Airday v. City of N.Y.

• Decision Date: 15 September 2015
• Docket Number: No. 14 Civ. 8065.,14 Civ. 8065.
• Parties: George AIRDAY, Plaintiff, v. The CITY OF NEW YORK, Keith Schwam, and David M. Frankel, Defendants.
• Court: U.S. District Court — Southern District of New York

131 F.Supp.3d 174

George AIRDAY, Plaintiff,

v.The CITY OF NEW YORK, Keith Schwam, and David M. Frankel, Defendants.

No. 14 Civ. 8065.

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

Signed Sept. 15, 2015.

Filed Sept. 17, 2015.

Law Office of Nathaniel B. Smith, by: Nathaniel B. Smith, Esq., New York, NY, for Plaintiff.

Zachary W. Carter, Esq., Corporation Counsel of the City of New York, by: Don H. Nguyen, Esq., New York, NY, for Defendants.

OPINION

SWEET

, District Judge.

Defendants the City of New York ("the City"), Keith Schwam ("Schwam") and David Frankel ("Frankel") (collectively, the "Defendants") have moved pursuant to Rule 12(b) of the Federal Rules of Civil Procedure

to dismiss the Complaint of plaintiff George Airday ("Airday" or the "Plaintiff") alleging violations of 42 U.S.C. §§ 1983 and 1988, and the First, Fifth and Fourteenth Amendments of the United States Constitution. Plaintiff's claims arise out of the denial of renewal of his five-year term as New York City Marshall in alleged retaliation for his criticism of a parking violation enforcement program called the "Paylock Booting Program." Plaintiff alleges: (1) retaliation against him in violation of his First Amendment rights; (2) violation of his procedural and substantive due process rights; and (3) violation of his rights to equal protection. Based on the conclusions set forth below the motion is granted in part and denied in part.

Prior Proceedings

The Plaintiff filed his Complaint containing the following allegations. Airday was a City Marshal for 29 years from January 1984 through December 2013. See Compl. ¶¶ 11–17. A City Marshal is a public officer who operates his or her own business enforcing judgments and collecting fees upon execution of those judgments on behalf of judgment-creditors, who are his clients or customers. As a City Marshal, Airday satisfactorily performed his duties over the course of his career, and his five-year term of office was regularly renewed, consistent with the established practice of renewing the terms of the other City Marshals. Id. ¶¶ 11–15.

In 2010, Mayor Bloomberg and his Administration decided to take steps to "privatize" the City's system for collecting unpaid parking tickets by replacing City Marshals with a private company known as "Paylock." Id. ¶¶ 20–25. Under this program, which was to be run by the New York City Department of Finance ("DOF") under the authority of Frankel, as DOF Commissioner, City Marshals would no longer enforce judgments by towing scofflaw vehicles. Id. ¶ 25. Instead, private employees of a private company would affix a metal "boot" to a wheel of the scofflaw vehicle, and the owner would have to pay Paylock by credit card in order to release the boot. Id. The Paylock proposal was a significant threat to the established operations of at least twenty City Marshals, including Airday, who focused significant portions of their operations on the DOF's existing Scofflaw Program. See id. ¶ 22. As a result, Airday and other City Marshals began investigating the propriety of the Paylock proposal, including the legality of a private and non-public no-bid contract as potentially violative of applicable competitive biddings laws. Id. ¶¶ 24, 32.

After reviewing the Paylock proposal at the office of DOF, Airday identified several serious issues, including: (a) how Paylock was chosen by the City and whether a no-bid contract was appropriate and legal; (b) who would be in charge under the proposal for tracking fines paid to Paylock; (c) who would be responsible for supervising Paylock; (d) what fees would be charged to the vehicle owners; (e) what would be the City Marshal's law enforcement and administrative roles, if any, in the booting process; (f) what would Paylock's fee be under the proposed system; (g) whether a vehicle could be legally "unbooted" upon payment of the outstanding fines and judgments and left operational on City streets where the vehicle's registration status had expired and the vehicle could not under law be parked or operated on public streets; and (h) whether it was appropriate to omit or disregard necessary and legal guidelines from the Paylock booting program. Id. ¶ 36.

Airday disseminated his criticisms of the Paylock program to other City Marshals and to the Marshal's Association of the City of New York, Inc. (the "Marshal's Association"). Id. ¶ 37. The Marshal's Association is a not-for-profit corporation organized under the laws of New York for the benefit of City Marshals. See id. Airday also shared his criticisms with New York City's Department of Investigations ("DOI"), which had oversight responsibility for City Marshals and was supervised by Schwam. Id. ¶¶ 30, 37.

Schwam and Frankel purportedly punished Airday for voicing his criticism of Paylock, thereby sending a message to the other City Marshals not to oppose the Paylock proposal or expose any issues pertaining to it. Id. ¶ 38. On January 18, 2012, Airday was arrested for possession of a gun in violation of a protective order issued against him arising from what Airday contends was a false allegation of domestic violence by his former girlfriend. Id. ¶ 39. The next day, Schwam, in his capacity as DOF Director of the Marshal's Bureau, wrote Airday a letter demanding that he resign as a City Marshal and purporting to unilaterally suspend Airday as a City Marshal. Id. ¶¶ 40–47. That same day, Frankel, acting as the DOI Commissioner, removed Airday from the DOF Scofflaw Program, thereby damaging and disrupting his business operations. Id. ¶ 47.

According to Airday, both Schwam and Frankel took these actions against Airday without a factual basis for believing that the criminal allegations against him were true and despite the fact that several other City Marshals have been accused of far more serious misconduct and were not similarly disciplined. Id. ¶¶ 46, 48.

The Paylock contract was signed by Frankel's office in February of 2012 in violation of the competitive bidding laws. Id. ¶¶ 51–52. Airday contends that the other City Marshals who were part of the Marshal's Association and directly affected by the Paylock program ceased their opposition the Paylock program. Id. Absent any opposition or a request for public debate on the issue, a public hearing before the City Council was dispensed with and the Paylock program entered into effect. Id. ¶¶ 53–55.

Six months after learning of the criminal charges against Airday, Schwam successfully petitioned the First and Second Departments to temporarily suspend Airday. Id. ¶ 59. As a result, Airday was required to shut down his office entirely and terminate his employees. Id. ¶ 60. While other City Marshals had engaged in more serious misconduct, Airday was singled out for the harshest retribution because of his outspoken opposition to the Paylock program. Id. ¶¶ 46, 48, 59, 67.

Although Airday was fully exonerated later that year of the criminal charges against him, Schwam and Frankel maintained the DOF ban against him, the DOI's investigation into Airday's conduct, and disciplinary charges against him. Id. ¶¶ 61–67. In mid–2013, Airday agreed in good faith to settle those charges and was restored to office on June 5, 2013, but Schwam unilaterally inform Airday six months later that his term expired, that he would not be held over, and that he was no longer a City Marshal. Id. ¶ 68–71.

Schwam's actions were was taken shortly before Mayor Bloomberg was scheduled to leave office and Schwam was slated to leave his position at DOI to join a private Bloomberg company. Id. ¶ 76. Had Schwam not acted, Airday would have remained in office as a holdover City Marshal in accordance with the long-established practice of continuing the offices of City Marshals after the expiration of their five-year terms of office. Id. ¶¶ 11–15.

The Applicable Standard

Under Rule 12(b)(6)

, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). In other words, the factual allegations must "possess enough heft to show that the pleader is entitled to relief." Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (internal quotation marks omitted).

Though the court must accept the factual allegations of a complaint as true, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937

(quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ).

In considering a motion to dismiss, "a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010)

.

The First Amendment Retaliation Claim is Dismissed

To establish a violation of First Amendment speech rights, Plaintiff must establish that: (1) the speech at issue was protected; (2) he suffered an adverse employment action; and (3) there was a causal connection between the protected speech and the adverse employment action. Pearson v. Bd. of Educ., 499 F.Supp.2d 575, 588 (S.D.N.Y.2007)

. Because Plaintiff is a public servant and an officer of the Civil Court of New York City, see Article 16 of the New York City Civil Court Act, §§ 1601 et seq., to establish that his speech was protected, he must demonstrate that his statements were made "as a citizen [speaking] upon matters of public concern, [and not] as an employee upon matters only of personal interest." Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). First, the...