Klein v. Lakeview Fire District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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YONATAN KLEIN,

MEMORANDUM AND ORDER

Plaintiff,

21-cv-1468 (KAM)(JMW)

-against-

LAKEVIEW FIRE DISTRICT, LAKEVIEW FIRE

DEPARTMENT, FREDERICK G. SENTI, JR.,

FREDERICK G. SENTI, III, JAMES GALIA,

MICHAEL KOPPEL and HEATHER McNEILL,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Yonathan Klein (“Plaintiff”) commenced the

instant action against Defendants Lakeview Fire District (the

“Fire District”) and Lakeview Fire Department (the “Fire

Department”) (together, “Lakeview”), and Defendants Fredrick G.

Senti, Jr. (“Senti Jr.”), Fredrick G. Senti, III (“Senti III”),

James Galia (“Galia”), Michael Koppel (“Koppel”), and Heather

McNeill (“McNeill”) (together, the “Individual Defendants” and,

collectively with Lakeview, “Defendants”) pursuant to 42 U.S.C. §

1983, alleging that Defendants violated his constitutional rights

under the First, Fifth, and Fourteenth Amendments. (See ECF No.

1 (“Compl.”) at 2-3.) Plaintiff also alleges claims for

retaliation, intentional infliction of emotional distress, and a

hostile work environment pursuant to New York state law. (See id.

at 3.)

Presently before the Court is Defendants’ motion to

dismiss the Amended Complaint for failure to state a claim pursuant

to Federal Rule of Civil Procedure 12(b)(6) with respect to

Plaintiff’s constitutional claims. (See ECF No. 27, Defendants’

Motion to Dismiss (“Mot. to Dismiss”).) Defendants further request

this Court, once it dismisses the constitutional claims, to decline

supplemental jurisdiction over Plaintiff’s state law claims

pursuant to 42 U.S.C. § 1376(c)(3) and Federal Rule of Civil

Procedure 12(b)(1). For the reasons set forth below, Defendants’

motion to dismiss is DENIED IN PART and GRANTED IN PART.

BACKGROUND

For the purpose of deciding Defendants’ Rule 12(b)(6)

motion, the Court accepts as true the well-pleaded factual

allegations in the Amended Complaint and exhibits attached thereto

(see ECF Nos. 20-21) and draws all reasonable inferences in

Plaintiff’s favor. See Sabir v. Williams, 37 F.4th 810, 814 (2d

Cir. 2022); Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015).

Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district

court must confine its consideration to facts stated on the face

of the complaint, in documents appended to the complaint or

incorporated in the complaint by reference, and to matters of which

judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of

N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation omitted). Based

on the foregoing, this Court accepts as true the following

allegations.

I. Factual Background

Plaintiff was a volunteer firefighter at Lakeview Fire

Department from February 2011 to January 2021 and served as a

Second Lieutenant from February 2017 through November 2019. (ECF

No. 20, Amended Complaint (“AC”) ¶¶ 10, 61.

Lakeview Fire District is the administrative

establishment overseeing operations for the Lakeview Fire

Department, a volunteer fire department, and serves West

Hempstead, a hamlet in the Town of Hempstead, County of Nassau,

State of New York. (Id. ¶ 11.) The Fire District is governed by

a Board of Commissioners, which consists of five individuals

selected by residents served by the Lakeview Fire District. (Id.)

Three of the Individual Defendants—Koppel, Senti Jr.,

and McNeill—served as Commissioners during the period relevant to

the Plaintiff’s allegations. (See id.) In addition to

Commissioner, Senti Jr. has also served as Chief of the Fire

Department, Records Officer, and Secretary and is paid by the Fire

Districts’ tax-payers. (Id. ¶ 13.) Defendant Senti III, Senti

Jr.’s son, is currently a Lieutenant with the Fire Department and

previously served as the Chief of Department. (Id. ¶¶ 12, 14.)

Defendant Galia is currently the Chief of the Fire Department,

(id. ¶ 12), and previously, Defendant Galia served as a Captain

and then Assistant Chief. (Id. ¶ 15.) Defendant Koppel, in

addition to being a Commissioner and Chief Executive Officer of

Record, previously served as Chief of the Fire Department. (Id.

¶ 16.) Defendant McNeill is Senti Jr.’s daughter, and Senti III’s

sister, and previously served as Chief of the Fire Department and

is currently a Lieutenant and Chair of Lakeview’s Board of Fire

Commissioners. (Id. ¶ 17.) She is also married to non-party

Patrick McNeill, who served as Chief of the Fire Department during

times relevant to Plaintiff’s allegations. (Id. ¶ 31.)

A. The Initial Incident

Plaintiff alleges a “continuous course of unlawful

conduct,” (id. at ¶¶ 1,2) by the Defendants, precipitated by a

physical altercation on November 26, 2017, when Defendant Senti

III assaulted another volunteer member, Jack Ackerman (“Ackerman”)

at the Fire Department’s firehouse. (Id. ¶ 19.) Plaintiff, who

had been nominated and elected as Second Lieutenant in February

2017, and other firefighters, including Salvatore Sinatro

(“Sinatro”)—the Chief of the Fire Department at the time—witnessed

the physical assault by Senti III. (Id.) Plaintiff separated the

two men and took Ackerman into another room. (Id.)

Once separated, Ackerman voiced his desire to report the

assault to the Nassau County Police Department. (Id.) Plaintiff

replied by telling Ackerman that he had every right to do so.

(Id.) Ackerman filed a complaint with the Nassau County Police

Department, and Senti III was arrested later that day for assault

and obstruction of airway and suspended by Lakeview for

approximately fifteen days. (Id. ¶ 20.)

B. Harassment at the Firehouse and Initial Reports to

Authority

After Senti III’s assault of Ackerman and his arrest and

suspension, he and his father, Senti Jr., began to harass

Plaintiff. (Id. ¶ 21.) After each incident of threatening

violence, assaultive behavior, and/or verbal harassment, Plaintiff

reported the activities to superior authorities in the Fire

District and Fire Department. (Id. ¶¶ 15, 25-28, 31, 36.)

Examples of harassment of Plaintiff by the Senti

Defendants include: Senti Jr. (1) calling plaintiff derogatory

names (e.g., “cunt,” “a piece of shit”); (2) physically charging

at Plaintiff with a broom handle, and threatening Plaintiff with

violence; and (3) driving back and forth past Plaintiff’s family

home in an official vehicle, causing Plaintiff and Plaintiff’s

wife to feel unsafe. (Id. ¶¶ 21-23.) Senti III “promise[d]”

Plaintiff that he would make Plaintiff’s life at work difficult.

(Id. ¶ 24.)

Senti Jr. also harassed other witnesses to the assault,

such as non-party Eli Wein (“Wein”), another firefighter and

paramedic. (Id. at ¶ 25.) On or about November 29, 2017, Senti

Jr. confronted Wein regarding a witness statement Wein signed

reporting Senti III’s assault of Ackerman. (Id.) Not only did

Defendant Senti Jr. say to Wein that he intended to harass

Plaintiff and Wein until the day they left Lakeview, but he also

told Wein that “people can fall downstairs during fires.” (Id. at

¶ 26.) “[I]t would just seem like an accident because accidents

happen during fires.” (Id.)

On November 29 and 30, 2017, respectively, Plaintiff and

Wein each sent an email memorandum detailing the disturbing

behavior of Senti Jr. to Defendant Galia, then the Captain and

Assistant Chief of the Fire Department. (Id. ¶¶ 25-28; see also

ECF Nos. 20-1, Exh. 1, Wein Memorandum; 20-2, Exh. 2, Klein

Memorandum.) Defendant Galia did not respond to either memorandum.

(Id.)

Senti Jr. and Senti III’s harassment continued for

months. On March 22, 2018, Senti Jr. and Senti III continued to

harass Plaintiff, including Senti III threatening to “knock [his]

f—cking head off,” and noting that a soft tissue injury was

“nothing to what [Plaintiff] would get.” (Id. ¶ 30.) Senti Jr.

also threatened to knock Plaintiff’s teeth out, made repeated

comments about Plaintiff’s wife, physically charged at Plaintiff

and verbally threatened Plaintiff’s family. (Id.)

On March 23, 2018, Plaintiff sent another email to

Defendant Galia, non-party Assistant Chief Michael Joyce

(“Joyce”), and Patrick McNeill, who is the husband of Defendant

McNeill and then-Chief of the Fire Department, regarding the

conduct and verbal abuse by Defendants Senti Jr. and Senti III,

and expressed his fear of “imminent and potentially catastrophic

retaliation” from Senti Jr. and Senti III. (Id. ¶ 31; see ECF No.

20-3, Exh. 3, Klein Second Memorandum. Galia failed to respond

despite his duty to do so. (Id. ¶ 32.)

On October 27, 2018, Senti III and Plaintiff got into

another argument, where Senti III came within inches of Plaintiff’s

face and once again, made threats of physical violence to

Plaintiff. (Id. ¶ 33.)

Senti Jr. continued threatening Plaintiff, specifically

noting Plaintiff’s involvement with the discipline of Senti III

after Senti III’s assault on Ackerman and called Plaintiff profane

names. (Id. ¶ 34.) Senti Jr. also told Plaintiff that he should

“sleep with [his] gun tonight,” just hours after a mass shooting

at a Pittsburgh synagogue that day.1 (Id.) At a Board of

Commissioners meeting later that evening, Senti Jr., in front of

Lakeview’s Board of Commissioners, also yelled at Plaintiff,

1 The Court takes judicial notice that the mass shooting at the Pittsburgh

synagogue occurred on October 27, 2018 and eleven people were killed and six

people were injured. See Campbell Robertson, Christopher Mele and Sabrina

Tavernise, 11 Killed in Synagogue Massacre; Suspect Charged With 29 Counts,

THE NEW YORK TIMES, Oct. 27, 2018, https://www.nytimes.com/2018/10/27/us/active-

shooter-pittsburgh-synagogue-shooting.html.

stating, “[a]s a Commissioner I can throw you out of here and you

can suck my fucking dick.” (Id. ¶ 35.)

After Senti Jr. screamed at Plaintiff in front of the

Lakeview Board of Commissioners on October 27, 2018, Plaintiff

submitted a “Workplace Violence Notification” to then-Chief

Sinatro on October 28, 2018. (ECF Nos. 20, AC ¶ 36; 20-4, Exh. 4,

Workplace Violence Notification.) Sinatro failed to respond.

(Id.)

On December 5, 2018, Plaintiff submitted a complaint to

the New York State Department of Labor’s Public Employee Safety

and Health Bureau (“PESH”), alleging the lack of a workplace

violence prevention program.2 (ECF Nos. 20, AC ¶ 37; 20-5, Exh.

5, Notice of Alleged Safety or Health Hazards). Plaintiff asserted

violations of 12 NYCRR 800.6(f), 12 NYCRR 800.6(h), and 12 NYCRR

800.6(i). (Id.)

C. Department of Labor Inspection and Aftermath

After PESH received Plaintiff’s report on January 7,

2019, it conducted an onsite partial safety inspection on January

22, 2019 at the Fire Department’s headquarters. (ECF No. 20, AC

¶ 38.) Defendant McNeill participated in the inspection. (Id.)

2 The parties also refer to Plaintiff’s PESH complaint as an OSHA complaint,

but the Court will refer to it as a PESH complaint. (ECF Nos. 20, AC ¶ 73; 20-

12, Exh. 12, Facebook Post.) The Court only has record of Plaintiff’s complaint

to the New York State Department of Labor’s Public Employee Safety and Health

Bureau (PESH), rather than an additional complaint to the federal counterpart

of PESH, U.S. Occupational Safety and Health Administration (OSHA). (ECF Nos.

20, AC ¶ 37; 20-5, Exh. 5, Notice of Alleged Safety or Health Hazards.)

As a result of the investigation, Plaintiff’s complaint was

sustained and a Notice of Violation and Order to Comply was issued

to Lakeview.3 (Id.)

On February 27, 2019, about a month after PESH’s

inspection of Lakeview, Defendant Senti Jr. posted a form titled,

“Hurt Feelings Report” on four official bulletin boards in the

firehouse. (ECF Nos. 20, ¶ 39; 20-6, Exh. 6, Hurt Feelings

Report.) The “Hurt Feelings Form” form was fashioned to mock a

standard complaint form; it stated reasons for filing a complaint

that included: “I am a pussy”; “I have woman like hormones”; “I am

queer”; and “I am a little bitch.” (ECF No. 20-6, Exh. 6, Hurt

Feelings Report.) The form also included a line to identify the

harasser or assailant, styled as “Name of ‘Real Man’ who hurt your

sensitive little feelings” and “Real-man signature: (person being

accused)”. (Id.)

On May 23, 2019, Defendant McNeill said to Plaintiff, at

the monthly firehouse meeting in front of other members of the

firehouse, “when you go outside of the organization, we have thrown

people out for less.” (ECF No. 20, AC ¶ 40.) Plaintiff cited

this comment as one of the Defendants’ many retaliatory threats.

On June 2, 2019, Lakeview issued its first Workplace

Violence Statement and Policy. (Id. ¶ 41.)

3 Neither party has submitted PESH’s Notice of Violation and Order to Comply

(ECF No. 20, AC ¶ 38) or the Workplace Violence Statement and Policy (id. ¶

41).

D. FOIL Request and Aftermath

On July 9, 2019, Plaintiff submitted a New York Freedom

of Information Law (“FOIL”) request to the Fire District for the

Board of Commissioners’ meeting minutes, agendas, and financial

records for the prior 12 months. (Id. ¶ 42.) Senti Jr. provided

a copy of the June 2019 financial statement and told Plaintiff

that the rest of his request would be forwarded to Lakeview’s

attorney. (Id. ¶ 43.) Plaintiff received no further response to

this request. (Id.)

On July 10, 2019, Senti III “audited” one of Plaintiff’s

training sessions by appearing at the location where Plaintiff was

training other firefighters, despite Senti III lacking authority

to audit Plaintiff’s training, and told Plaintiff it was because

he had submitted a FOIL request to the Fire District. (Id. ¶ 44.)

Defendant McNeill did not intervene despite witnessing Senti III’s

appearance and statement, but Joyce admonished Senti III for this

behavior. (Id. ¶ 45.)

On July 31, 2019, Senti III “audited” another training course

that Plaintiff attended, this time held by Joyce. (Id. ¶ 46.)

Senti III and Plaintiff interacted with one another at this

training culminating in Senti III yelling that he would “love to

fuck [Plaintiff] up” and explicitly cited Plaintiff “using the

system” and submitting FOIL requests as his reason. (Id. ¶¶ 48-

49.) Defendant Koppel was present during this interaction but did

not intervene. (Id. ¶ 50.)

Plaintiff filed a criminal complaint with the Nassau

County Police Department in response to the July 31, 2019 incident,

during which Senti III expressed his desire to harm Plaintiff.

(Id. ¶ 51.) A report was taken by the police, but the police did

not follow up. (Id.)

On August 1, 2019, Plaintiff submitted a Workplace

Violence Incident Report to Defendant Galia regarding Senti III’s

presence at the July 31, 2019 training. (ECF No. 20-7, Exh. 7,

Workplace Violence Incident Report on August 1, 2019.)(“Fred Senti

[III] began making comments towards me such as ‘such a cunt’, ‘I'm

going to cry because they honked the horn’, etc.”) In addition,

Plaintiff informed Defendant Galia that “[m]y FOIL request

submission is a document that exists between me (a taxpayer) and

the fire district (government entity). This issue has nothing to

do with Fred Senti III.” (Id. at 4.)

E. Continued Harassment

On August 4, 2019, Plaintiff was driving to the firehouse

when Senti III began following him. (ECF No. 20, AC ¶ 53.) In

the parking lot, Senti III began cursing and threatening Plaintiff

outside of his car. (Id. ¶ 54.) Fire District Commissioners

Defendant Koppel, Defendant McNeill, and non-party Pasquale Rayano

(“Rayano”) were present and witnessed Senti III’s behavior. (Id.)

Defendant Koppel asked Plaintiff to leave so that the others could

calm Senti III down. (Id. at ¶ 55.) Plaintiff did not leave

immediately as he needed something from the medical cabinet, so he

stayed in the car while Defendant Koppel retrieved the medicine

for him. (Id.)

Plaintiff left the firehouse and told his family to stay

indoors. (Id. ¶ 56.) On August 4, 2019, he filed another report

with the Nassau County Police Department in response to Senti III’s

actions, and out of fear that Senti III would follow him home.

(Id.)

F. The Suspension and Resignation from Lieutenant Role

The next day, on August 5, 2019, Plaintiff was suspended

by then-Chief Sinatro for “conduct unbecoming an officer” due to

the August 4, 2019 incident with Senti III. (Id. ¶ 57.) On August

12, 2019, Plaintiff was afforded a hearing by the Lakeview

disciplinary committee, and they found him guilty of “conduct

unbecoming [of] an officer” due to the August 4, 2019 incident.4

(Id.) Plaintiff was suspended for 15 days and was unable to

achieve the required length of service award points or required

quota to finish the year in good standing. (Id.)

4 It is not clear from the record which individuals the Lakeview disciplinary

committee is comprised of and whether any or all of the Individual

Defendants, in their official capacities as authorities of the Fire District

and Fire Department, might have served on the committee.

On August 12, 2019, Plaintiff wrote Lakeview’s records

access officer appealing Lakeview’s failure to respond to the first

FOIL request. (Id. ¶ 58.) On October 21, 2019, Plaintiff

submitted a second FOIL request, this time, for minutes, agendas,

and financial records for the prior sixteen months. (Id. ¶ 59.)

A week later, Senti Jr. replied with a letter dated July 23, 2019

requesting payment from Plaintiff for the records in his first

FOIL request. (Id. ¶ 60.)

On November 9, 2019, then-Chief Sinatro told Plaintiff

that if Plaintiff did not resign as a Lieutenant, the Individual

Defendants would “continue to ‘bust [his] balls.” (Id. ¶ 60.)

“Under duress”, Plaintiff reluctantly resigned his position as a

Lieutenant but remained a member of the Fire Department. (Id. ¶

61.) Plaintiff’s resignation letter noted the Defendants’ verbal

abuse, threats, and harassment and that he could no longer bear

the stress in the workplace. (ECF No. 20-8, Exh. 8, Klein

Lieutenant Resignation Letter.)

On November 12, 2019, Plaintiff sent two additional

letters to Lakeview’s records access officer: the first stating

that the Fire District’s failure to timely respond to his first

July 16, 2019 FOIL request constituted a refusal of access; and

the second appealing the Fire District’s failure to respond to his

second October 25, 2019 FOIL request. (ECF No. 20, AC ¶ 62.)

Lakeview did not respond to either letter. (Id.)

The Department also failed to provide Plaintiff with the

necessary letter for a tax reduction in real estate and school

taxes that Plaintiff earned as a volunteer firefighter, despite

Plaintiff’s multiple requests. (Id. at ¶ 63.) The Departments’

refusal of the tax reduction letter cost Plaintiff over $1,000 for

the 2020 tax year. (Id.)

G. Social Media Bullying

In or around May of 2020, non-party EMT Renee Farrell

(“Farrell”) created a chat (referred to herein as the “Fire

Department GroupMe” or “GroupMe”) for the Fire Department on

GroupMe, an online group chat platform, in which the Fire

Department used to post policy updates and disseminate Department

information regarding health policy, upcoming Department classes,

and scheduling Department training.5 (Id. ¶ 64.)

On July 29, 2020, as part of the ongoing retaliatory

harassment, Defendant McNeill posted on the Fire Department

GroupMe chat “Attn LONG ISLAND FF’S PESH IS OUT. 1k fine per non

mask wearer. LOCK YOUR STATON AND BAY DOORS; answer when they

ring the bell . . . with your mask on . . . Not for us exclusively

5 The Plaintiff, in his Amended Complaint, refers to messages in the GroupMe

chat as an “official message board”. (ECF No. 20, AC ¶ 74.) The Court will

refer to the GroupMe chat or “Fire Department GroupMe” because it was a de facto

official message board for the Lakeview Fire District and Fire Department as it

“disseminate[d] official Department business” including “requesting available

members to respond to [Fire Department] incidents.” (Id. ¶ 64.)

this time courtesy of . . . ehhh nevermind . . . you ALL know.”

(ECF Nos. 20, AC ¶ 65; 20-9, Exh. 9, GroupMe Chat Screenshot.)

Later that same day, Senti III posted a series of

messages on the Fire Department GroupMe that appeared to refer to

Plaintiff’s first name Yonathan or “Yoni” for short. Senti III

provided a screenshot of a Wikipedia page defining the word “Yoni”

as “womb” in Sanskrit. (ECF Nos. 20, AC ¶ 69.) The Wikipedia

page highlighted that the word may connote female sexual organs

such as “vagina.” (Id. at ¶ 67.) Senti III added:

“Etymology of names is cool”

“Who knew it really meant that and I was right all

along”

“Fuck it, time for fireworks I wouldn’t be me if it

🤣🤣🤣🤣🤣🤣🤣🤣

wasn’t .”

(ECF Nos. 20, AC ¶ 66; 20-9, Exh. 9, GroupMe Chat Screenshot.)

Senti III’s post also stated, “Not a coincidence,” and “Blame

Wikipedia and your mom not me.” (Id.) Plaintiff then posted a

GroupMe message saying “Thank you,” to which Senti III replied

“Your [sic] welcome,” and “Now I see you were just living up to

your name all along!” (Id.)

That same day Senti III posted more messages in the

GroupMe chat saying, “I found something that you might find

interesting though” and “[i]t literally explains everything.”

(ECF No. 20-11, Exh. 11, GroupMe Chat Screenshot 2.) He then asked

“[w]hat do you think should I share my findings.” (Id.) Defendant

McNeill responded in the GroupMe chat, “Now now . . . there will

be a lot of paperwork if you do. Letters, tissues, crying . . .”

(Id.) Senti III then said, “Isn’t there always anyway? Mostly

manufactured lies.” (Id.)

On August 11, 2020, Defendant Galia posted a photograph

on Facebook depicting a fire truck ladder basket raised and

extended next to a telephone pole with a hand ladder inside it

leaning against the telephone pole. (ECF No. 20-12, Exh. 12,

Facebook Post.) Text on this photograph states, “SOMEWHERE AN

OSHA MANUAL JUST BURST INTO FLAMES,” appearing to refer to

Plaintiff’s complaint to PESH. (Id.) Defendant McNeill commented

on Defendant Galia’s post, “Watch out for those violations.

Falsified or not.” (Id.)

On August 12, 2020, Defendant Galia emailed Plaintiff

stating that after a meeting of the Board of Fire Commissioners

the previous night, Galia was “tasked” with requesting from

Plaintiff (i) access to the safe program, (ii) return of the 2018

recertification paperwork, (iii) the login and password to

Lakeview’s website. (ECF No. 20, AC ¶ 70.) Plaintiff responded

that he did not have access to the safe or re-certification

paperwork and asked whether he was being terminated as the Fire

Department's webmaster. (Id. ¶ 71.) The record does not reflect

whether Defendant Galia responded.

On August 13, 2020, in the Fire Department’s GroupMe

chat, Senti III sent a message: “By removing him now he can’t see

all the fun and cool stuff he’s missing . . .” (ECF No. 20-13,

Exh. 13, GroupMe Chat Screenshot 3.) Defendant McNeill responded

in the GroupMe, “I’m good with ridding the useless. The board’s

attorney has given the go ahead of swamp draining. Gotta go . .

.” (Id.) Immediately following this message, Defendant Koppel

wrote, “Teamwork baby, families fight but they always end up

righting their mistakes not writing letters or filing false police

reports.” (Id.) Senti III responded, “Amen.” (Id.)

Shortly after this GroupMe exchange between the three

defendants on the Fire Department GroupMe, the Plaintiff and three

others were removed from the GroupMe chat by Defendant McNeill.

(ECF No. 20-14, Exh. 14, GroupMe Chat Screenshot 4.) Immediately

after the removals, Defendant McNeill stated to the rest of the

group, “Write another letter.” (Id.)

On August 17, 2020, Defendant Koppel emailed Plaintiff

advising him that after discussion with the Board of Fire

Commissioners and the Chiefs, Plaintiff was terminated as

Lakeview’s narcotics agent. (ECF No. 20, AC ¶¶ 76-77.) Plaintiff

had emailed Defendant Koppel on August 16, 2020, advising that

controlled substances needed to be ordered and that the Fire

Department’s benzodiazepine supply was expiring. (Id.)

At some point Plaintiff was added back to the Fire

Department GroupMe but was then removed again from the GroupMe

chat on October 4, 2020, this time by Farrell. (Id. ¶ 78.) After

the removal, Farrell privately messaged Plaintiff stating, “I was

asked to remove you from the group due to the fact that you have

no quota and no responses on calls, that’s exactly what I was told

so I’m just letting you know sorry.” (ECF Nos. 20 AC, ¶ 78; 20-

15, Exh. 15, Farrell Screenshot.)

In response to his removal from the Fire Department

GroupMe, Plaintiff complained to Defendant Galia who informed him

that “Groupme is not under my jurisdiction . . . because they are

not sanctioned by the district or department . . . [it’s] just a

group of friends with a common interest . . .” (Id. ¶ 79; ECF No.

20-16, Exh. 16, Galia Screenshot.) Galia also wrote, “In regards

to [Senti III] showing up to your house [on August 13, after Senti

III followed Plaintiff home, rolled down his window and yelled at

Plaintiff] . . . I am told that since he was not on district

property, operating a district vehicle and not sent there to talk

to you by his superiors that is a private matter.” (Id.)6

According to the Department’s official social media

policy, issued on February 14, 2017, “[e]mployees should use their

best judgement in not posting material that is inappropriate nor

harmful to Lakeview Fire Department and/or Lakeview Fire District,

its employees, or civilians of the District.” (ECF No. 20-17,

6 The Court notes that Plaintiff previously reported that Senti Jr. has driven

by Plaintiff’s home in a district vehicle (ECF No. 20-2, Klein Memorandum),

even if his son, Senti III, did not during the incident referenced by Galia in

this message.

Exh. 17, Lakeview Social Media Policy.) The social media policy

goes on to list “commentary, content, or images that are

defamatory, pornographic, proprietary, harassing, libelous, under

criminal/open investigations, or that can create a hostile work

environment” as examples of content that employees are not to

publish. (Id.)

H. The Termination

By letter dated January 12, 2021, Defendant Galia

terminated Plaintiff as a Lakeview volunteer firefighter, citing

the Fire Department’s bylaws and that Plaintiff had not maintained

his quota of meeting attendance and trainings. (ECF Nos. 20, AC

¶¶ 81-82; 20-18, Exh. 18, Termination Letter.) The termination

letter explained that Plaintiff was asked to speak to the officers

of the Fire Department in order to discuss his purported failure

to meet the attendance and training quota, but that Plaintiff did

not schedule the meeting. (ECF No. 20-18, Termination Letter.)

Plaintiff does not state if he complied with the request that he

speak with Fire Department officers regarding his failure to meet

the quota, but alleges there was a “pervasive and hostile

environment created by Defendants” and that he felt that he was

“constructively prevented from fulfilling his duties out of a

legitimate fear for his physical safety.” (Id. ¶¶ 82-83.)

Defendants’ basis for terminating Plaintiff was a sham

and its quota policy was selectively enforced against Plaintiff.

(Id. ¶ 83.) At the Fire Department, in 2019, 58 volunteers,

comprising 56% of the Fire Department volunteers, had lower

attendance than Plaintiff. (ECF Nos. 20, AC ¶¶ 83-85; 20-19, Exh.

19, 2019 Quota Report.) In 2020, nearly 22% of the volunteer force

had an attendance rate lower than Plaintiff’s. (ECF Nos. 20, AC

¶¶ 83-85; 20-20, Exh. 20, 2020 Quota Report 2.)

In further retaliation by Defendants, Plaintiff was

terminated from the Fire District Benevolent Association’s

Insurance Program four days after he filed his complaint against

Defendants in this Court. (ECF Nos. 20, AC ¶¶ 86-93; 20-21, Exh.

21, Insurance Company Letter.) Plaintiff discovered he had been

terminated from the Insurance Program after receiving a letter

from the insurance company stating that he would no longer be

receiving benefits from the Fire District. (Id.)

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6),

“a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. Although

“detailed factual allegations” are not required, “[a] pleading

that offers labels or conclusions or a formulaic recitation of the

elements of a cause of action will not do.” Id.

(quotation omitted).

When presented with a motion to dismiss pursuant to Rule

12(b)(6), the Court may consider documents that are referenced in

the complaint, documents that the plaintiff relied on in bringing

suit and that are either in the plaintiff's possession or that the

plaintiff knew of when bringing suit or matters of which judicial

notice may be taken. See Taylor v. Vt. Dep’t of Educ., 313 F.3d

768, 776 (2d Cir. 2002); see also Estevez v. City of New York, No.

16-cv-00073, 2017 WL 1167379, at *1–2 (S.D.N.Y. Mar. 28, 2017).

DISCUSSION

Defendants contend that Plaintiff has failed to plead

viable constitutional claims to support an action under 42 U.S.C.

§ 1983. The Court disagrees. Plaintiff has pleaded abundant facts

to state a plausible First Amendment retaliation claim and

Fourteenth Amendment Due Process claim. The Court respectfully

rejects the Defendants’ qualified immunity arguments and

Lakeview’s arguments against Monell liability.

I. 42 U.S.C. § 1983

To maintain a section 1983 action, Plaintiff must allege

two elements. First, “the conduct complained of must have been

committed by a person acting under color of state law.” Pitchell

v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (citation omitted).

The Plaintiff sufficiently alleged that Defendants acted under

color of state law. Second, “the conduct complained of must have

deprived a person of rights, privileges or immunities secured by

the Constitution or laws of the United States.” Id. Section 1983

“does not create a federal right or benefit; it simply provides a

mechanism for enforcing a right or benefit established elsewhere.”

Morris–Hayes v. Bd. of Educ. of Chester Union Free Sch. Dist., 423

F.3d 153, 159 (2d Cir. 2005) (citing Okla. City v. Tuttle, 471

U.S. 808, 816 (1985)). The Court address Defendants’ alleged

violations of Plaintiff’s First and Fourteenth Amendment rights.

A. First Amendment Retaliation Claim

The Court concludes that Plaintiff has alleged a

plausible First Amendment retaliation claim against all of the

Defendants. “[W]hile the government enjoys significantly greater

latitude when it acts in its capacity as employer than when it

acts as sovereign, the First Amendment nonetheless prohibits it

from punishing its employees in retaliation for the content of

their protected speech.” Locurto v. Safir, 264 F.3d 154, 166 (2d

Cir. 2001). A public employee may establish a First Amendment

retaliation claim against his governmental employer “that: (1) his

or her speech was constitutionally protected; (2) he or she

suffered an adverse employment action; and (3) a causal connection

exists between the speech and the adverse employment action.”

Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004).

1. Protected Speech

The First Amendment protects a public employee’s speech

only when it is “made as a citizen on matters of public concern

rather than as an employee on matters of personal interest.”

Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003) (quotation

omitted). “Speech by a public employee is on a matter of public

concern if it relates ‘to any matter of political, social, or other

concern to the community.’” Id. (quoting Connick v. Myers, 461

U.S. 138, 146 (1983)). “Whether an employee's speech addresses a

matter of public concern must be determined by the content, form,

and context of a given statement, as revealed by the whole record.”

Connick, 461 U.S. at 147–48.

In the Amended Complaint, the Court finds numerous and

sufficiently pleaded examples of Plaintiff’s speech on matters of

public concern. Connick, 461 U.S. at 147–48. On October 27, 2018,

after Senti Jr., a Fire District Commissioner, threatened

Plaintiff at a Board of Commissioners meeting, Plaintiff filed a

workplace violence notification to Fire Department authorities; on

December 5, 2018, Plaintiff filed with the New York Department of

Labor a PESH complaint that Lakeview lacked a workplace violence

prevention program; and on July 9, 2019 and October 21, 2019,

Plaintiff filed FOIL requests seeking Board of Commissioner

meeting minutes, agendas, and financial records. (ECF No. 20, AC

¶¶ 36-37, 42, 59.)

The precipitating event for Defendants’ First Amendment

violations of Plaintiff’s rights was the Plaintiff’s intervention

in attempting to stop the 2017 assault by Senti III on Ackerman,

and Plaintiff’s advice to Ackerman that it would be appropriate to

report Senti III’s assault to the police. (Id. ¶ 19.) Thereafter,

Defendants continually referenced Plaintiff’s intervention in

their written and verbal threats against Plaintiff and other Fire

Department members, retaliating after Plaintiff supported Ackerman

after Senti III’s assault. (Id. ¶ 21.) Defendants negatively

reacted to Plaintiff’s reporting of workplace violence. (ECF Nos.

20-2, Exh. 2, Klein Memorandum (“Since the suspension of Fred

Senti III, Commissioner Fred Senti Jr. has been engaging in

harassment and creating a hostile work environment.”); 20-1, Exh.

1, Wein Memorandum (detailing how Defendant Senti Jr. mentioned

“he would continue to harass [Plaintiff and Wein] until the day we

leave the department.”).) Reporting instances of assault by

employees of a government agency, especially when the assault is

perpetrated by a public official with a supervisory or leadership

position in the presence of other public employees, falls well

within the realm of matters of public concern.

Following multiple events of threats by Defendants Senti

Jr. and Senti III against Plaintiff and other volunteer

firefighters with whom they engaged in additional physical and

verbal altercations, Plaintiff also reported various examples of

workplace violence or harassment that not only related to his own

experiences, but the experience of other Fire Department employees

as well. (ECF Nos. 20-1, Exh. 1, Klein Memorandum (“On 11/29/2017,

Commissioner Fred Senti Jr. told [non-party Wein] that he would

arrange for someone to kick Firefighter Ryan Ackerman and

[Plaintiff] down the stairs in a fire.”; 20-5, Exh. 5, Notice of

Alleged Safety or Health Hazards (“[Ex-Chief Frederick Senti III

and Commissioner Fred Senti Jr.] have both directly threatened the

safety of [Fire Department] members.”).) Matters of workplace

safety, particularly involving firefighters who are undertaking

physical risks when performing their duties to protect the public,

are no doubt matters of concern to the public, which funds the

Fire Department.

The fact that other firefighters spoke out and were

threatened or assaulted and that the Individual Defendants were

aware of the abuse, underscores that the workplace incidents at

Lakeview had a broader, public component. Fellow Fire Department

member Wein also sent a memorandum detailing the behavior of

Defendant Senti III to Defendant Galia, the Captain and Assistant

Chief of the Fire Department at the time. (ECF Nos. 20, AC ¶¶ 25-

28; 20-1, Exh. 1, Wein Memorandum (“[Senti III] went on to make a

not so veiled threat against [Plaintiff] and [another member]

telling me how ‘people can just fall downstairs during fires’ and

it would just seem like an accident because accidents happen during

fires.”).) Reports by Wein and Plaintiff of threats by high-

ranking officials of the Fire Department, including threats of

physical assault while performing firefighting duties, provide

context as instructed by the Supreme Court in Connick in

considering whether speech by firefighters Wein and Plaintiff,

embodied in their memoranda to Captain and Assistant Chief Galia,

was of a purely personal nature, or whether it addressed matters

of concern to the community.

Defendants argue that Plaintiff’s exercise of speech was

“merely calculated to redress personal grievances,” but this Court

disagrees. See MacFall v. City of Rochester, 495 F. App’x 158,

160 (2d Cir. 2012) (quotation omitted). As an initial matter, in

considering a 12(b)(6) motion, the Court must accept as true the

well-pleaded facts alleged in the Amended Complaint.

Considering “the content, form, and context” of

Plaintiff’s speech, “as revealed by the whole record,” this Court

finds that Plaintiff’s speech is not solely about a personal

grievance and but about matters of public concern including

pervasive violent threats and workplace abuses by supervisory

officials of a public entity charged with protecting the public

safety. The supervisory Individual Defendants, paid by the public,

allegedly used their authority to threaten members of the Fire

Department for truthfully reporting assaults and threats by

supervisors, including a threat to hurt members of the Fire

Department while fighting a fire and harassing them until they

left. Connick, 461 U.S. at 147–48; Pekowsky v. Yonkers Bd. of

Educ., 23 F. Supp. 3d 269, 276–77 (S.D.N.Y. 2014) (“A ‘matter of

public concern’ is one that ‘relates to any matter of political,

social, or other concern to the community.’” (quoting Singer v.

Ferro, 711 F.3d 334, 339 (2d Cir. 2013))); see also Magilton v.

Tocco, 379 F. Supp. 2d 495, 500 (S.D.N.Y. 2005) (assuming that an

employee’s complaints to PESH regarding his State employer's poor

workplace safety practices were a matter of public concern and

triggered First Amendment protections). Furthermore, even if

Plaintiff’s internal reports and the New York Department of Labor

PESH complaint were later motivated, in part, by Plaintiff’s

personal concerns for his safety, the Second Circuit has found

that “[a] speaker’s motive is not dispositive in determining

whether his or her speech addresses a matter of public concern .

. . [and] it does not follow that a person motivated by a personal

grievance cannot be speaking on a matter of public concern.” Sousa

v. Roque, 578 F.3d 164, 173 (2d Cir. 2009).

Defendants further argue that a court in this District

found in Gustler, that the filing of workplace violence reports

and the PESH complaint did not amount to speech protected under

the First Amendment because they “concerned Plaintiff’s

personality conflict with a co-worker and Plaintiff’s ability to

continue to work with that individual.” (ECF No. 27, Mot. to

Dismiss at 12.) Unlike the Gustler case, the Individual Defendants

were not co-workers, but were supervisors with authority whose

threats and abuse were frequently perpetrated in front of other

employees. Based on the Plaintiff’s well-pleaded allegations, the

Court does not agree that the Defendants’ pervasive and systemic

harassment of Plaintiff and other Lakeview firefighters could

plausibly be a mere personality disagreement with Plaintiff. In

any event, Defendants’ analysis of the Gustler opinion is

incomplete. The court in Gustler found that Plaintiff’s speech

was protected under the First Amendment, because he went to the

police department about the same incidents that he reported on

internally. The Gustler court stated that the complaints about an

intoxicated firefighter to the police department was the “right of

every citizen” and “dealt directly with matters of public safety.”

Gustler at 128 (E.D.N.Y. 2011). In the present case, Plaintiff

similarly twice reported the supervising Individual Defendants’

threats of violence and abuse to the Nassau County Police

Department, notwithstanding that he first reported the same

incidents internally. (ECF No. 20, AC ¶¶ 51, 56). Even if

Plaintiff’s internal workplace violence reports and PESH complaint

are not protected speech, the Court nonetheless concludes that his

reports to the Nassau County police were protected speech.

In addition to Plaintiff’s speech regarding the

Individual Defendants’ workplace violence, threats, and harassment

at Lakeview, Plaintiff’s First Amendment claim has another viable

basis. Plaintiff submitted FOIL requests for the Board of

Commissioners meeting minutes, agendas, and financial records

after he, as a taxpayer, suspected official vehicles were being

used for unofficial business. (ECF No. 20, AC ¶¶ 42, 48, 59.) As

one of Plaintiff’s workplace violence incident reports even

explained, “[m]y FOIL request submission is a document that exists

between me (a taxpayer) and the fire district (government entity).

This issue has nothing to do with Fred Senti III.” (ECF No. 20-

7, Exh. 7, Workplace Violence Incident Report on August 1, 2019 at

4.) Plaintiff’s concern regarding misuse of official vehicles

during non-duty hours was based, in part, on his own observations

and experience, including an incident where Senti III drove to

Plaintiff’s home late in the evening, activated a siren, awakened

Plaintiff’s children. (ECF No. 20, AC ¶¶ 41-48.) Plaintiff’s

requests for information from public entities on how they are

utilizing, monitoring, and spending their publicly funded

resources constitutes citizen speech on matters of public interest

and is wholly within the realm of public concern. See McAvey v.

Orange-Ulster BOCES, 805 F. Supp. 2d 30, 39-40 (S.D.N.Y. 2011)

(finding that FOIL requests by a citizen are considered protected

speech). The numerous instances of retaliation to which Plaintiff

was subjected after filing FOIL requests provided additional bases

for Plaintiff’s First Amendment claim.

Significantly, Defendants do not contend—and thus have

forfeited for purposes of their motion—that Lakeview had

firefighting interests that conclusively outweigh Plaintiff’s

First Amendment speech interests. If a public employee speaks as

a citizen on a matter of public concern, whether her speech is

protected by the First Amendment must also be evaluated under the

so-called Pickering analysis, which considers “whether the

relevant government entity ‘had an adequate justification for

treating the employee differently from any other member of the

public based on the government’s needs as an employer.’” Pickering

v. Bd. of Educ., 391 U.S. 563, 568 (1968). In conducting this

analysis, courts look to whether an employer could reasonably

predict that the employee’s speech would cause a disruption serious

enough to outweigh the value of the speech to matters of public

concern, and whether the potential disruption was the motivation

of the adverse action. Anemone v. Metro. Transp. Auth., 629 F.3d

97, 115 (2d Cir. 2011); see also Kelly v. Huntington Union Free

Sch. Dist., 675 F. Supp. 2d 283, 298 (E.D.N.Y. 2009) (explaining

that the Pickering analysis is “fact-intensive”).

Defendants, however, offer no justifications for their

actions against Plaintiff, and do not argue that any governmental

need as an employer outweighed Plaintiff’s exercise of his speech

rights, or that his speech was disruptive. At least at this stage,

it is plausible that Defendants’ threatening, harassing, and

retaliatory actions did not arise from any valid governmental

interest and that Plaintiff's speech was protected and caused no

disruption to the Department’s functions. Accordingly, the Court

determines that Plaintiff has plausibly alleged that his speech

was protected by the First Amendment and that Defendants violated

his rights.

2. Adverse Employment Action

“In the context of a First Amendment retaliation claim,

[the Second Circuit has] held that only retaliatory conduct that

would deter a similarly situated individual of ordinary firmness

from exercising his or her constitutional rights constitutes an

adverse action.” Zelnik v. Fashion Inst. of Tech., 464 F.3d 217,

225–26 (2d Cir. 2006) (quotation and alteration omitted). Under

this standard, “adverse employment actions include discharge,

refusal to hire, refusal to promote, demotion, reduction in pay,

and reprimand.” Id. at 226. Even “lesser actions” such as

negative reviews, false accusations, and menial job assignments

may also be considered adverse employment actions.” Id.; see also

Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). Finally, while

de minimis incidents alone will not give rise to a First Amendment

retaliation claim, “a combination of seemingly minor incidents

[may] form the basis of a constitutional retaliation claim once

they reach a critical mass” and create “a working environment

unreasonably inferior to what would be considered normal for that

position.” Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002).

Plaintiff’s Amended Complaint paints a detailed picture

in which Plaintiff has been subjected to a sustained, systematic

course of verbal harassment, physical and verbal threats,

ostracism, demotion, termination, and demeaning insults intended,

as Defendants’ statements reveal, to drive him out of the Lakeview

Fire Department. Each of the Individual Defendants, all of whom

held previous or current roles of leadership, directly took part

in, witnessed, or failed to stop the Defendants’ behavior. For

example, the Amended Complaint alleges that Defendant Senti III

told Plaintiff that he would make Plaintiff’s life at work

difficult and “that [it was] a promise.” (ECF No. 20, AC ¶ 24.)

Defendants arbitrarily audited Plaintiff’s training sessions,

while explicitly citing Plaintiff “using the system” and

submitting FOIL requests as reasons for auditing Plaintiff. (Id.

¶¶ 44-49.) Defendants would drive back and forth or park outside

the Plaintiff’s home in official Fire District vehicles or their

personal vehicles and on at least one occasion, blaring a siren

late in the evening and awakening Plaintiff’s children. (Id. ¶

23.) Defendants posted mock complaint forms on official firehouse

bulletin boards disparaging anyone who would bring a complaint.

(Id. ¶ 39.) Defendant Senti Jr. yelled outside of a Lakeview Board

of Commissioner’s meeting: “[a]s a Commissioner I can throw you

out of here and you can suck my fucking dick.” (Id. ¶ 35.)

Defendants’ actions are sufficient to plausibly state an

adverse employment action under a “critical mass” theory. See

Phillips, 278 F.3d at 109; see also Zelnik, 464 F.3d at 226.

Moreover, Defendants abusive conduct often occurred in front of

both non-supervisory and supervisory members of the Fire

Department which conduct would plausibly deter others from

exercising their constitutional rights. The Amended Complaint

alleges that Plaintiff was asked to “voluntarily” step down as a

Lieutenant—with the Chief of the firehouse expressly stating that

Defendants would continue to “bust his balls” if he did not. (Id.

at ¶ 61.) Plaintiff was stripped of his webmaster duties and his

duties involving the Fire Department’s medications. (Id. ¶¶ 71,

77.) Finally, Plaintiff was ultimately terminated by the Fire

District for failing to meet an apparent quota that numerous other

firefighters did not meet, as shown in the Fire Department records.

(Id. at ¶¶ 82, 84-85.) As demotion and termination qualify as

adverse employment actions, see Zelnik, 464 F.3d at 225, Plaintiff

has plausibly alleged an adverse employment action.

3. Causation

The last category of plausible facts which must be

alleged for a Plaintiff to establish a First Amendment retaliation

claim is a causal relationship between the protected speech and

the adverse employment action. “The causal connection must be

sufficient to warrant the inference that the protected speech was

a substantial motivating factor in the adverse employment action,

that is to say, the adverse employment action would not have been

taken absent the employee’s protected speech.” Morris, 196 F.3d

at 110 (citation omitted). “Causation can be established either

indirectly by means of circumstantial evidence, for example, by

showing that the protected activity was followed by adverse

treatment in employment, or directly by evidence of retaliatory

animus.” Id. (citation omitted). Furthermore, “[w]ith respect

to the “causal connection” requirement, a plaintiff must plead

facts from which it can be reasonable be inferred that the

defendant was aware of the purportedly protected speech. Wrobel

v. Cnty. Of Erie, 692 F.3d 22, 32 (2d Cir. 2012).

Here, Plaintiff alleges numerous adverse actions

occurring after his initial report of Senti III’s physical

altercation, including Plaintiff’s termination on January 12,

2021. (ECF No. 20, AC ¶¶ 21-24, 26, 30, 33-35, 39-40, 44-49, 61,

67-68, 75, 81-82, 92.) The allegations in the Amended Complaint

allege that Defendants were also aware of, or at least suspected,

that the Plaintiff had filed the workplace violence reports, PESH

complaint, Nassau County police reports, and the FOIL requests,

and that the Defendants’ relentless and systematic course of

harassment was the direct result of Defendants’ knowledge or

suspicion regarding Plaintiff’s exercise of his First Amendment

rights. Plaintiff alleges that Defendants themselves referenced

to Plaintiff’s exercise of his rights when Individual Defendants

threatened and harassed him. For example, on February 27, 2019,

a few weeks after Lakeview received word of the PESH complaint,

Senti Jr. posted a form titled, “Hurt Feelings Report” on four

official bulletin boards in the firehouse. (ECF No. 20, AC ¶ 39;

ECF No. 20-6, Exh. 6.) On May 23, 2019, Defendant McNeill said to

Plaintiff, at the monthly firehouse meeting in front of witnesses,

“when you go outside of the organization, we have thrown people

out for less.” (Id. ¶ 40.) On November 9, 2019, a few weeks after

Plaintiff submitted his second FOIL request, then-Chief Sinatro

said if Plaintiff did not resign as a Lieutenant, Individual

Defendants would “continue to ‘bust [his] balls.’” (Id. at ¶ 60.)

The Court also finds the Individual Defendants’ social

media comments to be probative of the causal link between

Defendants’ retaliatory conduct in response to Plaintiff’s speech.

On August 11, 2020, Defendant McNeill mocked Plaintiff’s complaint

to the Department of Labor when she posted on Facebook, “[w]atch

out for those violations. Falsified or not.” (Id. ¶ 73.) On

August 13, 2020, Defendant Senti III spoke of removing Plaintiff

from the Fire Department GroupMe, so he would “see all the fun and

cool stuff he’s missing” and Defendant McNeill responded, “I’m so

good with ridding the useless. The board’s attorney has given the

go ahead of swamp draining.” (Id. ¶ 73-74.) Defendant Koppel

responded on the Fire Department GroupMe, “Teamwork baby, families

fight but they always end up righting their mistakes not writing

letters or filing false police reports.” (Id.) Defendant Senti

III followed with, “Amen.” (Id.) Shortly after this exchange

between Individual Defendants McNeill, Koppel, and Senti III on

the Fire Department GroupMe, the Plaintiff and three others were

removed from the GroupMe chat by Defendant McNeill. (Id. at ¶ 75;

ECF No. 20-14 Exh. 14, GroupMe Chat Screenshot 4.) Immediately

after the removals, Defendant McNeill appeared to warn the rest of

the group, “Write another letter.” (Id.) Accordingly, based on

Defendants’ admissions to Plaintiff that they intended to drive

him out of the Fire Department under threats of physical harm, and

Defendants’ written posts and emails, Plaintiff has plausibly

alleged that Defendants' adverse actions were motivated by

retaliatory animus.

B. Fourteenth Amendment

The Plaintiff contends that the City deprived him of his

Fourteenth Amendment procedural due process rights.7 To prevail

7 Plaintiff alleged a Fifth Amendment claim in his complaint (ECF No. 20, AC ¶¶

4, 6), but he did not defend, much less mention, any basis for his Fifth

Amendment claim in his opposition to Defendants’ motion to dismiss. The Court

treats Plaintiff’s failure as an abandonment of his Fifth Amendment claim and

dismisses Plaintiff’s Fifth Amendment claim because Defendants correctly note

that the Fifth Amendment claim only applies to federal actors, and here, the

Defendants are state actors. Sylla v. City of New York, 04–cv–5692, 2005 WL

3336460, at * 2 (E.D.N.Y. Dec.8, 2005) (“The Fifth Amendment is applicable only

to the federal government.”); citing Public Utilities Comm'n of Dist. of

on this claim, the Plaintiff must show that he “possessed a

protected liberty or property interest, and that he was deprived

of that interest without due process.” Hynes v. Squillace, 143

F.3d 653, 658 (2d Cir. 1998) (per curiam); see Kapps v. Wing, 404

F.3d 105, 112 (2d Cir. 2005). When a public employee is

terminated, procedural due process is satisfied if the government

provides notice and a limited opportunity to be heard prior to

termination, so long as a full adversarial hearing is provided

afterward.” Locurto v. Safir, 264 F.3d 154, 171 (2d Cir. 2001)

(citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-

46 (1985)).

Property interests are not created by the Constitution,

but “‘stem from an independent source such as state law-rules or

understandings that secure certain benefits and that support

claims of entitlement to those benefits.’” Ciambriello, 292 F.3d

at 313 (quoting Board of Regents v. Roth, 408 U.S. 564, 577

(1972)). To state a due process claim, a “plaintiff must have a

property interest in a benefit that is ‘more than an abstract need

or desire for it. [He] must instead have a legitimate claim of

entitlement to it’ under state or federal law.” Finley v.

Giacobbe, 79 F.3d 1285, 1296 (2d Cir.1996) (quoting Roth, 408 U.S.

at 577).

Columbia v. Pollak, 343 U.S. 451, 461 (1952); see also LoSacco v. City of

Middletown, 71 F.3d 88, 92 (2d Cir. 1995)(appellants can be deemed to have

abandoned issues they fail to raise before the district court).

First, Plaintiff alleges he was deprived of a proper

pre-termination hearing before he was issued a termination letter

on January 12, 2021, dismissing him as a volunteer member of

Lakeview. (Id. ¶ 81.) The parties do not dispute and it is

well-settled that in New York, “volunteer firefighters are

considered public employees and must be afforded due process in

disciplinary proceedings,” which includes the right to a hearing

held upon due notice and upon stated charges. Ratajack v. Brewster

Fire Dep’t, Inc. of the Brewster-Se. Joint Fire Dist., 178 F. Supp.

3d 118, 139 (S.D.N.Y. 2016); Reed v. Medford Fire Dep't, Inc., 806

F. Supp. 2d 594, 610 (E.D.N.Y. 2011).

When a volunteer firefighter is terminated, the law is

clear that “procedural due process is satisfied if the government

provides notice and a limited opportunity to be heard prior to

termination, so long as a full adversarial hearing is provided

afterwards.” Locurto, 264 F.3d 154, 171 (2d Cir. 2001) (citation

omitted). “The pre-termination process ‘need not be elaborate’ or

approach the level of a ‘full adversarial evidentiary hearing,’

but due process does require that before being terminated such an

‘employee [be given] oral or written notice of the charges against

him, an explanation of the employer's evidence, and an opportunity

to present his side of the story.’” Otero v. Bridgeport Housing

Auth., 297 F.3d 142, 151 (2d Cir. 2002) (quoting Loudermill, 470

U.S. at 545, 546).

Assuming Plaintiff’s allegations to be true, and drawing

inferences in favor of the Plaintiff, the Court finds that

Plaintiff plausibly alleged that Defendants did not provide him a

pre-termination hearing with respect to the termination of his

volunteer position at Lakeview. On January 12, 2021, Defendant

Galia notified Plaintiff that he had “been relieved of [his] duties

as a member of the Lakeview Fire Department”, referencing the

Department’s bylaws and that Plaintiff had not maintained his quota

of meeting attendance and trainings. (ECF No. 20, AC ¶ 82; ECF

No. 20-18, Exh. 18.) The termination letter to Plaintiff

specifically stated: “Furthermore, a letter was sent to your house

requesting you to discuss your failure to maintain a quota with

the officers. The Captain told you that you needed to schedule a

meeting with the officers and to this date you have not scheduled

that meeting.” (Id.)

Defendants thus assert that they adequately provided “an

opportunity to be heard by offering to meet to discuss the matter

with [Plaintiff] before he was relieved of his duties” (ECF No.

27, Mot. to Dismiss at 15), but the Court cannot conclude that

the request to meet was a proper “opportunity to present

[Plaintiff’s] side of the story,” nor can the Court discern whether

Plaintiff had notice that he would be terminated if he failed to

schedule a meeting. Loudermill, 470 U.S. at 546. Moreover, the

aforementioned letter to Plaintiff in which Defendant Galia

terminated Plaintiff is not attached to the Amended Complaint, so

the Court cannot conclude that the scheduling letter Defendant

Galia references actually provided “notice of the charges against

Plaintiff” and “an explanation of the employer's evidence” to

Plaintiff. Id. Thus, the Court finds that Plaintiff was not

provided the limited, but nonetheless requisite, pre-termination

hearing before the termination of his employment at Lakeview Fire

Department.8

In addition to the loss of his salary, Plaintiff alleges

deprivations of additional property interests. Any Lakeview

member in good standing for over five years, as was Plaintiff,

automatically becomes a member of the Fire District Benevolent

Association for Life and is entitled to receive, inter alia,

insurance coverage providing disability benefits. (ECF No. 20, AC

¶¶ 86-87, 90.) Plaintiff pleads sufficient facts that plausibly

establish that the Benevolent Association benefit is provided for

by state and county laws. (Id. ¶ 87.) Plaintiff had qualified

for benefits as a member of the Fire District’s Benevolent

Association for Life and was a member of the Fire Department in

8 Because the Court finds that Plaintiff sufficiently alleged the lack of a pre-

termination hearing, the Court need not address whether Plaintiff was afforded

or sought a post-termination hearing. See Gilbert v. Homar, 520 U.S. 924, 929

(1997)(“[A] public employee dismissible only for cause was entitled to a very

limited hearing prior to his termination, to be followed by a more comprehensive

post-termination hearing.”) Notwithstanding the absence of a pre-termination

hearing, the Court finds that “[a]n Article 78 proceeding. . . constitutes a

wholly adequate post-deprivation hearing for due process purposes.” Locurto v.

Safir, 264 F.3d 154, 175 (2d Cir. 2001).

good standing for over five years, entitling him to receive

insurance coverage providing disability benefits. (Id. ¶¶ 88-89.)

The Second Circuit has recognized that public employees

have a “property” right to certain disability retirement and

pension benefits. See Russel v. Dunston, 896 F.2d 664, 668–69 (2d

Cir. 1990) (holding that state disability retirement benefits are

a constitutionally protected property interest); Winston v. City

of New York, 759 F.2d 242, 247-49 (2d Cir. 1985) (holding that

municipal employee retirement benefits are protected); Basciano v.

Herkimer, 605 F.2d 605 (2d Cir. 1978) (finding that denial of the

entire basic retirement benefit was a deprivation subject to due

process protection); see also Jackson v. Roslyn Bd. of Educ., 652

F. Supp. 2d 332 (E.D.N.Y. 2009) (finding that the refusal to pay

an employee any disability retirement benefits was a deprivation

of a protected property interest).

On March 24, 2021, four days after Plaintiff commenced

the instant action on March 19, 2021, Plaintiff was terminated,

without notice, from the Fire District’s Benevolent Association’s

insurance program. (Id. at ¶ 92.) Defendants Senti Jr. and

McNeill were allegedly voting members of Lakeview’s Benevolent

Association at the time of termination. (Id. at ¶ 93.) Plaintiff

only found out his Fire District’s Benevolent Association

insurance was terminated by a letter from the insurance company.

(ECF No. 20-21, Exh. 21) (“We recently learned that your premiums

will no longer be paid through VOLUNTEER FIREARMS BENEVOLENT.”)

Defendants argue that because the Benevolent Association

is a separate entity from Lakeview and because it is not a party

to this action, there can be no basis “to impute its alleged acts

onto Defendants.” (ECF No. 29, Def. Reply at 9.) The Court

disagrees, noting that because Defendants Senti Jr. and McNeill

were voting board members of the Benevolent Association, Plaintiff

has sufficiently plead facts that Defendants Senti Jr. and McNeill

may be held accountable for any improper termination of benefits

from the Benevolent Association without due process. Ashcroft v.

Iqbal, 556 U.S. 662, 676 (2009)(“[A] plaintiff must plead that

each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.”)

The Court thus finds that Plaintiff possessed protected

property interests in his employment as a Lakeview firefighter and

his Fire District’s Benevolent Association disability insurance

coverage, and that he has alleged sufficient facts to state a claim

for deprivation of those interests without due process.

C. Qualified Immunity

Defendants assert that the Individual Defendants are

shielded from liability by the doctrine of qualified immunity.

This Court disagrees.

For any alleged violation, the qualified immunity

analysis proceeds in two parts. First, “[t]aken in the light most

favorable to the party asserting the injury, do the facts alleged

show the officer’s conduct violated a constitutional right?”

Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Garcia v. Does,

779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo v. City of

Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007)). The second part of

the qualified immunity analysis requires the Court to consider

“whether [the] right is clearly established”— i.e., “whether it

would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Id. at 202; Anderson v.

Creighton, 483 U.S. 635, 640 (1987) (“The contours of the right

must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right…and that in

light of pre-existing law the unlawfulness must be apparent.”).

“Only Supreme Court and Second Circuit precedent existing at the

time of the alleged violation is relevant in deciding whether a

right is clearly established.” Torcivia v. Suffolk Cnty., New

York, 17 F.4th 342, 367 (2d Cir. 2021) (citing Moore v. Vega, 371

F.3d 110, 114 (2d Cir. 2004)). Defendants correctly note that the

doctrine of qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” Mullenix v.

Luna, 577 U.S. 7, 12 (2015) (citing Ashcroft v. al-Kidd, 563 U.S.

731, 743, (2011); Malley v. Briggs, 475 U.S. 335, 341 (1986)).

As discussed, supra, accepting the Plaintiff’s well-

pleaded factual allegations as true, this Court concludes that

Plaintiff has plausibly alleged that the Individual Defendants

violated Plaintiff’s First and Fourteenth Amendment rights, and

are not shielded by the qualified immunity doctrine in the present

case.

First, as to his First Amendment retaliation claim,

Plaintiff plausibly alleged that Defendants constantly and

repeatedly threatened physical violence and harassed him for his

reports to the police and New York Department of Labor, his

workplace incident reports, and his FOIL requests. As the Court

explained above, Plaintiff’s police reports, as well as his FOIL

requests and workplace incident reports are protected by the First

Amendment. See Connick, 461 U.S. 138, 146 (1983) (“Speech by a

public employee is on a matter of public concern if it relates ‘to

any matter of political, social, or other concern to the

community.’”) Notwithstanding the internal workplace reports,

Defendants engaged in ongoing and pervasive retaliation for

Plaintiff’s police reports, and there is no question under existing

law that the First Amendment protects an individual’s right to

speak out or report to the police about assaults and other

misconduct by an individual or within a government entity. See,

e.g., San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam) (“Were

[public employees] not able to speak on [the operation of their

employers], the community would be deprived of informed opinions

on important public issues. The interest at stake is as much the

public's interest in receiving informed opinion as it is the

employee's own right to disseminate it” (citation omitted)); cf.

United States v. Treasury Employees, 513 U.S. 454, 470 (1995) (“The

large-scale disincentive to Government employees' expression also

imposes a significant burden on the public's right to read and

hear what the employees would otherwise have written and said”);

see also Gustler, 823 F. Supp. 2d 98, 125 (2011) (finding

plaintiff’s report to police about the organization’s misconduct

was protected). Furthermore, Defendants miss the mark by arguing

that Plaintiff does not have a right to file FOIL requests under

the First Amendment. Plaintiff’s First Amendment right protects

him from being retaliated against for filing FOIL requests and for

appealing those requests. All in all, the Individual Defendants’

protracted campaign of threats and harassment against Plaintiff

falls well outside the bounds of what was or should be clear to a

reasonable official regarding the First Amendment. Plaintiff has

plausibly alleged facts that reasonable public officials knew or

should have known to refrain from engaging in abusive, harassing,

and threatening conduct.

Second, Defendants knew or should have known to provide

notice and an opportunity to be heard prior to terminating

Plaintiff’s employment and insurance disability benefits to which

Plaintiff was entitled by law and had already been receiving. It

is well-established that employment and insurance benefits are

forms of property, and that pre-termination process would be

required under the Fourteen Amendment right to due process. See

Ratajack, 178 F. Supp. 3d 118, 139 (S.D.N.Y. 2016)(“volunteer

firefighters are considered public employees and must be afforded

due process in disciplinary proceedings”); see also Russel, 896

F.2d 664, 668–69 (2d Cir. 1990) (holding that state disability

retirement benefits are a constitutionally protected property

interest).

Finally, with respect to all of the constitutional

claims, Defendants argue that some Individual Defendants should be

dismissed because each was not personally involved in each

constitutional violation. The Court reads the complaint

differently. Defendants Senti. Jr, Senti III, Koppel, Galia, and

McNeill were all supervisors and/or held positions of authority,

(Captains, Chiefs, Commissioners) and either actively participated

in the retaliation and threats because of Plaintiff’s exercise of

his free speech rights or stood by and witnessed the Defendants’

egregious behavior without intervening or were made aware of the

conduct through complaints by Plaintiff and other employees. (ECF

No. 20, AC ¶¶ 21-24, 26, 30, 33-35, 39-40, 44-49, 61, 67-68, 75,

81-82, 92.) Defendant Galia issued a letter relieving Plaintiff

of his employment without a pre-deprivation hearing. (Id. ¶ 81.)

Defendants Senti Jr. and McNeill were voting members of the board

overseeing Plaintiff’s insurance coverage at the time of

termination of the benefits and could have provided notice but did

not. (Id. ¶ 88.) There is, therefore, no basis to dismiss the

Individual Defendants on the basis of qualified immunity. The

Court further notes that Senti Jr., Senti III, and McNeil and her

husband, Patrick McNeill, were related by blood or marriage and

used their positions of authority to violate Plaintiff’s

constitutional rights, after Senti III’s physical assault of

another Fire Department employee who was subsequently supported by

Plaintiff.

D. Monell Liability as to the Fire District

Defendants argue that the Fire District and Fire

Department cannot be held liable, because Plaintiff has not

established Monell liability, which requires Plaintiff to

plausibly allege that the two entities are themselves responsible

for the alleged constitutional violations. They argue that

Plaintiff did not adequately plead facts that demonstrate that the

Fire District and Fire Department failed to train its employees or

that there were actions taken by officials or policy makers that

caused the underlying constitutional violations. Again, this

Court disagrees.

Claims against the Fire District9 are analyzed under

Monell v. Department of Social Services, 436 U.S. 658 (1978), and

its progeny. Ratajack, 178 F. Supp. 3d 118, 149 (S.D.N.Y. 2016);

see Lozada v. Weilminster, 92 F. Supp. 3d 76, 106-07 (E.D.N.Y.

2015) (considering a Monell claim against the fire district);

Fotopolous v. Bd. of Fire Comm’rs of Hicksville Fire Dist., 11 F.

Supp. 3d 348, 372-75 (E.D.N.Y. 2014) (same); see also Klemow v.

City of Kingston, No. 84-CV-1477, 1987 WL 28138, at *3 (N.D.N.Y.

Dec. 17, 1987) (“In [Monell] . . . , the Supreme Court held that

. . . political subdivisions of the state can be held liable as

‘persons’ under § 1983 for civil rights[ ] violations caused by

their official policies, or customs.”).

The existence of a municipal policy that gives rise to

Monell liability can be established in four ways: (1) a formal

policy endorsed by the municipality, Turpin v. Mailet, 619 F.2d

196, 199 (2d Cir. 1980); (2) actions directed by the government’s

“authorized decision makers” or “those who establish governmental

9 Defendants assert that the Fire District, not the Fire Department, should be

held liable as Plaintiff was officially an employee of only the Fire District.

(ECF No. 27, Mot. to Dismiss at 20.) The Court hereby dismisses the Fire

Department as a party due to its status as a “political subdivision” of the

Fire District, but finds that the Fire District remains the proper, liable

party. State Farm Fire & Cas. Co. v. Vill. of Bronxville, 805 N.Y.S.2d 651,

652 (2005)(finding that a fire district “possesses virtually total supervision

and control over all aspects of the creation and staffing of fire companies as

well as over the rules and regulations governing firefighting practices and

procedures,” and “is answerable for the negligence of its firefighters committed

in the course of their duties”)(quoting Knapp v. Union Vale Fire Co., 529

N.Y.S.2d 132)); Froelich v. S. Wilson Volunteer Fire Co., 156 N.Y.S.3d 613, 616

(2021)(“A fire district is a ‘wholly independent political subdivision whose

members, including its volunteer firemen, are employees of the district and not

of the town.”)(quotation and citation omitted)).

policy,” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986);

(3) a persistent and widespread practice that amounts to a custom

of which policymakers must have been aware, see Turpin, 619 F.2d

at 199; or (4) a “constitutional violation resulting from

[policymakers’] failure to train municipal employees.” City of

Canton v. Harris, 489 U.S. 378, 380 (1989); Naples v. Stefanelli,

972 F. Supp. 2d 373, 387 (E.D.N.Y. 2013).

“Official municipal policy [ ] includes the decisions of

a government’s lawmakers, the acts of its policymaking officials,

and practices so persistent and widespread as to practically have

the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011)

(discussing Monell); see Hardwick Barrella v. Vill. of Freeport,

43 F. Supp. 3d 136, 183 (E.D.N.Y. 2014), aff’d, 814 F.3d 594 (2d

Cir. 2016) (finding that a decision-maker serving a final-policy

making position can establish the municipality’s policy); see also

Fierro v. New York City Dept. of Educ., 994 F. Supp. 2d 581, 588

(S.D.N.Y. 2014). A policy need not be officially promulgated for

a municipality, or here, the Fire District, to face liability,

however. Green v. City of New York, 465 F.3d 65, 80 (2d. Cir.

2006) (“The alleged custom or practice need not be embodied in a

rule or regulation, however, the alleged practice must be so

manifest as to imply the constructive acquiescence of senior

policy-making officials.”); Reynolds v. Giuliani, 506 F.3d 183,

192 (2d Cir. 2007) (“Monell’s policy or custom requirement is

satisfied where a local government is faced with a pattern of

misconduct and does nothing, compelling the conclusion that the

local government has acquiesced in or tacitly authorized its

subordinates' unlawful actions.”)

As the Supreme Court instructed, “if the decision to

adopt that particular course of action is properly made by that

government’s authorized decision-makers, it surely represents an

act of official government ‘policy’ as that term is commonly

understood.” Pembaur, 475 U.S. 469, 481. Here, Plaintiff has

plausibly alleged Monell liability because of the involvement of

the Individual Defendants, all of whom were authorized, high-level

decision makers, who directly participated in, witnessed, or

turned a blind eye after being made aware of the violations of

Plaintiff’s constitutional rights, and who failed to train the

officials who engaged in the violations of Plaintiff’s

constitutional rights. Individual Defendants are three of the

five Lakeview Fire District Commissioners, and are also former and

current Chiefs and Lieutenants, who are alleged to have

persistently participated in constitutional violations and

retaliatory conduct and/or voted to terminate Plaintiff’s

employment and insurance disability benefits without a hearing.

Plaintiff has plausibly pled that the Defendants—Commissioner

Koppel, Commissioner Senti Jr., Commissioner McNeill, Lieutenant

and former Chief Senti III, and current Chief Galia—are municipal

policymakers with “final policymaking power” on behalf of the Fire

District in areas involving work place conduct and safety,

suspension, removal, disciplinary penalties, policy setting, and

termination of Fire District employees such as Plaintiff. (ECF

No. 20, ¶¶ 57, 70, 75, 77, 88.) The Amended Complaint’s

allegations lead to the plausible conclusion that Lakeview’s

official policymakers were chiefly involved in harassing and

retaliating against Plaintiff and depriving him of his

constitutional rights, his rank, his employment, and his insurance

benefits.

Plaintiff, moreover, has sufficiently alleged that the

Individual Defendants uniformly acted to harass or otherwise

punish Plaintiff, and other employees who opposed or reported the

Individual Defendants’ wrongdoing, in an open and widespread

manner. Even if none of the Individual Defendants on their own

could be considered a decision maker, such “persistent and

widespread” practices by, between and in support of Individual

Defendants, all of whom were high-level officials of Lakeview can

be attributed to the Fire Department and Fire District as a whole.

Connick, 563 U.S. at 61. Indeed, Plaintiff has plausibly alleged

that the Fire District knowingly allowed three of the five

Individual Defendants, who are related by blood or marriage to

other high-ranking officials, to abuse their authority and the

resources of the District to violate Plaintiff’s constitutional

rights. Plaintiff’s Amended Complaint plausibly alleges these

municipal Defendant officers subjected Plaintiff to harassment

after he exercised his right to free speech and terminated his

benefits without affording him due process. Plaintiff’s

allegations are sufficient for purposes of Monell, and this Court

denies dismissal of Plaintiff’s claims against the Fire District.

CONCLUSION

For the forgoing reasons, Defendants’ motion to dismiss

is DENIED in part and GRANTED in part. Defendants’ motion to

dismiss Plaintiff’s claims for violations of his First Amendment

and Fourteenth Amendment rights is DENIED. Defendants’ motion to

dismiss Plaintiff’s Fifth Amendment claim and the Fire Department

as a party is GRANTED. Because claims under 42 U.S.C. § 1983

remain, Defendants’ motion to dismiss Plaintiff’s state law claims

on supplemental jurisdiction grounds is DENIED. The parties are

directed to confer and jointly advise this Court within seven

business days of the date of this Order, whether they will schedule

a settlement conference with Magistrate Judge James Wicks and/or

proceed to discovery in this case.

SO ORDERED

Dated: September 26, 2022

Brooklyn, New York

/s/

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York