Cason v. Doe
| Decision Date | 14 February 2020 |
| Docket Number | 2:16-cv-3710 (ADS) (ARL) |
| Parties | MICHAEL CASON Plaintiff, v. FEDERAL PROTECTIVE SERVICE OFFICERS JOHN DOE 1-2, FJC SECURITY SERVICES INC., FJC SUPERVISOR SMITH, JOSHUA PRIMROSE AND STEPHANIE STEVENS, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES:
The Law Office of Tamara M. Harris
Attorneys for the Plaintiff
New York, NY 10006
By: Tamara M. Harris, Esq., Of Counsel.
590 Madison Avenue
New York, NY 10022
By: Eric Su, Esq., Of Counsel.
By: Robert W. Schumacher II, Esq., Assistant United States Attorney.
Attorneys for Defendants FJC Security Services Inc., FJC Supervisor Smith, Joshua Primrose, and Stephanie Stevens
Philip K. Davidoff, Esq., Of Counsel.
The case involves two intertwined entities, Federal Protective Services ("FPS") and FJC Security Services, Inc. ("FJC"). These entities are distinguishable as follows. FPS is the uniformed security police division of the United States Department of Homeland Security, and it guards federal facilities. FJC is a security company that contracts with FPS to guard federal facilities.
Plaintiff Michael Cason (the "Plaintiff") brought this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); a state law claim for false imprisonment; and a whistleblower claim under §§ 740 and 741 of the New York Labor Law ("NYLL"). The action is against (1) two unnamed employees of FPS (the "FPS John Doe Defendants"); (2) FJC; and (3) three of FJC's employees, Lieutenant Ivanhoe Smith ("Smith"), Joshua Primrose ("Primrose"), and Stephanie Stevens ("Stevens") (collectively, and along with FJC, the " FJC Defendants").
The Plaintiff, a former FJC employee, was terminated for failing to safeguard his firearm during a protest about workplace safety. The FJC Defendants now move under Federal Rule of Civil Procedure ("FED. R. CIV. P.") 56 for summary judgment and to dismiss the complaint against them. In his opposition, the Plaintiff asks to amend the caption to identify the FPS John Doe Defendants.
This action involves a complicated factual and procedural history. Accordingly, this opinion's background section describes both in detail. In the discussion section, the Court grants the FJC Defendants' summary judgment motion and dismisses the complaint as to the FJC Defendants, including FJC itself. It also grants the motion to amend the caption. The case will proceed as against the now-identified FPS Defendants.
Part of this action's procedural history is an ongoing dispute over the Local Rule 56.1 statements of facts. After the FJC Defendants filed their Rule 56.1 statement in December 2017, the Plaintiff failed to file his counterstatement, despite numerous inquiries from the FJC Defendants and United States Magistrate Judge Arlene L. Lindsay. In August 2018, the FJC Defendants moved for the Court to deem as admitted the facts contained in their Rule 56.1 Statement, and only at that point did the Plaintiff file a Rule 56.1 counterstatement. The Court granted that motion, and rejected the Plaintiff's Rule 56.1 counterstatement. ECF 66 at 4.
Accordingly, the Court draws the following facts from the FJC Defendants' Rule 56.1 statement.
The Plaintiff began working for FJC as an armed security guard in October 2013. He worked in that capacity at 201 Varick Street from that date until his July 2015 termination. His supervisor was Smith, a lieutenant with FJC. Defendants Stevens and Primrose were FJC administrators. Stevens is FJC's senior director of financial services, and Primrose is FJC's Vice President of federal services.
Prior to working for FJC, the Plaintiff had worked as an armed security guard for multiple companies; as a corrections officer for the New York City Department of Corrections; and as a police officer for the New York City Police Department ("NYPD"). In those positions, the Plaintiff was required to carry a firearm.
The Plaintiff's 2013 application to work at FJC emphasized the use and storage of firearms. The Plaintiff completed an NYPD handgun license application, where he stated that when his handgun was not in use it would be "[a]t my residence in a lock box with acombination lock." The Plaintiff also completed an NYPD pistol license application, where he noted that "[f]ailure to comply with the rules and regulations of the New York City Police Department License Division . . . will result in cancellation of all pistol permits issued to employees of the company." The Plaintiff signed an Affidavit of Familiarity with Rules and Law, where he swore that he would be responsible for knowledge of and compliance with all federal, state, and local rules with regard to his firearms license.
Upon his hiring with FJC, the Plaintiff signed additional documents pertaining to firearms. First, he signed a form stating that he understood that his employment was contingent upon his complying with FJC regulations. Second, he signed an FJC document entitled "Firearms Acknowledgement," which provided that FJC had issued to him a .40 caliber firearm. In the Firearms Acknowledgement, the Plaintiff agreed that he was responsible for the maintenance, custody, and control of the firearm; that he would comply with all federal, state, and local regulations regarding the firearm's possession and use; that he would only carry the firearm during his course of duty with FJC; that he was prohibited from carrying an FJC-issued weapon otherwise, with the exception of when he was going to or returning from work; and, that noncompliance would constitute grounds for disciplinary action, including termination. The FJC Defendants also note that Title 38, Chapter 5, Subchapter B, § 5-22 of the New York City Rules ("RCNY") prevents a licensee leaving a handgun in an automobile without first rendering it inoperable by employing a safety locking device, and § 5-24 provides that a licensee shall not unreasonably delay in returning from employment to his residence.
Notwithstanding this background, the Plaintiff testified that he had no knowledge of federal, state, or local regulations regarding the safeguarding, handling, or maintaining of a firearm. He also testified that: (a) he was aware of a New York City rule prohibiting him froman unreasonable delay in traveling with his firearm from his place of employment to his home; (b) the totality of his knowledge concerning firearm safety was that he needed to ensure that he neither discharged the weapon or shot anyone; (c) he needed to prevent his firearm from being stolen; and (d) the Firearms Acknowledgement's "custody and control" provision mandated that he "control [his] thoughts and [his] actions by not hurting anyone with that gun" and that he "maintain a level head [in] dealing with that gun."
The Plaintiff was issued a restricted concealed carry handgun license in September 2013. The license states that the "[h]andgun may be carried ONLY when actively engaged in employment and to & from residence to employment." On September 22, 2013, the Plaintiff received a copy of the FJC employee handbook and he acknowledged receipt and his responsibility to familiarize himself with its provisions. While working for FJC, the Plaintiff needed to complete firearms training at least twice a year.
During his time at FJC, the Plaintiff submitted written complaints about his pay, and he would make complaints by telephone about workplace safety. Although the Plaintiff testified that he first became concerned with workplace safety in 2013, he did not complain to Defendants Stevens or Primrose about safety until 2015.
On July 3, 2015, the Plaintiff drove to his 8:00 AM-4:00 PM shift at 201 Varick Street. He parked his car on King Street, directly across the street from 201 Varick Street. After his shift ended, he planned to protest workplace pay and safety. He returned to his car; placed his firearm in the trunk; removed a sign from his car reading "FJC SECURITY PAY ME MY MONEY" and also containing additional statements that having a skeleton crew at 201 VarickStreet was dangerous to FJC employees; and then held the sign outside of the front of 201 Varick Street for ten to fifteen minutes.
On that day, Smith was working for FJC as a "roving supervisor." He was called to the site of the Plaintiff's protest because the protest was drawing attention, and "[a]nything that draws attention [to a federal facility] requires a supervisor." Smith arrived at the scene and saw the Plaintiff walking around; holding a sign; and yelling "pay me my money." Smith photographed the Plaintiff and sent the image to Stevens; called Stevens to report the Plaintiff's protest; and told Stevens that the impetus for the protest was the Plaintiff's claims that he hadn't been paid. Stevens did not ask Smith to stop the Plaintiff from protesting.
Smith testified that he followed FPS protocol and called the FPS "Mega Center" to report the protest. Four FPS officers arrived at 201 Varick Street. Because FPS officers are responsible for handling investigations, and the government does not consider FJC employees to be law enforcement personnel, Smith's only responsibility was being ready if needed. One FPS officer asked Smith if the Plaintiff had his firearm. Smith replied that the officer would have to ask the Plaintiff, and added that the Plaintiff had a carry license and that FJC procedure required him to have his firearm on his person at all times when...
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