Manon v. Pons

• Citation: 131 F.Supp.3d 219
• Decision Date: 18 September 2015
• Docket Number: No. 12–CV–7360 (VEC).,12–CV–7360 (VEC).
• Parties: Delice MANON, Plaintiff, v. Eugene PONS, David Emert, Pansy Mullings, Raymond Scanlon, and David Yassky, in their individual and official capacities, and City of New York, Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

131 F.Supp.3d 219

Delice MANON, Plaintiff,
v.
Eugene PONS, David Emert, Pansy Mullings, Raymond Scanlon, and David Yassky, in their individual and official capacities, and City of New York, Defendants.

No. 12–CV–7360 (VEC).

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

Signed Sept. 18, 2015.

131 F.Supp.3d 225

Julie Marie Milner, Milner Law Office PLLC, Elmhurst, NY, for Plaintiff.

Adam Edward Collyer, Gordon & Rees, LLP, Joseph Anci, New York City Law Dept., New York, NY, for Defendant.

OPINION & ORDER

VALERIE CAPRONI, District Judge:

Plaintiff Delice Manon initiated this action, pursuant to 42 U.S.C. §§ 1983, 1985, 1986, 1988 and various state laws, against several officials and former officials of the New York City Taxi & Limousine Commission ("TLC") and the City of New York. She alleges that Defendants retaliated against her for the exercise of her First Amendment rights, violated her equal protection and substantive due process rights, conspired to violate her constitutional rights, and violated a number of state statutes. Manon also claims that the City of New York adopted a policy or practice that operated to deprive her of her First Amendment rights. Defendants move for summary judgment as to all of Manon's claims.¹ For the following reasons, Defendants' motion is GRANTED as to Manon's First Amendment, equal protection, federal conspiracy, and official capacity state law claims, and DENIED as to Manon's substantive due process and individual capacity state law claims.

BACKGROUND

Delice Manon, a clerical associate at the TLC,² is a complainer. From 2007 through 2012, Manon filed at least 12 written reports (on an internal TLC form designated a "General Report") complaining about TLC's Woodside facility. Pl. 56.1 Opp.³ ¶¶ 1–2, 5.⁴ Her complaints ranged

131 F.Supp.3d 226

from poor ventilation and a lack of cleanliness to her colleagues' poor manners and the inoperability of the surveillance cameras near the facility. Id.; see Anci Decl. Exs. I–T.

Manon's complaints were not limited to General Reports—she sent many complaining emails to her supervisors. Anci Decl. Exs. U–CC; Pl. 56.1 Opp. ¶ 7. Although Manon's complaints may have been read, they rarely elicited a response. Manon Dep. at 51. Manon made sure to include TLC leadership—including the Deputy Commissioner, five levels of supervision above her—on "all" of her complaints. Id. at 68.

Many of Manon's complaints, which were frequently detailed and contained tangents, were trivial. See, e.g., Anci Decl. Ex. I at 2 (complaining about "filthy pieces of rug"); id. Ex. J at 1 (complaining that Pons was late in shuttling Manon from the worksite to the subway); id. Ex. K at 1 (same); id. Ex. N at 2 (complaining that the fans installed to respond to her prior ventilation-related complaints "blow[ ] hot air and that is no relief"); id. Ex. P (a supervisor, Emert, rudely interrupted her); id. Ex. Y (the shuttle had an unpleasant odor). Manon frequently engaged in hyperbole to describe the seriousness of the conditions about which she complained—the air quality, for example, was described as "a health issue for all of us," id. Ex. I at 1, that transformed the office into "a death trap" and a "rat hole," id. at 2. She complained that there was only "one exit," constituting a fire hazard (and also a "death trap," see id. Exs. O, Q), and that the non-working video surveillance cameras presented a "great safety issue," id. Ex. R. When the janitor did not do a good job for one day, Manon wrote that he created "a hazardous condition in the work environment as well as a health issue." Id. Ex. U.

Manon complained about the facility to the New York State Department of Labor Office of Safety and Health's Public Employee Safety & Health ("PESH") unit. The first complaint informed PESH that:

The ventilation in my work area is not working, I asked HR David Emery to turn on the vent due to the fact that it is very poor air quality in the work area and very warm. He informed me that the vent is not working. I have been working in the Notice Enforcement Unit since 2006 and [e]very year around the time warm weather comes around I complain about the poor air quality and not a thing is done about it by the Administration expect [sic] adding more fans in the work area. [The] Administration fails to realize that after a while it blows hot air and that is no relief. I am also having an issue with the layout of my work unit. It's a close[d] box with only one exit, in case of a fire. I am in a death trap. I do feel very unsafe and realize that this Administration is putting my life and health in danger. This Administration enforces the law of safety but does not apply it for the safety of the employees. Attach[ed] are copies of my most recent complain[t]s addressed to the employer. There are more complain[t]s dating back to 2008.

Id. Ex. W. PESH did not respond to that complaint; Manon followed up with a second complaint, attaching her first and noting additional concerns:

A dirty, filthy ladies bathroom is a health hazard[ ]. Since the new cleaning crew started[,] the Ladies bathroom floor has not been mop[ped], the sinks and toilet bowls are filthy and dirty tissues

131 F.Supp.3d 227

[are] on the floor. I don't understand why the new cleaning crew can't clean the Ladies bathroom, or why [the] Administration is unable to deal with the health hazards issue.

Id. Ex. CC. At some point—the record does not reflect when—PESH inspected the TLC facility. See Emert Dep. at 15–16. The inspectors reported that the air quality was surprisingly good in light of the facility's proximity to the Brooklyn–Queens Expressway and did not pose a health hazard. Id. at 16.

Perhaps the most persistent complaint that Manon advanced was her concern about the shuttle service that the TLC provided to employees at the Woodside location, which was otherwise inaccessible to mass transit. The informal service operated to pick up and drop off employees at the nearest subway station. Id. at 35. The service was simply a van, id. at 39, driven by whatever facilities department employee was available, id. at 36. Although there was a schedule, Pl. 56.1 Opp. ¶ 13, the pickup and drop-offs times depended on when the Woodside employees began and ended their shifts, Emert Dep. at 34, and the shuttle operators would sometimes accommodate employees' requests to leave earlier or later than scheduled, id. at 34–35.

The shuttle service was overseen by Defendant David Emert, the Director of Fleet and Facility Management. Cooper Dep. at 23. Emert also oversaw repairs and maintenance on 116 vehicles and the maintenance of the TLC's Woodside facility. Emert Dep. at 6–7. When employees complained to TLC leadership about the shuttle or the facility, the complaints would ultimately reach Emert—sometimes through Defendant Pansy Mullings, then a Deputy TLC Commissioner. Id. at 32. Manon also complained directly to Emert, who testified that he "didn't have a problem" with her complaints. Id. at 43. Many of Manon's complaints to Emert concerned one of Emert's subordinates, Defendant Eugene Pons, whom she described as "rude," "loud," "cursing," and "obnoxious at times." Id. at 44.

Pons, who was a supervisor of stock workers typically assigned to the evening shift at the Woodside TLC facility, testified that Manon "was his enemy." Defs. 56.1 Opp. ¶¶ 47–49. Manon, for her part, alleges that Pons was a sexist who once said that women "didn't belong in the workplace, they should be home having babies, taking care of the family." Manon Dep. at 83. The two had a number of run-ins, frequently concerning the shuttle. Manon testified that Pons drove the shuttle van into oncoming traffic, id. at 85, regularly failed to clean the van, and was chronically late. Manon alleges that her problems with Pons were a vicious cycle in which Pons responded to Manon's complaints with deliberately bad behavior, prompting more complaints. Pl. 56.1 Opp. ¶¶ 1, 12.

Manon alleges four specific serious incidents involving Pons. First, in the summer of 2010, Manon discovered that certain of the plants that she kept by her desk had died. Pl. 56.1 Opp. ¶ 31. Believing their death to be suspicious, Manon and two colleagues sniffed the deceased plants and smelled what they believed to be ammonia. Manon Dep. at 86. Emert's department—and, on the overnight shift, Pons in particular—had access to the facility's cleaning supplies. Emert Dep. at 26. Based on his motive and opportunity, Manon suspected Pons of killing her plants. Manon Dep. at 86–87. Pons denies involvement in the incident and asserts that he "never went into [Manon's] work area." Pons Dep. at 36.

The second incident arose in November 2010, when Manon planned to leave work early. Her supervisors had arranged for

131 F.Supp.3d 228

the shuttle to make an early run to accommodate her; when the shuttle was a few minutes late, she knocked on Emert's door to ask about the driver. Manon Dep. at 90. Emert was engrossed in a "very intense" meeting in his office, so he asked her to come back in a few minutes. Emert Dep. at 52–54. "Pons[, who was in Emert's office,] closed the door quickly and with some force...