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Delaney v. Farley

United States District Court, S.D. New York

November 7, 2014

BRENDAN DELANEY, Plaintiff,
v.
DR. THOMAS FARLEY, in his official capacity as Commissioner of the New York City Department of Health and Mental Hygiene (DOHMH); DR. LYNN SILVER, Assistant Commissioner, New York City Department of Health and Mental Hygiene, and Chair for NYCRx, Inc., a Not-for-Profit Organization; and the City of New York, Defendants.

OPINION & ORDER

VALERIE CAPRONI, District Judge.

Plaintiff, a former Senior Director of Administration for the New York City Department of Health and Mental Hygiene ("DOHMH") in its Bureau of Chronic Disease Prevention and Control (the "Bureau"), brings this 1983 action alleging violations of his First and Fourteenth Amendment rights under the United States Constitution, 42 U.S.C. § 1983, as well as violations of the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law, N.Y. Admin. Code § 8-107. Plaintiff further claims violations under New York General Municipal Law § 51.

Plaintiff alleges that in May 2010 he was wrongfully discharged in retaliation for his "blowing the whistle" on certain alleged wrongdoing by his boss, Defendant Dr. Lynn Silver. Plaintiff also alleges that he was discriminated against on the basis of his gender.

Defendants have moved to dismiss Plaintiff's Second Amended Complaint (the "2d Am. Compl.") pursuant to Rules 12(b)(2)[1] and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Plaintiff's claims are time-barred and that they fail to state a cause of action. Although the Plaintiff is to be commended for bringing his concerns about wrongdoing by a City employee to the attention of the appropriate authorities, his lawsuit alleging discrimination and retaliation against him for doing so is time-barred. For the reasons discussed more fully below, Defendants' Motion to Dismiss is GRANTED and the Second Amended Complaint is DISMISSED.

BACKGROUND[2]

Plaintiff began working as Senior Director of Administration for the Bureau in May 2008. 2d Am. Compl. ¶ 11. At the time, Defendant Silver was the Assistant Commissioner for the Bureau and also the Chair of NYCRx, a not-for-profit organization registered in New York State. Id. ¶ 8. Silver supervised Plaintiff in her role as Assistant Commissioner for the Bureau. Id. ¶ 19. Defendant Dr. Thomas Farley was the Commissioner of DOHMH. Id. ¶ 7.

I. Plaintiff's Investigation and Reporting of Defendants' Misconduct

Plaintiff was responsible for all administrative functions, including contracts, procurement, budget, budget modification and personnel for twelve departments. Id. ¶ 12. Plaintiff performed his job well, eliminating during his first year over $7 million in accruals in the programs for which he was responsible. Id. ¶ 11. On June 5, 2009, Silver gave Plaintiff a performance evaluation of "Greatly Exceeds Expectations" and told him that every program director was happy with his performance. Id. ¶¶ 19, 85.

By approximately July 2009, Plaintiff had developed concerns about a potential conflict of interest between Defendant Silver's employment with the DOHMH and her involvement with NYCRx. Id. ¶ 20. Both the Bureau and NYCRx Inc. were located on the same floor of the same office building, id. ¶¶ 14, 34, and Silver allegedly disregarded potential conflicts of interest between her roles as Assistant Commissioner for the Bureau and Chair of the NYCRx Board. Id. ¶¶ 14-17, 20-28. According to Plaintiff, NYCRx was given rent-free accommodations and allowed to utilize DOHMH goods and services without cost. Id. ¶¶ 17, 49. The goods and services at issue were funded through the City Tax Levy ("CTL"), and NYCRx was an independent not-for-profit that did not receive CTL funding. Id. ¶¶ 13-16, 20-25, 49. Second, Silver and her subordinates allegedly favored NYCRx during the contract selection process for a DOHMH program even though NYCRx's bid was $66, 000 higher than the competitor's bid. Id. ¶¶ 33, 35-37. Finally, Silver allegedly falsified NYCRx's Tax Returns for 2007 and 2008, inter alia, by failing to disclose that NYCRx paid no rent and received free supplies and equipment, and by failing accurately to disclose NYCRx employees whose salaries were being paid for by the City. Id. ¶¶ 39, 49-51.

When Plaintiff orally raised these concerns with Silver in July 2009 and September 2009, Silver allegedly instructed him to "do [his] job, " and said that she was in charge of the Bureau and "could do whatever [she] wanted[ed]." Id. ¶¶ 24, 44. Immediately following Plaintiff's meeting with Silver on September 1, 2009, Plaintiff alleges that Silver began to place undue pressure on him and a female colleague to ensure that the NYCRx contract would be approved as quickly as possible. Id. ¶ 46. In February 2010, Plaintiff reported his concerns about Silver to the New York City Department of Investigation ("DOI") and later provided DOI officials with documents and records supporting his allegations. Id. ¶¶ 60-62.

II. Plaintiff's Termination

On December 30, 2009, Silver and several of her subordinates generated a layoff list for the Bureau. Id. ¶ 53. Although Plaintiff's name was on this list, he was not told that he was being considered for termination. Id. ¶ 64. In or around January 2010, Plaintiff learned that two of his female colleagues had been notified that they would be laid off in June 2010. Id. ¶ 55. On January 14, 2010, Plaintiff asked Silver whether others would be affected by the layoffs, and Silver responded that she would let him know. Id. ¶ 56. Silver later discussed the proposed layoffs at a joint Directors meeting on March 2, 2010, but, again, did not inform Plaintiff that he would be discharged. Id. ¶ 64.

Between February and March 2010, the DOI began to take overt steps to investigate Plaintiff's allegations, including interviewing employees of the Bureau who may have had relevant information. Id. ¶ 67. Based on the similarity of the concerns that Plaintiff had raised directly with Defendant Silver and the questions asked by the DOI investigators, it was evident that Plaintiff was the impetus for the DOI investigation. Id. ¶ 68.[3]

On April 7, 2010, Silver informed Plaintiff of his pending termination. Id. ¶ 72. Specifically, as Plaintiff alleged in his Verified Complaint, filed in the Supreme Court of the State of New York, New York County, on April 7, 2010, the following exchange took ...


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