Spring v. Cnty. of Monroe

59 F.Supp.3d 559

Todd SPRING, Plaintiff

v.COUNTY OF MONROE, NEW YORK, Monroe Community Hospital, Maggie Brooks, as Monroe County Executive, Daniel M. De Laus, Jr., Esq., William K. Taylor, Esq., Brett Granville, Esq., Meredith H. Smith, Esq., Karen Fabi, Defendants.

No. 13–CV–6662L.

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

Signed Nov. 13, 2014.

Glenn E. Pezzulo, Culley, Marks, Tanenbaum & Pezzulo, Rochester, NY, for Plaintiff.

Eugene Welch, Letty L. Laskowski, Harris Chesworth O'Brien Johnstone Welch & Leone LLP, Mark J. Valerio, Moran & Kufta, P.C., Charles D. Steinman, Jeffrey Wicks, Jeffrey Wicks, PLLC, Howard A. Stark, Rochester, NY, Maureen G. Fatcheric, Costello Cooney & Fearon PLLC, Camillus, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Plaintiff, Todd Spring, brings this action against the County of Monroe, New York (“County”), Monroe Community Hospital (“MCH” or “Hospital”), and six individual defendants. Plaintiff, a former employee of the Hospital, asserts civil rights and other claims arising out of the termination of his employment in May 2013. Defendants have moved to dismiss the complaint pursuant to Rules 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure.

In addition, one of the individual defendants, Karen Fabi, who is represented by separate counsel, has filed a cross-claim for contribution and/or indemnity against the other seven defendants (“County defendants”). The County defendants have moved to dismiss Fabi's cross-claim. At oral argument on the pending motions, the Court granted Fabi's oral request to withdraw and dismiss her claim for indemnity, although she continues to press her claim for contribution.

BACKGROUND

Plaintiff began working for MCH in 2000. Immediately prior to his termination, plaintiff held the position of Executive Health Director and Chief Administrative Officer.

Plaintiff's termination stemmed from an investigation concerning a Hospital resident, Samuel Condello. According to the complaint, in early 2013, “questions were raised” concerning Condello's “behavior and actions regarding alcohol use and continued unsafe smoking practices....” Complaint ¶ 17. In response to those concerns, the New York State Department of Health (“DOH”) launched an investigation into the matter in February or March 2013.

Because of the possibility that the investigation might lead to civil or criminal liability, the County provided plaintiff with legal representation from defendants Daniel DeLaus, William Taylor, Brett Granville and Meredith Smith (“attorney defendants”), all of whom are lawyers employed by the County. The attorney defendants also represented the County and several other MCH staff members, but plaintiff was “assured by [the attorney] Defendants that there was no conflict of interest....” Complaint ¶ 20.

Plaintiff alleges that throughout the DOH investigation, he was instructed by the attorney defendants not to make any public statements, or even statements to his coworkers, regarding the subject matter of the investigation. Complaint ¶ 25. Defendants allegedly assured plaintiff that they would respond to any negative publicity about him relating to this matter. Complaint ¶ 26.

On March 29, 2013, DOH issued a Statement of Deficiency (“SOD”), which included allegations of wrongdoing by plaintiff. Complaint ¶ 22. Defendants hired an independent consultant to review and contest DOH's findings through an administrative informal dispute resolution (“IDR”) proceeding. Plaintiff alleges that although the IDR report addressed (and presumably in part contradicted) the DOH findings, defendants failed to contest any of the DOH's findings, including the allegedly false accusations against plaintiff. Complaint ¶ 24. Plaintiff further alleges that defendants failed to pursue the IDR process, id., and that they made public defamatory statements about plaintiff, for purely political reasons. Complaint ¶ 26.

Plaintiff alleges that on May 8, 2013, he asked that he be provided with separate, private counsel. Complaint ¶ 27. Two days later, however, plaintiff's employment was terminated. Complaint ¶ 28.

Based on these allegations, plaintiff asserts four causes of action, for which he seeks an unspecified amount of damages. The first cause of action, which is brought pursuant to 42 U.S.C. § 1983, asserts a claim under the First Amendment to the United States Constitution, alleging that defendants violated plaintiff's right to free speech by prohibiting him from speaking publicly about the DOH investigation.

The remaining three claims are brought under state law. Plaintiff's second cause of action is brought against the attorney defendants for legal malpractice, based on plaintiff's allegation that the attorney defendants acted under a conflict of interest when they rendered legal services to plaintiff and gave him advice with respect to the DOH investigation, and that this conflict of interest prejudiced plaintiff. The third cause of action alleges that defendants were negligent in (1) failing to contest the SOD, and (2) failing to establish, as they were required to do under the Monroe County Charter, a Monroe County Hospital Board that could have assisted plaintiff with regard to the DOH allegations.¹

The fourth cause of action asserts a defamation claim. This claim is based in part on public statements by defendant Maggie Brooks, the Monroe County Executive, to the effect that plaintiff had failed to meet the standards of care required of MCH and its employees. The defamation claim is also based on statements made by defendant Fabi, who was the MCH Supervisor of Safety and Security. Fabi allegedly made public statements that plaintiff's firing was “good news for the residents and staff.” Complaint ¶ 57.

Fabi herself was also the subject of disciplinary action, Complaint ¶ 58, and her statements alleged in the complaint indicate that she was no longer a County employee when she made those statements; see Complaint ¶ 57(b) (quoting Fabi's statement that she had been “nastily forced out” of her job). Fabi's cross-claim against the other defendants seeks contribution for any damages that may be assessed against her. Dkt. # 19 ¶ 19.

DISCUSSION

Defendants contend that plaintiff's First Amendment claim must be dismissed, for several reasons. First, defendants assert that the speech that plaintiff alleges he was prohibited from making did not relate to a matter of public concern.

The typical First Amendment free-speech case by a public employee alleges retaliation by the public employer for the employee's having spoken out about a matter of public concern. See, e.g., Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir.2006), cert. denied, 549 U.S. 1342, 127 S.Ct. 2062, 167 L.Ed.2d 769 (2007) ; Grillo v. N.Y.C. Transit Auth., 291 F.3d 231, 235 (2d Cir.2002). A public employee may also be able to state a claim, however, based on allegations that the employer prevented or prohibited him from speaking about a matter of public concern. See, e.g., Whitney v. City of Milan, 677 F.3d 292, 297–98 (6th Cir.2012) ; Samuelson v. LaPorte Community School Corp., 526 F.3d 1046, 1051–52 (7th Cir.2008).

In general, however, the analysis is the same, whether the case involves actual speech or an alleged restraint on speech. Of particular relevance here, “the public concern requirement applies to free speech prior restraint cases just as it does to free speech retaliation cases....” Rutherford v. Katonah–Lewisboro School Dist., 670 F.Supp.2d 230, 246 (S.D.N.Y.2009).

Whether speech addresses a matter of public concern is a question of law for the court to decide. Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir.2008). To answer this question, the court must “evaluate whether the speech relates to any matter of political, social, or other concern to the community, and whether the speech was calculated to redress personal grievances or whether it had a broader public purpose.” Hoyt v. Andreucci, 433 F.3d 320, 330 (2d Cir.2006) (internal quotations marks and citations omitted). “[M]ere employee grievances do not qualify as matters of public concern.” Id.

“There is no categorical approach, however, ‘that places all speech aimed at redressing personal grievances in the employment context beyond the scope of the First Amendment.’ ” Norton v. Breslin, 565 Fed.Appx. 31, 33–34 (2d Cir.2014) (quoting Huth v. Haslun, 598 F.3d 70, 74 (2d Cir.2010) ). Rather, “[w]hether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Golodner v. Berliner, 770 F.3d 196, 202 (2d Cir.2014) (quoting Connick v. Myers, 461 U.S. 138, 147–48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ). “The speaker's motive is a factor to consider but ‘is not dispositive in determining whether his or her speech addresses a matter of public concern.’ ” Id. (quoting Sousa v. Roque, 578 F.3d 164, 173 (2d Cir.2009) ).

The complaint here alleges few specifics regarding how plaintiff was prohibited from speaking, or what the content of his speech would have been, had he been allowed to speak. Plaintiff has, however, submitted an affidavit describing those matters in some detail, together with supporting exhibits. Dkt. # 22.

Ordinarily, a court may not look beyond the four corners of the complaint in considering a motion to dismiss. See Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000). The court can convert a motion to dismiss into a motion for summary judgment by considering extrinsic evidence, as long as the opposing party receives sufficient notice and an opportunity to respond. Hernandez v. Coffey, 582 F.3d 303, 307–08 (2d Cir.2009). Neither side has asked the Court to do that, however. Plaintiff has also stated several times that he needs discovery to obtain certain evidence (such as copies of emails that he sent to defendants), and that defendants' motion to dismiss is therefore premature.²

Having reviewed plainti...