Opinion

Quinones v. City of Binghamton

Court
District Court, N.D. New York
Filed
Aug 11, 2020
Cited by
0 cases
Authority
More cited than 26.9%

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

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.