Enders v. Boone

658 F.Supp.3d 70

Camille J. Siano ENDERS, Plaintiff, v. Jerry BOONE, individually and as Commissioner of theNew York State Department of Taxation and Finance,Honora Manion, individually and as Executive Deputy Commissioner ofthe New York State Department of Taxation and Finance, and Mary Starr,individually and as Associate Director of Human Resourcesat the New York State Department of Taxation and Finance, Defendants.

1:19-cv-948 (BKS/CFH)

United States District Court, N.D. New York

Signed February 28, 2023

Plaintiff pro se: Camille J. Siano Enders, Scotia, NY 12302.

For Defendants: Letitia James, Attorney General of the State of New York, Adrienne J. Kerwin, Assistant Attorney General, of Counsel, The Capitol, Albany, NY 12224.

MEMORANDUM-DECISION AND ORDER

Brenda K. Sannes, Chief United States District Judge:

I. INTRODUCTION

Plaintiff pro se Camille Siano Enders commenced this action under 42 U.S.C. § 1983 against Defendants Jerry Boone, Honora Manion, and Mary Starr, in their individual and official capacities, alleging that Defendants terminated her employment with the New York State Department of Taxation and Finance ("DTF") in retaliation for speech protected by the First Amendment. (Dkt. No. 1). Specifically, Plaintiff claims that Defendants terminated her employment with DTF in retaliation for her campaign to be elected Justice of the New York Supreme Court, Fourth Judicial District, in violation of the First Amendment. (See generally id.). Defendants move for summary judgment under Federal Rule of Civil Procedure 56 and seek dismissal of Plaintiff's complaint. (Dkt. No. 57). The parties filed responsive briefing. (Dkt. Nos. 64, 65). For the following reasons, Defendants' motion is granted in part and denied in part.

II. FACTS¹

A. The Parties' Employment with DTF

Plaintiff began working for DTF in January 2013 as a Deputy Commissioner and Taxpayer Rights Advocate. (Dkt. No. 57-9, at 21). She became Deputy Commissioner and Director of the Bureau of Conciliation and Mediation Services ("BCMS") in July 2014 and remained in that role until her employment with DTF ended. (Id. at 21-22). As a Deputy Commissioner, Plaintiff was an "exempt class employee" who served at the pleasure of the Administration. (Dkt. No. 57-2, ¶ 1(a), (m); Dkt. No. 64-13, ¶ 1(a), (m)).

Defendant Boone served as the Commissioner of DTF beginning in 2015 and retired from the agency in September 2016. (Dkt. No. 57-3, ¶¶ 3, 7, 32). Defendant Manion joined DTF in 1988 and served as the agency's Executive Deputy Commissioner from 2013 until her retirement in March 2019. (Dkt. No. 57-4, ¶¶ 3-4). Defendant Starr served as DTF's Assistant Director of Human Resources from 2013 to 2017, and as Director of Human Resources from 2017 until her retirement in December 2018. (Dkt. No. 57-5, ¶¶ 3-4).

B. The 2015 Campaign

In 2015, prior to her run for Supreme Court Justice, Plaintiff unsuccessfully ran for re-election as a part-time Judge in Duanesburg Town Court (the "2015 Campaign"). (Dkt. No. 57-2, ¶ 14; Dkt. No. 64-13, ¶ 14). DTF approved Plaintiff's request to conduct the 2015 Campaign outside of work hours. (Dkt. No. 57-2, ¶ 15; Dkt. No. 64-13, ¶ 15). The New York State Inspector General ("IG") investigated a complaint that Plaintiff "was engaging in outside employment as well as activities related to her re-election campaign for town justice during state work hours." (Dkt. No. 57-3, at 7). In a letter to Boone dated January 7, 2016, the IG summarized the results of her investigation. (Id. at 7-8). The IG's investigation determined that Plaintiff had received approval from DTF and the New York State Joint Commission on Public Ethics ("JCOPE") for three outside activities, one of which was serving as Town Justice in Duanesburg involving "eight hours of evening work per week." (Id. at 7). The investigation further determined that Plaintiff "appropriately charged leave accruals when her appearances in court . . . conflicted with her DTF work schedule" and found no evidence that Plaintiff "used state equipment or resources in furtherance" of her outside activities. (Id. at 7-8). However, because the IG's office "obtained testimony from four witnesses" that Plaintiff was placing and receiving calls pertaining to her outside activities during the workday, it also reviewed her personal cell phone records. (Id. at 8). The review of Plaintiff's personal cell phone records for March to mid-October 2015 "identified 261 calls, totaling 25 hours, between her and the Duanesburg Town Court during work hours" and "48 calls, totaling 3.5 hours, between [Plaintiff] and individuals associated with her re-election campaign during work hours." (Id.). The IG recommended that Boone "review these findings and take action as [he] deem[ed] appropriate." (Id.; see also Dkt. No. 57-3 (IG memorandum summarizing investigation)).

After reviewing the IG's findings, Boone "exercised [his] discretion not to renew Plaintiff's discretionary leave from her 'hold item,' "² which was set to expire in March 2016. (Dkt. No. 57-3, ¶ 20). Boone was "concerned about [Plaintiff's] management of [her] dual activities" based on the IG's investigation, (Dkt. No. 64-10, at 72-74), but "indicated to Plaintiff [they] could revisit the possibility of a hold item in the future," (Dkt. No. 57-3, ¶ 21). According to Plaintiff, Boone did not renew her hold item "as a result of [the IG's] memo." (Dkt. No. 57-9, at 117; see also Dkt. No. 64-1, ¶ 4 (Plaintiff affidavit stating that Boone indicated he did not renew her hold item "as a consequence for causing an investigation by the Office of Inspector General")).³ Plaintiff felt that the non-renewal of her hold item was "punishment." (Dkt. No. 57-9, at 118).

C. The 2016 Campaign

1. Approval

On March 28, 2016, Plaintiff requested approval from DTF for the outside activity of running for the office of Justice of the New York Supreme Court, Fourth Judicial District (the "2016 Campaign"). (Dkt. No. 57-6, at 8). Plaintiff's request indicated that her campaign activities "should be on nights and weekends" with "occasional need for time off for travel purposes." (Id.). The request also referenced New York State Ethics Commission Advisory Opinion No. 98-12 and acknowledged that "a state employee . . . cannot solicit funds directly from any sources that may have business for them or any one they supervise as a state employee." (Id.; see also id. at 17-22 (Advisory Opinion No. 98-12)). Advisory Opinion No. 98-12 states that "campaign activities" may not be "conducted from a State office or during State business hours unless leave is taken" and prohibits State employees from soliciting from subordinates, "as this practice is strictly forbidden by Civil Service Law § 107." (Id. at 21). The opinion also provides that a State employee "may participate in mass mailings, even if some of the letters will reach individuals or business entities from which he otherwise could not solicit funds." (Id. at 17; see id. at 22 (quoting the federal definition of a mass mailing, which is permissible "unless it is known to the employee that the solicitation is targeted at subordinates or at persons who are prohibited sources")).

Plaintiff's request to participate in the 2016 Campaign was approved, subject to certain restrictions, by Boone and Margaret Neri, Deputy Commissioner and Ethics Officer at DTF. (Id. at 7). These restrictions included: (1) "[l]eave time must be charged for any work or activity done during the normal work day for this outside activity," (2) "[a]ll activities must be done on the employee's own time," (3) "[n]o State resources of any type may be used to accomplish [the] outside activity," and (4) a reminder that Civil Service Law § 107 "prohibits any and all political activity in the workplace." (Id.). It is undisputed that a State employee's time during the workday is a State resource. (Dkt. No. 57-2, ¶ 40; Dkt. No. 64-13, ¶ 40).

In March 2016, Plaintiff also requested and received approval from JCOPE to conduct the 2016 Campaign. (See Dkt. No. 57-6, at 11-12 (JCOPE approval letter dated March 29, 2016)). JCOPE's approval letter advised Plaintiff that "actions associated with [her] outside activity are not permitted during State work hours and should not interfere with [her] work responsibilities," and stated that no State resources may be used to accomplish the outside activity. (Id. at 11). The letter further provided that "subordinate employees may not participate in [the] outside activity." (Id.). The letter referenced and discussed the requirements set forth in Advisory Opinion No. 98-12 and Civil Service Law § 107. (Id. at 12 ("The law also prohibits the use of one's official State position to coerce, intimidate, or otherwise influence State employees to give money or service or any valuable thing for any political purpose . . . .")).

On April 1, 2016, Boone and Neri met with Plaintiff to discuss the approval of Plaintiff's request to conduct the outside activity of running for Supreme Court Justice. (Dkt. No. 57-6, at 14; see also Dkt. No. 57-6, ¶ 10 (Neri declaration stating that they met "to discuss the restrictions on [Plaintiff's] activity")). According to an email Neri wrote summarizing the meeting, Boone was "concern[ed]" about "whether [Plaintiff's] election activities would impact [her] responsibilities at DTF." (Dkt. No. 57-6, at 14). Plaintiff told Boone and Neri that "most election activities" would take place during the evenings or on weekends and that she expected to charge her leave accruals if she needed to take time for traveling around the district. (Id.). Boone noted that Plaintiff was highly visible at DTF and would be highly visible to the public during the 2016 Campaign, and asked Plaintiff "how [she] intended to deal with the appearance of a conflict between [her] DTF job and [her] election activities." (Id.). Boone noted that "there has been increased scrutiny of political activity by those in State service" and "reiterated his...