United States District Court, N.D. New York
K. FELICIA DAVIS, Plaintiff,
CITY OF SYRACUSE; and STEPHANIE A. MINER, Defendants.
K. FELICIA DAVIS Plaintiff, Pro Se, Syracuse, NY.
LAURA H. HARSHBARGER, ESQ., KRISTEN E. SMITH, ESQ., BOND, SCHOENECK & KING, PLCC, Syracuse, NY, Counsel for Defendants.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in his employment discrimination action filed by K. Felecia Davis ("Plaintiff") against the City of Syracuse and Stephanie A. Miner ("Defendants"), is Defendants' motion for summary judgment. (Dkt. No. 63.) For the reasons set forth below, Defendants' motion is granted.
I. RELEVANT BACKGROUND
A. Summary of Plaintiff's Claims and Defendants' Counterclaims
Generally, in her Amended Complaint, Plaintiff asserts the following ten claims arising from her alleged wrongful termination from the position of Board Administrator of the City of Syracuse's Citizen Review Board on February 4, 2011, after she took maternity leave in late October of 2010: (1) a claim against Defendant City for sex discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); (2) a claim against Defendant City for retaliation under Title VII; (3) a claim against Defendant City for sex discrimination under the New York State Human Rights Law, New York Executive Law § 296 et seq. ("the Executive Law"); (4) a claim against Defendant City for retaliation under the Executive Law; (5) a claim against Defendant Miner for aiding and abetting sex discrimination under the Executive Law; (6) a claim against Defendant Miner for aiding and abetting retaliation under the Executive Law; (7) a claim against both Defendants for violation of the right to due process under the Fourteenth Amendment and 42 U.S.C. § 1983; (8) a claim against Defendant Miner for violation of the right to equal protection under 42 U.S.C. § 1983 and the Fourteenth Amendment; (9) a claim against Defendant City for violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"); and (10) a claim against Defendant Miner for retaliation under 42 U.S.C. § 1983 and the First Amendment. (Dkt. No. 6.) Familiarity with the factual allegations supporting these claims is assumed in this Decision and Order, which is intended primarily for the review of the parties.
Generally, in their Answer, Defendants assert the following four counterclaims arising from Plaintiff's alleged practice of law using a City-paid secretary and City computer during the hours that she claimed to have worked for the City: (1) a counterclaim of fraud under New York State common law; (2) a counterclaim of negligent misrepresentation under New York State common law; (3) a counterclaim of unjust enrichment under New York State common law; and (4) a counterclaim of faithless servant under New York State common law. (Dkt. No. 8.)
B. Undisputed Material Facts
The following facts were asserted and properly supported by Defendants in their Statement of Material Facts and were either admitted or denied without proper support by Plaintiff in her Response thereto. ( Compare Dkt. No. 63, Attach. 1 [Defs.' Rule 7.1 Statement] with Dkt. No. 67, Attach. 10 [Plf.'s Rule 7.1 Response].)
Before reciting these facts, the Court pauses to explain the reason for certain deficiencies in Plaintiff's response to Defendants' Statement of Facts. On a motion for summary judgment, denials of fact that are based on a lack of personal knowledge, mere information or belief, and/or inadmissible evidence are insufficient to create a genuine dispute. Fed.R.Civ.P. 56(c)(4) ("An affidavit or declaration used to... oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence and show that the affiant or declarant is competent to testify on matters stated."); Rodriguez v. Bubnis, 11-CV-1436, 2014 WL 6078529, at *10, n.25 (N.D.N.Y. Nov. 13, 2014) (Suddaby, J.) (collecting cases). Moreover, the assertion of additional material facts by a non-movant is permitted only if the additional material facts are both (1) in dispute and (2) contained in separately numbered paragraphs. N.D.N.Y. L.R. 7.1(a)(3) ("The non-movant's response may also set forth any additional material facts that the non-movant contends are in dispute in separately numbered paragraphs.") (emphasis added).
Plaintiff's Employment by the City
1. Plaintiff was a full-time employee of the City of Syracuse, and served as the Administrator of the City's Citizen Review Board ("CRB").
2. Plaintiff was not employed to act as a lawyer for the City or the CRB.
3. Plaintiff's employment was not covered by an individual employment contract or by any of the City's collective bargaining agreements; rather, she served at the discretion of the CRB and was able to be removed by the CRB for good cause.
4. The CRB is comprised of Board members who are volunteer citizens appointed by the Syracuse Common Council and the Mayor.
Mayor's Early Decisions Regarding the CRB
5. Even before becoming Mayor, as a Common Councilor, Mayor Stephanie Miner heard comments about the CRB that were overwhelmingly negative, and heard story after story about citizens who went to the CRB office and found it closed or who made complaints to the CRB but did not hear back from it.
6. When Mayor Miner took office, the CRB was one of the issues she wanted to address.
7. In her first month in office (January of 2010), Mayor Miner denied the CRB's request for authorization to hire a new employee (to fill a vacant investigator position), because she was unwilling to devote taxpayer money to a CRB that was not producing value to the taxpayers, deciding instead that the City's money would be better spent on commissioning a study of CRBs in other cities that were more effective.
8. As a result, Mayor Miner appointed Christine Fix to conduct the study.
9. After Ms. Fix completed her report of CRB models in June 2010, Mayor Miner distributed the report within her administration, with the directive that she wanted to explore a new model for the CRB that would be more effective and impactful.
Plaintiff's Non-Appearance at the Paulk Trial
10. The Paulk case was a federal lawsuit brought by a citizen, Martin Paulk, against two SPD officers ( Paulk v. Lester, 06-CV-1343 [N.D.N.Y.]).
11. On October 21, 2010, a process server attempted to personally serve a subpoena on Plaintiff at her home.
12. The subpoena called for CRB documents and for Plaintiff to testify at the Paulk trial on Monday, November 1, 2010.
13. Plaintiff was not home, but her husband reached her by telephone.
14. Plaintiff spoke by telephone to the gentleman attempting to deliver the papers, and instructed him to deliver the papers to the City Corporation Counsel's office.
15. The process server delivered the papers to the City's Corporation Counsel office on Friday, October 22, 2010.
16. The Paulk trial was scheduled to begin on November 1, 2010.
17. Before serving the subpoena, Richard Brickwedde (Paulk's attorney), had not indicated a desire to call Plaintiff as a witness.
18. On October 22, 2010, Joseph Doyle, a City attorney on the Paulk case, submitted a letter to the presiding judge, United States District Judge Charles Kornmann, requesting a conference to address the subpoena.
19. Doyle's co-counsel, James McGinty, anticipated that Judge Kornmann would agree with the City's position that Brickwedde should not be allowed to call Plaintiff as a witness in the Paulk trial.
20. Judge Kornmann did not address the issue of the subpoena until a pre-trial conference on October 28, 2010, during which he decided that Brickwedde would be allowed to call Plaintiff.
21. At the time of the pre-trial conference on October 28, 2010, McGinty and Doyle assumed, from the fact that Plaintiff had told the process server to bring the package to their office, that Plaintiff knew that the package contained a subpoena in the Paulk case.
22. At the time of the pre-trial conference on October 28, 2010, McGinty and Doyle were not aware that Plaintiff was pregnant or that she would be going on maternity leave.
23. On Friday, October 29, 2010, McGinty called the CRB office and asked to speak with Plaintiff.
24. The CRB secretary told McGinty that Plaintiff was on maternity leave.
25. Plaintiff's maternity leave began on October 29, 2010.
26. McGinty explained to Plaintiff's secretary that a subpoena had been issued to Plaintiff for her to testify in the Paulk trial on Monday at 9:00 a.m., and that whether she was on leave from work was immaterial.
27. McGinty told Plaintiff's secretary that she needed to get in touch with and tell her that she needed to appear as subpoenaed or, if she could not, she needed to call the attorney who issued the subpoena, Mr. Brickwedde, to make other arrangements for her testimony.
28. Plaintiff's secretary called her that day and informed her that a man from the Corporation Counsel's office had called and indicated that she should call an attorney by the name of Brickwedde.
29. Plaintiff called Brickwedde and left a voicemail informing him that something had been received by the City for her and that she was going on maternity leave.
30. Brickwedde returned Plaintiff's call but missed her and also left a voicemail.
31. Brickwedde advised Plaintiff that he could not speak to her for ethical reasons and instructed ...