Welch v. City of Peekskill

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

TYRONE WELCH,

Plaintiff,

OPINION AND ORDER

-against-

21-CV-07230 (PMH)

CITY of PEEKSKILL and ANDREW Y.

STEWART, individually.

Defendants.

PHILIP M. HALPERN, United States District Judge:

Tyrone Welch (“Plaintiff”) initiated this action pursuant to 42 U.S.C. § 1983 against the

City of Peekskill (the “City”) and Andrew Y. Stewart (“Stewart” and together, “Defendants”) by

the filing of a Complaint on August 27, 2021. (Doc. 1, “Compl.”). Plaintiff asserts separate claims

for First Amendment retaliation and municipal liability under Monell v. Dep’t of Soc. Servs. of

City of New York, 436 U.S. 658 (1978) (“Monell”). (See generally Compl.).

On October 4, 2022, the parties filed a joint Rule 56.1 Statement. (Doc. 30, “56.1 Smt.”).

On January 30, 2023, in accordance with the briefing schedule set by the Court, Defendants served

their motion for summary judgment on Plaintiff. (Doc. 36; Doc. 37, “Def. Br.”; Doc. 38; Doc. 39;

Doc. 40, “Field Decl.”). Plaintiff served his opposition to Defendants’ motion for summary

judgment on February 21, 2023. (Doc. 41, “Pl. Br.”; Doc. 42, “Pl. Decl.”; Doc. 43). Defendants’

motion was fully submitted on March 6, 2023, upon the filing of their motion papers, Plaintiff’s

opposition, and their reply brief (Doc. 44, “Reply”; Doc. 45). On March 10, 2023, Defendants filed

a notice of supplemental authority in connection with their motion for summary judgment. (Doc.

46).

For the reasons set forth below, Defendants’ motion is GRANTED in part and DENIED in

part.

BACKGROUND

The Court recites the facts herein only to the extent necessary to adjudicate the extant

motion for summary judgment.

Plaintiff has been employed as a Laborer with the City of Peekskill for 14-15 years. (56.1

Stmt. ¶ 1). The City has a written policy regarding employees’ use of social media both on and off

the job (the “Social Media Policy”). (Id. ¶ 26). On March 23, 2021, Welch was given a written

reprimand (“Reprimand”) concerning his violations of the Social Media Policy. (Id. ¶¶ 63, 100).

The Reprimand specifically identified four social media posts from Plaintiff’s Facebook or

Instagram accounts in January 2021: (i) a picture of Andre Rainey (“Rainey”)—the Mayor of the

City at the time—and a quotation from Martin Luther King, which Plaintiff intended to suggest

that “Rainey was more in love with money than with justice”; (ii) a photograph of Rainey with a

news story about Rainey not seeking re-election with the added text “after selling out now I can

leave. Job done. It only took me two terms to sell a black community youth center”; (iii) a

photograph of Rainey with the added text “I sold a black community youth center because I’m a

sellout”; and (iv) a photograph of former governor Andrew Cuomo shaking hands with Rainey

with the added text “Massa isa did it! Massa Cuomo, isa did it sir. Massa we still going forward

with selling public housing?” (collectively, the “Social Media Posts”). (Id. ¶¶ 5, 41, 44, 46, 61,

65). The Reprimand was issued without a notice of discipline but warned that violations of the

Social Media Policy may result in future disciplinary action. (Id. ¶ 105; Field Decl. Ex. L). The

Reprimand was removed from Plaintiff’s personnel file on September 23, 2022, pursuant to the

collective bargaining agreement between the City and the Union (“CBA”). (56.1 Stmt. ¶ 106).

This litigation followed.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, a “court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might affect the

outcome of the suit under the governing law,’ and is genuinely in dispute ‘if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.’” Liverpool v. Davis, 442 F.

Supp. 3d 714, 722 (S.D.N.Y. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)).1 “‘Factual disputes that are irrelevant or unnecessary’ are not material and thus cannot

preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-05486, 2013 WL 1681261, at *1

(S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248). The Court’s duty, when

determining whether summary judgment is appropriate, “is not to resolve disputed issues of fact

but to assess whether there are any factual issues to be tried.” Id. (quoting Wilson v. Nw. Mut. Ins.

Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed, the Court’s function is not to determine the truth or

weigh the evidence; the task is material issue spotting, not material issue determining. Therefore,

“where there is an absence of sufficient proof as to one essential element of a claim, any factual

disputes with respect to other elements of the claim are immaterial. . . .” Bellotto v. Cty. of Orange,

248 F. App’x 232, 234 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir.

2006)). Claims simply cannot proceed in the absence of sufficient proof as to an essential element.

“It is the movant’s burden to show that no genuine factual dispute exists,” Vermont Teddy

Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157 (1970)), and a court must “resolve all ambiguities and draw all

reasonable inferences in the non-movant’s favor.” Id. (citing Giannullo v. City of New York, 322

1 Unless otherwise indicated, case quotations omit all internal citations, quotation marks, footnotes, and

alterations.

F.3d 139, 140 (2d Cir. 2003)). Once the movant has met its burden, the non-movant “must come

forward with specific facts showing that there is a genuine issue for trial.” Liverpool, 442 F. Supp.

3d at 722 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

The non-movant cannot defeat a summary judgment motion by relying on “mere speculation or

conjecture as to the true nature of the facts. . . .” Id. (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d

9, 12 (2d Cir. 1986)). However, “[i]f there is any evidence from which a reasonable inference

could be drawn in favor of the opposing party on the issue on which summary judgment is sought,

summary judgment is improper.” Sood, 2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford

v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004)).

Should there be no genuine issue of material fact, the movant must establish also its

“entitlement to judgment as a matter of law.” In re Davis New York Venture Fund Fee Litig., 805

F. App’x 79, 80 (2d Cir. 2020) (quoting FIH, LLC v. Found. Capital Partners LLC, 920 F.3d 134,

140 (2d Cir. 2019)). Stated simply, the movant must establish that the law favors the judgment

sought. Gonzalez v. Rutherford Corp., 881 F. Supp. 829, 834 (E.D.N.Y. 1995) (explaining “that

summary judgment is appropriate only when . . . law supports the moving party”); Linares v. City

of White Plains, 773 F. Supp. 559, 560 (S.D.N.Y. 1991) (explaining that summary judgment is

appropriate when “the law so favors the moving party that entry of judgment in favor of the movant

dismissing the complaint is proper”).

ANALYSIS

I. First Claim for Relief: First Amendment Retaliation

A plaintiff asserting a First Amendment retaliation claim must establish 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.” Cox v. Warwick Valley Cent. School Dist., 654 F.3d 267, 272 (2d Cir. 2011); Santucci v.

Levine, No. 17-CV-10204, 2021 WL 76337, at *6 (S.D.N.Y. Jan. 8, 2021).

Regarding the first element (First Amendment protection), the protected status of speech

presents a question of law. Connick v. Myers, 461 U.S. 138, 148 n.7 (1983). Here, Plaintiff’s

personal social media posts which criticized the Mayor’s political actions constitutes speech as a

citizen on matters of public concern (as opposed to statements made by an employee seeking

personal redress), and is therefore protected by the First Amendment. See Garcetti v. Ceballos,

547 U.S. 410, 417 (2006). Defendants contend that Plaintiff’s “racially offensive” speech is not

protected by the First Amendment pursuant to the Supreme Court’s decision in Pickering v. Bd. of

Educ., 391 U.S. 563 (1968). (Def. Br. at 16-19). However, Defendants’ conclusory assertion that

the racist imagery in Plaintiff’s fourth Social Media Post “had the potential to disrupt the City’s

operations if not addressed” (Def. Br. at 19), fails to meet the burden under Pickering to show

“that the speech threatens to interfere with government operations.” Kantha v. Blue, 262 F. Supp.

2d 90, 105 (S.D.N.Y. 2003). Defendants also argue that the Social Media Posts are not protected

because they contain false statements about the sale of the Kiley Center, a community youth center

located in Peekskill, which was actually leased for a term of 50-60 years. (Def. Br. at 19-20; 56.1

Stmt. ¶¶ 13, 49). “False speech is still entitled to First Amendment protection, as long as it is not

made with knowledge or reckless disregard of its falsity.” Bovell v. City of Mount Vernon, New

York, No. 21-CV-01621, 2023 WL 3559544, at *13 (S.D.N.Y. May 18, 2023). Here, an issue of

fact remains concerning whether Plaintiff knowingly made false statements in the Social Media

Posts when referencing the sale (rather than long-term lease) of the Kiley Center.

With respect to the second element (adverse action), the inquiry for a First Amendment

retaliation claim is whether the alleged adverse action “would deter a similarly situated individual

of ordinary firmness from exercising his or her constitutional rights.” Connelly v. County of

Rockland, 61 F.4th 322, 325 (2d Cir. 2023). “[R]eprimands are often adverse employment

actions,” but not “all reprimands are, as a matter of law.” Id. at 327. “The question of whether a

particular criticism or reprimand qualifies as an adverse employment action will often be a fact-

intensive inquiry for the jury.” Id. at 326 (emphasis in original). Here, the Reprimand was signed

by Stewart—the City Manager at the time—who Plaintiff had never known to get involved in

disciplining Laborers. (Pl. Decl. ¶¶ 3, 8, 11-13). The Reprimand, inter alia, explained Plaintiff’s

violations of the Social Media Policy and warned that “failure to comply immediately with [the

Social Media Policy] may result in future disciplinary action.” (56.1 Stmt. ¶¶ 93-94, 97, 100, 102;

Field Decl. Ex. L). The Reprimand did not result in a loss of any pay or benefits or suspension

from employment, and was removed from Plaintiff’s personnel file 18 months later. (56.1 Stmt.

¶¶ 106-110). On this record, a reasonable jury could conclude that the Reprimand—especially

considered in the context of the City Manager’s direct involvement—constituted an adverse

employment action.2 Accordingly, summary judgment is inappropriate on this ground.3

Lastly, there is no dispute that the third element (causal connection) is satisfied given that

the Reprimand was issued in response to the Social Media Posts. See Morrison v. Johnson, 429

2 See i.e. Millea v. Metro-N. R. Co., 658 F.3d 154, 165 (2d Cir. 2011) (“A formal reprimand issued by an

employer is not a ‘petty slight,’ ‘minor annoyance,’ or ‘trivial’ punishment; it can reduce an employee’s

likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe

(correctly or not) that his job is in jeopardy. A reasonable jury could conclude as much even when, as here,

the letter does not directly or immediately result in any loss of wages or benefits, and does not remain in

the employment file permanently.”); see also Cole-Hatchard v. Cnty. of Rockland, No. 17-CV-02573, 2019

WL 1300814, at *11 (S.D.N.Y. Mar. 21, 2019).

3 Plaintiff argues in the alternative that the chilling of his speech is a basis on which to deny summary

judgment. (Pl. Br. at 24-25). Plaintiff must demonstrate some actual, non-speculative chilling of his speech.

See A.F. v. Kings Park Cent. Sch. Dist. 341 F. Supp. 3d 188, 200 (E.D.N.Y. 2018). Here, Plaintiff’s

testimony that he continued to post on social media but “not as much as [he] once was on a political side of

things,” including that he generally refrained from posting about new real estate developments in the city,

is insufficient to establish an actual, non-speculative injury. (Field Decl. Ex. C at 242:9-244:7).

F.3d 48, 51 (2d Cir. 2005) (plaintiff must show “the speech was at least a substantial or motivating

factor in the [adverse employment action]”).

II. Second Claim for Relief: Monell

Under Monell and its progeny, a municipality may be held liable where a plaintiff’s

constitutional rights are violated because of a municipal policy or custom. See Jimenez v. City of

New York, No. 18-CV-07273, 2020 WL 1467371, at *3 (S.D.N.Y. Mar. 26, 2020). Here, it is

undisputed that the Social Media Policy that forms the basis for Plaintiff’s First Amendment claim

is the policy of the City of Peekskill. (56.1 Stmt. ¶ 26). Further, the Court has found a triable issue

of fact exists as to the underlying constitutional violation. Accordingly, the Court denies summary

judgment as to Plaintiff’s Monell claim.

III. Qualified Immunity

The affirmative defense of “[q]ualified immunity4 protects government officials from

liability for civil damages unless a plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was clearly established at the time of the

challenged conduct.” Dixon v. von Blanckensee, 994 F.3d 95, 101 (2d Cir. 2021) (quoting

McGowan v. United States, 825 F.3d 118, 124 (2d Cir. 2016)). If an official’s belief that his action

does not violate clearly established law is “objectively reasonable,” he or she is shielded from

liability by qualified immunity. Cooper v. City of New Rochelle, 925 F. Supp. 2d 588, 608

(S.D.N.Y. 2013) (internal quotation marks omitted). Here, Stewart merely applied the Social

4 Despite Defendants’ failure to plead qualified immunity as an affirmative defense in their Answer, the

Court will in its discretion consider Stewart’s assertion of qualified immunity. See Colon v. City of New

York, No. 16-CV-04540, 2023 WL 6497650, at *5 (S.D.N.Y. Oct. 5, 2023) (declining to find that

defendants have waived the defense of qualified immunity where defendants did not raise qualified

immunity in their motion to dismiss, answer, or motion for summary judgment, but did raise it in the pretrial

order); see also Anthony v. City of New York, No. 00-CV-04688, 2001 WL 741743, at *7 (S.D.N.Y. July 2,

2001), aff’d, 339 F.3d 129 (2d Cir. 2003).

Media Policy to Plaintiff’s social media posts which were deemed to be racist and false. (Field

Decl. Ex. D at 102:6-16, 103:2-6). Stewart’s actions did not violate any clearly established

statutory or constitutional rights of which reasonable persons would have known. The Court

concludes that Stewart’s enforcement of the Social Media Policy as to Plaintiff was objectively

reasonable, and he is entitled to immunity from this suit under § 1983. See i.e. M.O.C.H.A. Soc’y,

Inc. v. City of Buffalo, 872 F. Supp. 2d 264, 293-94 (W.D.N.Y. 2012), aff’d sub nom., 529 F. App’x

20 (2d Cir. 2013) (granting summary judgment as to individual defendants on the basis of qualified

immunity where defendants enforced the fire department’s drug testing policy). Accordingly,

Plaintiff’s claims are dismissed to the extent they are asserted against Stewart.5

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is DENIED as to

the City of Peekskill and GRANTED as to Stewart.

Plaintiff and the City of Peekskill are directed to meet and confer and comply with Rules

6(A) and 6(B) of the Court’s Individual Practices (rev. June 23, 2023) by filing the documents

required therein, which include a joint pretrial order, proposed joint voir dire questions, joint

requests to charge, joint verdict form, and any motions in limine, on or before February 14, 2024.

Opposition to any motions in limine is due February 28, 2024. A pretrial conference has been

scheduled for April 24, 2024 at 2:30 p.m. to be held in Courtroom 520 of the White Plains

courthouse.

5 Defendants argue, and the Court agrees, that punitive damages are not available for the claims asserted

against the remaining Defendant–City of Peekskill. (Def. Br. at 26). See New Windsor Volunteer Ambulance

Corps, Inc. v. Meyers, 442 F.3d 101, 122 (2d Cir. 2006) (“[A] municipality . . . is immune from a claim for

punitive damages . . . .”); Sulkowska v. City of New York, 129 F. Supp. 2d 274, 309 (S.D.N.Y. 2001)

(“Punitive damages are not available from a municipality.”).

The Clerk of the Court is respectfully directed to terminate the motion sequence pending

at Doc. 36 and terminate Stewart as a Defendant in this case.

SO ORDERED:

Dated: White Plains, New York

January 15, 2024

PHILIP M. HALPERN

United States District Judge