Cirulli v. Astorino

RICHARD CIRULLI, Plaintiff, v. ROBERT ASTORINO, individually and in his official capacity as Westchester County Executive,KEVIN PLUNKETT, individually and in his official capacity as Deputy Westchester County Executive,GEORGE OROS, individually and in his official capacity as Chief of Staff for the WestchesterCounty Executive, MARK TULIS, individuallyand in his official capacity as Chairman of the Board of Directors of the Westchester County Health Care Corporation, and MICHAEL ISRAEL, individuallyand in his official capacities as CEOand President of the Westchester County Health Care Corporation, Defendants.

No. 14-cv-5459 (NSR)

STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

FILED: August 3, 2015

July 31, 2015

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge

Plaintiff brings this action against Robert Astorino, Kevin Plunkett, and George Oros (collectively, "County Defendants") and Mark Tulis and Michael Israel (collectively, "WCHCC Defendants") for alleged violations of 42 U.S.C. § 1983. Each defendant group has moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, County Defendants' motion is GRANTED and WCHCC Defendants' motion is GRANTED in part and DENIED in part.

BACKGROUND

This case concerns Plaintiff's appointment to the Board of Directors (the "Board") of Westchester County Health Care Corp. ("WCHCC"), which Plaintiff alleges Defendants blocked without due process and in retaliation for an article that Plaintiff published in the Journal News.

A. WCHCC

WCHCC is a New York State Public Benefit Corporation created by statute to operate Westchester Medical Center, which has ownership stakes in, or relationships with, hospitals throughout the upper counties. See N.Y. Pub. Auth. Law § 3301. It is governed by a Board comprised of four nonvoting representatives and fifteen voting members, three of whom are appointed by the Governor upon the Westchester County Executive's recommendation.¹ Id. § 3303(1)(b). Board members "receive no compensation for their services, but shall be reimbursed for all their actual and necessary expenses incurred in connection with the carrying out of the purposes of this title." Id. § 3303(4)(b). Directors remain on the Board "until their successors are appointed and qualify." Id. § 3303(3)(a); see also id. § 3303(3)(b) ("All directors . . . shall continue to hold office until their successors are appointed and have qualified."). Directors "may be removed from office by the board for inefficiency, neglect of duty or misconduct in office, after the board has given such member a copy of the charges against him or her or opportunity to be heard in person or by counsel in his or her defense, upon not less than ten days notice [sic]." Id. § 3303(3)(b).

B. Plaintiff's Appointment to and Rejection from the WCHCC Board

In November 2013, Plaintiff met with Defendant George Oros, Chief of Staff for the Westchester County Executive, Defendant Robert Astorino. (Compl. ¶ 9, ECF No. 1.) Oros allegedly told Plaintiff that the Astorino administration had agreed to recommend Plaintiff to the Governor for appointment to the WCHCC Board.² (Id.) While that recommendation was pending, Plaintiff published an article in the Journal News dated February 8, 2014 protesting Westchester Medical Center's (i.e., WCHCC's) proposed purchase of St. Francis Hospital. (Id. ¶ 13.) The article opined that St. Francis Hospital had been burdened by "years of mismanagement" and a lack of "infrastructure preventive maintenance," and that Westchester taxpayers would bear tremendous costs if Westchester Medical Center purchased the facility.³ (Id.)

Governor Cuomo appointed Plaintiff to the WCHCC Board on March 13, 2014. (Id. ¶ 14.) Plaintiff alleges that Defendants thereafter sought to coerce Plaintiff to resign allegedly "for Astorino's sake as a candidate running for Governor." (Id. ¶ 15.) On March 25, 2014, the Deputy County Executive, Defendant Kevin Plunkett, called Plaintiff and demanded that he resign from the Board. (Id.) The next day, Plaintiff met with Plunkett and Oros. (Id. ¶ 16.) They allegedly acknowledged that they had no power to remove Plaintiff from the Board but instead demanded that he submit a letter of resignation. (Id.) When Plaintiff refused, Plunkett allegedly said that Plaintiff's article in the Journal News was in "poor taste" and bordered on "slander." (Id.) A few days later, Plaintiff met with Plunkett, Oros, and Defendant Tulis, the Chairman of the WCHCC Board. (Id. ¶ 17.) Tulis told Plaintiff that the WCHCC Board wasconsidering suing Plaintiff for slander based on his Journal News article but that Tulis would block the suit if Plaintiff resigned. (Id.) Tulis also said that Plaintiff would not receive Board meeting notices, would not be welcome at Board meetings, and would not be seated as a Board member. (Id.) Tulis allegedly related that Defendant Mark Israel, WCHCC's CEO, was "livid" about Plaintiff's article but would not come to the meeting. (Id.) Over the subsequent weeks, Plaintiff received a call from Plunkett and three emails from Oros demanding his resignation.

Plaintiff emailed Oros and Plunkett in June and July 2014 asking them to reconsider their position on his resignation. (Id. ¶¶ 21-22.) On July 7, 2014, Plunkett responded by email, copying Tulis, stating that he was "referring this matter to WCHCC for their review and handling." (Id. ¶ 23.) Tulis wrote to Plaintiff eight days later stating, "[A]fter careful consideration, the Executive Committee of the [WCHCC] Board of Directors has voted to reject your appointment to the Board." (Id. ¶ 24.) Plaintiff received no notice of any charges against him and was not afforded a hearing. Plaintiff claims that this course of conduct has chilled his speech concerning the subjects of his Journal News article. (Id. ¶ 26.)

STANDARD ON A MOTION TO DISMISS

To survive a motion to dismiss, a complaint must supply "factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In applying this standard, acourt should accept as true all well-pleaded factual allegations, but should not credit "mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Id.

DISCUSSION

I. First Amendment Claim

Plaintiff has stated a First Amendment claim. "A plaintiff asserting a First Amendment retaliation claim must establish that: '(1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech.'" Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015) (quoting Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011)). Defendants do not contest the first element, and Plaintiff's Journal News article certainly qualifies as protected speech. There is also no dispute that Plaintiff has adequately alleged the third element, a causal connection between his Journal News article and the actions taken against him (indeed, the timing of events and the content of the alleged conversations raises an inference of a causal connection). Defendants dispute the second element.

A. Adverse Action

The central dispute on this motion is whether Defendants' conduct rises to the level of an "adverse action." The Court finds that it does, but, as explained in Part II.B, infra, only with respect to WCHCC Defendants. To qualify as an "adverse action," retaliatory conduct must be of a kind that "would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006). This is a "'heavily fact-specific, contextual determination.'" Id. at 228 (quoting Hoyt v. Andreucci, 433 F.3d 320, 328 (2d Cir. 2006)). A plaintiff need not show that he was deprived of a benefit that would qualify as a property interest protected by the Due Process Clause. SeePerry v. Sindermann, 408 U.S. 593, 596-99 (1972) (explaining that the plaintiff's lack of contractual or tenure entitlement to re-employment was immaterial to the plaintiff's First Amendment retaliation claim, but was highly relevant to the plaintiff's due process claim). But "de minimis" harms do not suffice.⁴ Zelnik, 464 F.3d at 225. For example, the Second Circuit in Zelnik held that refusal to grant "emeritus" status to a professor in retaliation for speech was not an adverse action because the "benefits of such status, given the record before [the court], carry little or no value" and the plaintiff had adduced no evidence of any "intangible [benefits], such as prestige, status, and respect." Id. at 227. The court noted that a different conclusion might be warranted if the plaintiff had shown that the status carried "specific and well-defined benefits." Id.

The thrust of WCHCC Defendants' argument is that because the WCHCC Board position is unpaid, Plaintiff's loss of that position was de minimis. The Second Circuit has in several cases permitted First Amendment claims to proceed based on a plaintiff's termination from an unpaid government position; though, the Second Circuit has never squarely addressed the issue of whether the absence of a salary bars a First Amendment claim. In Janusaitis v. Middlebury Volunteer Fire Department, a volunteer firefighter complained that he...