The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ALAN QUINONES,
3:19-cv-1460
Plaintiff, (GLS/ML)
v.
CITY OF BINGHAMTON et al.,
Defendants.
________________________________
APPEARANCES: OF COUNSEL:
FOR THE PLAINTIFF:
Office of Ronald R. Benjamin RONALD R. BENJAMIN, ESQ.
P.O. Box 607
126 Riverside Drive
Binghamton, NY 13902-0607
FOR THE DEFENDANTS:
Goldberg, Segalla Law Firm SHANNON T. O’CONNOR, ESQ.
5786 Widewaters Parkway ASHLEY K. BOISVERT, ESQ.
Syracuse, NY 13214
Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Alan Quinones commenced this action against defendants
City of Binghamton; Richard David, Mayor of the City of Binghamton;
Joseph Zikuski, Chief of Police for the City of Binghamton; and John Ryan,
Assistant Chief of Police for the City of Binghamton, pursuant to 42 U.S.C.
§§ 1981 and 1983. (Compl., Dkt. No. 1.) Pending is defendants’ motion to
dismiss. (Dkt. No. 6.) For the reasons that follow, defendants’ motion is
granted.
II. Background1
Quinones, a Hispanic male, began working as a patrolman for the
Binghamton Police Department in March 2008. (Compl. ¶¶ 8-9.) After
having been previously “passed over for the sergeant position despite
having been [the] most qualified on several occasions,” he was eventually
promoted to sergeant in November 2012, (id. ¶ 11), and was promoted to
lieutenant in 2016, (id. ¶ 17).
During his time in the department, Quinones “has been subjected to
humiliation and ridicule,” and “to discriminatory conduct on a daily basis.”
(Id. ¶¶ 12-13.) For instance, Ryan repeatedly called Quinones “Ricky
Ricardo,” a character from “I Love Lucy,” and “mimick[ed Quinones] when
he was speaking Spanish by imitating him in a derogatory manner.” (Id.)
Ryan also “compare[d]” Quinones to another Hispanic officer, Armando
1 The facts are drawn from Quinones’ complaint, (Compl.), and presented in the light
most favorable to him.
2
Marroquin, and told Quinones he was “‘classy Spanish’ and Armando was
‘Mexican Spanish.’” (Id. ¶ 14.) Ryan also made comments to Quinones
that he was “good [at] jumping fences,” and that, in his youth, Quinones
“ran with gangs [and] knew how to steal cars and pick locks.” (Id. ¶ 15.)
In 2018, Quinones, who “is the most qualified candidate on the list for
[c]aptain,” was “passed over,” and a Caucasian male in the police
department, who “was clearly less qualified than [Quinones] in that he had
none of the . . . credentials . . . and lower test scores,” was instead
promoted to captain. (Id. ¶¶ 20-21.)
In July 2019, after applying and being “turned down” from a detective
assignment, patrolman Christopher Hamlett filed a race discrimination
claim with the City of Binghamton personnel department, and, in August
2019, filed a complaint with the New York State Division of Human Rights.
(Id. ¶¶ 25-27, 33.) In October 2019, Quinones submitted an affidavit to
Hamlett’s attorney in the pending race discrimination case, wherein
Quinones provided an account of a conversation he had with Zikuski, who
made racist remarks and told Quinones that “the reason [he] was not given
the detective assignment is because . . . Ryan did not want him because of
his race.” (Id. ¶ 48.)
3
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of the governing
standard, the court refers the parties to its prior decision in Ellis v. Cohen &
Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
At the outset, there is some dispute between the parties as to what
claims Quinones has alleged. Although defendants understandably, but
unnecessarily, have addressed several claims, (Dkt. No. 6, Attach. 1
at 7-17), the only enumerated cause of action in Quinones’ complaint is a
First Amendment retaliation claim brought pursuant to 42 U.S.C. § 1983,
(Compl.). To be sure, it is not the responsibility of the court, or defendants,
to make guesses as to what a represented party intended, and, given that
plaintiff is represented by counsel—and not entitled to the liberality
reserved for pro se litigants—the court will not, and does not, construe
claims not specifically alleged in the complaint. See Towner v. Hogan, No.
3:15-cv-963, 2019 WL 1396962, at *2 (N.D.N.Y. Mar. 28, 2019).
Accordingly, the only cause of action before the court is one alleging First
Amendment retaliation.
4
Defendants argue that Quinones’ First Amendment retaliation claim
fails because he does not allege that he spoke as a citizen on a matter of
public concern, and he fails to allege an adverse action causally related to
his submission of the affidavit in connection with patrolman Hamlett’s race
discrimination case. (Dkt. No. 6, Attach. 1 at 18-21.) Specifically,
defendants argue that, as to the affidavit, the court cannot glean whether
Quinones was speaking on a matter of public concern because he did not
attach the affidavit to his complaint, and, further, Quinones does not plead
any facts to suggest that he suffered any adverse employment action after
submitting the affidavit. (Dkt. No. 6, Attach. 1 at 21.) In response,
Quinones maintains that he “alleges in paragraph 48 of his complaint” what
he wrote in the affidavit; he “was speaking out against racism and that was
not an area where he had any official duties”; and his “duties did not extend
to providing sworn testimony.” (Dkt. No. 8 at 13-14.)
Where a plaintiff claims that he was retaliated against in violation of
the First Amendment, he must demonstrate that “(1) his speech or conduct
was protected by the First Amendment; (2) the defendant took an adverse
action against him; and (3) there was a causal connection between this
adverse action and the protected speech.” Montero v. City of Yonkers, 890
5
F.3d 386, 394 (2d Cir. 2018) (alterations and citation omitted).
With regard to the first element, a plaintiff must demonstrate not only
that he spoke as a citizen, but also “that the speech at issue was on a
matter of public concern.” Id. at 399 (citation omitted). “Whether speech is
on a matter of public concern is a question of law, and is to be answered by
the court after examining the content, form, and context of a given
statement, as revealed by the whole record.” Id. (internal quotation marks
and citation omitted).
Next, a plaintiff must show that, as a result of the constitutionally
protected speech, he suffered an adverse employment action caused by
the defendant. See id. at 401. “An adverse employment action may
include discharging, refusing to hire, refusing to promote, demoting,
reducing the pay, or reprimanding an employee.” Id.
To satisfy the “causal connection” prong, the allegation “‘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.’” Stajic v. City of N.Y., 214 F. Supp. 3d 230,
235 (S.D.N.Y. 2016) (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.
6
1999)). “‘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. (quoting Mandell v. Cnty. of Suffolk, 316 F.3d
368, 383 (2d Cir. 2003)).
Here, assuming that Quinones’ submission of his affidavit in a fellow
officer’s litigation is a protected activity, Quinones fails to allege a causal
connection between that activity and some adverse action. Quinones
merely alleges that, “despite the retaliatory measures taken against him,”
he “nevertheless submitted an affidavit to the attorney representing Hamlett
in the human rights claim.” (Compl. ¶ 48.) Indeed, such allegations are
entirely conclusory, and there are no facts from which the court can
plausibly infer that Quinones suffered any adverse action after submitting
his affidavit. See Carmellino v. Dist. 20 of N.Y.C. Dep’t of Educ., No. 03
Civ 5942, 2006 WL 2583019, at *19 (S.D.N.Y. Sept. 6, 2006) (“To establish
a causal relationship between protected activity and adverse employer
conduct, a plaintiff must, at a minimum, introduce evidence that the
protected activity in question occurred before the adverse employment
action.”). Accordingly, defendants’ motion to dismiss Quinones’ retaliation
7
claim is granted, and the claim is dismissed.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion to dismiss (Dkt. No. 6) is
GRANTED; and it is further
ORDERED that Quinones’ complaint (Dkt. No. 1) is DISMISSED; and
it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-
Decision and Order to the parties.
IT IS SO ORDERED.
August 11, 2020 2 | 9
Albany, New York
‘SIsiCT Judge