Cole-Hatchard v. Cnty. of Rockland & Kathleen Tower-Bernstein

ANN COLE-HATCHARD, et al., Plaintiffs, v. COUNTY OF ROCKLAND andKATHLEEN TOWER-BERNSTEIN, in her individual capacity, Defendants.

No. 17-CV-2573 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 21, 2019

OPINION & ORDER

Appearances:

Russell G. Wheeler, Esq.

Charny & Wheeler

Rhinebeck, NY

Counsel for Plaintiff

Charlotte R. Ramsey, Esq.

Thomas E. Humbach, Esq.

Rockland County Department of Law

New City, NY

Counsel for Defendants

Larraine S. Feiden, Esq.

Feiden Law Firm

New City, NY

Counsel for Defendants

KENNETH M. KARAS, United States District Judge:

Employees of the Rockland County Probation Department ("Employee Plaintiffs") and their labor organization, Civil Service Association, Inc., Local 1000 AFSCME, AFL-CIO, Rockland County Local 844, County of Rockland Unit 8350 ("CSEA") (collectively, "Plaintiffs"), bring this Action, pursuant to 42 U.S.C. § 1983, against Rockland County and Kathleen Tower-Bernstein, the County's Director of Probation ("Tower-Bernstein") (collectively, "Defendants").¹ Plaintiffs allege that Defendants violated their rights under the First and Fourteenth Amendments by retaliating against them for issuing a letter to the Rockland County Legislature raising concerns about a proposed relocation of the Probation Department. Before the Court is Defendants' Motion for Summary Judgment (the "Motion"). (See Not. of Mot. (Dkt. No. 34).)

For the following reasons, the Motion is denied.

I. Background

A. Factual Background

The following facts are taken from the Parties' statements pursuant to Local Civil Rule 56.1, (Defs.' Rule 56.1 Statement ("Defs.' 56.1") (Dkt. No. 37); Pls.' Rule 56.1 Statement ("Pls.' 56.1") (Dkt. No. 46)), as well as the admissible evidence submitted by the Parties. The facts are recounted "in the light most favorable to" Plaintiffs, the non-movants. Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018) (citation and quotation marks omitted).² The facts as described below are in dispute only to the extent indicated.

Employee Plaintiffs were, at all relevant times, probation officers, senior probation officers, principal clerk typists, and data entry professionals employed by Rockland County's Probation Department. (Defs.' 56.1 ¶¶ 1-17.) In the spring of 2016, Rockland County considered relocating the Probation Department from New City, New York to Pomona, New York. (Id. ¶ 21.) On June 9, 2016, Employee Plaintiffs signed a letter (the "June 2016 Letter") articulating several concerns regarding the proposed relocation. (Id. ¶ 22; Decl. of Larrain S. Feiden, Esq. in Supp. of Mot. ("Feiden Decl.") Ex. 8 (June 2016 Letter) (Dkt. No. 35).) The June 2016 Letter, which is addressed to "Members of the Rockland County Legislature," states:

Numerous concerns regarding this proposed move have been voiced by probation staff over and over again since the announcement of this move. . . . This letter serves as our formal request for relief, in the form of an opportunity to speak with the Rockland County Legislature at their next meeting. The following is a brief summary of what we, the undersigned [Employee Plaintiffs], believe are the crucial issues to be addressed immediately:

[1] The proposed relocation of some of the probation department . . . is actually further dismantling of a department that is already operating significantly understaffed and ill-equipped to meet the needs of the population it serves. . . . To move parts of our department . . . has a detrimental effect on our ability to gather information and supporting documents from each other.

[2] It is unrealistic and a 'set up for failure' to expect that [criminal] defendants, who often have trouble reporting to our current offices . . . due to transportation limitations and resources, will be able to report to the remote [proposed relocation site] as directed. This in turn will likely result in increased cases of defendants who go missing from our supervision and increased violations of probation, once again stretching thin our limited resources and taking time away from our mandate to actually interact and supervise these individuals.

[3] The move . . . will distance and isolate our department from agencies we work closely with on a daily basis, including the county courts, Clarkstown Justice Court, the Office of the Public Defender, the Rockland County District Attorney's Office[,] and the Rockland County Correctional Facility.

[4] As has been documented . . . [s]afety and security is a major concern of probation staff. . . . [O]ur offices are [currently] located in an active, populated building with the Rockland County Sherriff's Office a few thousand feet from our location . . . [,] [which is] regularly called upon to assist us within minutes of ourcall for help. The relocation . . . clearly impacts a realistic response time. [The relocation building contains] cavernous, unmanned, isolated hallways [that] offer[] prime opportunity for assaults and hidden attacks. . . . The property is desolate. . . . [S]ignificant concern is raised about employees walking alone, in the dark, to distant parking areas.

[5] . . . [S]plitting our department into two separate locations will become a clerical/record-keeping nightmare. . . . Expecting clients to be supervised in one location and travel to another location is unrealistic and will likely result in the loss of revenue. . . .

[6] . . . We can only hope that the condition of the [relocation] offices and hallways, which are dirty, smell of mold and are clearly unhygienic, would greatly improve before there is even a thought of placing personnel in the area.

Finally, we would like those reviewing this letter to consider the following:

The [Probation Department] provides crucial roles in the daily operation of the court system here in the county. We also provide daily assistance to all segments of our population including the offenders we supervise . . . , the juveniles we monitor . . . , those under investigation for pre-sentence matters, [and] victims of domestic violence . . . . We have long served as an unrecognized and under appreciated agency when compared to the respect and attention other law enforcement entities often receive. The undersigned [Employee Plaintiffs] request that the[se] . . . points be given the careful consideration and well deserved respect before further plans are made to relocate parts of the department . . . .

(June 2016 Letter 1-2 (emphasis removed throughout).) In addition to being addressed to the Rockland County Legislature, the June 2016 Letter was copied and delivered to Tower-Bernstein, the County's Director of Probation, as well as several Rockland County officials, including the county executive, the county sheriff, several county and local judges, the public defender's office, and the district attorney's office. (Defs.' 56.1 ¶¶ 20, 26; June 2016 Letter 2-3.) However, the Letter was "not provided to any media source" or "posted to or shared on any social media sites." (Defs.' 56.1 ¶ 27.)

On June 21, 2016, Tower-Bernstein directed all Probation Department employees to attend one of two mandatory staff meetings scheduled for June 21 and June 22, 2016. (Id. ¶ 28.) At the meetings, Tower-Bernstein stated that the Probation Department had decided not toproceed with the proposed relocation, but that the decision was not due to the June 2016 Letter. (Id. ¶ 31.) She further stated "that the individuals who signed" the June 2016 Letter — that is, Employee Plaintiffs — "had gone outside the chain of command for the department, which they should not have done[,] . . . that those actions reflected poorly on the [department] and upon her," and that "any future public speech on the issue of the planned relocation . . . could result in the imposition of disciplinary action, up to and including termination." (Id. ¶¶ 29-30.) Finally, Tower-Bernstein "stated that any probationary employees who signed" the June 2016 Letter "could be dismissed from service." (Id. ¶ 30.)

Also on June 21, 2016, Tower-Bernstein wrote and sent each Employee Plaintiff an identical "Memorandum of Warning." (Id. ¶ 32; Decl. of Russell G. Wheeler, Esq. in Opp'n to Mot. ("Wheeler Decl.") Ex. S ("Tower-Bernstein Dep.") 67 (Dkt. No. 41).) The Memorandum of Warning, which was "prepared in response" to the June 2016 Letter, states:

[A]uthority to manage the Rockland County workforce, including location of departments rests solely with the County Executive. Authority to speak on behalf of individual departments rests with the appointing authority, in conjunction with the Executive's office. By submitting a letter as "members of the Rockland County Department of Probation", [sic] you have demonstrated disregard for chain of command, a disrespect for the Office of the County Executive and an ignorance of the potential repercussions of your action, including political, economic and public perception.

You are advised that further communication of this nature may result in disciplinary action taken against you.

(Feiden Decl. Ex. 9 (Memorandum of Warning).) The Parties agree that the Memorandum of Warning "did not require [Employee Plaintiffs] to sign acknowledgement of receipt," that it "was not included in [Employee Plaintiffs'] personnel files" maintained by the County, and that it was not "forwarded to the CSEA" — Employee Plaintiffs' trade organization — "per the requirements of the" applicable collective bargaining agreement between the County and CSEA.

(Defs.' 56.1 ¶ 36; Pls.' 56.1 ¶ 36.) However, while Defendants characterize the Memorandum of Warning as an "informal" reprimand, (Defs.' 56.1 ¶ 36), Plaintiffs reject that characterization, (Pls.' 56.1 ¶ 36). Indeed, Plaintiffs further maintain that, when CSEA asked the County to rescind the Memorandum of Warning, the County refused and stated that "copies . . . will be retained by the Director as proof of progressive discipline," because "the CSEA contract permits an entire record of employment to be considered at a disciplinary proceeding...