Cirencione v. County of Ontario

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

__________________________________________

SUZANNE L. CIRENCIONE,

Plaintiff, DECISION AND ORDER

vs.

21-CV-6615 (CJS)

COUNTY OF ONTARIO and

MARY KRAUSE,

Defendants.

__________________________________________

Plaintiff Suzanne L. Cirencione filed this action against Defendants County of

Ontario and Mary Krause claiming retaliation for exercising her First Amendment free

speech rights in violation of 42 U.S.C. § 1983, and three other causes of action under

New York state law. Am. Compl., Nov. 8, 2021, ECF No. 7. The matter is presently before

the Court on Defendants’ motion to dismiss the amended complaint for failure to state a

claim upon which relief may be granted. Mot. to Dismiss, July 6, 2021, ECF No. 11. For

the reasons stated below, Defendants’ motion [ECF No. 11] is granted with respect to

Plaintiff’s § 1983 claim. The Court declines to exercise supplemental jurisdiction over

Plaintiff’s state law claims, and remands the matter to New York Supreme Court, Ontario

County. The Clerk of Court is directed to close this case.

LEGAL STANDARD

At the outset, the Court notes that the purpose of a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6) “is to test . . . the formal sufficiency of the plaintiff’s

statement of a claim for relief without resolving a contest regarding its substantive merits.”

Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006)

(emphasis omitted). An action must be dismissed under Rule 12(b)(6) “when the

allegations in a complaint, however true, could not raise a claim of entitlement to relief . .

. .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). To survive a motion to dismiss

under Rule 12(b)(6), on the other hand, “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 Twombly, 550 U.S. at 570).

“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.” Iqbal, 556 U.S. at 678. Where a plaintiff’s factual allegations are “merely

consistent with” a defendant’s liability, those allegations “stop[] short of the line between

possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557).

Moreover, “[c]onclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice to defeat a motion to dismiss.” Kirch v. Liberty Media Corp.,

449 F.3d 388, 398 (2d Cir. 2006) (citation and internal quotation marks omitted).

BACKGROUND

For the purpose of ruling on Defendants’ motion to dismiss, the Court accepts all

factual allegations in Plaintiff’s complaint as true, and draws all reasonable inferences in

Plaintiff’s favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)

(citation omitted).

Defendant Ontario County is a municipal corporation under New York law, and at

all times relevant to the present complaint, Defendant Mary Krause was the Ontario

County Supervisor. Am. Compl. at ¶ 2–4. From May 2014 to January 2020, Plaintiff was

employed as the Program Administrator for Defendant Ontario County’s “Special Traffic

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Options Program for Driving While Intoxicated” (STOP DWI). Am. Compl. at ¶ 16, 78. A

New York state appellate court has summarized the STOP DWI program as follows:

In 1981, the [New York State] Legislature enacted Vehicle and Traffic Law

article 43-A, later reenacted as present [N.Y.V.T.L.] § 1197 . . . to encourage

localities to establish a county-wide . . . [STOP DWI program] aimed at

reducing alcohol-related traffic injuries and deaths through coordinated

efforts within the counties for better enforcement, prosecution and

prevention of drunken driving . . . . The STOP–DWI legislation offered an

incentive to counties to participate by providing that all fines, penalties and

forfeitures imposed by the various courts of the county in intoxicant-related

offense prosecutions would be diverted from State revenues to the county

where the offense was committed and deposited in a special account to

fund the local program . . . .

Cnty. of Rensselaer v. Regan, 173 A.D.2d 37, 38–39 (N.Y. Ct. App. 1991), aff'd, 607

N.E.2d 793 (1992).

N.Y.V.T.L. § 1197 requires each county that administers a STOP DWI program to

assign a “coordinator” for that program, and lists several duties the coordinator must

perform, including:

. . . Render annually or at the request of the county legislature or other

governing body of the county, a verified account of all moneys received and

expended by the coordinator or under the coordinator’s direction and an

account of other pertinent matters.

. . . Submit annually or upon request of the chief fiscal officer of each county

participating in the program, in such manner as may be required by law, an

estimate of the funds required to carry out the purposes of this section.

* * *

. . . Receive proposals from county, town, city or village agencies or non-

governmental groups for activities related to alcohol traffic safety and to

submit them to the county board of legislators or other such governing body,

together with a recommendation for funding of the activity if deemed

appropriate.

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. . . Cooperate with and assist local officials within the county in the

formulation and execution of alcohol traffic safety programs including

enforcement, adjudication, rehabilitation and education.

N.Y.V.T.L. § 1197(4)–(5) (listing the functions of the program coordinator).

In January 2016, as part of her role as STOP DWI Program Administrator, Plaintiff

proposed using County “Contingency Funds” to purchase a patrol car for use by the

Ontario County Sheriff’s Department exclusively for DWI patrol. Am. Compl. at ¶¶ 22, 25.

Defendant Krause disagreed, and amended Plaintiff’s proposal to indicate the DWI patrol

car should be purchased using “STOP DWI Reserve Funds.” Am. Compl. at ¶ 28. Plaintiff

believed that funding the DWI patrol car with “STOP DWI Reserve Funds” ran contrary to

N.Y.V.T.L. § 1197, and took steps to undo Defendant Krause’s amendment, including

notifying her department head, the County’s District Attorney that the amendment violated

the law. Am. Compl. at ¶ 31. Plaintiff summarizes what occurred thereafter:

7. . . . . In retaliation, [Defendant] Krause subjected Plaintiff to pervasive,

extended and severe harassment and verbal abuse that spanned over a

period of nearly four years and did not let up, even as Plaintiff’s physical

and mental health worsened as a result of the abuse. [Defendant] Krause

repeatedly and publicly humiliated Plaintiff and constantly undermined her.

If that were not enough, [Defendant] Krause used her supervisory position

to constantly taunt Plaintiff about alleged budget concerns that would result

in staff reductions or the loss of her employment and/or office. [Defendant]

Krause’s behavior had a severe impact on Plaintiff’s health including, but

not limited to (1) severe anxiety including an anxiety attack, (2) the rupturing

of the ACL joint in her jaw, and (3) the exacerbation of breast cancer.

8. The County, and several of its employees in supervisory roles, were

made aware of [Defendant] Krause’s abusive behavior and did nothing to

make it stop.

9. At all relevant times, Resolution No. 355-2011 adopted by the County

June 3, 2011, and entitled “Ontario County Whistleblower and Non-

Retaliation Policy” was in effect, which recognized the County’s obligation

pursuant to State and Federal laws and regulations to institute policies to

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report suspected misconduct or violation of the law to designated County

officials, and to investigate and take remedial action.

10. In addition, and pursuant to federal and state laws and regulations, the

County was required to institute policies prohibiting retaliation against

whistleblowers, to train employees about the policies and post the policies,

monitor the policies, and take disciplinary action against any County

employee or officer who commits or condones retaliation or otherwise

violates the policies.

Am. Compl. at ¶ 7–10.

Based on Defendant Krause’s alleged misconduct, and the County’s failure to take

action to stop that misconduct, Plaintiff filed an action in New York Supreme Court,

Ontario County in August 2021. Am. Compl. at ¶ 14. The complaint lists four causes of

action: (1) violation of New York State Civil Service Law § 75-b; (2) intentional infliction of

emotional distress; (3) negligent hiring and retention; and (4) retaliation for exercising

freedom of speech in violation of 42 U.S.C. § 1983. Am. Compl. at ¶ 89–126. Defendants

removed the case to this Court in October 2021. Am. Compl. at ¶ 15.

DISCUSSION

In the instant motion, Defendants identify several reasons that they believe warrant

dismissal of this case. Def. Mem. of Law, Dec. 6, 2021, ECF No. 11-2. Of particular

importance, Defendants argue that Plaintiff’s retaliation claim under 42 U.S.C. § 1983

fails because she does not allege a policy, custom, or practice of the county, and because

she fails to allege any adverse employment action or constitutionally protected speech.

Because the Court agrees that Plaintiff fails to state a claim under § 1983, the Court need

not resolve Defendants’ arguments related to Plaintiff’s state law claims. Rather, the

matter is remanded to the state court for consideration of those issues.

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Plaintiff has failed to state a claim under 42 U.S.C. § 1983.

Defendants maintain that Plaintiff has failed to state a claim for retaliation for

exercising her freedom of speech under 42 U.S.C. § 1983 because, among other

reasons, she failed to allege that she engaged in constitutionally protected speech.

Plaintiff responds that the speech for which she was penalized involved blowing the

whistle on the misuse of public funds and refusing to proceed with illegal action, both of

which are matters of public concern protected under the First Amendment. Pl. Mem. in

Opp., 18, Jan. 3, 2022, ECF No. 13. The Court finds that even assuming that Plaintiff’s

speech was regarding a matter of public concern,1 the speech was not constitutionally

protected from retaliation because it was employee speech that was “part and parcel” of

Plaintiff’s official duties as a public employee of Defendant Ontario County.

Specific Factual Allegations

Plaintiff’s claim under § 1983 for retaliation following the exercise of her First

Amendment free speech rights is based largely on the following allegations:

22. In January 2016, in the ordinary course of her position and to better

protect the County’s residents, Plaintiff proposed the purchase of a patrol

car that would be used solely for the purposes of DWI enforcement (the

“DWI Patrol Car”).

* * *

25. As required by policy and law, on or about February 8, 2016, the

purchase of a “Ontario County Sheriff’s Office Marked Patrol Car” was

placed on the Public Safety Committee Agenda, with a request for the

authorization to transfer $16,000 from County “Contingency Funds” to the

Ontario County Sherriff’s [sic] Office for the purchase.

1 “The Supreme Court has defined a ‘matter of public concern’ as one that ‘relat[es] to any matter of political,

social, or other concern to the community.’” Vail v. Town of Cayuta, No. 20-CV-6917-FPG, 2021 WL

1788523, at *3 (W.D.N.Y. May 5, 2021) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)).

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* * *

27. On February 9, 2016, Ms. Krause called the Plaintiff and advised that

she did not support the purchase of the proposed DWI Patrol Car and that

all future STOP program ideas would have to be approved by Ms. Krause

prior to being discussed with other parties.

28. On February 10, 2016, Ms. Krause revised the Public Safety Committee

Agenda, replacing the words “Contingency Funds” with “STOP-DWI

Reserve Funds” for the purchase of the DWI Patrol Car.

29. Under New York law, the STOP DWI Reserve Funds could not be used

to purchase the DWI Patrol Car . . . .

30. Plaintiff notified Ms. Krause that her proposal to use STOP DWI Reserve

Funds violated New York Law. Ms. Krause refused to change her proposal

and failed to correct her improper conduct in violation of New York law.

31. Plaintiff then reported Ms. Krause’s improper actions and violations of

law to her Department Head, District Attorney R. Michael Tantillo.

32. As a result of Plaintiff’s reporting to Mr. Tantillo, Defendant County of

Ontario rejected Krause’s illegal proposal and instead, followed New York

law by using contingency funds to purchase the DWI Patrol Car.

33. As part of her employment obligations, Plaintiff was required to report

Ms. Krause’s attempted misuse of public funds and her improper proposal

in violation of New York law, but she suffered grave consequences as a

result of the reporting.

Am. Compl. at ¶ 22–33.

Later in her Amended Complaint, Plaintiff elaborates upon the basis for her

allegations that Defendant Krause’s conduct regarding the DWI Patrol Car was in violation

of the law. She states that Defendant Krause’s attempt to alter the source of funds from

County contingency funds to STOP DWI Reserve Funds is prohibited by N.Y.V.T.L.

§ 1197, which requires that the matter must be “brought before the [local Traffic Safety]

Board and approved by the Governor’s Traffic Safety Committee.” Am. Compl. at ¶ 96.

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Legal Principles

The Second Circuit has summarized the legal principles relating to Plaintiff’s claim

of “Retaliation for Exercising Freedom of Speech [in] Violation of 42 U.S.C. § 1983,” as

follows:

Whether public employee speech is protected from retaliation under the

First Amendment entails two inquiries: (1) “whether the employee spoke as

a citizen on a matter of public concern” and, if so, (2) “whether the relevant

government entity had an adequate justification for treating the employee

differently from any other member of the general public.” [Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006)] (citing Pickering v. Bd. of Educ. of

Township High Sch. Dist. 205, Will County, 391 U.S. 563, 568 (1968)) . . . .

The majority opinion in Garcetti focused on the first inquiry, and specifically

its operation as a limiting principle when the government is acting as an

employer, exercising control over employee speech in the interest of the

“efficient provision of public services.” . . . . Recognizing that government

employers (like private employers) “have heightened interests in controlling

speech made by an employee in his or her professional capacity,” the

Supreme Court ruled that a public employee speaking in his official capacity

is not speaking as a citizen for First Amendment purposes . . . and employer

retaliation for such speech does not justify the “displacement of managerial

discretion by judicial supervision,” [Garcetti, 547 U.S. at 423].

Ruotolo v. City of New York, 514 F.3d 184, 188–89 (2d Cir. 2008) (some internal citations

omitted).

“[T]he mere fact that a citizen’s speech concerns information acquired by virtue of

his public employment does not transform that speech into employee—rather than

citizen—speech. The critical question . . . is whether the speech at issue is itself ordinarily

within the scope of an employee’s duties . . . .” Lane v. Franks, 573 U.S. 228, 240 (2015).

The objective inquiry into whether a public employee spoke “pursuant to” his or her official

duties is “a practical one.” Weintraub v. Bd. of Educ. of City Sch. Dist. of City of New York,

593 F.3d 196, 202 (2d Cir. 2010). The Second Circuit has counseled that courts should

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consider such factors as whether the speech at issue: is “part and parcel” of a public

employee’s ability to execute her official duties (Montero v. City of Yonkers, New York,

890 F.3d 386, 395–96 (2d Cir. 2018)) (a public school teacher complaining about student

discipline); is a “form or channel of discourse available to non-employee citizens”

(Montero, 890 F.3d at 396) (utilizing an internal grievance procedure); and owes its

existence to the employee’s job duties (Ross v. Breslin, 693 F.3d 300, 308 (2d Cir.2012))

(finding speech was not protected from employer retaliation where plaintiff was a payroll

clerk tasked with reporting pay irregularities).

Application

In the present case, Plaintiff states that she was the “Program Administrator” for

Ontario County’s STOP DWI program. Am. Compl. at ¶ 16. The specifics of Plaintiff’s

complaint suggest that Ontario County’s STOP DWI “Program Administrator” is the

“coordinator” mandated by statute in N.Y.V.T.L. § 1197. For instance, one of the duties

of the program coordinator under the law is to “[r]eceive proposals . . . for activities related

to alcohol traffic safety and submit them to the county board of legislators . . ., together

with a recommendation for funding of the activity . . . .” § 1197(5)(b). That is precisely

what Plaintiff did when, “[i]n January 2016, in the ordinary course of her position and to

better protect the County’s residents, Plaintiff proposed the purchase of a patrol car that

would be used solely for the purposes of DWI enforcement . . .” and placed the purchase

of the DWI Patrol Car on the Public Safety Committee Agenda,” with a request for the

authorization to transfer $16,000 from County ‘Contingency Funds’ to the Ontario County

Sheriff’s Office for the purchase.” Am. Compl. at ¶¶ 22, 25. Certainly, then, the

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recommendation of the purchase of the DWI Patrol Car – and of the source of the funds

to pay for that purchase – was “part and parcel” of Plaintiff’s official duties.

Further, because they arose as a result of Plaintiff’s performance of her official

duties, Plaintiff’s dispute with Defendant Krause regarding the source of the funds to pay

for the purchase (Am. Compl. at ¶ 30), and Plaintiff’s subsequent communications with

her Department Head, Mr. Tantillo, (Am. Compl. at ¶ 28, 31), were also part of her official

duties. Healy v. City of New York Dept. of Sanitation, 286 Fed. App’x 744, 746 (2d Cir.

2008) (finding an employee’s report of corruption to a superior was within the scope of

his official duties where the report was based directly on the results of an inventory check

he performed as part of his official duties).

According to Plaintiff’s account, in the days before the Public Safety Committee

meeting at which Plaintiff’s proposal for a DWI Patrol car was to be discussed, Defendant

Krause voiced a difference of opinion as to how the car should be funded and altered the

Committee agenda to reflect as much. Am. Compl. at ¶ 28. Based on her knowledge of

the statutory and regulatory requirements of the STOP DWI program, Plaintiff first

objected to Krause’s funding ideas directly, and then elevated her objections to Tantillo

when Krause refused to alter the Committee agenda. Am. Compl. at ¶ 30–31. In other

words, Plaintiff’s communications to her Department Head in this instance were the result

of an internal budget dispute caused by a proposal Plaintiff made in the course of fulfilling

one of her primary responsibilities. Thus, Plaintiff’s communication with Tantillo regarding

Defendant Krause’s attempts to fund the patrol car with STOP DWI program funds were

also made within the scope of her duties. See, e.g., Weintraub, 593 F.3d at 203 (a

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teacher’s union grievance regarding his school’s decision not to discipline one of his

students was unprotected speech because the grievance “was a means to fulfill and

undertaken in the course of performing his primary responsibility of teaching”).

In addition, although a “civilian analogue” to Plaintiff’s communications does exist,

insofar as communicating with the County’s District Attorney about possible wrongdoing

is unquestionably “a path available to ordinary citizens,” Plaintiff’s allegations regarding

her communications with Tantillo “establish no more than that [she] reported what [she]

believed to be misconduct . . . up the chain of command.” Carter v. Inc. Vill. of Ocean

Beach, 415 F. App'x 290, 293 (2d Cir. 2011). Plaintiff only knew of this perceived

misconduct by virtue of her official role as the STOP DWI Program Administrator, and her

communication was internal to her department rather than external. Id. (quoting Garcetti,

547 U.S. at 421 (“speech that owes its existence to a public employee’s professional

responsibilities” is made “pursuant to” that employee’s “official duties”)); see also Healy,

286 Fed. App’x at 746. Lastly, as Plaintiff herself admits in her complaint, she was

required to report Defendant Krause’s improper proposal “[a]s part of her employment

obligations . . . .” Am. Compl. at ¶ 33. See also D'Olimpio v. Crisafi, 462 F. App'x 79, 80

(2d Cir. 2012) (finding a New York State employee’s complaints to the state’s Inspector

General were part of his employment duties where New York Executive Law § 55(1)

required state employees to report misdeeds to the inspector general or face possible

termination of employment).

Accordingly, the Court finds that Plaintiff’s speech occurred in the course of her

employment duties, and is therefore not constitutionally protected from retaliation.

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The matter is remanded to the state court to address the state law claims.

Defendants argue that even if the Court dismisses the federal § 1983 claim over

which it has subject matter jurisdiction, it should nevertheless retain supplemental

jurisdiction over the remaining state law claims because the motion to dismiss does not

involve any novel or complex state law issues. Plaintiff, on the other hand, maintains that

the matter should be remanded to state court because there has not yet been any

discovery, the state law claims implicate the state’s interest in administering its programs

and government, and New York state courts have taken a different approach to tolling the

statute of limitations due to the COVID pandemic than have federal courts. The Court

agrees with Plaintiff.

Legal Principles

28 U.S.C. § 1367(a) provides that “in any civil action of which the district courts

have original jurisdiction, the district courts shall have supplemental jurisdiction over all

other claims that are so related to claims in the action within such original jurisdiction that

they form part of the same case or controversy under Article III of the United States

Constitution.” However, the district court may decline to exercise supplemental jurisdiction

if “the district court has dismissed all claims over which it has original jurisdiction,” and

the court determines that retaining jurisdiction would not promote the values of economy,

convenience, fairness, and comity. See 28 U.S.C. § 1367(c); Catzin v. Thank You & Good

Luck Corp., 899 F.3d 77, 85 (2d Cir. 2018) (discussing United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 725 (1966)). “[I]n the usual case in which all federal-law claims are

eliminated before trial, the balance of factors to be considered . . . judicial economy,

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convenience, fairness, and comity . . . will point toward declining to exercise jurisdiction

over the remaining state-law claims.” Valencia ex rel. Franco v. Lee, 316 F.3d 299, 302

(2d Cir. 2003). A district court that declines to exercise supplemental jurisdiction has the

discretion to dismiss the case entirely, or to remand the case to the state court for further

proceedings. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988).

Application

Three state-law claims remain in this action: violation of New York Civil Service

Law § 75-b, intentional infliction of emotional distress, and negligent hiring and retention.

While Defendants view their arguments as calling for a straightforward application of

settled principles, after a careful review of the papers the Court concludes that “as a

matter of comity and to promote justice,” the matter should be remanded to the state trial

court so that the parties may obtain “a surer-footed reading of applicable [state] law.” New

York v. Niagara Mohawk Power Corp., 263 F. Supp.2d 650, 670 (W.D.N.Y. 2003) (quoting

Gibbs, 388 U.S. at 726). For example, one of Plaintiff’s claims involves a direct

interpretation and application of state Civil Service Law § 75-b, and one of her arguments

in opposition to the motion to dismiss involves a tolling argument that she demonstrates

to have been treated differently at the federal and state level. Moreover, Defendants

maintain that another of Plaintiff’s state law claims is precluded by state worker’s

compensation law.

Accordingly, the Court declines to exercise supplemental jurisdiction, and the

remaining state-law claims must be remanded to the New York Supreme Court, Ontario

County for resolution.

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CONCLUSION

For the foregoing reasons, it is hereby,

ORDERED that Defendants’ motion to dismiss [ECF No. 11] is granted with

respect to Plaintiff's claim of a violation of her constitutional rights under 42 U.S.C. § 1983;

and it is further

ORDERED that the remaining claims of violation of New York Civil Service Law

§ 75-b, intentional infliction of emotional distress, and negligent hiring and retention be

remanded to New York Supreme Court, Ontario County.

The Clerk of Court is directed to close this case.

SO ORDERED.

Dated: June 8, 2022

Rochester, New York

ENTER:

Cheibeas iat.

CHARLES, SIRAG

United States District ge

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