Kuczinski v. City of New York

Background

Gregory Kuczinski, formerly the Deputy Commissioner of the Investigations Division of the New York City Department of Correction, sued the City of New York and individual defendants employed by the City’s Department of Investigations. He alleged retaliation for protected speech under the First Amendment and the New York State Constitution, deprivation of a liberty interest without due process, and defamation.

Kuczinski alleged that he spoke with members of the Bronx District Attorney’s Public Integrity Unit during the week of either March 20 or March 27, 2017. According to the opinion, he discussed DOI investigations, his interactions with DOI investigators, alleged monitoring of telephone calls, and his belief that DOI was targeting him. He was removed from his position on May 8, 2017, and terminated from the Department of Correction on May 12, 2017.

The court had previously dismissed the liberty-interest claim and some defamation claims. The claims remaining on this motion were retaliation under the First Amendment and New York State Constitution, and defamation based on an April 2017 DOI report titled “Systemic Misuse of City-Owned Vehicles by Senior Members of the New York City Department of Correction.”

Plaintiff’s motion to continue

In response to the summary-judgment motion, Kuczinski filed what he called a “Motion to Continue Defamation Causes of Action.” The court ruled that the Federal Rules of Civil Procedure do not provide for such a motion and that Kuczinski had not stated its grounds with the required specificity.

The court also rejected the motion on the merits. To the extent the first cause of action concerned a May 5, 2017 letter to the mayor, that defamation claim had already been dismissed with prejudice. The fifth cause of action was too general, except to the extent it referred to the defamation claim based on the April 2017 DOI report. The court otherwise denied the motion to continue.

First Amendment retaliation

A public employee claiming First Amendment retaliation must show that the speech was protected, the employer took an adverse action, and the protected speech caused that action. The parties did not dispute that Kuczinski’s conversation with the Bronx Public Integrity Unit was protected speech or that his removal and termination were adverse actions. The dispute was whether the speech caused those actions.

The court granted summary judgment to the individual defendants because Kuczinski offered no tangible evidence that Jennifer Sculco, Paul Cronin, Michael Carroll, or Mark Peters knew about his conversation with the Bronx Public Integrity Unit. Kuczinski testified that he did not know whether they were aware of the conversation, and the defendants denied knowing about it. The court characterized his statements suggesting that they should have assumed he would speak with the unit as speculation rather than evidence.

The timeline also undermined causation. DOI’s investigation into vehicle misuse began before Kuczinski’s conversation with the Bronx Public Integrity Unit. The individual defendants also questioned him about alleged improper monitoring of telephone calls before that conversation. The court concluded that a reasonable jury could not find a causal connection between the protected speech and the alleged retaliation.

The court also rejected the claim against the City of New York. Under the municipal-liability rule commonly called Monell, a city can be liable under 42 U.S.C. § 1983 only when an unconstitutional injury was caused by an official policy or custom. Because Kuczinski had not shown an underlying constitutional injury, the claim failed. The court also found that he had identified no evidence of an official policy, widespread custom, inadequate training or supervision amounting to deliberate indifference, or action by a final municipal policymaker that caused the alleged injury.

Defamation

The defendants moved for summary judgment on the defamation claim based on the April 2017 DOI report. The court held that the report was protected by an absolute or qualified privilege, for the same reasons it had previously found that the Peters Letter was privileged. The court therefore granted summary judgment on the defamation claim.

In briefing, Kuczinski disavowed reliance on the April report and instead argued that his claim concerned a May 8, 2017 DOI press release. The court held that this claim was not properly part of the case because it was not alleged in the third amended complaint, and the parties had not litigated it with the required consent. The court further stated that, even if the press-release claim were considered, the release was substantially similar to the privileged Peters Letter, incorporated that letter by reference, and was protected by the same privilege. Public dissemination did not prevent application of the privilege.

Disposition

The court granted the defendants’ motion for summary judgment on the retaliation and defamation claims. It granted the City’s motion for summary judgment on the municipal-liability claim, denied the plaintiff’s motion to continue except to the extent the court addressed the properly remaining defamation claim, directed the Clerk to enter judgment for the defendants, and closed the case.