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Birch v. Becker

United States District Court, N.D. New York

June 4, 2014

KAREN J. BIRCH, Plaintiff,
v.
JOHN M. BECKER; JOHN SALKA; RALPH M. MONFORTE; DANIEL S. DEGEAR; PRICILLA SUITS; RUSSELL L. CARY; DAVID L COYE; EVE ANN SHWARTZ; JAMES S. GOLDSTIEN; ROCCO J. DiVERONICA; DARRIN P. BALL; RONALD C. BONO; ROGER D. BRADSTREET, SR.; RICHARD BARGABOS; ALEXANDER R. STEPANSKI; SCOTT A. HENDERSON; JOHN A. REINHARDT; JAMES
v.
RAFTE; LEWIS CARINCI; TINA WAYLAND-SMITH; RYAN AYLWARD; and THE COUNTY OF MADISON, N.Y., Defendants.

JONATHAN LOVETT, ESQ. OFFICE OF JONATHAN LOVETT Counsel for Plaintiff, White Plains, New York.

JANET D. CALLAHAN, ESQ. JAMES P. YOUNGS, ESQ. HANCOCK ESTABROOK, LLP Counsel for Defendants, Syracuse, New York.

DECISION AND ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this civil action filed by the Madison County Director of Probation Karen J. Birch ("Plaintiff") against the County of Madison and the 20 above-captioned individuals ("Defendants"), is Defendants' motion for summary judgment. (Dkt. No. 43.) For the reasons set forth below, Defendants' motion is granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Generally, liberally construed, Plaintiff's Complaint alleges that, between approximately November 29, 2011, and June 19, 2012, in Madison County, New York, Defendants took various wrongful actions against her in connection with a work-related complaint against her, including but not limited to (1) placing her on indefinite paid administrative leave, (2) imposing gag orders on her, (3) reviewing evidence against her ex parte before conducting a disciplinary hearing, (4) deciding the issue of whether to terminate her employment before conducting the disciplinary hearing, (5) filing disciplinary charges against her (and imposing a 30-day unpaid suspension) in retaliation for her filing a charge of sex-based discrimination with the United States Equal Employment Opportunity Commission ("EEOC"), and (6) directing that the public be excluded from that disciplinary hearing. ( See generally Dkt. No. 1, at ¶¶ 1-19.)

Based on these factual allegations, Plaintiff's Complaint asserts the following five causes of action: (1) a cause of action claiming that all Defendants (except Smith and Aylward) violated her right to due process under the Fourteenth Amendment by reviewing evidence against her ex parte, and deciding the issue of her termination, before conducting a disciplinary hearing; (2) a cause of action claiming that all Defendants (except Smith and Aylward) violated her right to free speech under the First Amendment by requesting, embracing, adopting and ratifying a gag order placed on her by a hearing officer in May 2012; (3) a cause of action claiming that all Defendants violated her right to free speech under the First Amendment, and to due process under the Fourteenth Amendment, by preventing her, through gag orders of November 2011 and February 2012, from communicating with County personnel on a matter of public concern, and preparing a defense to the disciplinary charges; (4) a cause of action claiming Defendant County of Madison violated her right to be free from retaliation under Title VII of the Civil Rights Act of 1964 "Title VII"), by suspending her for 30 days without pay for having engaged in a protected activity; and (5) a cause of action claiming that Defendant County of Madison violated her right to be free from retaliation under Title VII, by filing disciplinary charges against her for having engaged in a protected activity. ( Id. at ¶¶ 20-31.)

As relief for these alleged violations, Plaintiff seeks the following: (1) an award of compensatory damages in the sum of no less than $500, 000, plus punitive damages and reasonable attorney's fees, on her first, second and third claims; and (2) an award of compensatory damages in the sum of no less than $500, 000, plus punitive damages and reasonable attorney's fees, on her fourth and fifth claims. ( Id. at ¶ 31.)

B. Undisputed Material Facts

Unless followed by record citations, the following facts were asserted and supported by Defendants in their Statement of Material Facts, and either expressly admitted or denied without an accurate record citation by Plaintiff in her response thereto. ( Compare Dkt. No. 43, Attach. 41 with Dkt. No. 46, Attach. 1.)

1. Plaintiff's Supervision of Swidowski

Plaintiff was Director of Probation for Madison County from May of 2006 until her termination in May of 2013. Joanne Swidowski worked under the supervision of Plaintiff from the time Swidowski was hired on June 29, 2008, until the time Swidowski resigned on May 31, 2011. (Dkt. No. 43, Attach. 3, at 10-11 [attaching pages "9" and "10" of Swidowski Depo. Tr.].) In her position, Swidowski's primary function was to write Presentence Investigation Reports ("PSIs"), generally in misdemeanor cases.

Among many other cases, Swidowski worked on Stanley Derdzinski's case. Derdzinski's case did not come to Swidowski through the ordinary fashion (i.e., placement in her mailbox or delivery to her supervisor), but through an in-person assignment in Plaintiff's office. (Dkt. No. 43, Attach. 3, at 24-25 [attaching pages "23" and "24" of Swidowski Depo. Tr.].) The case was considered to be a high-profile one. (Dkt. No. 43, Attach. 3, at 25 [attaching page "24" of Swidowski Depo. Tr.].) Derdzinski was a repeat offender with a criminal history of domestic violence, including reportedly having violated orders of protection and tried to hire someone to kill his ex-wife. ( Id. )

During the assignment, Swidowski became concerned that Derdzinski had behaved inappropriately toward her, most notably on one occasion on which she had run into him in the community, and he had obtained personal information about her, including her address. (Dkt. No. 43, Attach. 3, at 28-30, 43, 56 [attaching pages "27, " "28, " "29, " "42" and "55" of Swidowski Depo. Tr.].) In addition, Derdzinski made what Swidowski perceived to be repeated threats against her, including a threat to have her killed. (Dkt. No. 43, Attach. 3, at 59-60, 79-84, 93-96 [attaching pages "58, " "59, " "78" through "83, " and "92" through "95" of Swidowski Depo. Tr.].)

On several occasions, Swidowskis requested her removal from Derdzinski's case. She assumed Plaintiff would remove her from the case, based on the threats of which she had complained. Indeed, following Swidowski's completion of an addendum to Derdzinski's PSI Report, Plaintiff promised Swidowski in writing that, if Derdzinski's case came back on the Probation Department's caseload, Plaintiff would assign Derdzinski's case to another probation officer. (Dkt. No. 43, Attach. 3, at 39-42 [attaching pages "38" through "41" of Swidowski Depo. Tr.]; Dkt. No. 43, Attach. 7 [attaching email message from Plaintiff to Swidowski dated March 9, 2010].) However, when Derdzinski's case came back on the Probation Department's caseload, Plaintiff did not assign Derdzinski's case to another probation officer.

Swidowski resigned on May 31, 2011, stating in writing that her resignation was in part "[d]ue to current and future concerns for [her] personal safety." (Dkt. No. 43, Attach. 23, at 2 [attaching resignation letter]; cf. Dkt. No. 43, Attach. 3, at 110 [attaching page "109" of Swidowski Depo. Tr.]; Dkt. No. 46, Attach. 2, at ¶ 19 [Decl. of Birch, stating that, upon Swidowski's resignation, Swidowski had advised her that her resignation was, in part, due to the fact that "she was tired of running into probationers in the community"].)

2. Board's Investigation of Plaintiff

On November 28, 2011, a meeting occurred between Swidowski and Board of Supervisors Chairman John Becker (and others), which Swidowski had requested; during the meeting, Swidowski came forward with a personal complaint against Plaintiff. (Dkt. No. 43, Attach. 3, at 124-125, 129 [attaching pages "123, " "124" and "128" of Swidowski Depo. Tr.]; Dkt. No. 43, Attach. 4, at 2-3 [attaching Ltr. from Swidowski's Attorney dated Nov. 30, 2011].)

On November 29, 2011, Becker met with Plaintiff, along with, inter alia, Ryan Aylward (Director of the County's Labor Relations Department) and Tina Wayland-Smith (First Assistant County Attorney). (Dkt. No. 43, Attach. 24, at ¶ 12 [Becker Decl.]; Dkt. No. 43, Attach. 2, at 141-42 [attaching pages "140" and "141" of Birch Depo. Tr.].) At the meeting, Becker advised Plaintiff that a complaint had been made against her, that they needed to do an investigation of the Probation Department, that he was putting her on leave, and that she was being escorted from the office. (Dkt. No. 43, Attach. 2, at 142 [attaching page "141" of Birch Depo. Tr.].) Alyward advised Plaintiff that she was "not allowed to speak with anybody." ( Id. ) Similarly, Wayland-Smith advised Plaintiff that she was "not to talk to anybody." ( Id. ) Finally, Becker gave Plaintiff a letter (marked "hand delivered"). (Dkt. No. 43, Attach. 5 [attaching Ltr. from Birch to Plf. dated Nov. 29, 2011]; Dkt. No. 43, Attach. 24, at ¶ 12 [Becker Decl.].)

The letter advised Plaintiff that she was being "placed on paid administrative leave effective immediately pending the outcome of an internal investigation of a work-related complaint against [her]." ( Id. ) The letter also advised Plaintiff as follows: "If you have any questions while you are on leave, please do not contact your staff or other county employees/ officials/Board members. All questions should be directed to me, or in my absence, Mark Scimone [the Administrative Assistant to the Chairman of the Board]." (Dkt. No. 43, Attach. 5 [attaching Ltr. from Birch to Plf. dated Nov. 29, 2011].)

After the meeting of November 28, 2011, the County's outside labor counsel, John Corcoran, retained a firm to investigate the complaint brought by Swidowski. (Dkt. No. 43, Attach. 24, at ¶¶ 11, 13 [Becker Decl.].) Between December 2011 and January 2012, the investigator interviewed 15 current and former staff members of the Probation Department (including Plaintiff), taking their written statements. (Dkt. No. 43, Attach. 24, at ¶ 13 [Becker Decl.]; Dkt. No. 43, Attach. 6, at 2 [attaching notes for meeting]; Dkt. No. 43, Attach. 2, at 165-66 [attaching pages "164" and "165" of Birch Depo. Tr.].)

On February 14, 2012, the Board of Supervisors met with Corcoran to preliminarily review the investigator's findings and to discuss the possibility of offering Plaintiff an employment-separation agreement. (Dkt. No. 43, Attach. 24, at ¶ 13 [Becker Decl.]; Dkt. No. 43, Attach. 6, at 2-3 [attaching notes for meeting].)

On February 15, 2012, a meeting was held between the County's Government Operations Committee and its Criminal Justice Committee (which had joint jurisdiction over the Probation Department); during an executive session of the meeting, the substance of the statements taken by the investigator were reviewed. (Dkt. No. 43, Attach. 24, at ¶ 14 [Becker Decl.]; Dkt. No. 43, Attach. 6, at 3 [attaching notes for meeting].)

On February 27, 2012, Plaintiff met with Becker, Corcoran, Wayland-Smith, and Darrin Ball (the Chairman of the Criminal Justice Committee). (Dkt. No. 32, Attach. 2, at 171-72 [attaching pages "170" and "171" of Birch Depo. Tr.]; Dkt. No. 43, Attach. 13, at 43-44 [attaching email messages confirming date of meeting].) At the meeting, Wayland-Smith advised Plaintiff of Swidowski's complaint against her, described the nature of that complaint, reported that the County had arranged for an investigation, described the nature of that investigation, and informed her that the Board of Supervisors had reviewed the investigation findings and (based on those findings) had lost faith and confidence in her ability to continue to manage the activities of the staff in the Probation Department. (Dkt. No. 32, Attach. 2, at 173, 175-78 [attaching pages "172, " and "174" through "177, " of Birch Depo. Tr.]; Dkt. No. 43, Attach. 6, at 2-3 [attaching notes for meeting]; Dkt. No. 46, Attach. 7, at 7, 9-18 [attaching pages "6, " and "8" through "17, " of Wayland-Smith Depo. Tr.]; Dkt. No. 43, Attach. 24, at ¶ 15 [Becker Decl.].)

Plaintiff was given an opportunity to speak at the meeting. (Dkt. No. 32, Attach. 2, at 176 [attaching page "175" of Birch Depo. Tr.]; Dkt. No. 43, Attach. 6, at 2-3 [attaching notes for meeting]; Dkt. No. 46, Attach. 7, at 16 [attaching page "15" of Wayland-Smith Depo. Tr.].) However, Plaintiff made no substantive response; rather, she stated sarcastically that "it sounds like you have it all figured out as to what's going on" (or words to that effect). (Dkt. No. 32, Attach. 2, at 176-76 [attaching pages "175" and "176" of Birch Depo. Tr.].)

There was no mention of any potential disciplinary charges at the meeting. (Dkt. No. 32, Attach. 2, at 177 [attaching page "176" of Birch Depo. Tr.]; Dkt. No. 43, Attach. 6, at 2-3 [attaching notes for meeting]; see generally Dkt. No. 46, Attach. 7 [attaching Wayland-Smith Depo. Tr.].) Instead, Wayland-Smith presented her with the Board of Supervisors' proposed employment-separation agreement, which offered severance pay and other benefits intended to voluntarily sever her employment with the County. (Dkt. No. 32, Attach. 2, at 178, 180-81 [attaching pages "177, " "179" and "180" of Birch Depo. Tr.]; Dkt. No. 43, Attach. 6, at 2-3 [attaching notes for meeting]; Dkt. No. 46, Attach. 7, at 7-8 [attaching pages "6" and "7" of Wayland-Smith Depo. Tr.]; Dkt. No. 43, Attach. 24, at ¶ 15 [Becker Decl.].) Plaintiff was advised she had 21 days (or until March 20, 2012) by which to accept the employmentseparation agreement. (Dkt. No. 32, Attach. 2, at 178, 180 [attaching pages "177" and "179" of Birch Depo. Tr.]; Dkt. No. 43, Attach. 6, at 2-3 [attaching notes for meeting]; Dkt. No. 46, Attach. 7, at 16 [attaching page "15" of Wayland-Smith Depo. Tr.]; Dkt. No. 43, Attach. 24, at ¶ 16 [Becker Decl.].)

Toward the end of the meeting, Wayland-Smith advised Plaintiff that any further communications concerning the proposed separation agreement should be directed to a designated County representative. (Dkt. No. 43, Attach. 6, at 3 [attaching notes for meeting]; Dkt. No. 43, Attach. 2, at 180 [attaching page "179" of Birch Depo. Tr.]; cf. Dkt. No. 1, at ¶ 7 [Compl., alleging that forbidden communications were limited to "anything relating to the disciplinary investigation"].)

3. Plaintiff's EEOC Charge Against the County

At some point between February 27, 2012, and March 8, 2012, Plaintiff retained an attorney, Jonathan Lovett (with whom she had had contact before being interviewed by the investigator). (Dkt. No. 43, Attach. 2, at 167, 173-74 and 182 [attaching pages "166, " "172, " "173, " and "181"" of Birch Depo. Tr.].)

On March 8, 2012, Plaintiff filed an EEOC charge against the County. In her charge, Plaintiff asserted claims of retaliation and discrimination against under Title VII, 42 U.S.C. § 2000e et seq. Specifically, Plaintiff alleged that the County's act of placing her on paid administrative leave (on November 29, 2011) was a punitive measure, which was intended to "silence [her] by reason of [her] gender and to prevent [her] from further advocating in favor of the rights of female crime victims" by expressing her opinion that the Madison County District Attorney was "guilty of malfeasance" that was "grounded in anti-female gender bias." (Dkt. No. 43, Attach. 8 [attaching EEOC charge].)

On March 13, 2012, Plaintiff's counsel sent a letter to the County advising it that Plaintiff had filed a charge with the EEOC and that no retaliatory action should be taken against her; however, because Lovett did not provide the County with a copy of the charge, the County did not know what the alleged basis of the charge was. (Dkt. No. 43, Attach. 9, at 3 [attaching Ltr. from Lovett dated March 13, 2012]; Dkt. No. 43, Attach. 24, at ¶ 17 [Becker Decl.].)

On March 19, 2012, Plaintiff rejected the Board of Supervisors' employment-separation agreement, by letter from Lovett. (Dkt. No. 43, Attach. 24, at ¶ 16 [Becker Decl.].)

4. Board's Suspension of Plaintiff Without Pay for 30 Days

On April 10, 2012, the Board of Supervisors met in executive session to review the investigation findings regarding Plaintiff and to determine whether there was cause to bring disciplinary charges against her. The Board unanimously (with one absence) passed Resolution No. 130-12, determining that grounds existed to bring charges of incompetence and/or misconduct against Plaintiff in accordance with Section 75 of the New York Civil Service Law. The Board based its decision on the information uncovered by the investigation. (Dkt. No. 43, Attach. 10, at 2 [attaching copy of Resolution]; Dkt. No. 43, Attach. 25, at ¶ 2 [Bargabos Decl.]; Dkt. No. 43, Attach. 26, at ¶ 2 [Bono Decl.]; Dkt. No. 43, Attach. 27, at ¶ 2 [Bradstreet Decl.]; Dkt. No. 43, Attach. 28, at ¶ 2 [Carinci Decl.]; Dkt. No. 43, Attach. 30, at ¶ 2 [Degear Decl.]; Dkt. No. 43, Attach. 31, at ¶ 2 [DiVeronica Decl.]; Dkt. No. 43, Attach. 32, at ¶ 2 [Goldstein Decl.]; Dkt. No. 43, Attach. 33, at ¶ 2 [Henderson Decl.]; Dkt. No. 43, Attach. 34, at ¶ 2 [Monforte Decl.]; Dkt. No. 43, Attach. 35, at ¶ 2 [Rafte Decl.]; Dkt. No. 43, Attach. 36, at ¶ 2 [Reinhardt Decl.]; Dkt. No. 43, Attach. 37, at ¶ 2 [Salka Decl.]; Dkt. No. 43, Attach. 38, at ¶ 2 [Stepanski Decl.]; Dkt. No. 43, Attach. 39, at ¶ 2 [Suits Decl.]; Dkt. No. 43, Attach. 43, at ¶ 3 [Coye Decl.].)

As a result, on April 12, 2012, Becker sent a Notice of Charge to Plaintiff advising her of the following, inter alia: that five charges were being brought against her; that she was entitled to a hearing on the charges and to be represented by an attorney at the hearing; that the Board of Supervisors had designed Judith A. La Manna, Esq., as the hearing officer; and that, pending the hearing, Plaintiff was being suspended without pay for 30 days effective April 12, 2012, pursuant to Section 75 of the N.Y. Civil Service Law. (Dkt. No. 43, Attach. 11 [attaching Notice of Charge]; Dkt. No. 43, Attach. 24, at ¶ 20 [Becker Decl.]; Dkt. No. 43, Attach. 2, at 207-08, 210-11 [attaching pages "206, " "207, " "209, " and "210" of Birch Depo. Tr.]; Dkt. No. 46, Attach. 2, at ¶ 10 [Birch Decl.].)[1]

The five charges against Plaintiff were as follows: (1) a charge that Plaintiff exercised poor judgment under circumstances involving a probation officer whose life had been threatened by a probationer; (2) a charge that Plaintiff failed to remove the probation officer from writing a pre-sentence investigation report concerning the probationer under circumstances giving rise to an actual or potential conflict of interest; (3) a charge that Plaintiff's failure to remove the probation officer from writing the aforesaid pre-sentence investigation report created a substantial risk of violating Section 350.5 of the Division of Probation's Regulations concerning the required impartiality and fairness of the probation investigative and reporting processes; (4) a charge that Plaintiff mismanaged a situation involving the alleged workplace intoxication of a subordinate probation supervisor; and (5) a charge that Plaintiff had demonstrated poor leadership of the County's Probation Department. (Dkt. No. 43, Attach. 11 [attaching Notice of Charge].)

After 30 days, Plaintiff was placed back on paid administrative leave and remained so until her termination ...


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