Holtz v. Town of Arcadia

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

STEPHANIE HOLTZ,

Plaintiff, DECISION AND ORDER

v. 6:22-CV-06449 EAW

TOWN OF ARCADIA,

Defendant.

___________________________________

INTRODUCTION

Plaintiff Stephanie Holtz (“Plaintiff”) brings this action against the Town of Arcadia

(“Defendant” or “the Town”) arising from the termination of her employment as the Town’s

sole assessor. Defendant has filed a motion for judgment on the pleadings and/or for

summary judgment (Dkt. 44) and Plaintiff has cross-moved for summary judgment (Dkt.

53).

For the reasons that follow, Defendant’s motion is granted in part and denied in part

and Plaintiff’s cross-motion is denied.

BACKGROUND

I. Factual Background

Plaintiff is a New York State assessor. (Dkt. 53-1 at ¶ 5; Dkt. 60-24 at ¶ 5). The

Town was and is a municipal corporation duly organized and existing under the laws of

the State of New York, having its principal offices located at 201 Frey Street in Newark,

New York. (Dkt. 53-1 at ¶ 3; Dkt. 60-24 at ¶ 3). Prior to her employment with the Town,

Plaintiff was previously the sole assessor for the Town of Victor, where she was appointed

to fill the remaining term of the prior assessor and was initially on probation when hired.

(Dkt. 44-14 at ¶ 7; Dkt. 61-3 at ¶ 7).

On September 30, 2020, Plaintiff received a letter offering her the position of sole

assessor for the Town. (Dkt. 44-14 at ¶¶ 6, 17; Dkt. 61-3 at ¶¶ 6, 17; Dkt. 53-1 at ¶ 12;

Dkt. 60-24 at ¶ 12). The offer letter provided that Plaintiff’s “appointment will be for a

term of 6 years,” and would be “in compliance with the NYS guidelines.” (Dkt. 53-1 at

¶¶ 13, 14; Dkt. 60-24 at ¶¶ 13, 14). The letter was signed by Plaintiff and Jon Verkey, the

Supervisor of the Town, on October 8, 2020. (Dkt. 53-1 at ¶ 15; Dkt. 60-24 at ¶ 15). The

offer letter reflected an annual salary of $66,000 for the assessor’s position and provided it

would continue to accrue at a 2% increase every year until the completion of the term.

(Dkt. 53-1 at ¶ 26; Dkt. 60-24 at ¶ 26).

Plaintiff’s start date of employment with the Town was October 19, 2020. (Dkt. 44-

14 at ¶ 19; Dkt. 61-3 at ¶ 19; Dkt. 53-1 at ¶ 1; Dkt. 60-24 at ¶ 1). Barb DiSanto (“DiSanto”)

was an assessor clerk who worked in the office with Plaintiff. (Dkt. 44-14 at ¶ 8; Dkt. 61-

3 at ¶ 8). Plaintiff knew that she would be working with DiSanto when she accepted the

position with the Town. (Dkt. 44-14 at ¶ 10; Dkt. 61-3 at ¶ 10). Plaintiff testified that

while employed with the Town, DiSanto was “my clerk.” (Dkt. 44-14 at ¶ 11; Dkt. 61-3

at ¶ 11). Supervision over the work of clerical staff was included in the assessor’s job

description. (Dkt. 44-14 at ¶ 16; Dkt. 61-3 at ¶ 16).

Plaintiff had concerns about DiSanto’s job performance because, among other

things, DiSanto made repeated errors, including careless spelling and math errors, and her

behavior was erratic. (Dkt. 44-14 at ¶ 13; Dkt. 61-3 at ¶ 13). Plaintiff testified that she

contacted Wayne County to obtain DiSanto’s job description and felt that it was her job to

report issues with DiSanto because DiSanto’s mistakes impacted the taxpayers of the

community. (Dkt. 44-14 at ¶¶ 14, 15; Dkt. 61-3 at ¶¶ 14, 15).

In an August 25, 2021 email to Richard VanLaeken, the Deputy Town Supervisor,

Plaintiff wrote: “[o]ne more thing is my probation is up in October. I’m not sure if the

Board will be keeping me on or not,” though Plaintiff denies that this email operated as an

acknowledgment of her employment status. (Dkt. 44-14 at ¶ 18; Dkt. 61-3 at ¶ 18).

Plaintiff was terminated on September 23, 2021. (Dkt. 44-14 at ¶ 19; Dkt. 61-3 at

¶ 19; Dkt. 53-1 at ¶ 22; Dkt. 60-24 at ¶ 22). When Plaintiff asked why she was being

terminated, the Deputy Town Supervisor advised her that it was because Plaintiff “was not

happy here” and they “can’t have tension in the town hall.” (Dkt. 53-1 at ¶ 23; Dkt. 60-24

at ¶ 23). Plaintiff filed a Notice of Claim on or about November 15, 2021. (Dkt. 53-1 at

¶ 26; Dkt. 60-24 at ¶ 26). Plaintiff never commenced an Article 78 proceeding against the

Town with regard to her termination or for a claim of entitlement to a hearing. (Dkt. 44-

14 at ¶ 20; Dkt. 61-3 at ¶ 20).

In her complaint filed on September 13, 2022 (Dkt. 1-2 at 6-19), Plaintiff asserts

four claims against Defendant: (1) wrongful termination in violation of Real Property Tax

Law § 310(2) and New York Public Officers Law § 36; (2) violation of civil service law

§ 75-b; (3) First Amendment retaliation pursuant to 42 U.S.C. § 1983; and (4) violation of

due process pursuant to 42 U.S.C. § 1983.

II. Procedural Background

Plaintiff filed this action in Wayne County Supreme Court on September 13, 2022,

against the Town and the Village of Newark.1 (Dkt. 1-2). On October 18, 2022, the Town

removed the action to federal court on the basis of federal question jurisdiction and filed

its answer. (Dkt. 1; Dkt. 2). On July 11, 2023, the Town filed an amended answer. (Dkt.

31).

On August 26, 2024, the Town filed the instant motion for summary judgment and

for judgment on the pleadings. (Dkt. 44). On October 17, 2024, Plaintiff filed her

opposition (Dkt. 61), and on November 1, 2024, the Town filed its reply (Dkt. 64).

On August 29, 2024, Plaintiff filed her cross-motion for summary judgment. (Dkt.

53). On October 17, 2024, the Town filed its opposition to Plaintiff’s motion (Dkt. 60),

and on November 1, 2024, Plaintiff filed her reply (Dkt. 66).2

DISCUSSION

I. Legal Standards

A. Motion for Judgment on the Pleadings

Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the

pleadings are closed—but early enough not to delay trial—a party may move for judgment

1 By Stipulation and Order entered September 20, 2024, all claims and crossclaims

asserted by or against the Village of Newark were dismissed and the Village of Newark

was terminated as a party. (Dkt. 59).

2 Outside the briefing schedule set for these motions, both parties submitted a letter

to the Court regarding an argument made in Plaintiff’s reply. (Dkt. 67; Dkt. 68). The Court

has considered the submissions although their contents were not material to the

determination of the pending motions.

on the pleadings.” Fed. R. Civ. P. 12(c). “The standard for granting a Rule 12(c) motion

for judgment on the pleadings is identical to that for granting a Rule 12(b)(6) motion for

failure to state a claim.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d

Cir. 2021) (internal quotation marks and citation omitted).

“In considering a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits, and documents incorporated by reference in the

complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by “accepting all factual allegations as true and drawing all

reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund

v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant

must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Turkmen v. Ashcroft, 589 F.3d 542, 546

(2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal

quotations and citations omitted). “To state a plausible claim, the complaint’s ‘[f]actual

allegations must be enough to raise a right to relief above the speculative level.’” Nielsen

v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at

555).

B. Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes “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). The Court should grant summary judgment if, after considering the evidence in

the light most favorable to the nonmoving party, the court finds that no rational jury could

find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007).

“When the moving party has carried its burden under Rule 56(c), its opponent must

do more than simply show that there is some metaphysical doubt as to the material facts. .

. . Where the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-587 (1986) (quotation marks, internal citations, and

footnote omitted).

“[T]he mere existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment; the requirement is

that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-248 (1986) (emphasis in original). Where, as here, there are cross-motions for

summary judgment, “each party’s motion must be examined on its own merits, and in each

case all reasonable inferences must be drawn against the party whose motion is under

consideration.” Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001).

II. The Parties’ Motions

The Town moves for summary judgment and/or to dismiss each of Plaintiff’s four

claims and her request for punitive damages. Conversely, Plaintiff seeks summary

judgment against the Town arguing that the Town unlawfully terminated her and failed to

provide the due process to which she was entitled.

A. Real Property Tax Law § 310(2) and New York Public Officers Law § 36

Plaintiff’s first claim alleges that Defendant violated New York’s Real Property Tax

Law § 310(2) and New York Public Officers Law § 36. Real Property Tax Law provides

that “[t]he term of office of assessor shall be six years except as otherwise provided in

subdivision seven of this section.”3 N.Y. Real Prop. Tax Law § 310(2). New York Public

Officers Law § 36 provides:

Any town, village, improvement district or fire district officer, except a

justice of the peace, may be removed from office by the supreme court for

any misconduct, maladministration, malfeasance or malversation in office.

An application for such removal may be made by any citizen resident of such

town, village, improvement district or fire district or by the district attorney

of the county in which such town, village or district is located, and shall be

made to the appellate division of the supreme court held within the judicial

department embracing such town, village, improvement district or fire

district. Such application shall be made upon notice to such officer of not

less than eight days, and a copy of the charges upon which the application

will be made must be served with such notice.

3 Subsection 7 provides: “Indefinite term for assessors. Notwithstanding the

provisions of subdivision two of this section, the office of assessor shall have an indefinite

term (a) where the office of assessor is a full time position as determined by the local

legislative body and on or after August first, nineteen hundred seventy is classified in the

competitive class of the civil service at the request of the local legislative body or (b) where

on July thirty-first, nineteen hundred seventy the office of assessor is classified in the

competitive class of the civil service and has an indefinite term pursuant to law.” N.Y. Real

Prop. Tax Law § 310(7). No party contends that this subsection applies.

N.Y. Pub. Off. Law § 36. This statute “was enacted to enable a town or village to rid itself

of an unfaithful or dishonest public official.” Salvador v. Ross, 61 A.D.3d 1163, 1164 (3d

Dep’t 2009) (quoting Matter of Miller v. Filion, 304 A.D.2d 1016, 1017 [3d Dep’t 2003])).

Taken together, Plaintiff contends that her term as assessor was for six years, that she could

be removed only for misconduct, maladministration, malfeasance or malversation in office,

and that Defendant’s removal of her from her position did not amount to just cause under

these statutes.

Defendant moves to dismiss this claim on the grounds that these statutes do not

create an independent private right of action for Plaintiff and that the relief Plaintiff seeks

is exclusively available in an Article 78 proceeding. The Court agrees.

As an initial matter, Plaintiff cites no authority that these statutes authorize her

pursuit of a private right of action challenging her removal from office. Rather, she argues

that given that New York Civil Service Law § 77 provides for damages, “Plaintiff does not

need to establish a separate right to damages for violation of N.Y. Public Officers Law

§ 36.” (Dkt. 61 at 6). The Court construes this as a concession by Plaintiff that there is no

express private right of action under these statutes, although that does not end the inquiry.

“Where a statute contains no express private right of action, a plaintiff can seek

relief for a violation of the statute ‘only if a legislative intent to create such a right of action

is fairly implied in the statutory provisions and their legislative history.’” Galante v.

Watermark Servs. IV, LLC, 722 F. Supp. 3d 170, 185-86 (W.D.N.Y. 2024) (quoting Konkur

v. Utica Academy of Science Charter Sch., 38 N.Y.3d 38, 40-41 (2022)). “The New York

Court of Appeals applies a ‘three-factor test to determine whether the legislative intent

favors an implied right: (1) whether the plaintiff is one of the class for whose particular

benefit the statute was enacted; (2) whether recognition of a private right of action would

promote the legislative purpose; and (3) whether creation of such a right would be

consistent with the legislative scheme.’” Id. “Consistency with the legislative scheme is

‘the most important [factor] and typically turns on the legislature’s choice to provide one

particular enforcement mechanism to the exclusion of others,’ because that choice

‘demonstrates that the legislature considered and decided what avenues of relief were

appropriate.’” Id. at 186 (quoting Konkur, 38 N.Y.3d at 41).

Plaintiff contends in a conclusory manner that all three factors are met but cites no

authority that would warrant court recognition of such right. (See Dkt. 61 at 6). Indeed,

the purpose of the Public Officers Law is to provide a town or village with a procedure for

removal of an officer and does not speak in terms of the process for the officer to challenge

the determination. See, e.g., Salvador v. Naylor, 222 A.D.2d 931, 931 (3d Dep’t 1995)

(“The purpose of Public Officers Law § 36 is to enable a town or village to rid itself of an

unfaithful or dishonest public official.” (quotation and citation omitted)). Accordingly, the

Court declines to adopt Plaintiff’s argument that a private right of action exists in the

absence of any legal support for that position.

In addition, the Town argues that the appropriate forum for such challenges is an

Article 78 proceeding. Again, the Court agrees, as it is “well settled that proceedings that

compel action by a government agency or challenge the reasonableness or legality of an

administrative decision must be brought in Supreme Court as an article 78 proceeding.”

Spillers v. City of New York, 58 Misc. 3d 150(A), 94 N.Y.S.3d 540 (Kings Cty. 2018); see

also Walsh v. New York State Thruway Auth., 24 A.D.3d 755, 756-57 (2d Dep’t 2005) (claim

that a plaintiff was terminated without hearing in violation of state law rights and sought

reinstatement was “clearly within the purview of a CPLR article 78 proceeding, the proper

procedural vehicle for reviewing such a termination”). Plaintiff’s contention that the Town

did not comply with New York state statutes comes within Article 78’s purview. Finley v.

Giacobbe, 79 F.3d 1285, 1292 (2d Cir. 1996) (“Even non-tenured or probationary

employees must invoke article 78 to review dismissals that are allegedly arbitrary,

capricious, or prohibited by statute or the constitution.”); Trask v. Town of Alma, No. 1:19-

CV-01192, 2020 WL 6390091, at *4 (W.D.N.Y. Oct. 30, 2020) (“In New York, Article 78

proceedings are the ‘exclusive remedy for a discharged public employee, who must seek

reinstatement prior to seeking unpaid salary[.]’” (quotation and citation omitted)); Vill. of

Northport v. Krumholz, 169 A.D.3d 745, 746 (2d Dep’t 2019) (“We agree with the Supreme

Court’s determination that the defendant [challenging termination pursuant to Public

Officer Law § 36] was required to bring a proceeding pursuant to CPLR article 78 to pursue

her claim of wrongful termination and to seek reinstatement and unpaid salary.”).

Given the lack of any authority to support a conclusion that there exists a private

right of action for Plaintiff to pursue independent claims under New York’s Real Property

Tax Law § 310(2) and New York Public Officers Law § 36 and the fact that the exclusive

remedy for such claims is an Article 78 proceeding, Defendant’s motion to dismiss and/or

for summary judgment on this claim is granted and Plaintiff’s motion for summary

judgment is denied.

B. Civil Service Law § 75-b

“To state a claim under New York Civil Service Law section 75-b, a plaintiff must

allege: (1) an adverse personnel action; (2) disclosure of information to a governmental

body (a) regarding a violation of a law, rule, or regulation that endangers public health or

safety, or (b) which [he] reasonably believes constitutes an improper governmental action;

and (3) a causal connection between the disclosure and the adverse personnel action.”

DeFranco v. New York Power Auth., No. 20-CV-1861-LJV, 2024 WL 1621533, at *10

(W.D.N.Y. Apr. 15, 2024) (quoting Rusk v. New York State Thruway Auth., 37 F. Supp. 3d

578, 600 (W.D.N.Y. 2014)).

The Town first argues that Plaintiff’s § 75-b claim is subject to dismissal because

the statute requires that complaints be made to a governmental body, and it contends that

Plaintiff did not complain directly to the Town Board. The statute defines “governmental

body” to mean “(i) an officer, employee, agency, department, division, bureau, board,

commission, council, authority or other body of a public employer, (ii) employee,

committee, member, or commission of the legislative branch of government, (iii) a

representative, member or employee of a legislative body of a county, town, village or any

other political subdivision or civil division of the state, (iv) a law enforcement agency or

any member or employee of a law enforcement agency, or (v) the judiciary or any employee

of the judiciary.” N.Y. Civ. Serv. Law § 75-b. Defendant cites no requirement or legal

authority suggesting that any complaint needed to be made to the entire Town Board or that

Plaintiff’s complaints made to several different Town councilmembers (Dkt. 50-2 at ¶¶ 30-

34), were insufficient as a matter of law.

But separate from whether Plaintiff can satisfy disclosure to a governmental body,

a fundamental flaw in her claim is the fact that her complaints about DiSanto’s misconduct,

errors, and erratic behavior did not concern a violation of a law, rule, or regulation that

endangers public health or safety, or which could reasonably be considered by her to

constitute improper governmental action. “‘Improper governmental action’ is conduct

‘which is in violation of any federal, state or local law, rule or regulation.’” Verdi v. City

of New York, 306 F. Supp. 3d 532, 549 (S.D.N.Y. 2018) (quoting N.Y. Civ. Serv. Law § 75-

b(2)(a)).

While Plaintiff argues that the Town’s failure to properly address DiSanto’s errors

and inability to properly complete her job duties constituted gross mismanagement and

waste of taxpayer funds, at bottom, Plaintiff’s complaints about DiSanto and oversight of

her work were within the scope of Plaintiff’s job duties. See Johnson v. Bd. of Educ. Ret.

Sys. of City of New York, No. 18CV4605(NGG)(PK), 2021 WL 2133434, at *7 (E.D.N.Y.

May 11, 2021) (communications of internal dissent regarding matters within the ambit of

plaintiff’s employment did not constitute a report to a governmental body pursuant to §75-

b), aff’d, No. 21-1465-CV, 2022 WL 17076718 (2d Cir. Nov. 18, 2022); Eyshinskiy v. New

York City Dep’t of Educ., No. 15 CIV. 10027 (DLC), 2016 WL 7017414, at *2 (S.D.N.Y.

Dec. 1, 2016) (“Disagreeing with the principals at Flushing about their standards in

supervising him does not constitute a complaint to a governmental body.”), aff’d, 692 F.

App’x 677 (2d Cir. 2017). That taxpayers are entitled to be treated fairly does not make

Plaintiff’s complaints about DiSanto’s errors rise to the level of a violation of any law, rule,

or regulation that endangers public health or safety, or constitute an improper governmental

action, as required. To hold otherwise would be to create a Civil Service Law § 75-b claim

whenever a municipal employee voices concerns about an employee’s performance, and it

would essentially eradicate the second element required to assert such a claim. In sum,

Plaintiff has not adduced admissible evidence that her complaints about DiSanto fell within

the scope of § 75- b’s protections.

On this basis, Defendant’s motion for summary judgment on this claim is granted

and Plaintiff’s motion for summary judgment is denied.

C. First Amendment

“Section 1983 itself creates no substantive rights; it provides only a procedure for

redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515,

519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). “To

state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged

conduct (1) was attributable to a person acting under color of state law, and (2) deprived

the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the

United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing

Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)).

To state a plausible claim for First Amendment retaliation, a plaintiff must allege:

“(1) his speech or conduct was protected by the First Amendment; (2) [defendants] took an

adverse action against him; and (3) there was a causal connection between this adverse

action and the protected speech.” Persaud v. City of New York, No. 1:22-CV-02919

(MKV), 2023 WL 2664078, at *4 (S.D.N.Y. Mar. 28, 2023) (quoting Cox v. Warwick Valley

Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011)); see also Searle v. Red Creek Cent. Sch.

Dist., No. 21-CV-6086-FPG, 2021 WL 5086405, at *4 (W.D.N.Y. Nov. 2, 2021) (“The

elements of a First Amendment retaliation claim are dependent on the ‘factual context’ of

the case.” (quotation and citation omitted)).

As to the first element, the Supreme Court in Lane v. Franks, 573 U.S. 228 (2014),

outlined a two-step inquiry into whether a public employee’s speech is entitled to

protection:

The first [step] requires determining whether the employee spoke as a citizen

on a matter of public concern. If the answer is no, the employee has no First

Amendment cause of action based on his or her employer’s reaction to the

speech. If the answer is yes, then the possibility of a First Amendment claim

arises. The question becomes whether the relevant government entity had an

adequate justification for treating the employee differently from any other

member of the general public.

Id. at 237 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)); see also Shara v.

Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 82-83 (2d Cir. 2022) (“So in assessing the

first prong of the retaliation test–whether a public employee’s speech is protected–we must

consider ‘two separate subquestions’: (1) whether the employee spoke as a citizen rather

than solely as an employee, and (2) whether he spoke on a matter of public concern. . . . If

either question is answered in the negative, our inquiry may end there. If both questions

are answered in the affirmative, we may proceed to consider whether the employer had an

adequate justification for treating the employee differently from any other member of the

general public based on the government’s needs as an employer.” (citations and quotations

omitted)); DiFonzo v. Cnty. of Niagara, No. 1:22-CV-588, 2023 WL 1801695, at *5

(W.D.N.Y. Feb. 7, 2023) (“A public employee’s speech ‘is protected by the First

Amendment only when the employee is speaking as a citizen . . . on a matter of public

concern.’” (quoting Ross v. Breslin, 693 F.3d 300, 305 (2d Cir. 2012)) (internal quotation

marks omitted)); Cecchini v. Schenck, No. 3:14-CV-1704 (MPS), 2017 WL 902849, at *9

(D. Conn. Mar. 7, 2017) (“To determine if a public employee’s speech is protected by the

First Amendment, courts must consider ‘(1) whether the subject of the employee’s speech

was a matter of public concern and (2) whether the employee spoke “as a citizen” rather

than solely as an employee.’” (quoting Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011))).

To assess whether a public employee is speaking pursuant to official duties, courts

“examine the nature of the plaintiff’s job responsibilities, the nature of the speech, and the

relationship between the two,” as well as other contextual factors such as whether the

plaintiff’s speech “was also conveyed to the public.” Ross v. Breslin, 693 F.3d 300, 306

(2d Cir. 2012); see also Severin v. New York City Dep’t of Educ., No. 19-CV-775 (MKV),

2023 WL 2752973, at *7 (S.D.N.Y. Mar. 31, 2023) (“In determining whether an employee

spoke pursuant to his official duties, a key question is whether the complaint was part-and-

parcel of his concerns about his ability to properly execute his duties.” (citations and

quotations omitted)), aff’d, No. 23-732-CV, 2024 WL 1904574 (2d Cir. May 1, 2024).

Defendant argues that Plaintiff’s statements at issue cannot constitute

constitutionally protected speech because at the time the statements were made, Plaintiff

was not speaking as a citizen, but solely as an employee. It argues that if Plaintiff expressed

concerns about a subordinate employee’s misconduct or incompetence, it was within her

professional responsibility to do so as the Town assessor. The Court agrees. Indeed,

Plaintiff acknowledges that supervision of DiSanto was her responsibility and any

misconduct by DiSanto directly interfered with Plaintiff’s own job duties, leading to an

indisputable conclusion that the speech was not protected. See Shara, 46 F.4th at 80 (bus

driver’s disagreements with school district mechanic and school district officials over the

frequency of bus inspection reporting did not constitute protected speech, regardless of

whether the information impacted the safety of school children); Barclay v. Michalsky, 368

F. App’x 266, 267 (2d Cir. 2010) (complaints to supervisors that co-workers were

mistreating patients and sleeping on the job was part of job duties and not speech as public

citizen); Johnson v. Bd. of Educ. Ret. Sys. of City of New York, No. 18CV4605NGGPK,

2021 WL 2133434, at *6 (E.D.N.Y. May 11, 2021) (“Because he was reporting on a core

job function within an established internal channel of communication, Johnson was not

speaking as a citizen and his speech is not protected by the First Amendment.”), aff’d, No.

21-1465-CV, 2022 WL 17076718 (2d Cir. Nov. 18, 2022).

There being no credible admissible evidence before the Court showing that

Plaintiff’s speech concerned matters outside the scope of her job duties or demonstrating

the presence of factual issues on that point, Plaintiff’s complaints cannot be considered to

have been protected speech made as a citizen. Accordingly, Defendant’s motion for

summary judgment as to this claim is granted and Plaintiff’s motion is denied.

D. Procedural Due Process

The Due Process Clause of the Fourteenth Amendment was “intended to secure the

individual from the arbitrary exercise of the powers of government . . . [and] serves to

prevent governmental power from being used for purposes of oppression.” Daniels v.

Williams, 474 U.S. 327, 331 (1986) (quotations and citations omitted). To succeed on a

due process claim, a plaintiff must establish that “he or she possesses a constitutionally

protected interest in life, liberty, or property, and that state action has deprived him or her

of that interest.” Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994). “An essential principle

of due process is that a deprivation of life, liberty, or property be preceded by notice and

opportunity for hearing appropriate to the nature of the case.” Cleveland Bd. of Educ v.

Loudermill, 470 U.S. 532, 542 (1985) (quotation omitted).

“To evaluate whether a plaintiff received due process, one of two standards may

apply. If the deprivation is the result of ‘unauthorized acts by state employees,’ the

Fourteenth Amendment is not violated ‘so long as the State provides a meaningful post-

deprivation remedy.’ If the deprivation ‘occurs in the more structured environment of

established State procedures, rather than random acts, the availability of post-deprivation

procedures will not, ipso facto, satisfy due process.’” Langton v. Town of Chester, 168 F.

Supp. 3d 597, 606 (S.D.N.Y. 2016) (quoting Hellenic Am. Neighborhood Action Comm. v.

City of N.Y., 101 F.3d 877, 880 (2d Cir. 1996)). Instead, in such cases, the Court considers

the adequacy of the pre-deprivation procedures, taking into account:

First, the private interest that will be affected by the official action; second,

the risk of an erroneous deprivation of such interest through the procedures

used, and the probable value, if any, of additional or substitute procedural

safeguards; and finally, the Government’s interest, including the function

involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Chase Grp. All. LLC v. City of

N.Y. Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010).

Plaintiff argues that she had an enforceable expectation of continued public

employment which constituted a property interest such that she could not be terminated

without the due process protections of notice and hearing. Resolution of whether Plaintiff

had a property interest in her continued employment is precluded on these motions by the

existence of factual disputes over whether Plaintiff was a permanent or probationary

employee.

Defendant contends that Plaintiff was still in a probationary period at the time of her

termination and had no protected property interest in the position. It relies on Rule XIV of

the Wayne County Civil Service Commission Rules and Regulations which indicates:

“Except as herein otherwise provided, every permanent appointment from an open

competitive list and every original appointment to a position in the non-competitive,

exempt or labor class shall be for a probationary term of not less than eight (8) nor more

than fifty-two (52) weeks.” (Dkt. 44-10 § XIV). Defendant contends that Plaintiff

acknowledged her probationary status in an email to Deputy Town Supervisor VanLaeken

where she stated, “my probation is up in October,” which would have been one year from

her start date. In addition, prior to terminating Plaintiff, VanLaeken contacted the Wayne

County Civil Service to confirm that Plaintiff was a probationary employee and was told

that she was subject to a probationary term of 52 weeks. (Dkt. 44-12 at ¶ 6).

Conversely, Plaintiff notes that there is no documentation to reflect her status as a

probationary employee. It is undisputed that the assessor position was a six-year term and

the offer letter Plaintiff received did not state the appointment was probationary. A Report

of Personnel Change form dated October 20, 2020, and completed by the Town contained

in her file checked the box for “permanent” employee and left “probationary” unchecked.4

(Dkt. 53-6).

As is clear, there are genuine issues of fact as to whether Plaintiff was permanent or

probationary or even if probationary, the length of the probationary term or what process a

probationary employee is due. Because these disputed issues as to Plaintiff’s employment

status necessarily dictate whether she possessed a property interest in her employment, the

Court cannot resolve this question on a summary judgment motion. The court in Reynolds

v. Vill. of Chittenango, No. 5:19-CV-416 (GLS/ML), 2023 WL 6460417 (N.D.N.Y. Oct. 4,

2023), faced a similar issue. There, the plaintiff asserted a due process claim and the

defendant’s motion for summary judgment required it to demonstrate “that there are no

genuine issues of material fact, including with regard to their primary contention, that

[plaintiff] was a probationary employee who was, therefore, not entitled to a hearing and

had no property interest in continued employment.” Id. at *8. The Court stated, “[in other

words, essential to the analysis of [plaintiff’s] Fourteenth Amendment claim is a

determination of whether he was a probationary employee at the time he was terminated.

The answer to this question—whether [plaintiff] was probationary—adjudges whether

4 The Court rejects Defendant’s suggestion that the Court should not consider

Defendant’s own document for lack of proper authentication, particularly where no

challenge is raised by it as to whether the document is authentic. See

PharmacyChecker.com v. Nat’l Ass’n of Boards of Pharmacy, No. 19-CV-7577 (KMK),

2023 WL 2973038, at *4 (S.D.N.Y. Mar. 28, 2023) (“To the extent that Plaintiff’s

authentication and foundation objections rest upon documents Plaintiff itself produced, the

Court will overrule this objection for the purposes of summary judgment.”). In any event,

Plaintiff has submitted a declaration from counsel explaining that the document was

received from Defendant during discovery. (See Dkt. 66-1).

process was, in fact, due. However, the parties dispute a multitude of material facts, leaving

this determination unresolved—and, for summary judgment purposes, unresolvable.” Id.

The court concluded that a finder of fact must resolve disputed issues as to whether plaintiff

was a probationary employee at the time he was terminated and only then could the court

determine whether any process was due. Id. So too here is the Court similarly constrained.

See also Morgenstern v. Cnty. of Nassau, No. 04-CV-0058 JS ARL, 2008 WL 4449335, at

*19 (E.D.N.Y. Sept. 29, 2008) (“Plaintiff alleges that Defendants violated New York Civil

Service Law § 75 by terminating Plaintiff without a notice and hearing. Defendants argue

that they did not violate the Civil Service Law because Plaintiff was a probationary

employee and thus not entitled to a notice and hearing. . . . Because the Court has already

found that there is an issue of fact as to whether Plaintiff was a permanent employee at the

time of her termination, the Court cannot grant summary judgment for Defendants on this

claim.”); Jackson v. Kemp, No. 88 CIV. 2919 (LLS), 1991 WL 39300, at *1 (S.D.N.Y. Jan.

22, 1991) (“In addition, the degree to which such administrative procedures apply to

plaintiff apparently depends upon resolution of factual issues concerning whether she was

a ‘probationary’ or an ‘excepted’ or a ‘full’ employee. Accordingly, plaintiff’s motion is

also denied.”).

In addition, the question of Plaintiff’s employment status impacts not only the

assessment of whether her termination was an unauthorized act by state employees or was

consistent with established State procedures, but also whether Article 78 provides the

exclusive remedy for Plaintiff’s due process claim, as Defendant argues. In some cases,

the availability of Article 78 proceedings can foreclose a federal due process claim. See

McCluskey v. Lopez, No. 24-381, 2024 WL 5182876, at *2 (2d Cir. Dec. 20, 2024)

(“[U]nder some circumstances, the Supreme Court has said it is possible that ‘a

postdeprivation hearing, or a common-law tort remedy for erroneous deprivation, satisfies

due process.’” (quoting Zinermon v. Burch, 494 U.S. 113, 127-28 (1990))); Locurto v. Safir,

264 F.3d 154, 175 (2d Cir. 2001) (“An Article 78 proceeding therefore constitutes a wholly

adequate post-deprivation hearing for due process purposes.”); Nolan v. Cnty. of Erie, No.

1:19-CV-01245, 2020 WL 1969329, at *11 n.7 (W.D.N.Y. Apr. 24, 2020) (“Article 78

proceedings often constitute sufficient procedural due process foreclosing a § 1983 claim

against municipalities.”). But “[s]ufficient process ‘is a flexible concept that varies with

the particular situation,’ considering factors that include the private interest affected, the

risk of a wrongful deprivation of such interest under the procedures used, the probable

value of additional or substitute procedural safeguards, and the burdens to the government

that additional procedural protections might entail.” McCluskey, 2024 WL 5182876, at *2.

Because here, Plaintiff contends that she did not receive pre-deprivation or post-

deprivation procedures to which she was entitled, her right to which turns on her

employment status, the Court cannot determine on these motions whether Article 78

provided adequate and exclusive relief. See Todaro v. Norat, 112 F.3d 598, 599-600 (2d

Cir. 1997) (where a tenured employee has a right to notice and opportunity to be heard

before termination, “certain features must be present to fulfill the minimum requirements

of fairness” and post-termination proceedings do not satisfy those requirements); Moulton

v. Cnty. of Tioga, New York, No. 3:22-CV-00340 (AMN/ML), 2024 WL 4836608, at *10

(N.D.N.Y. Nov. 20, 2024) (denying motion for summary judgment on procedural due

process claim where “a reasonable juror could very well find that a pre-deprivation hearing

was required”); Reynolds v. Vill. of Chittenango, No. 519CV416GLSTWD, 2020 WL

1322509, at *6 (N.D.N.Y. Mar. 20, 2020) (“Here, Reynolds’ alleges that defendants did not

provide him with the pre-termination notice and hearing that was required under law and

contract. Accordingly, the availability of an Article 78 proceeding does not foreclose his

procedural due process claim.”); Mullen v. Vill. of Painted Post, 356 F. Supp. 3d 275, 282

(W.D.N.Y. 2019) (because plaintiff alleged he was not provided a meaningful pre-

termination opportunity to respond, “a post-deprivation procedural safeguard such as an

Article 78 proceeding does not automatically satisfy due process”); Swain v. Town of

Wappinger, No. 17 CIV. 5420 (JCM), 2019 WL 2994501, at *8 (S.D.N.Y. July 9, 2019)

(denying cross-motions for summary judgment and rejecting argument that Article 78 post-

deprivation remedies defeat Plaintiff’s due process claim because “the availability of an

adequate post-termination remedy, whether through a CBA procedure or Article 78 hearing,

does not satisfy due process if there was no pre-termination notice”).

Accordingly, because the nature of the process due Plaintiff is unresolved at this

time, the Court cannot resolve Defendant’s argument that the availability of Article 78

proceedings may ultimately preclude Plaintiff’s due process claim. Similarly, because the

Court denies Plaintiff’s motion for summary judgment because of issues of fact related to

her employment status, so too is it unable to resolve the question of what damages are

applicable should Plaintiff succeed on her claims.

For these reasons, both parties’ motions for summary judgment on Plaintiff’s due

process claims are denied.

E. Punitive Damages

Finally, Defendant moves to dismiss Plaintiff’s request for punitive damages,

arguing that such claim is barred against a municipality. Plaintiff did not respond to this

argument.

“[P]unitive damages are not per se unavailable against a municipality,” although

there “is a common-law presumption against the availability of punitive damages from

municipalities, and thus ‘[t]he general rule . . . is that no punitive damages are allowed

unless expressly authorized by statute.” Jordan v. City of New York, No. 23CV4962 (DLC),

2024 WL 4872186, at *3 (S.D.N.Y. Nov. 22, 2024) (quoting City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 259-64 & n.21 (1981)). The Second Circuit has clarified that

a statute need not specifically state that punitive damages are recoverable from a

municipality so long as the statute permits punitive damages without exception. Gilead

Cmty. Servs., Inc. v. Town of Cromwell, 112 F.4th 93, 103 (2d Cir. 2024). Here, as noted,

Plaintiff provided no authority to establish that punitive damages are available from

Defendant on her claims and the Court presumes they are not. See, e.g., Baumeister v. Erie

Cnty., No. 23-CV-1150-LJV, 2024 WL 4362311, at *15 (W.D.N.Y. Sept. 30, 2024) (holding

municipalities immune from claims of punitive damages in a section 1983 action); Zielonka

v. Town of Sardinia, 120 A.D.3d 925, 926 (4th Dep’t 2014) (“[T]he Town cannot be held

liable for punitive damages [pursuant to § 75-b] absent an express provision in the

statute.”).

Moreover, “[i]n the case of a counseled party, a court may, when appropriate, infer

from a party’s partial opposition that relevant claims or defenses that are not defended have

been abandoned.” Jones v. Pawar Bros. Corp., 434 F. Supp. 3d 14, 20 n.4 (E.D.N.Y. 2020)

(quoting Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir. 2014)); see also Kurtz v.

Hansell, No. 20 CIV. 3401 (PAE), 2021 WL 1143619, at *16 (S.D.N.Y. Mar. 24, 2021)

(holding that by failing to respond to argument on motion to dismiss “plaintiffs have

abandoned that claim”); East v. Roosevelt Union Free Sch. Dist., No. CV193709JSAKT,

2020 WL 13753159, at *20 (E.D.N.Y. July 31, 2020) (“Courts in the Second Circuit have

found that ‘[a] plaintiff’s failure to respond to contentions raised in a motion to dismiss

claims constitutes an abandonment of those claims.’” (quoting Laface v. E. Suffolk Boces,

349 F. Supp. 3d 126, 161 (E.D.N.Y. 2018))); Romeo & Juliette Laser Hair Removal, Inc.

v. Assara I LLC, No. 08-CV-442 TPG FM, 2014 WL 4723299, at *7 (S.D.N.Y. Sept. 23,

2014) (“At the motion to dismiss stage, where review is limited to the pleadings, a plaintiff

abandons a claim by failing to address the defendant’s arguments in support of dismissing

that claim.”). For these reasons, any such claim for punitive damages has been abandoned

and Defendant’s motion to dismiss such relief is granted. 5

5 In addition, to the extent that the parties argue over whether the Court should read

Plaintiff’s complaint to state claim for “Monell Liability,” “Monell [v. Dep’t of Soc. Servs.

of City of N.Y., 436 U.S. 658, 691 (1978)] does not provide an independent separate cause

of action against a municipality; ‘it extends liability to a municipal organization where that

organization’s failure to train, or the policies or customs that it has sanctioned, led to an

independent constitutional violation,’” Gem Fin. Serv., Inc. v. City of N.Y., 298 F. Supp. 3d

464, 490 (E.D.N.Y. 2018) (quoting Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006)).

“In other words, Monell is not a cause of action, but is rather a form of liability.” Watkins

v. Town of Webster, 592 F. Supp. 3d 96, 118-19 (W.D.N.Y. 2022). Here, apart from the due

process claim, Plaintiff’s complaint does not assert any other viable § 1983 claim against

the Town, nor do the words “custom” or “policy” even appear in Plaintiff’s complaint.

Thus, there would be no basis to read any other claim outside the due process claim

discussed herein into Plaintiff’s complaint and the Court need not resolve the parties’

arguments on this point.

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss and/or for summary

judgment is granted as to Plaintiff’s claims for wrongful termination in violation of Real

Property Tax Law § 310(2) and New York Public Officers Law § 36, civil service law

§ 75-b, First Amendment retaliation pursuant to 42 U.S.C. § 1983, and punitive damages,

but it is denied as to Plaintiff's claims for violation of due process pursuant to 42 U.S.C.

§ 1983. Plaintiff's motion for summary judgment is denied.

SO ORDERED. ? (yd

[LI BAL AC

ERXIZABETH &. WOLFORD

Chief Judge

United States District Court

Dated: February 24, 2025

Rochester, New York

-25-