Keeney v. Brinkman

          DECISION AND ORDER

          HON. FRANK P. GERACI, JR. JUDGE

         INTRODUCTION

         Plaintiff Michael Keeney brings this action against Defendant Patricia Brinkman, in her individual and official capacities, for alleged violations of the First Amendment (pursued under 42 U.S.C. § 1983) and Article I, § 8 of the New York State Constitution. See ECF No. 1.

         Plaintiff filed his Complaint on February 23, 2016. ECF No. 1. On May 5, 2016, Defendant Brinkman filed her Answer, ECF No. 11, and then-defendants Joseph Woodward and Housing Options Made Easy, Inc. (“HOME”) filed their joint Answer, ECF No. 12. The next day, Defendant Brinkman filed an Amended Answer. ECF No. 13. On March 2, 2017, the Court issued a Stipulation and Order dismissing the claims against then-defendants Mr. Woodward and HOME with prejudice, ECF No. 21, pursuant to the agreement of the parties, ECF No. 20. Defendant Brinkman-the only remaining defendant-filed a Motion for Summary Judgment on August 14, 2017. ECF No. 23. Plaintiff submitted a Memorandum in Opposition on October 16, 2017, ECF No. 26, and Defendant Brinkman filed her Reply on November 2, 2017, ECF No. 27.

         For the reasons that follow, Defendant Brinkman's Motion for Summary Judgment (ECF No. 23) is GRANTED, and this action is DISMISSED.

         BACKGROUND^[1]

         Plaintiff was formerly employed by HOME, “a peer-run organization that provides supportive housing and other recovery, transitional[, ] and reintegration programs and services for individuals with serious, persistent mental health issues.” ECF No. 23-1, at 2. HOME receives funding through annual contracts with Chautauqua County's Department of Mental Hygiene, which acts as a conduit for state funds. Plaintiff worked as a Peer Specialist for HOME's Mobile Transition Team in Chautauqua County from April 21, 2015 until September 8, 2015, when his employment was terminated. Plaintiff alleges that he was fired at the behest of Defendant Brinkman, the Chautauqua County Director of Mental Hygiene Services. Per Plaintiff's account, Defendant Brinkman ordered his termination based on Plaintiff's public criticism of Chautauqua County's response to its “drug epidemic.” ECF No. 23-1, at 4.

         Chautauqua County has facilitated a number of “drug forums” to address its “growing opioid epidemic.” Id. Members of the public were invited to speak at these forums, and Plaintiff claims that he spoke at forums held on March 12, 2014, September 1, 2014, and March 16, 2015.^[2]At the March 16, 2015 forum, Plaintiff allegedly “criticized the lack of services provided in Chautauqua County related to the drug epidemic.” Id. at 5.

         The next month-on April 21, 2015-Plaintiff was hired by HOME as an at-will employee. As part of the hiring process, Plaintiff interviewed with Mr. Woodward, HOME's then-CEO, and Denis Bouchard, HOME's COO. After approximately one week, Defendant Brinkman learned of Plaintiff's hiring and that he had “spoken very angrily about the lack of services in the community and inadequacy of the services that existed.” Id. at 6. Upon receiving that information, Defendant Brinkman called Mr. Woodward. While the parties dispute the substance of this conversation, they agree that it related to the propriety of Plaintiff serving as a Peer Specialist, given his perception of Chautauqua County's services. After that call, Mr. Woodward spoke to Richard Huber, a then-member of HOME's Board of Directors. On May 5, 2015, Defendant Brinkman called Mr. Woodward a second time to “follow up to their first phone call.” Id. at 7. Once again, the parties dispute the substance of the second conversation between Mr. Woodward and Defendant Brinkman, but they agree on the broad contours: among other things, it again involved Plaintiff's capacity to serve as a Peer Specialist. Approximately four months later-on September 8, 2015- Plaintiff was fired from his position with HOME.

         LEGAL STANDARD

         Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court must take genuinely disputed facts in the light most favorable to the nonmovant- here, Plaintiff. See Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed.R.Civ.P. 56(c)). If, based on the admissible evidence, a reasonable jury could return a verdict in favor of the nonmovant, summary judgment is not appropriate. E.g., Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545-46 (2d Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). In deciding whether to grant summary judgment, the Court must resolve “all permissible inferences and credibility questions . . . in favor of [the nonmovant].” Id. That assessment requires the Court to “disregard all evidence favorable to the [movant] that the jury is not required to believe.” Id. at 545 (quoting Jasco Tools, Inc. v. Dana Corp., 574 F.3d 129, 152 (2d Cir. 2009)) (emphasis omitted).

         “The [movant] bears the initial burden of showing why it is entitled to summary judgment.” Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006). Where the [movant] would not “bear[] the burden of proof at trial, ” it “may show its prima facie entitlement to summary judgment” by “point[ing] to evidence that negates its opponent's claims or . . . [by] identify[ing] those portions of its opponent's evidence that demonstrate the absence of a genuine issue of material fact.” Id. at 272-73. The latter approach “requires identifying evidentiary insufficiency”-“not simply denying the opponent's pleadings.” Id. at 273.

         If the movant shows that it is entitled to summary judgment, “the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.” Id. “Like the movant, the nonmovant cannot” simply rely “on allegations in the pleadings”-it “must point to specific evidence in the record to carry its burden on summary judgment.” Id. If the nonmovant fails to set forth admissible evidence to support an essential element of its claim, then summary judgment is warranted. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (“The moving party is ‘entitled to judgment as a ...