Anemone v. Metropolitan Transp. Authority
| Decision Date | 24 January 2006 |
| Docket Number | No. 05 CIV.3170 (MBM).,05 CIV.3170 (MBM). |
| Citation | 410 F.Supp.2d 255 |
| Parties | Louis R. ANEMONE, Plaintiff, v. METROPOLITAN TRANSPORTATION AUTHORITY, Peter S. Kalikow, Katherine N. Lapp, Gary J. Dellaverson and Matthew D. Sansverie, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Matthew D. Brinckerhoff, O. Andrew F. Wilson, Emery Celli Brinckerhoff & Abady LLP, New York, NY, for plaintiff.
Louis Pechman, Berke-Weiss & Pechman LLP, New York, NY, for defendant Matthew D. Sansverie.
Plaintiff Louis R. Anemone sues the Metropolitan Transportation Authority ("MTA") and individual defendants Peter S. Kalikow, Katherine N. Lapp, Gary J. Dellaverson, and Matthew D. Sansverie in their individual and official capacities under 42 U.S.C. § 1983 (2000) for violations of free speech and due process rights secured by the First and Fourteenth Amendments of the United States Constitution. Anemone also asserts free speech and due process claims against all defendants under the New York State Constitution and a claim against defendant MTA under New York Civil Service Law § 75-b (McKinney 1999 & Supp.2005). Defendant Sansverie moves to dismiss all of the federal and state constitutional claims against him pursuant to Fed.R.Civ.P. 12(b)(6).1 For the reasons set forth below, defendant's motion to dismiss is granted in part and denied in part.
The following facts are drawn from plaintiff's complaint and are accepted as true for the purposes of defendant's motion to dismiss.
In December 2001, the MTA hired Anemone, a 34-year veteran of the New York Police Department ("NYPD"), to serve as Deputy Executive Director of Security. (Compl. ¶¶ 12, 13) In this position, Anemone assumed "full responsibility for all aspects of security for the MTA's entire infrastructure" and oversaw a host of initiatives. (Id. ¶ 20) Among them was the Joint Infrastructure Task Force ("JITF"), an entity that would feature a "quick response unit" for all security breaches and an investigation unit to pursue security lapses on MTA property. (Id. ¶ 22) Anemone sought and received approval from MTA Chairman Kalikow and Executive Director Lapp to house the JITF at the MTA's leased space at 2 Broadway in Manhattan, a property that the MTA was then renovating. (Id. ¶¶ 23, 24)
In early 2002, while overseeing construction of the JITF's offices, Anemone discovered that the renovations at 2 Broadway were mired in corruption. (Id. ¶¶ 30-45) Although the renovations were already the subject of a not-yet-public federal criminal investigation, Anemone commenced his own probe after learning from a vendor that bill inflation was "common" among MTA contractors. (Id. ¶¶ 29, 31-33) Anemone launched his investigation because "[c]orruption among MTA contractors raised serious security issues as they are granted access to secure portions of MTA infrastructure and are privy to confidential information regarding the operations of the MTA." (Id. ¶ 34)
Over the next several months, Anemone and his deputy, Nicholas Casale, focused on two contractors performing work at 2 Broadway: I-Lite Electric LLC ("I-Lite") and Figliolia Plumbing ("Figliolia"). (Id. ¶¶ 36-45) Anemone and Casale's investigation of I-Lite revealed that the company routinely submitted fraudulent bills and had paid more than $100,000 in bribes to an MTA official. (Id. ¶¶ 37-38) A similar review of Figliolia's bills and paperwork unearthed "astounding levels of corruption and fraud" committed with the approval of MTA officials who received "substantial bribes." (Id. ¶¶ 41, 42) In both cases, Anemone and Casale furnished their findings to the Manhattan District Attorney's Office all of the principals involved later pleaded guilty and paid substantial restitution to the MTA. (Id. ¶¶ 39-40, 43-45) Also, as a result of the investigations, the MTA officials implicated in the frauds were fired and were the subject of criminal charges. (Id. ¶¶ 39, 44)
By December 2002, the investigations by Anemone, Casale, and federal officials had generated mounting criticism of the MTA and its officials in the press and had compromised the MTA's position in a multimillion dollar civil suit brought by Zar Realty, the company that owned and managed 2 Broadway, alleging mismanagement and breach of contract. (Id. ¶¶ 46-48) According to Anemone, defendants' response to increasing public pressure and a weakening litigation position was to "thwart and obstruct" his corruption investigations. (Id. ¶ 49) First, in December 2002, Lapp "closed down" Anemone's investigation of John B. Wood, the attorney who negotiated the 2 Broadway lease on behalf of the MTA and managed relations with Zar Realty. (Id. ¶¶ 50-54) Next, in February 2003, Lapp terminated Anemone's investigation of improprieties by Long Island Rail Road President Kenneth Bauer relating to Bauer's contacts with Plasser-American Corporation ("Plasser"), an MTA contractor and parts supplier. (Id. ¶¶ 58-59) Anemone and Casale had been investigating the Bauer-Plasser relationship since the summer of 2002, when Dellaverson, the MTA's Deputy Executive Director/Labor Relations, allegedly had urged them to look into possible unethical conduct by Bauer. (Id. ¶ 59) On February 26, 2003, Anemone met with Lapp and informed her of the initial results of his probe, which had uncovered various possible improprieties by Bauer. (Id. ¶¶ 61-62) Lapp ordered Anemone to cease his investigation and said that she was referring the matter to the MTA's Inspector General Office, headed by defendant Sansverie. (Id. ¶ 63)
Around the same time, Anemone alleges, the efforts to thwart his investigations "turned hostile." (Id. ¶ 67) On February 29, Sansverie requested a "deposition-style" interview with Casale regarding Plasser and other matters, which was held on March 26 and 28. (Id. ¶ 68-70) On or about March 27, Sansverie requested a similarly "formal interview" with Anemone. (Id. ¶ 71) During the March 28 interview, representatives from Sansverie's office asked little about the findings of the Plasser investigation, but questioned Anemone "extensively" about his personal involvement in the investigation and his oversight of Casale. (Id. ¶¶ 72) Many of the questions focused on whether Casale truthfully reported the existence of a "confidential informant" who reported on Bauer's dealings with Plasser officials. (Id. ¶ 73) Anemone told the questioners that the informant was Dellaverson and that Casale had likely used the term "community source," not "confidential informant." (Id. ¶ 74) Overall, the interview was "threatening and inquisitorial in tone" and "sent a clear message ... that future investigations that might prove embarrassing to the MTA would not be tolerated." (Id. ¶ 75)
The day of his interview, Anemone met with reporters from The New York Times. (Id. ¶ 76) Anemone, who had arranged the meeting, told the reporters that the MTA had "frustrated his staff's efforts to investigate corruption within the MTA and among MTA contractors" by refusing to provide essential records, ordering him to stop his investigations, and subjecting him and Casale to "inquisition-style" interviews. (Id. ¶ 77) He also stated that security throughout the MTA suffered from a "lack of transparency in the MTA administration." (Id.) The newspaper published Anemone's comments on March 30 and Anemone's criticisms were repeated in several regional and national newspapers. (Id. ¶¶ 78, 79)
On March 31, MTA officials allegedly took "immediate and direct retaliation" against Anemone in the form of an "Interim Report" authored by Sansverie and sent to Kalikow recommending Anemone's suspension. (Id. ¶ 80) The Interim Report allegedly contained "a litany of factual misrepresentations, distortions of statements made by various individuals, and a series of unfounded accusations." (Id. ¶ 81) Specifically, the report falsely stated that Anemone had: (1) admitted to the Inspector General's office that there had never been a "confidential informant" in the Plasser matter; (2) lied to investigators by "fabricating a confidential informant" in order to accuse Bauer of misconduct; and (3) authorized the Plasser investigation against the direct order of Lapp, his superior. (Id. ¶¶ 81-82)
On April 1, Kalikow suspended Anemone, placing him on paid leave. (Id. ¶ 85) In connection with the suspension, the MTA issued a press release containing many of the Interim Report's allegations and released the report to the press. (Id. ¶¶ 85-86) Over the next few days, major news outlets, including The New York Times, New York Daily News, New York Newsday, and the Associated Press, ran stories that publicized the Interim Report's allegations of misconduct and featured comments from MTA officials condemning Anemone's actions. (See id. ¶¶ 86-89)
On April 11, after a week of additional public sparring between Anemone and the MTA, Anemone, testifying before the New York State Assembly Standing Committee on Corporations, Authorities, and Commissions, criticized the MTA Inspector General's office and expressed "concerns about [Sansverie's] commitment to combating corruption." (Id. ¶¶ 92-95) Specifically, Anemone highlighted Sansverie's "failure to discover and prosecute gross corruption and fraud by I-Lite"; Sansverie's assignment of investigators to "inconsequential work and allow[ing] the frauds [against the MTA] to continue"; and other lapses. (Id. (brackets in original)) Anemone's critical statements were reported in regional and national newspapers. (Id. ¶ 96)
One week later, Sansverie allegedly retaliated again by sending Kalikow a letter that Sansverie also leaked to the press and posted on the MTA's website. (Id. ¶¶ 97, 102) The April 18 letter alleged that Anemone had "grossly misrepresented" the size and composition of an advisory board Anemone was forming to consult the JITF in various areas of emergency...
To continue reading
Request your trial
-
Maxus Liquidating Trust v. YPF S.A. (In re Maxus Energy Corp.)
... ... country, making it eligible for remediation under EPA's CERCLA authority. 19 The DASS has since been expanded and divided for remediation purposes ... In fact, Burlington [Northern R. Co. v. United Transp. Union] speaks of piercing not just subsidiaries, but of entities in the ... ...
-
Henneberger v. County of Nassau
...by evidence of retaliatory animus." Cobb, 363 F.3d at 108 (quoting Morris, 196 F.3d at 110); see Anemone v. Metropolitan Transp. Authority, 410 F.Supp.2d 255, 267 (S.D.N.Y.2006). In any event, the causal connection must be sufficient to warrant the inference that the protected speech and ac......
-
Miron v. Town of Stratford
...(“Speech relating to the functioning of government is of particularly great import to the public.”); Anemone v. Metro. Transp. Auth., 410 F.Supp.2d 255, 265 (S.D.N.Y.2006) (“Speech relating to public corruption and/or a public entity's failure to adequately or properly investigate such corr......
-
Kohutka v. Town of Hempstead
...that the protected speech was a substantial motivating factor in the adverse employment action.” Anemone v. Metropolitan Transp. Authority, 410 F.Supp.2d 255, 267 (S.D.N.Y.2006) (quoting Morris, 196 F.3d at 110) (internal citations omitted). If the plaintiff can produce evidence supporting ......