Caruso v. City of N.Y.

973 F.Supp.2d 430

Michael CARUSO, Plaintiff,

v.CITY OF NEW YORK, et al., Defendants.

No. 06 Civ. 5997(RA).

United States District Court, S.D. New York.

Sept. 26, 2013.

Marc Bogatin, Marc Bogatin, Esq., Mark Lawrence Freyberg, Law Offices of Mark L. Freyberg, New York, NY, for Plaintiff.

Lawrence John Profeta, New York City Office of Corporation Counsel, Amy J. Weinblatt, Diana Marsh Murray, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Defendants.

OPINION AND ORDER

RONNIE ABRAMS, District Judge.

Plaintiff Michael Caruso, a former Inspector General at the New York City Department of Investigation (“DOI”) brings this action pursuant to 42 U.S.C. § 1983 and state law alleging that he was terminated by his former employer in retaliation for his grand jury testimony regarding Bernard Kerik, the former Commissioner of the New York City Police Department. Kerik was investigated by a Bronx County grand jury for conduct that occurred while he was serving as the Commissioner for the New York City Department of Correction (“DOC”) and while Caruso was serving as the Inspector General for DOC, responsible for overseeing Kerik's and other employees' conduct. The grand jury was investigating, inter alia, whether Kerik attempted to influence criminal and administrative investigations of Interstate Industrial Corporation (“Interstate”) and received undisclosed benefits from Interstate in the form of renovations to his apartment located in Bronx, New York. In March 2006, Caruso testified before the grand jury regarding a meeting he attended in July 1999 during which Kerik, in an apparent effort to influence the investigations, offered the assistance of two employees to an agency investigating Interstate. This action arises from Caruso's testimony and his termination shortly thereafter.

Defendants the City of New York, Rose Gill Hearn, the Commissioner of DOI, Walter Arsenault, the former First Deputy Commissioner of DOI, Dan Brownell, the former Deputy Commissioner for Investigations, Marjorie Landa, DOI's general counsel, and Robert Roach, the former DOI chief of staff (collectively, “Defendants”) move for summary judgment on all of Caruso's claims. According to Defendants, Caruso was terminated not because of his grand jury testimony but due to DOI's ongoing concerns relating to Caruso's relationship with Kerik and his insubordinate behavior in response to Defendants' proposal to transfer him within DOI. They also argue that Caruso's testimony is not protected by the First Amendment because he was speaking as a government employee pursuant to his official duties. For the following reasons, Defendants' motion is denied as to Caruso's claims of retaliation under federal and state law and granted as to Caruso's claims of wrongful discharge and defamation.

I. BackgroundA. Factual Background¹

1. Caruso's Employment at the Department of Investigation

DOI is an agency of the City of New York that is “empowered, inter alia, to investigate the ‘affairs, functions, accounts, methods, personnel or efficiency of any [New York City] agency.’ ” (Defs. 56.1 ¶ 1 (quoting N.Y.C. Charter Ch. 34, § 803(b)).) The individual Defendants were employees of DOI during the time period relevant to this action. ( Id. ¶ 6.)

Caruso was employed by DOI from 1987 until his termination on March 28, 2006, effective March 31, 2006. ( Id. ¶¶ 7, 66.) At the time of his termination, he held the positions of Assistant Commissioner of DOI and Inspector General of DOC, the Department of Probation, the Department of Juvenile Justice, the Office of Emergency Management and the Taxi and Limousine Commission. ( Id. ¶¶ 7–9.) There is an Inspector General for each city agency, all of whom report directly to the DOI Commissioner. ( Id. ¶ 3.) Inspector Generals are responsible for the investigation and elimination of corrupt or other criminal activity, conflicts of interest, gross mismanagement or abuse of authority within the agency to which they are designated. ( Id. ¶ 3 (citing N.Y.C. Exec. Order 105 § 3(a)(i), Exec. Order 78 § 4(e).) Upon receiving any information of this sort, they are obligated to report it directly and without undue delay to DOI pursuant to New York City Executive Order 78 § 4(e). ( Id. ¶ 5.)

Given the responsibilities of DOI—the agency empowered to investigate wrongdoing within city government—it is undisputed that the public's perception of the Department is not only important but affects DOI's ability to carry out its mandate. ( Id. ¶ 19 (citing Michael Caruso Dep. (“Caruso Dep.”) 31:9–32:1) ² ; Defs. Ex. L (Email from Landa to Gill Hearn, Mar. 7, 2006), at 1 (“I acknowledge that DOI's reputation for independence and integrity is essential to our being able to effectively carry out our mandate.”).) If the reputation of DOI is diminished, that presents a problem for the Department. ( Id. (citing Caruso Dep. 368:20–22).)

2. Caruso's Relationship with Bernard Kerik

The DOC was within Caruso's purview of responsibility throughout his tenure at DOI. ( Id. ¶ 10.) For a period of that time, Bernard Kerik served in executive roles at the DOC, first as Deputy Commissioner from 1995 to 1998 and then as Commissioner from 1998 to 2000. ( Id. ¶ 13.) In these capacities, Caruso and Kerik developed a working and social relationship, ( id. ¶ 14), although Caruso has characterized their personal relationship as “limited,” (Pl. Resp. 56.1 ¶ 14; Defs. Ex. B (Michael Caruso Grand Jury Testimony, Mar. 21, 2006 (“Caruso Grand Jury Tr.”)), at 30:21–23 (“I had a daily working relationship with him since he was a Corrections commissioner and then a social relationship to a certain extent.”)). Among other interactions, Caruso attended Kerik's wedding with other city officials, Kerik called Caruso from the hospital after he and his wife had a baby, and Caruso attended his child's christening. (Caruso Dep. 183:22–84:9, 214:19–215:5; Caruso Grand Jury Tr. 31:2–3.) Caruso also assisted in preparing Kerik for his interview to be the Commissioner of the NYPD and was at Kerik's apartment the night he was appointed to that position. (Caruso Dep. 215:6–217:9, 218:1–220:6 (describing his assistance to Kerik as not within his professional capacity).) Kerik served as Police Commissioner from 2000 to December 31, 2001. (Defs. 56.1 ¶ 13.)

Beginning in at least 2001—when Kerik's autobiography entitled Lost Son was published, in which he references his relationship with Caruso—their relationship became a mounting source of concern for DOI and the subject of criticism for Caruso. (Marjorie Landa Dep. (“Landa Dep.”) 44:6–10, 208:16–19; Defs. Ex. U (press articles between 2002 and 2005 regarding, in relevant part, Kerik and Caruso's relationship); id. at 1 (Newsday, Fears Over Ties in Rikers Probe, Oct. 31, 2002 (“In ... Kerik's autobiography, Kerik hails Michael Caruso ... as one of his ‘closest friends and colleagues.’ ”)).) Consequently, in 2002 and on one or two occasions in December 2004, DOI executives instructed Caruso to have no further communications with Kerik. (Caruso Dep. 154:9–155:18; Pl. Ex. H (Landa Notes, Dec. 27, 2004, at 9 (“12/7 RGH tells Mike not to speak to Kerik at all (Odeon lunch[) ]”)).) Moreover, Caruso was at least twice recused from investigations involving Kerik, once on his own initiative and once at the direction of DOI. (Caruso Dep. 151:7–152:3.) Recusal was necessary because if the relationship between the Commissioner of an agency and its Inspector General is too close or strained, it impedes the Inspector General's ability to do his job. ( Id. at 80:21–83:18; see also Landa Dep. 44:13–17 (“[T]he fact that we need to be perceived as objective is critical to our being able to fulfill our mission.”).) Caruso was recused from DOI's 2004 investigation into Kerik's dealings with Interstate, which ultimately led to his conviction. (Defs. 5 6.1 ¶ 21.)

Concerns about Caruso and Kerik's relationship appear to have escalated with the commencement of the Kerik investigation in December 2004. On December 27, 2004, Caruso attended a meeting with Commissioner Gill Hearn, Brownell and Landa regarding Caruso's relationship with Kerik. ( See Defs. Ex. P (Email from Gill Hearn to Brownell, Dec. 20, 2004 (“I am sure you are aware that we have a problem with Mike on our hands. A big one.”); Pl. Ex. H.) During the meeting, Caruso recounted two series of phone calls he had with Kerik in December 2004, among other things. He first described his participation in phone calls between December 3rd and December 6th with Kerik and Jeannette Pinero—an employee of DOC with whom Kerik had a prior personal relationship—relating to a pending litigation in which both Kerik and Pinero were to be deposed. (Pl. Ex. H at 7–11; Caruso Dep. 195:14–206:20; Rose Gill Hearn Dep. (“Gill Hearn Dep.”) 29:4–7, 32:2–33:6.) Through these calls, Caruso effectively served as a conduit between Kerik and Pinero because Kerik did not want to have direct contact with Pinero in light of her upcoming deposition. ( See Caruso Dep. 198:22–99:6; Defs. Ex. M (Landa Mem., Mar. 13, 2006) at 4 (Landa believed that “Kerik and Pinero had used him to help them to communicate with each other and in this he had allowed himself to be manipulated.”).) At the December 27th meeting, Caruso also discussed phone calls he had with Kerik between December 1st, the night of DOI's holiday party, and December 13th, all regarding his nomination and subsequent withdrawal of his nomination for United States Secretary of Homeland Security. (Pl. Ex. H at 7–11; Caruso Dep. 188:18–192:4, 192:19–194:11, 206:23–208:19; Landa Dep. 307:22–308:5; Dan Brownell Dep. (“Brownell Dep.”) 86:6–16 (noting that he learned of Kerik's call during the holiday party).)

3. The 1999 Meeting at Walker's and Investigations into Kerik

As referenced above, in 1999, Interstate and its owners, the DiTommasos, were under investigation by both DOI and the New York City Trade Waste Commission (“TWC”). Although Caruso did not...