Cestaro v. Rodriguez

Background

R. Michael Cestaro worked as a Compensation Claims Referee for the New York State Workers’ Compensation Board. In August 2021, he was offered a promotion to Senior Compensation Claims Referee/Administrative Law Judge, scheduled to begin on September 2.

On August 28, 2021, while riding a New Jersey Transit train, Cestaro had his mask pulled below his chin. A conductor told him to pull it up. Cestaro responded that he did not have to listen, said he would challenge the requirement in court, said the government could not compel him to wear the mask, and told the conductor that he could be an “obedient dog.” Cestaro left the train at the next stop. He did not tell the conductor that a medical condition required him to lower his mask or request an exemption.

Someone recorded the interaction and posted it on TikTok. An attorney who regularly appeared before the Workers’ Compensation Board sent the video to a Board official, who forwarded it to ethics counsel and other officials. Board officials described Cestaro’s conduct as unprofessional and aggressive and expressed concern that he could not be trusted to treat workers fairly or follow rules. The Board revoked his pending promotion the next day.

Cestaro sued Clarissa M. Rodriguez, Heather MacMaster, David Wertheim, and Madeline Pantzer under 42 U.S.C. § 1983, a federal civil-rights statute. He sued them in their individual and official capacities and claimed that revoking his promotion violated his speech rights under the First and Fourteenth Amendments and Article I, § 8 of the New York Constitution. He sought damages, including punitive damages, and injunctive relief concerning the promotion, employment benefits, his personnel file, and future personnel decisions.

Immunity and Personal Involvement

The court ruled that Cestaro’s claims against Pantzer and Wertheim in their official capacities were barred by sovereign immunity. The court explained that state officials generally cannot be sued in federal court in their official capacities, and that the exception for prospective injunctive relief did not apply because Pantzer and Wertheim no longer worked for the Board and could not provide that relief.

The court also ruled that claims against Rodriguez and MacMaster in their individual capacities were barred by sovereign immunity. Separately, it found no genuine dispute that Rodriguez and MacMaster lacked personal involvement in the decision to revoke Cestaro’s promotion. Cestaro admitted that Rodriguez was not involved. MacMaster was on vacation during the relevant period, did not respond to the relevant email until more than a week after the revocation, and denied having a role in the decision. The court found that Cestaro’s unsupported speculation did not create a factual dispute.

The court further ruled that sovereign immunity barred Cestaro’s official-capacity claims based on the New York Constitution.

First Amendment Retaliation Claim

A First Amendment retaliation claim requires proof that the speech was protected, the government took an adverse action, and the speech caused that action. Even if a plaintiff establishes those elements, the government can obtain summary judgment by proving that it would have taken the same action without the protected speech.

The court assumed, without deciding, that the defendants might have improperly considered Cestaro’s statement that the mask rule was unconstitutional. It nevertheless held that the defendants had shown with undisputed evidence that they would have revoked the promotion because of Cestaro’s other conduct.

The court emphasized that the officials’ communications focused primarily on Cestaro’s failure to wear a mask, his aggressive and disrespectful interaction with the conductor, his statement about an “obedient dog,” and concerns about his ability to follow rules and treat workers respectfully. The court noted that the promoted position involved presiding over workers’ compensation cases and hearings and ensuring that proceedings complied with professional standards, law, and procedures.

The court rejected Cestaro’s argument that he had argued with the conductor because the conductor was rude, finding that no reasonable juror viewing the video would find that the conductor acted rudely or improperly. It also rejected Cestaro’s argument that the promotion would not have been revoked if he had remained silent, because the evidence showed that he engaged in conduct beyond the statement about the constitutionality of mask requirements. The court further rejected his argument that the “obedient dog” statement was a protected metaphor and noted that the disruptive effect of potentially protected speech can provide an additional permissible reason for an employment action.

Finally, although Cestaro asserted that impaired vision could have qualified him for a mask exemption, the court noted that he had not told the conductor about that condition or requested an exemption from New Jersey Transit, the Metropolitan Transportation Authority, or the Workers’ Compensation Board.

Disposition

The court held that the undisputed evidence showed the defendants would have revoked Cestaro’s promotion even if they had not considered his views about the constitutionality of mask mandates. It therefore concluded that the defendants were entitled to summary judgment on Cestaro’s claims.

Judge Denise Cote’s March 13, 2024 order granted the defendants’ December 1, 2023 motion for summary judgment.