Dingle v. the City of N.Y.

• Decision Date: 28 July 2010
• Docket Number: No. 10 Civ. 4(SAS),10 Civ. 4(SAS)
• Citation: Dingle v. the City of N.Y., 728 F.Supp.2d 332 (S.D. N.Y. 2010)
• Parties: Anthony DINGLE, Plaintiff, v. The CITY OF NEW YORK, the New York City Housing Authority, and Demetrice Gadson, in her individual capacity, Defendants.
• Court: U.S. District Court — Southern District of New York

728 F.Supp.2d 332

Anthony DINGLE, Plaintiff,

v.The CITY OF NEW YORK, the New York City Housing Authority, and Demetrice Gadson, in her individual capacity, Defendants.

No. 10 Civ. 4(SAS).

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

July 28, 2010.

Michael J. Borrelli, Esq., Eric Z. Reimer, Esq., Borrelli & Associates, P.L.L.C., Carle Place, NY, for Plaintiff.

Jeffrey M. Niederhoffer, Esq., Sonya M. Kaloyanides, Esq., New York City Housing Authority Law Department, New York, NY, for Defendants.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I.INTRODUCTION

Anthony Dingle brings this action against his employer, the City of New York,¹ the New York City Housing Authority("NYCHA"), and his supervisor, Demetrice Gadson, for claims arising under section 1983 of Title 42 of the United States Code(" section 1983"), state common law, and section 75-b of the Civil Service Law of New York(" section 75-b").²Dingle alleges that the NYCHA and Gadson retaliated against him in violation of his First Amendment right to free speech, violated his due process liberty interest in freedom from stigmatization, defamed him, and took adverse actions against him as a result of his disclosure of a public health and safety violation.Defendants now move for judgment on the pleadings.For the reasons discussed below, Defendants' motion is granted in part and denied in part.

II.BACKGROUND³

Dingle has worked for the NYCHA, "a public authority created to build, operate and maintain public housing for low-income tenants of the City of New York,"⁴ since 1990.⁵He became a superintendent in 2004, and first met Gadson, a deputy director in NYCHA's Manhattan Management Department, when she became his supervisor in 2006.⁶Dingle started working at his current location, the Polo Grounds Towers in Manhattan, on February 14, 2007.⁷As a superintendent, Dingle

is responsible for oversight of the clerical work, mechanical and janitorial departments within the Polo Grounds.He is responsible for resolving issues including leaking pipes, broken locks, defaced walls, and cracked flooring.He disciplines the staff at the Polo Grounds and doles out their assignments.He helps ensure that the myriad clerical work required for the operation of [a NYCHA] building is timely and properly filed.⁸

Dingle initially related his belief that there are too few NYCHA employees atthe Polo Grounds on June 8, 2007, in an email requesting overtime "to deal with the over burdensome workload Gadson was requiring Mr. Dingle to do and to complain about being understaffed."⁹On June 20, 2007, Dingle sent an email to three higher-level employees in the NYCHA, stating that he needs supervisory assistance to meet his deadlines.¹⁰He alleges that "in retaliation for his speaking out, [he] was given a multi-page list of tasks that needed completion per Gadson's orders."¹¹He also alleges, in general terms, that the "understaffing of the Polo Grounds posed a danger to the health and safety of residents and their guests ... and [he] spoke out about these issues continuously and frequently ...,"¹² and that Gadson continued to retaliate against him based on his actions.¹³

On August 14, 2007, Gadson instructed Helen Itzkowitz, a manager with the NYCHA, to issue a counseling memorandum against Dingle for failing to adequately monitor apartment move-outs.¹⁴Dingle attributes this to retaliation.¹⁵He further alleges that Gadson had Itzkowitz reissue a counseling memorandum for retaliatory purposes on September 20, 2007, after Dingle met with Gadson and another supervisor to discuss "chronic understaffing, the onerous and harassing nature of his relationship with Gadson, and ... his right to speak out about issues that affected the health and safety of the public at the Polo Grounds."¹⁶

Additional allegations of retaliation by Gadson based on Dingle's continuous remarks about understaffing include disparate treatment in disciplinary action and assignment of duties,¹⁷ Gadson's denial, without explanation, of Dingle's request to be transferred to a location in the Bronx to better handle his son's disability,¹⁸ verbal harassment via email,¹⁹ reassignment of Dingle's subordinate employees while he was away on vacation,²⁰ excessive disciplinary liability for infractions committed by his subordinates,²¹ unwarranted counseling memoranda, ²² and increased workloads under a reduced support staff (and consequent counseling memoranda for failure to complete such workloads).²³

After Dingle emailed Robert Knapp,²⁴ complaining about a hostile work environment, Knapp held a meeting with Dingleand Gadson in early February 2008, but no remedial action was taken against Gadson, as she denied all allegations of retaliation.²⁵On February 20, 2008, Dingle complained about a hostile work environment to the Union Office.²⁶

Dingle alleges that Gadson and the NYCHA further retaliated against him because he accused Gadson of violating both the NYCHA "Standard Procedures" and the law (specifically, the Fourth Amendment), and endangering public health and safety.²⁷One such violation occurred on December 29, 2008, when "Gadson directed a secretary to open a safe for her in Mr. Dingle's absence," contravening NYCHA policy that "dictates that a [m]anager be present when a safe is opened."²⁸Another allegation states that, in February and April 2009, Gadson authorized the "illegal entry into apartments by drilling out locks on apartments whose tenants were not paying rent"²⁹ by "generating false 'gas leak' reports or just improperly drilling out apartments that she unilaterally, and in contravention to policy categorized as abandoned."³⁰Moreover, on April 1, 2009, Gadson instructed Dingle to store seven unused refrigerators at the Polo Grounds, although this location "is not equipped to properly store seven (7) refrigerators ...."³¹

In addition to reporting these violations to "various [NYCHA m]anagers,"³² Dingle specifically discussed these issues with the NYCHA's Department of Equal Opportunity("DEO") on May 7, 2009.³³On May 11, 2009, the DEO informed Dingle "that they do not have jurisdiction regarding his issue ...."³⁴On June 30, 2009, Dingle filed a complaint with the NYCHA Inspector General's office "about Gadson's mandates to commit and sanctioning [sic] of illegal activities."³⁵Dingle is not aware of any action taken by the Inspector General's office addressing this complaint.³⁶

After Dingle's reports, discussions, and complaints concerning Gadson's violations and the unresolved understaffing problem, Gadson continued to allegedly retaliate against Dingle by, inter alia, issuing more unfair counseling memoranda ³⁷ and servinghim with a Notice of Local Hearing a day before he was to leave for a vacation.³⁸

In one instance, Dingle alleges that Gadson's behavior was "misleading and defamatory."³⁹

On or about July 13, 2009, Gadson ... found there was no Supervisor of Caretakers on duty [at the Polo Grounds].Thomas Aviles that [sic] Supervisor of Caretakers of Technical Services had previously told Mr. Dingle that Mr. Torres would be covering that slot in the schedule.Torres in fact was not on duty at this time, however, there were two (2) Assistant Superintendents [sic] workers, who were Torres' supervisors [sic] were on duty at the Polo Grounds when Gadson arrived.Gadson sent an email to Knapp and other Administrators stating that she had to call in a supervisor to cover for the day.⁴⁰

On August 26, 2009, "Dingle sent an email to request Local 237 Representative Ramilda Ferguson ... to attempt [sic] set up a meeting with Knapp.Mr. Dingle was told by Ferguson that Knapp refused to meet them regarding Mr. Dingle and Gadson."⁴¹

A Local Hearing was held on September 16, 2009.⁴²The charges against Dingle were "Incompetency and/or Misconduct for the February 2009, and March 5, 23, 2009 and April 17, 2009 Disciplinary Memoranda.Arbitration on this matter is as yet pending."⁴³

Dingle filed suit in this Court on January 4, 2010.Dingle alleges that he suffered from, inter alia, vomiting, stomach pains, and a bleeding prostate-all resulting from a stressful working environment created by Gadson.⁴⁴Defendants answered on April 16, 2010, asserting, inter alia, defenses of qualified immunity and failure to adequately allege municipal liability.⁴⁵

In an Affidavit attached to his opposition brief, Dingle further contends that after he filed suit in this Court on January 4, 2010, Gadson, in retaliation, "attempted to put into the process the mechanics to permanently terminate" him by setting up a Local Hearing on February 17, 2010, for an incompetency charge.⁴⁶Dingle states, in his Affidavit, that

I was found "not guilty" of both the August 2009 and November 19, 2009 incidents, yet despite my clear and convincing evidence to the contrary, was found "guilty" of the November 5, 2009 and July 11, 2009 incidents.Based on these disciplinary charges, I was docked two (2) days of accrued annual leave and lost resulting pay.⁴⁷

Additionally, on April 21, 2010, after Dingle sent an email to Knapp which discussed Dingle's difficulties with Gadson relating to a request that he made on November 4, 2009, for maintenance materials, Dingle alleges that Gadson

sent a defamatory email to [Dingle] with a cc to all NYCHA supervisory personnel including Mr. Knapp, Mr. Ginsberg and Ms. Teri Dawson, stating in a bold large font type that [he] was "incompeten[t],""failed to perform [his] duties," that [he] needed to "reevaluate [his] responsibilities as a superintendent" ....⁴⁸

III.APPLICABLE LAW

A.Rule 12(c) Judgment on the Pleadings

Under Rule 12(c), after the pleadings close but before the trial begins, a party may move for judgment on the pleadings provided that the motion is made early enough so as not to delay the trial.⁴⁹A party is entitled to judgment on the pleadings only if it is clear that no material issues of fact remain to be resolved and that it is entitled to judgment as a matter of law.⁵⁰

"...