Shanahan v. Town of Huntington

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------x

DIANE SHANAHAN, RAYMOND GREEN, and

LESTER PEARSALL,

Plaintiffs, MEMORANDUM AND ORDER

v. 2:21-cv-7106 (RPK) (SIL)

TOWN OF HUNTINGTON, HUNTINGTON

TOWN SUPERVISOR EDMUND J. SMYTH,

KEVIN S. ORELLI, SEAN CAVANAGH, and

LISA BAISLEY,

Defendants.

-------------------------------------------------------------x

RACHEL P. KOVNER, United States District Judge:

Plaintiffs Diane Shanahan, Raymond Green, and Lester Pearsall bring this action alleging

employment discrimination and retaliation by defendants Kevin S. Orelli; Sean Cavanagh, both

personally and as the executor of the estate of Thomas R. Cavanagh; Lisa Baisley; Huntington

Town Supervisor Edmund J. Smyth (collectively, the “individual defendants”); and the Town of

Huntington. Defendants have moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss

three of plaintiffs’ five claims: a claim for assertedly unconstitutional disclosure of medical

information; a claim for defamation; and a claim for unlawful discrimination by an entity receiving

federal financial assistance, in violation of Title VI of the Civil Rights Act of 1964. For the reasons

explained below, the partial motion to dismiss is granted.

BACKGROUND

The following facts are taken from plaintiffs’ Second Amended Complaint (“SAC”) (Dkt.

#22) and are assumed true for the purposes of this motion.

Plaintiff Shanahan is a Native American and African American woman who worked for

the Town for over thirty years and is now retired. SAC ¶¶ 10, 29–30; Opp’n 1 (Dkt. #41-3).

Plaintiffs Green and Pearsall are both African American men who have each worked for the Town

for over thirty years. SAC ¶¶ 11–12, 64–65, 121, 133–34. Each individual defendant was a “high-

ranking official and policymaker” for the Town at relevant times during plaintiffs’ employment.

Id. ¶¶ 14–18.

Plaintiffs filed this action in December 2021, Compl. (Dkt. #1), and were twice granted

leave to amend their complaint, see Apr. 5, 2022 Min. Entry and Order; Am. Compl. (Dkt. #13);

Oct. 12, 2022 Order; SAC. The operative complaint contains five counts. The first three allege

unlawful discrimination. Specifically, Count One alleges that all defendants committed unlawful

discrimination on the part of an entity receiving federal assistance, in violation of Title VI of the

Civil Rights Act of 1964, by discriminating based on race and color and by retaliating against

individuals who opposed unlawful discrimination. SAC ¶¶ 210–16. Count Two alleges that the

individual defendants engaged in unlawful discrimination in violation of the Fourteenth

Amendment under 42 U.S.C. § 1983, through discrimination based on race, color, age, and gender,

as well as retaliation. SAC ¶¶ 217–29. And Count Three alleges that the Town is liable under

Section 1983 for unlawful discrimination based on race, color, age, and gender, pursuant to Monell

v. Department of Social Services, 436 U.S. 658 (1978). SAC ¶¶ 230–39.

Count Four alleges that defendant Sean Cavanagh (“Cavanagh”) and the Town violated

plaintiff Shanahan’s rights under the Fourteenth Amendment, in violation of Section 1983, because

defendant Cavanagh disclosed Shanahan’s medical information. Id. ¶¶ 240–45. In support of that

claim, the SAC states that in August 2021, plaintiff Shanahan “became ill with COVID-19” while

she was employed by the Town. Id. ¶ 58. After plaintiff notified the Town of her infection,

defendant Cavanagh “sent a Department-wide email notifying everyone of [Shanahan’s] positive

COVID-19 status,” stating that she “is out with COVID” and directing the email recipients, in

Shanahan’s absence, to “send all her q-alerts to Danny Vaughn.” Ibid.

Finally, Count Five alleges that defendant Orelli defamed plaintiff Green. SAC ¶¶ 246–

56. In support, the operative complaint alleges that in October 2021, at “a publicly streamed via

Facebook campaign event,” defendant Orelli discussed a job position for which plaintiff Green

had applied in 2019. Id. ¶¶ 114–15, 248–49. Orelli stated that to “say that [Green] should have

gotten that job is just ridiculous” and that Green did “one of the worst interviews.” Ibid.

Defendants timely moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Count

One, the claim for discrimination in violation of Title VI; Count Four, the claim against Cavanagh

related to COVID-19 disclosure; and Count Five, the defamation claim against Orelli. See Mot.

to Dismiss (Dkt. #41); Mem. in Supp. (Dkt. #41-1). In response, plaintiffs opposed the dismissal

of Counts Four and Five, but they withdrew Count One, their Title VI claim, against all defendants.

See Opp’n 9–15.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” To avoid dismissal on

that basis, a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citation omitted). “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.” Ibid. (discussing Fed. R. Civ. P. 8). The facial “plausibility

standard is not akin to a ‘probability requirement,’” but it requires a plaintiff to allege sufficient

facts to allow “the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ibid. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “[A]

well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof [of the facts

alleged] is improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at

556 (quotation marks and citation omitted).

At the motion-to-dismiss stage, a court may consider only (i) the complaint itself,

(ii) documents either attached to the complaint or incorporated in it by reference, (iii) documents

the plaintiff relied on and knew of when bringing suit, and (iv) matters in the public record that

are subject to judicial notice. See, e.g., ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98

(2d Cir. 2007); Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004); Leonard F. v. Isr. Disc. Bank of

N.Y., 199 F.3d 99, 107 (2d Cir. 1999). When reviewing the complaint on a motion to dismiss, the

court must accept all facts alleged in a complaint as true, Iqbal, 556 U.S. at 678, and “draw[s] all

reasonable inferences in favor of the plaintiff,” Buon v. Spindler, 65 F.4th 64, 76 (2d Cir. 2023).

The court, however, is not obligated to adopt “mere conclusory statements” or “[t]hreadbare

recitals of the elements of a cause of action” that are not “supported by factual allegations.” Iqbal,

556 U.S. at 678.

DISCUSSION

Defendants’ partial motion to dismiss to dismiss is granted. Plaintiffs’ withdrawn Title VI

claim is dismissed without prejudice, see Smith v. Artus, 522 F. App’x 82, 84–85 (2d Cir. 2013),

and their claims of unconstitutional disclosure of medical information and defamation are

dismissed with prejudice.

I. The SAC Fails to State a Claim for Unconstitutional Disclosure of Medical

Information.

Defendant Cavanagh’s alleged disclosure of plaintiff Shanahan’s COVID-19 status does

not constitute an unconstitutional disclosure of medical information.

The Second Circuit has “recognized the right to privacy in one’s personal information,”

including “[m]edical records.” Hancock v. County of Rensselaer, 882 F.3d 58, 65 (2d Cir. 2018)

(collecting cases). A “constitutional violation only occurs when the individual’s interest in privacy

outweighs the government’s interest in breaching it.” Ibid. “When evaluating executive action

that does not involve penological interests, the test is . . . whether the action was so ‘arbitrary’ as

to ‘shock the conscience.’” Id. at 65–66 (footnote omitted) (quoting O’Connor v. Pierson, 426

F.3d 187, 203 (2d Cir. 2005)). “[W]hether executive action shocks the conscience depends on the

state of mind of the government actor and the context in which the action was taken.” O’Connor,

426 F.3d at 203 (citing County of Sacramento v. Lewis, 523 U.S. 833, 849, 854 (1998)). “[M]ere

negligence will never” be sufficient to support a Fourteenth Amendment claim for violation of

one’s medical privacy. Ibid. The strength of the asserted privacy interest is relevant to “how

strong the government’s interest must be in order to override it,” with “[s]tronger privacy

interests . . . required to hold executive actors liable who acted with less culpable mental states.”

Hancock, 882 F.3d at 66–67.

The alleged disclosure of Shanahan’s COVID-19 status does not support a Fourteenth

Amendment claim because it does not shock the conscience in the context of the COVID-19

pandemic. Shanahan has a relatively weak privacy interest in her COVID-19 status. As an initial

matter, she voluntarily disclosed her diagnosis to Cavanagh. See SAC ¶ 58; Hancock, 882 F.3d at

67 (“[T]he fact that [plaintiff] had already disclosed her medical condition to the school . . . made

her privacy interest relatively weak.” (citing Matson, 631 F.3d at 66–68)). And while COVID-19

can be a serious illness, it generally does not engender “societal discrimination and intolerance

against those suffering” from it. Matson v. Bd. of Educ. of the City Sch. Dist. of N.Y., 631 F.3d 57,

67 (2d Cir. 2011) (emphasizing in dismissing claim based on disclosure of fibromyalgia that the

condition did not carry a “a social stigma” comparable to that which “attache[s] to other medical

conditions, such as AIDS” (citation omitted)). The SAC also lacks factual allegations that

plausibly suggest Shanahan “personally suffered discrimination or intolerance” due to the

disclosure of her COVID-19 diagnosis. Id. at 68; see SAC ¶ 58 (stating only that plaintiff

“receiv[ed] unwanted calls from . . . co-workers inquiring about her COVID-19 status). In sum,

because Shanahan “had already disclosed” her COVID-19 diagnosis to Cavanagh and because

COVID-19 “was not as serious or stigmatizing as other conditions,” Shanahan’s “privacy interest

[is] relatively weak.” Hancock, 882 F.3d at 67 (citing Matson, 631 F.3d at 66–68).

Shanahan’s relatively weak privacy interest can thus “be overwhelmed by even a

moderately strong government interest in disclosure.” Ibid. The Town’s interest in preventing the

spread of COVID-19 by alerting its employees to the diagnosis of their co-worker, Shanahan,

qualifies as at least moderately strong. See Reply 1–2 (Dkt. #41-4); cf. Roman Cath. Diocese of

Brooklyn v. Cuomo, 592 U.S. 14, 18 (2020) (per curiam) (“Stemming the spread of COVID-19 is

unquestionably a compelling interest.”). Given this interest, Shanahan’s bare assertion that

Cavanagh’s email was an “act of retaliation,” SAC ¶¶ 58, 60, is insufficient to plausibly suggest a

conscience-shocking degree of culpability on the part of Cavanagh. See Matson, 631 F.3d at 68

(affirming dismissal of claim based on disclosure of fibromyalgia diagnosis in a public report of

investigation, notwithstanding plaintiff’s claim that the disclosure was “for the purpose of

‘embarrassing’ and ‘humiliating’ her,” when agency had a policy of publishing reports to inform

the public of its investigations (brackets omitted)).

Defendants’ motion to dismiss is therefore granted as it pertains to plaintiffs’ Fourteenth

Amendment claim regarding the disclosure of Shanahan’s medical information.

II. Plaintiff’s Defamation Claim Fails as a Matter of Law.

Defendant Orelli’s public statements regarding plaintiff Green do not constitute

defamation.

To state a claim for defamation under New York law, “a complaint must allege ‘(1) a false

statement that is (2) published to a third party (3) without privilege or authorization.’” Elias v.

Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (quoting Stepanov v. Dow Jones & Co., 987

N.Y.S.2d 37, 41–42 (App. Div. 2014)). The complaint must also allege that the statement

(4) caused harm, unless the statement constitutes defamation per se. See ibid. Under New York

law, “[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no

matter how offensive, cannot be the subject of an action for defamation.” Mann v. Abel, 885

N.E.2d 884, 885–86 (N.Y. 2008). “Whether a particular statement constitutes an opinion or an

objective fact is a question of law.” Id. at 885. Several factors bear on whether a statement

constitutes an opinion: “(1) whether the specific language in issue has a precise meaning which is

readily understood; (2) whether the statements are capable of being proven true or false; and

(3) whether either the full context of the communication in which the statement appears or the

broader social context and surrounding circumstances are such as to signal readers or listeners that

what is being read or heard is likely to be opinion, not fact.” Id. at 886 (ellipsis and citation

omitted).

Defendant Orelli’s statements that it would be “ridiculous” to say that plaintiff Green

“should have gotten” a certain job and that Green did “one of the worst interviews,” SAC ¶¶ 114–

15, 248–49, are nonactionable statements of opinion. The words “worst” and “ridiculous” are

largely subjective. See, e.g., Chau v. Lewis, 935 F. Supp. 2d 644, 661 (S.D.N.Y. 2013) (finding

that “‘worst of the worst’ . . . is a non-actionable pure opinion”), aff’d, 771 F.3d 118 (2d Cir. 2014);

Fleischer v. NYP Holdings, Inc., 961 N.Y.S.2d 393, 394–95 (App. Div. 2013) (holding statement

“that plaintiff had ‘ridiculous’ mood swings” was “vague” and a “non-actionable expression[] of

opinion”). And an employer’s impressions about an applicant’s performance in a job interview,

like impressions about an employee’s job performance, also involve subjective assessments. See

Adler v. Solar Power, Inc., No. 16-CV-1635 (LTS) (GWG), 2018 WL 1626162, at *10 (S.D.N.Y.

Mar. 30, 2018) (“[Defendant]’s statements characterizing [employee] as incompetent and

unprofessional are opinion because they implicate subjective standards of performance without

precise definitions and are not readily classified as either true or false.”); Brattis v. Rainbow Advert.

Holdings, L.L.C., No. 99-CV-10144 (NRB), 2000 WL 702921, at *4 (S.D.N.Y. May 31, 2000)

(“Under New York law, the evaluation of an employee’s performance, even an unsatisfactory

evaluation, is a matter of opinion that cannot be objectively categorized as true or false and cannot

be actionable.”). Moreover, the context of Orelli’s statement—as an “unprompted” remark at a

campaign event—reinforces that it is properly classed as an opinion statement, because campaign

events are typically forums for the expression of off-the-cuff opinions. See 600 W. 115th St. Corp.

v. Von Gutfeld, 603 N.E.2d 930, 936 (N.Y. 1992) (context of remarks as “impromptu comments

at a heated public debate” supported treatment of statements as opinion); cf. Gross v. N.Y. Times

Co., 623 N.E.2d 1163, 1169 (N.Y. 1993) (context of statements “made in the course of a lengthy,

copiously documented newspaper series that was written only after what purported to be a

thorough investigation” weighed against classification as opinion).

Green’s separate argument that the alleged statements, even if opinion, constitute

defamation per se because they “attack” Green’s “trade or profession,” see Opp’n 14 (citation

omitted), is unpersuasive. Statements that constitute defamation per se are exempt from the

requirement of showing special damages. Allen v. CH Energy Grp., Inc., 872 N.Y.S.2d 237, 238

(App. Div. 2009). One category of such statements includes those that “impute[] incompetence,

incapacity or unfitness in the performance of one’s profession or trade.” Ibid. (quotation marks

and citation omitted). But statements of opinion are still not actionable, even as defamation per

se. See, e.g., Perchuk v. Perfect Body Image, LLC, 198 N.Y.S.3d 562, 564 (App. Div. 2023);

Bowen v. Van Bramer, 168 N.Y.S.3d 107, 108–09 (App. Div. 2022). And regardless, statements

impugning one’s capacity in his or her profession or trade “must be made with reference to a matter

of significance and importance for the operation of the business, rather than a more general

reflection upon the plaintiff’s character or qualities.” Pure Power Boot Camp, Inc. v. Warrior

Fitness Boot Camp, LLC, 813 F. Supp. 2d 489, 550 (S.D.N.Y. 2011) (brackets omitted) (quoting

Liberman v. Gelstein, 605 N.E.2d 344, 348 (N.Y. 1992)). Orelli’s statements regarding Green’s

job interview and whether “he should have gotten” a certain job do not so directly impugn Green’s

professional reputation as to rise to the level of defamation per se. See Aronson v. Wiersma, 483

N.E.2d 1138, 1139 (N.Y. 1985) (“The mere expression of unhappiness with plaintiff’s fulfilling

her [work] duties . . . is not libelous per se.”); see also Kforce, Inc. v. Alden Pers., Inc., 288 F.

Supp. 2d 513, 517 (S.D.N.Y. 2003).

Defendants’ motion to dismiss plaintiffs’ defamation claim is therefore granted.

III. Plaintiffs’ Medical-Information and Defamation Claims Are Dismissed with

Prejudice.

Plaintiffs’ claims of unconstitutional disclosure of medical information and defamation are

dismissed with prejudice. “When a plaintiff was aware ‘of the deficiencies in his complaint when

he first amended,’ he ‘clearly has no right to a second amendment even if the proposed second

amended complaint in fact cures the defects of the first.’” Nat’l Credit Union Admin. Bd. v. U.S.

Bank Nat’l Ass’n, 898 F.3d 243, 257–58 (2d Cir. 2018) (brackets omitted) (quoting Denny v.

Barber, 576 F.2d 465, 471 (2d Cir. 1978)); see, e.g., Housey v. Proctor & Gamble Co., No. 22-

888, 2022 WL 17844403, at *2 (2d Cir. Dec. 22, 2022) (affirming denial of leave to amend

plaintiff’s “once-amended complaint” where plaintiff failed to establish “proposed amendments

[that] would be able to cure the defects identified by the district court”). Plaintiffs have already

amended their complaint twice after notice of defendants’ arguments for dismissal of these claims,

see Ltr. Mot. for Pre-Mot. Conf. 3 (Dkt. #9); Ltr. Mot. for Pre-Mot. Conf. 2–3 (Dkt. #18), and

even now, plaintiffs do not propose any amendments that would cure the deficiencies, see Opp’n

15. Accordingly, a further opportunity to amend is unwarranted, and plaintiffs’ claims of

unconstitutional disclosure of medical information and defamation are dismissed with prejudice.

CONCLUSION

Defendants’ partial motion to dismiss is granted. Plaintiffs’ Title VI claim is dismissed

without prejudice and their claims of unconstitutional disclosure of medical information and

defamation are dismissed with prejudice.

SO ORDERED.

Dated: September 25, 2024 /s/ Rachel Kovner

Brooklyn, New York RACHEL P. KOVNER

United States District Judge