Opinion

Schultz v. County of Suffolk

Court
District Court, E.D. New York
Filed
Nov 30, 2020
Cited by
0 cases
Authority
More cited than 26.6%

The opinion

UNITED STATES DISTRICT COURT For Online Publication Only

EASTERN DISTRICT OF NEW YORK

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DONNA SCHULTZ,

Plaintiff,

MEMORANDUM AND ORDER

-against- 19-CV-925 (JMA) (ARL)

COUNTY OF SUFFOLK, JUSTIN S. MEYERS IN

HIS OFFICIAL AND PERSONAL CAPACITY,

DENNIS COHEN IN HIS OFFICIAL AND

PERSONAL CAPACITY, AND STUART

CAMERON IN HIS OFFICIAL AND PERSONAL

CAPACITY,

Defendants.

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AZRACK, United States District Judge:

Plaintiff Donna Schultz (“Plaintiff”) brings employment discrimination claims against

defendants the County of Suffolk (the “County”); Justin S. Meyers, in his individual and official

capacity; Dennis Cohen, in his individual and official capacity; and Stuart Cameron, in his

individual and official capacity (the “Individual Defendants,” collectively with the County,

“Defendants”). Since initiating this lawsuit on February 15, 2019, Plaintiff amended her

complaint, (ECF No. 35), and abandoned some of her claims, (ECF No. 51 at 6). Accordingly, the

following claims remain: violation of the First Amendment by the Individual Defendants pursuant

to 42 U.S.C. § 1983 (“Retaliation Claim”); violation of the Fourteenth Amendment by the

Individual Defendants based on gender discrimination pursuant to 42 U.S.C. § 1983 (“Gender

Discrimination Claim”); violation of New York Civil Service Law Section 75-b against all

Defendants; and prima facie tort against all Defendants. Each Defendant has independently moved

to dismiss Plaintiff’s Amended Complaint, (ECF Nos. 42, 45, 46, 47), which the Court referred to

Magistrate Judge Arlene R. Lindsay for a Report and Recommendation (“R&R”).

On September 4, 2020, Judge Lindsay issued an R&R recommending that Defendants’

motions to dismiss be granted in part and denied in part. (ECF No. 60.) Specifically, Judge

Lindsay recommended that all of Plaintiff’s causes of action be dismissed, except for the

Retaliation Claim. (Id.) Each party has objected to Judge Lindsay’s R&R. (ECF Nos. 61, 62, 63,

64, 65, 66.) After conducting a review of the full record (including the motion papers, R&R,

objections, and opposition) and applicable law, the Court adopts Judge Lindsay’s R&R in its

entirety as the opinion of the Court.

In reviewing a magistrate judge’s report and recommendation, a court must “make

a de novo determination of those portions of the report or . . . recommendations to which

objection[s] [are] made.” 28 U.S.C. § 636(b)(1)(C); see also Brown v. Ebert, No. 5–CV–5579,

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2006 WL 3851152, at *2 (S.D.N.Y. Dec. 29, 2006). The Court “may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §

636(b)(1)(C). Those portions of a report and recommendation to which there is no specific

reasoned objection are reviewed for clear error. See Pall Corp. v. Entegris, Inc., 249 F.R.D. 48,

51 (E.D.N.Y. 2008).

First, the Court finds no clear error in the portions of Judge Lindsay’s R&R to which there

are no specific objections. In particular, Judge Lindsay recommended dismissal of Plaintiff’s New

York Civil Service Law Section 75-b claim against the Individual Defendants and dismissal of

Plaintiff’s prima facie tort claim against Defendants. (ECF No. 60 at 20, 23.) Applying clear error

review, the Court adopts Judge Lindsay’s recommendations regarding these claims.

I next address the portions of the R&R to which the parties have objected. I have

undertaken a de novo review of the record, the R&R, the objections, and the opposition. First, I

agree with Judge Lindsay’s recommendation to deny dismissal of the Retaliation Claim. Like

Judge Lindsay, I find that Plaintiff pled sufficient facts to allege that she engaged in protected

speech relating to a matter of public concern, she suffered an adverse employment action, and

there was a causal connection between the adverse action and the protected speech. I agree with

Judge Lindsay that even though many of the allegations are based upon information and belief,

they are sufficiently pled for purposes of surviving a motion to dismiss. Additionally, I adopt

Judge Lindsay’s recommendation that dismissal of the Retaliation Claim be denied on the grounds

of qualified immunity because the Individual Defendants’ arguments rely on disputed factual

determinations. The Court has also considered Defendant Cohen’s argument that the R&R did not

“address whether the Notice of Claim or termination letter could be considered by the Court.”

(ECF No. 62 at 11.) Even if Judge Lindsay had explicitly addressed the Notice of Claim or

termination in her R&R, the Court would reach the same conclusion and deny the motion to

dismiss with respect to the Retaliation Claim.

The Court likewise agrees with Judge Lindsay’s analysis regarding the Gender

Discrimination Claim. In the R&R, Judge Lindsay noted that with respect to disparate treatment,

Plaintiff “failed to offer a single allegation directed to gender discrimination, other than her

allegation that these purported comparators were treated differently.” (ECF No. 60 at 20.) She

explained that “Plaintiff has failed to allege that these comparators ‘had similar job descriptions or

responsibilities or were subject to the same performance evaluation or disciplinary standards.’”

(Id.) In her objection, Plaintiff argues that “information regarding these police officers was

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publicly available,” but she did not articulate what specific publicly available information Judge

Lindsay failed to consider in her analysis or where it can be found. (ECF No. 61 at 3.)

Similarly, the Court agrees with Judge Lindsay regarding Plaintiff’s New York Civil

Service Law Section 75-b Claim against the County. Judge Lindsay explained that “Plaintiff’s

assertion that she raised her concerns about the conduct of Defendant Meyers to two unnamed

police officers is insufficient to allege reporting to a government body because there is no

allegation that a report was made to individuals in a position to take corrective action.” (ECF No.

60 at 22.) The Court agrees that the Amended Complaint’s assertion that Plaintiff made a report

to two unnamed officers does not sufficiently allege a Section 75-B claim. Her New York Civil

Service Law Section 75-b Claim therefore cannot survive the motion to dismiss.

Plaintiff’s objection also requests leave to amend her Gender Discrimination and Section

75-B Claims to address several of the pleading deficiencies Judge Lindsay identified. Though

Plaintiff already amended her complaint once before and she did not request leave to amend in her

briefing before Judge Lindsay, the Court nonetheless grants her leave to amend these claims within

thirty days of this Order.

Based on the foregoing, the Court adopts Judge Lindsay’s comprehensive and well-

reasoned R&R in its entirety as the opinion of this Court. Accordingly, Defendants’ motion to

dismiss is GRANTED in part and DENIED in part.

SO ORDERED.

Dated: November 30, 2020

Central Islip, New York

/s/ (JMA)

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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