having porno that could be child porn, going to MySpace") found on his old OCFS computer. ( Id. at p. 24.) At the interview, Frankel had no prior notice, and was not informed that he had the right to union representation or legal counsel. ( Id. at ¶ 61.) He asserts that he utilized MySpace to verify if residents in custody had inappropriate information on the website, which he notes in their Psychological Reports. ( Id. at p. 25.) Bergmann showed Frankel two pages of inappropriate photos taken from Frankel's computer, one of which Frankel "recognized" as a "female, non-nude model over age 21." ( Id. ) Bergmann stated that SIU had found photos that could constitute child pornography and evidence that Frankel searched the web for "15-year-old males." ( Id. at p. 25.) Bergmann informed Frankel that he could not continue to work at OCFS but could continue working at other state agencies. ( Id. at pp. 25, 28.) Frankel persistently denied the allegations. ( Id. at p. 26.) Bergmann asked Frankel to resign or OCFS would file charges to have Frankel's license revoked. ( Id. at p. 28.) Frankel signed a resignation form "under duress, " which he claims constituted constructive discharge. ( Id at pp. 2, 30.) Frankel made a FOIL request for documents relating to the events that transpired on the date of his resignation, but the request was denied. ( Id at p. 31.)


A. Standard for Dismissal ...

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