The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
R. MICHAEL CESTARO, :
Plaintiff, :
: 23cv593 (DLC)
-v- :
: OPINION AND
CLARISSA M. RODRIGUEZ, et al., : ORDER
Defendants. :
:
:
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APPEARANCES:
For plaintiff:
Richard Liam Sullivan
Law Office of Richard L. Sullivan
6558 4th Section Rd. #1400
Brockport, NY 14420
For defendants:
Anjali Bhat
Yuval Rubenstein
NYS Office of the Attorney General
28 Liberty St.
New York, NY 10005
DENISE COTE, District Judge:
The plaintiff, an attorney working for the New York State
Workers’ Compensation Board (“WCB”), complains that his
promotion was improperly revoked for his exercise of his First
Amendment rights. For the following reasons, the defendants’
motion for summary judgment is granted.
Background
The following facts are undisputed unless otherwise noted.
Plaintiff Michael Cestaro is a Compensation Claims Referee with
the WCB. In early August of 2021, Cestaro was offered a
promotion to a Senior Compensation Claims Referee/Administrative
Law Judge position. The promotion was scheduled to take effect
on September 2.
On August 28, Cestaro boarded a New Jersey Transit (“NJT”)
train to complete a personal errand. At the time, passengers on
NJT were required, with certain exemptions, to wear masks on the
train due to the COVID-19 pandemic. While Cestaro was traveling
on that train, a train conductor, who was wearing a mask and
appeared to be young African American male, encountered Cestaro
with his mask pulled down under his chin. The conductor told
Cestaro that he had to pull up the mask. Cestaro responded, “I
don’t have to listen to you,” stood up, following the conductor
to the train compartment’s exit, stating, “fine, I’ll challenge
it in court” and “it’s unconstitutional, the government can’t
compel me to do this,” and, finally, stated to the conductor “if
you want to be an obedient dog, you can.” Cestaro exited the
train at the next stop. At no point did Cestaro inform the
train conductor of any condition that required Cestaro to pull
down his mask.
This interaction was captured on video by an unknown
individual, and the video was posted on TikTok on or about
August 29. At the end of the video, a display screen on the
train stating “WEAR MASKS WHILE ON BOARD” is visible.
On August 30, at 9:50 a.m., an attorney who regularly
represents workers before the WCB, and who had appeared before
Cestaro several times, emailed a link to the TikTok video to
Madeline Pantzer, then the Chief of Adjudication at WCB. The
attorney stated to Pantzer in the email that he “just thought
you should be made aware of this recent video posted of Judge
Cestaro.”
At 10:01 that day, Pantzer forwarded the attorney’s email
to WCB’s ethics counsel, Cheryl Wood, defendant Heather
MacMaster (then Acting General Counsel of WCB), and Pantzer’s
supervisor, defendant David Wertheim (then Acting Executive
Director of WCB). In the email, Pantzer stated: “I can not
believe this is the new Sr. ALJ for Manhattan, it seems to me
this is so unprofessional and a poor way to treat workers along
with the absolute wors[t] choice on his part. I[s] there any
way to pull the promotion or do I need to wait and see during
probation.”
At 11:38, Wertheim responded to the email, stating, “MP --
Very very disappointing, and a clear demonstration of both
ignorance and arrogance. I am chewing on this and will talk to
you soon.” Wertheim then emailed and called Paul Connelly, the
director of Human Resources at WCB, requesting guidance about
how to “pull the promotion” if Pantzer decided that that was the
proper course of action. Connelly emailed Wertheim, stating
that Pantzer would need to “send us an email requesting we
rescind the job offer, including the reason for rescinding it.”
Wertheim and Pantzer spoke on the telephone shortly thereafter,
and at 2:29, Connelly emailed Wertheim stating that Pantzer
“just called me and will be sending me an email requesting we
revoke Judge Cestaro’s promotion.”
At 3:11, Pantzer emailed Connelly. The email states:
Michael Cestaro is a Compensation Claims Referee at
the Board, he is supposed to be promoted to Senior CCR
later this week, on September 2. He is in a video on
the application Ti[k]Tok. He has told his supervisor
that it is him in the video. This is very disturbing.
In it he is not wearing a mask on a NJ transit train.
When he is confronted by the conductor, a young man of
color, he behaves in an unprofessional and aggressive
manner. The conductor asks him to wear a mask and he
refuses and says he will challenge it in court and
that it is unconstitutional. He states you can’t
compel me to do this and finally states to the
conductor that he is behaving like an obedient dog.
The conductor never raises his voice and just goes on
with his business. We cannot have a supervisor at the
state who behaves in this manner, he cannot be trusted
to be fair to the staff or the public, nor does he
appear to be capable of following rules and
regulations. I would like to have this pending
promotion revoked. Please advise how we may go about
this.
The next morning, Connelly emailed Pantzer. Connelly
stated that “[w]e have reviewed this with Counsel’s Office. It
is okay to revoke Michael Cestaro’s pending promotion. Please
let us know when he has been notified. Then, HR will send him
official notification.” Pantzer emailed Cestaro at 10:58 a.m.
that day informing him that his promotion had been revoked.
At 3:50 p.m. on August 31, Pantzer emailed Wood, MacMaster,
and Wertheim, stating “Just as an update: per the approval of
HR, Michael Cestaro’s promotion to senior CCR has been revoked.
I have advised him.” On September 7, MacMaster, who was on
vacation between August 27 and September 7, responded to that
email, stating, “[t]his is awful,” and inquiring about next
steps for filling the position.
On January 24, 2023, Cestaro sued Wertheim, Pantzer,
MacMaster, and Rodriguez pursuant to 42 U.S.C. § 1983 in their
individual and official capacities. Cestaro’s complaint alleges
that the revocation of his promotion to Senior Compensation
Claims Referee violates his right to free speech under the First
and Fourteenth Amendments to the United States Constitution and
Article I, § 8 of the New York State Constitution. The
complaint seeks damages, including punitive damages, and
injunctive relief, specifically, enjoining defendants from
continuing to deny Cestaro any employment benefits that would
have accrued to him had his promotion not been revoked,
requiring defendants to promote Cestaro to the position of
Senior Compensation Claims Referee or a similar position,
requiring defendants to purge the video and any mention of it
from Cestaro’s personnel file, and enjoining defendants from
considering Cestaro’s speech in any future personnel decision
effecting him.
Defendants each answered separately but filed a joint
motion for summary judgment on December 1, 2023. Defendants
included a copy of the video in their exhibits in support of the
motion. Discovery was extended, on consent, to December 15.
The motion was fully submitted on January 26, 2024.
Discussion
Summary judgment may be granted only when “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). “To present a genuine issue of material fact
sufficient to defeat a motion for summary judgment, the record
must contain contradictory evidence such that a reasonable jury
could return a verdict for the nonmoving party.” Horror Inc. v.
Miller, 15 F.4th 232, 241 (2d Cir. 2021) (citation omitted).
Material facts are facts that “might affect the outcome of the
suit under the governing law.” Choi v. Tower Rsch. Cap. LLC, 2
F.4th 10, 16 (2d. Cir 2021) (citation omitted). In considering
a motion for summary judgment, a court “construe[s] the facts in
the light most favorable to the non-moving party and must
resolve all ambiguities and draw all reasonable inferences
against the movant.” Kee v. City of New York, 12 F.4th 150, 159
(2d Cir. 2021) (citation omitted).
Although the movant bears the initial burden of showing
that there is no genuine dispute as to a material fact, when
“the burden of proof at trial would fall on the nonmoving party,
the moving party can shift the initial burden by pointing to a
lack of evidence to go to the trier of fact on an essential
element of the nonmovant’s claim.” McKinney v. City of
Middletown, 49 F.4th 730, 738 (2d Cir. 2022) (citation omitted).
If the moving party carries its burden, the nonmoving party must
“come forward with evidence that would be sufficient to support
a jury verdict in its favor.” Id. (citation omitted). Rather
than merely “deny the moving party’s allegations in a general
way,” the party opposing summary judgment “must present
competent evidence that creates a genuine issue of material
fact.” Id. (citation omitted). Unsupported allegations do not
create a material issue of fact. Id.
I. Eleventh Amendment Immunity
The claims against Pantzer and Wertheim in their official
capacities, and those against Rodriguez and MacMaster in their
individual capacities, are barred by sovereign immunity. Any
claim for relief under the New York State Constitution is also
barred.
A. Official Capacity Claims
The Eleventh Amendment to the United States Constitution
bars federal courts from adjudicating claims against a state,
including its agents in their official capacities, absent a
state’s express waiver or an act by Congress under Section 5 of
the Fourteenth Amendment. 74 Pinehurst LLC v. New York, 59
F.4th 557, 570 (2d Cir. 2023). The only exception exists for
claims for prospective relief against state officials in their
official capacities. Id. It is undisputed that neither
Wertheim nor Pantzer can be sued for prospective injunctive
relief in their official capacities, given that they no longer
work for the WCB and thus have no authority or ability to effect
such relief.
B. Individual Capacity Claims
Personal involvement by a defendant is a prerequisite to
liability in a § 1983 action. Victory v. Pataki, 814 F.3d 47,
67 (2d Cir. 2016). “[A] defendant in a 1983 action may not be
held liable for damages for constitutional violations merely
because [s]he held a high position of authority.” Id.
There is no genuine dispute as to the lack of personal
involvement in the decision to revoke plaintiff’s promotion on
the part of MacMaster or Rodriguez. Cestaro admits that
Rodriguez was not involved. Although MacMaster was copied on
several of the relevant emails, it is undisputed that she was on
vacation during the relevant period and did not reply to the
email until more than a week after the promotion was revoked.
In her deposition, MacMaster denied having any role in the
decision. Cestaro’s unsupported speculation to the contrary --
including his contention, without citation, that personal
involvement is a “term of art” for present purposes -- does not
create a genuine issue of material fact.
C. State Law Claims
Furthermore, sovereign immunity prohibits federal courts
from providing injunctive relief against state officials on the
basis of state law. See Vega v. Semple, 963 F.3d 259, 283 (2d
Cir. 2020). Thus, Cestaro’s official-capacity claims based on
the New York State Constitution are barred.
II. First Amendment Retaliation
To establish a prima facie First Amendment retaliation
claim, a plaintiff must show (1) that the speech or conduct at
issue was protected from the particular retaliatory act alleged;
(2) that the retaliatory act qualifies as an adverse action
taken against the plaintiff, and (3) that there was a causal
connection between the protected speech and the adverse action.
Heim v. Daniel, 81 F.4th 212, 221 (2d Cir. 2023). But, even if
the plaintiff makes out a prima facie retaliation claim, a
government defendant may still receive summary judgment if it
establishes its entitlement to a relevant defense. Id.
Defendants have done so here.1
To show causation, a plaintiff must show that the protected
speech was “a substantial motivating factor in the adverse
employment action.” Id. at 222 (citation omitted). Protected
speech could not substantially cause an adverse action if the
employer would have taken that action “in any event.” Id.
(citation omitted). Thus, a defendant “can rebut a prima facie
showing of retaliation by demonstrating by a preponderance of
the evidence that it would have taken the same adverse
employment action even in the absence of the protected conduct.”
Id. (citation omitted); see also Mt. Healthy v. Doyle, 429 U.S.
274, 285-86 (1977) (“The constitutional principle at stake is
1 The defendants rely on the defenses offered by both Pickering
v. Board of Ed. Of Tp. High School Dist. 205, Will Cnty,
Illinois, 391 U.S. 563 (1968), and Mt. Healthy v. Doyle, 429
U.S. 274, 285-86 (1977). It is only necessary to address their
arguments under Mt. Healthy.
sufficiently vindicated if such an employee is placed in no
worse a position than if he had not engaged in the conduct.”).
This principle, articulated in Mt. Healthy, “ensures that an
employee who makes an unprotected statement is not immunized
from discipline by the fact that this statement is surrounded by
protected statements,” and “prevents an employee who engages in
unprotected conduct from escaping discipline for that conduct by
the fact that it was related to protected conduct.” Anemone v.
Metropolitan Transp. Authority, 629 F.3d 97, 115 (citation
omitted).
Here, even assuming, arguendo, that the defendants
improperly considered Cestaro’s statement that the NJT’s rule
requiring masks was “unconstitutional” in deciding to revoke his
promotion, they have amply demonstrated with undisputed evidence
that they would have revoked it even in the absence of that
statement. First, Pantzer’s initial email to Wertheim,
MacMaster, and Wood makes no mention of the allegedly protected
speech. It focused instead on Cestaro’s “unprofessional”
conduct, noting that it was “a poor way to treat workers.”2
2 Cestaro’s response to the defendants’ Rule 56.1 statement notes
that the contents of emails between Connelly and personnel from
the WCB General Counsel’s Office on the afternoon of August 30
have been redacted. The plaintiff did not raise this issue
during discovery and therefore may not do so now.
Pantzer’s August 30 email to Connelly, outlining her
reasons for wishing to revoke the promotion, does mention the
statement but largely focuses on plaintiff’s other conduct.
Pantzer explains that the video shows Cestaro not wearing a mask
on public transit, and that when Cestaro “is confronted by the
conductor, a young man of color, he behaves in an unprofessional
and aggressive manner.” She further states that “[w]e cannot
have a supervisor at the state who behaves in this manner, he
cannot be trusted to be fair to the staff or the public, nor
does he appear to be capable of following rules and
regulations.” Although Pantzer notes, by way of narration, that
“[t]he conductor asks him to wear a mask and he refuses and says
he will challenge it in court and that it is unconstitutional,”
the rationale focuses on his failure to wear a mask and his
behavior towards the conductor -- including “stat[ing] to the
conductor that he is behaving like an obedient dog.”
Connelly’s emails stated that the issue was that “[w]e have
a judge who was filmed giving a transit authority employee a
very hard time about wearing a mask on the train” and noted that
“[t]he video was posted on tiktok and one of the outside
attorneys shared the video” with Pantzer. Connelly noted in an
email to Wertheim that “[o]bviously, at least one person from
outside the Board connected him to the Board.”
Thus, Wertheim and Pantzer both voiced concerns that
Cestaro’s conduct, as captured by the video, cast doubt on his
ability to treat workers fairly and with respect. It is
undisputed that the role of Senior Compensation Claims Referee
requires, inter alia, adjudicating workers’ compensation claims,
including presiding over cases and conducting hearings if
necessary. Cestaro’s inability to treat those appearing before
him respectfully, or the appearance of such inability, would be
a sufficient reason to revoke the promotion.
Pantzer also expressed concern that Cestaro did not appear
able to follow rules and regulations. It is undisputed that a
Senior Compensation Claims Referee must “ensur[e] that hearing
and conciliation meetings are conducted in compliance with
established professional standards, law, and procedures.”
Cestaro has failed to raise a question of fact regarding
the defendants’ evidence that they would have revoked his
promotion even in the absence of any protected speech. He first
contends that he argued with the conductor because he “felt” the
conductor was being rude. Whatever the plaintiff’s motivation
may have been, the defendants were entitled to make their
assessment about the plaintiff’s suitability for the Senior
Compensation Claims Referee role based on his conduct depicted
in the TikTok video and their knowledge of the requirements for
that role. In any event, no reasonable juror viewing the video
would find that the conductor acted either rudely or
inappropriately.
Cestaro next argues that his protected speech must have
caused the defendants to revoke his promotion because if he had
“remained entirely silent and motionless,” the promotion would
not have been revoked. This argument does not raise a question
of fact. As the plaintiff admits, he did not remain silent.
Instead, he argued with the conductor, and the defendants were
entitled to find that the plaintiff’s manner in doing so
disqualified him from receiving the promotion.
Plaintiff’s interactions with the conductor included his
use of the expression “obedient dog.” Plaintiff points out that
he used the conditional tense when addressing the conductor as
an obedient dog, and argues that, even if it was an
inappropriate thing to say, it should be considered a metaphor
and protected speech. Cestaro’s attempt to excuse his use of
this phrase fails. His interaction with the conductor,
including this parting statement by the plaintiff, was
disrespectful. Under Mt. Healthy, evidence of the disruptive
impact of potentially protected speech may provide a “further
permissible and non-retaliatory” reason to act. Anemone, 629
F.3d at 120.
Finally, Cestaro suggests that he was in fact following the
rules because the rules provided for medical exemptions. He
explains that his impaired vision requires him to lower his mask
to read and would qualify him for such an exemption. It is
undisputed, however, that he did not mention his impaired vision
to the conductor and never requested an exemption from the NJT,
the MTA, or the WCB. Cestaro testified that he wore a mask in
WCB offices in compliance with the WCB’s requirement and did not
ask anyone at WCB to be excused from wearing a mask; he also
wore a mask while traveling on the subway in New York and did
not ask the MTA that he be excused from wearing a mask.
Thus, the undisputed evidence shows even if the plaintiff
had not stated his views about the unconstitutionality of mask
mandates, the defendants would have revoked the promotion for
his other conduct, namely, behaving unprofessionally, insulting
a worker, and failing to follow the rules and regulations about
wearing masks on public transit during a global health crisis.
Given the undisputed evidence of Cestaro’s behavior, “any
reasonable jury would find that [Cestaro’s promotion would have
been revoked] even absent any desire on the Defendants’ part to
punish him in retaliation for his allegedly protected speech.”
Id. at 117. The defendants are thus entitled to summary
judgment on the plaintiff’s claims.
Conclusion
Defendants’ December 1, 2023 motion for summary judgment is
granted.
Dated: New York, New York
March 13, 2024
NISE COTE
United States District Judge
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