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DiFonzo v. County of Niagara

First Amendment Claim Fails; Plaintiff's Statements Were Made in His Role as Employee

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OPINION AND ORDER ON MOTIONS TO DISMISS (Docs. 15, 27)   Plaintiffs Thomas DiFonzo and Lauren Rogers, Mr. DiFonzo’s daughter — both former employees at the Niagara County Forensic Laboratory — allege that they experienced harassment in retaliation for Mr. DiFonzo’s refusal to certify a drug chemist-in-training and Mr. DiFonzo’s statements to the lab director that certifying the other employee would be unethical and illegal and could have numerous negative repercussions. Defendants move to dismiss the Amended Complaint for failure to state a claim. For the reasons that follow, the court concludes that Plaintiffs’ only federal-law cause of action, their First Amendment retaliation claim, fails as a matter of law because Mr. DiFonzo made the statements at issue in his capacity as an employee, not as a citizen speaking on a matter of public concern. Ross v. Breslin, 693 F.3d 300, 305 (2d Cir. 2012). Therefore, the court grants Defendants’ motion to dismiss the sole federal-law claim and declines to exercise supplemental jurisdiction over the remaining state-law claims. Factual Background1 Mr. DiFonzo and Ms. Rogers have brought a four-count complaint against the County of Niagara, Richard Updegrove (the County Manager), the Niagara County Sheriff’s Department, Michael Filicetti (the elected Sheriff of Niagara County), the Niagara County Forensic Laboratory (“the Lab”), and Dr. Kori Ortt-Gawrys (the Lab’s Director). (Doc. 16

4-9.) Defendant Dr. Ortt-Gawrys acted as the Director of the Lab starting in May 2017. (Id. 32.) She was not certified to handle drug or firearm analysis. Instead, she conducted DNA analysis and serology tests. (Id. 38.) She reported to Sheriff Deputy Chief Weidel, who reported to Undersheriff Michael Dunn, who reported to Defendant Sheriff Mr. Filicetti. (Id.

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