Kregler v. City of N.Y.

• Decision Date: 09 December 2013
• Docket Number: No. 08 Civ. 6893(VM).,08 Civ. 6893(VM).
• Citation: 987 F.Supp.2d 357
• Parties: William KREGLER, Plaintiff, v. CITY OF NEW YORK et al., Defendants.
• Court: U.S. District Court — Southern District of New York

987 F.Supp.2d 357

William KREGLER, Plaintiff,

v.CITY OF NEW YORK et al., Defendants.

No. 08 Civ. 6893(VM).

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

Dec. 9, 2013.

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

Christopher Aaron Seacord, Maxwell Douglas Leighton, New York City Law Department, Zev Samuel Singer, Office of The Corporation Counsel, New York, NY, for Defendants.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Plaintiff William Kregler (“Kregler” or “Plaintiff”) brought this action pursuant to 42 U.S.C. § 1983 (“§ 1983”) raising a claim of First Amendment retaliation against the City of New York (the “City”) and individual defendants Louis Garcia (“Garcia”), Rose Gill Hearn (“Hearn”), Keith Schwam (“Schwam”), Darren Keenaghan (“Keenaghan”), Brian Grogan (“Grogan”), and Jayme Naberezny (“Naberezny”). The Court granted summary judgment on the claims against Hearn, Schwam, Keenaghan, Grogan, and Naberezny in a Decision and Order dated October 26, 2011. See Kregler v. City of New York, 821 F.Supp.2d 651 (S.D.N.Y.2011). Now before the Court is the motion of the remaining defendants—the City and Garcia (collectively, “Defendants”)—for summary judgment. For the reasons discussed below, Defendants' motion for summary judgment is GRANTED in part and DENIED in part.

I. BACKGROUND¹

In April of 2004, one month after retiring from his position as a Fire Marshal with the City's Fire Department (“FDNY”), Kregler filed a preliminary applicationand questionnaire for appointment by the City's Mayor as a City Marshal. Candidates for appointment as City Marshals are subject to an investigation of their personal and financial background by the City's Department of Investigations (“DOI”) and also must complete a DOI-administered training program. In January of 2005, Kregler was interviewed by representatives of the Mayor's Committee on City Marshals and was later notified by Schwam, an Assistant Commissioner at DOI, that DOI would commence its personal and financial review of Kregler's background. As a follow-up, Kregler met in April of 2005 with Keenaghan, a DOI investigator, to discuss Kregler's preliminary application. Kregler then made minor modifications to the application, signed the revised form, and provided authorizations for release of his personal information.

On May 25, 2005, Kregler, in his capacity as President of the Fire Marshals Benevolent Association, publicly endorsed the candidacy of Robert Morgenthau (“Morgenthau”) for reelection as District Attorney for New York County. At that time, all other law enforcement associations in the City supported Morgenthau's opponent, Leslie Crocker Snyder (“Snyder”). An article that appeared in a June 2005 edition of The Chief, a local newspaper, reported on Kregler's endorsement of Morgenthau. Grogan, an FDNY Supervising Fire Marshal, posted a copy of that article in a public area within one of the FDNY offices. Kregler alleges that Grogan then “berated” him for the endorsement, stating: “[W]ho the f___ do you think you are. Louie [Garcia] makes the endorsement.” (Compl. ¶ 29.) At the time of that incident, Garcia was the Chief Fire Marshal of the FDNY's Bureau of Fire Investigation. Both Garcia and Grogan supported Snyder's political campaign against Morgenthau.

On July 7, 2005, Kregler was interviewed by staff of the Mayor's Office in connection with his City Marshal application. The following day Schwam told Kregler that the next step in the process would be the completion of the DOI background check. To that end, Kregler met a second time with Keenaghan, the DOI investigator, to update and refile his application. In September of 2005, Schwam invited Kregler to begin the DOI training classes, which Kregler successfully completed. In November of 2005, Kregler satisfied the last requirement for appointment by demonstrating his ability to obtain a bond. In March of 2006, Kregler was informed by letter from Schwam that he would not be appointed as a City Marshal.

Kregler filed this action in August of 2008, raising a claim of First Amendment retaliation in violation of § 1983. Kregler contends that the explanation proffered to him for the denial of his application—Kregler's failure to disclose details of a Command Discipline he had received in 1999 during his employment by the FDNY—was merely a pretext for Garcia‘s unlawful retaliation. Kregler alleges that Garcia was “personally and socially acquainted” with Naberezny, the Inspector General for the DOI (Compl. ¶ 40), and that the two “agreed to cause Kregler's application for appointment as a City Marshal to be rejected by DOI in retaliation for Kregler's support of Morgenthau.” (Compl. ¶ 43.)

II. LEGAL STANDARDS

A. SUMMARY JUDGMENT

In connection with a Rule 56 motion, “[s]ummary judgment is proper if, viewing all the facts of the record in a light most favorable to the non-moving party, no genuine issue of material fact remains for adjudication.” Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir.1996) ( citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The role of a court in ruling on such a motion “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986).

The moving party bears the burden of proving that no genuine issue of material fact exists, or that due to the paucity of evidence presented by the non-movant, no rational jury could find in favor of the non-moving party. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir.1994).

B. FIRST AMENDMENT CLAIM

To succeed on his First Amendment retaliation claim under § 1983, Kregler must show that: (1) he engaged in constitutionally protected speech; (2) he suffered an adverse employment action; and (3) a causal connection exists between the speech and the adverse employment action “so that it can be said that the speech was a motivating factor in the determination.” Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir.2004) ( citing Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999)).

1. Individual Actors

It is well settled in the Second Circuit that “personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) ( quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). “Personal involvement,” however, is not limited to direct participation in the deprivation of rights at issue. Kregler may show the personal involvement of Garcia in several ways, such as by: (1) directly participating in the infraction; (2) failing to remedy the wrong after learning of the violation; (3) creating a policy or custom under which unconstitutional practices occurred or allowing such a policy or custom to continue; (4) being grossly negligent in managing subordinates who caused the unlawful condition or event; or (5) exhibiting “gross negligence” or “deliberate indifference” to the constitutional rights of Kregler by having actual or constructive notice of the unconstitutional practices and failing to act. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); see also Wright, 21 F.3d at 501.

2. Municipal Liability

Municipal entities are “persons” within the meaning of § 1983 and therefore subject to suit under that provision. Monell v. Department of Soc. Servs., 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 128 (2d Cir.2004). But municipalities are not liable “on a respondeat superior theory,” simply because an employee committed a tort. Monell, 436 U.S. at 691, 98 S.Ct. 2018.Section 1983 “distinguish[es] acts of the municipality from acts of employees of the municipality,” and imposes liability only for “action for which the municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (emphasis in original).

The municipality is responsible if a violation of an individual's rights resulted from the “government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at 694, 98 S.Ct. 2018. When “ ‘an official has final authority over significant matters involving the exercise of discretion,the choices he makes represent government policy.’ ” Clue v. Johnson, 179 F.3d 57, 62 (2d Cir.1999) ( quoting Rookard v. Health & Hosps. Corp., 710 F.2d 41, 45 (2d Cir.1983)). As a result, “municipal liability may be imposed for a single decision by municipal policymakers.” Pembaur, 475 U.S. at 480, 106 S.Ct. 1292.

III. DISCUSSION

A. CLAIMS AGAINST GARCIA

Kregler advances the theory that the personal relationship between Naberezny and Garcia provided the impetus for their alleged collusion to cause the denial of Kregler's application for City Marshal in retaliation for supporting Morgenthau.

Defendants argue that summary judgment should be granted as to Garcia on two main grounds: first, that plaintiff cannot establish a prima facie case of First Amendment retaliation, and second, that Garcia is entitled to qualified immunity.² (Defs.' Mem. Supp. Mot. Summ. J. (“Defs.' Mem.”), at 5, 12 (Dkt. No. 139).)

1. Factual Basis for Retaliation Claim

Kregler argues that it is premature for the Court to decide the issue of Garcia's involvement in the adverse employment decision without providing Plaintiff an opportunity to demonstrate causation at trial. The Court agrees. Whether or not Kregler's arguments regarding Garcia's liability will prove meritorious, the Court cannot conclude at this point that the claim against Garcia fails as a matter of law. There are disputed issues of material fact that, if viewed in the light...