Gusler v. City of Long Beach (823 F. Supp. 2d 98, 2011)

ORDER

FEUERSTEIN, District Judge:

Pro se plaintiff Jay Gusler (“plaintiff’) commenced this action pursuant to 42 U.S.C. §§ 1983, 1985(3) and 1986 against defendants City of Long Beach (“the City”), the Long Beach Volunteer Fire Department (“LBVFD”), Charles Theofan (“Theofan”), Lisa Hirsch (“Hirsch”), Corey Klein (“Klein”), Robert Agostisi (“Agostisi”), Marco Passaro (“Passaro”), John Gargan (“Gargan”), Scott Kemins (“Kemins”), Stephen Fraser (“Fraser”), John McLaughlin (“McLaughlin”), Michael Gel-berg (“Gelberg”) and Timothy Radin (“Ra-din”), all in their individual and official capacities, (collectively, “defendants”) , alleging violations of his First and Fourteenth Amendment rights, as well as state law claims. By electronic order entered February 24, 2011, defendants’ motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure was referred to United States Magistrate Judge A. Kathleen Tomlinson for a report and recommendation pursuant to 28 U.S.C. § 636(b). By Report and Recommendation dated August 15, 2011 (“the Report”), Magistrate Judge Tomlinson recommended: (1) that the branches of defendants’ motion seeking dismissal of plaintiffs second (First Amendment (freedom of association) retaliation claim), fourth (equal protection claim), fifth (Section 1985 conspiracy claim) and sixth (Section 1986 claim) causes of action be granted and those causes of action be dismissed in their entirety; (2) that the branch of defendants’ motion seeking dismissal of the Section 1983 claims against defendants Hirsch, Klein, Agostisi, Kemins, Fraser, McLaughlin, Gelberg and Radin be granted and the Section 1983 claims against those defendants be dismissed in their entirety without prejudice; (3) that the branch of defendants’ motion seeking dismissal of so much of the first cause of action (First Amendment (freedom of speech) retaliation claim) as is based upon plaintiff’s 2008 statements in opposition to the seizure of the UFA’S computer and at the November 2008 Fire Board meeting, the 2008 Christmas staffing controversy and plaintiffs workplace violence and DOL complaints be granted and that so much of the first cause of action as is based upon such unprotected speech be dismissed; (4) that the branch of defendants’ motion seeking dismissal of so much of the third cause of action (First Amendment (right to petition) retaliation claim) as is based upon the March 2009 settlement offer and the workplace violence and DOL complaints be granted and that so much of the third cause of action as is based upon such acts be dismissed; (5) that defendants’ motion otherwise be denied; and (6) that plaintiff be granted leave to amend his complaint (a) to re-plead his second cause of action and Section 1983 claims against Hirsch, Klein, Agostisi, Kemins, Fraser, McLaughlin, Gelberg and Radin and (b) to plead additional retaliatory acts with respect to his third cause of action.

Pending before the Court are: (1) plaintiffs objections to so much of the Report as recommends dismissing his first cause of action in part and his fourth, fifth and sixth causes of action with prejudice; and (2) defendants’ objections to so much of the Report as recommends (a) denying the branches of their motion seeking dismissal of plaintiffs first and third causes of action in their entirety and the claims against the individual defendants based upon the defense of qualified immunity and (b) granting plaintiff leave to amend his complaint. For the reasons stated herein, Magistrate Judge Tomlinson’s Report is modified as set forth below and, as modified, is otherwise accepted in its entirety.

I

Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct proceedings on dispositive pretrial matters without the consent of the parties. Fed.R.Civ.P. 72(b). Any portion of a report and recommendation on dispositive matters, to which a timely objection has been made, is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The court, however, is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See, Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, the district judge need only be satisfied that there is no clear error on the face of the record. See Fed.R.Civ.P. 72(b); Johnson v. Goord, 487 F.Supp.2d 377, 379 (S.D.N.Y.2007), aff'd, 305 Fed.Appx. 815 (2d Cir.2009); Baptichon v. Nevada State Bank, 304 F.Supp.2d 451, 453 (E.D.N.Y.2004), aff'd, 125 Fed.Appx. 374 (2d Cir.2005). Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

II

A. Plaintiffs Objections

Plaintiff contends that Magistrate Judge Tomlinson erred, inter alia: (1) in “sidestepping] a determination,” (Plf. Obj., at 4), on whether his December 15, 2008 letter to Theofan relating to the 2008 Christmas Eve staffing controversy constituted protected speech because that letter did not only address a staffing issue, but also (a) challenged Theofan’s “illegal” suggestion to allow an acting-lieutenant to work in a supervisory position without the mandatory training required by New York State law, which posed a threat to public safety and welfare, (Plf. Obj., at 4-5), and (b) challenged the conduct of McLaughlin, a City councilperson, in “asserting himself into [a] mundane staffing matter,” (Plf. Obj., at 7), thereby “undermining] the para-military structure of the [Long Beach Fire Department] * * * [and] [jeopardizing] [the] smooth and undisturbed operation [of its chain of command],” (Plf. Obj., at 7-8); (2) in “sidestepping] making a determination on the protected/unprotected status of [his] expressions concerning workplace violence,” (Plf. Obj., at 8-11); and (3) in analyzing his equal protection claim as a “class-of-one” claim, since he is a member of a discernable class, i.e., “a ‘professional’ firefighter,” (Plf. Obj., at 12). Plaintiff also requests that any dismissal of his equal protection, Section 1985 and Section 1986 claims be without prejudice so that he may're-plead those claims following discovery.

Upon de novo review of the Report and consideration of plaintiff’s objections thereto, plaintiffs objections are overruled, although plaintiff is granted leave to amend his first cause of action (First Amendment (freedom of speech) retaliation claim) to re-plead a claim based upon the December 15, 2008 letter to Theofan. Accordingly, I accept so much of the Report as recommends: (l)(a) granting in part the branches of defendants’ motion seeking dismissal of plaintiffs first and third causes of actions, (b) dismissing so much of plaintiffs first cause of action as is based upon plaintiffs 2008 statements in opposition to the seizure of the UFA’s computer and at the November 2008 Fire Board meeting, his statements about the 2008 Christmas staffing controversy and his workplace violence and DOL complaints with prejudice, (c) dismissing so much of plaintiffs first cause of action as is based upon his December 15, 2008 letter to Theofan, except that the dismissal of this claim is without prejudice, and (d) dismissing so much of plaintiffs third cause of action as is based upon the March 2009 settlement offer and the workplace violence and DOL complaints with prejudice; (2) granting the branches of defendants’ motion seeking dismissal of plaintiffs second cause of action and Section 1983 claims against Hirsch, Klein, Agostisi, Kemins, Fraser, McLaughlin, Gelberg and Radin in their entirety and dismissing plaintiffs second cause of action and Section 1983 claims against Hirsch, Klein, Agostisi, Kemins, Fraser, McLaughlin, Gelberg and Radin without prejudice; and (3) granting the branches of defendants’ motion seeking dismissal of plaintiffs fourth, fifth and sixth causes of action and dismissing plaintiffs fourth, fifth and sixth causes of action with prejudice. Plaintiff must file any amended complaint in accordance with the Report and this Order within thirty (30) days after this Order is served with notice of entry upon him, or all of the claims dismissed by this Order will be deemed dismissed with prejudice.

B. Defendants’ Objections

Defendants contend that Magistrate Judge Tomlinson erred, inter alia: (1) in interpreting plaintiffs first through fourth causes of action to be asserted against all defendants, (Def. Obj., at 3 n. 1); (2) in finding that certain categories of plaintiffs speech were protected under the First Amendment since “regardless of whether any of [his] statements may have been of ‘public concern,’ their publication in Plaintiffs capacity as a uniformed firefighter precludes their constituting protected speech,” (Def. Obj., at 8); (3) in finding that plaintiff suffered an adverse employment decision relating to his speech regarding overtime staffing, (Def. Obj., at 14-16); (4) in finding a causal connection between plaintiffs speech and any adverse employment action, (Def. Obj., at 16-19); (5) “in allowing any portion of [the third] cause of action to survive * * * [because] [i]t is shear [sic] speculation to read into the amorphous cause of action * * * viable complaints regarding public concern and retaliation in response to those complaints. It is more then [sic] giving a favorable inference to Plaintiff, and is almost to [sic] guiding Plaintiff to state a cause of action * * * [and] it is somewhat of a stretch to conclude that Plaintiffs Third Cause of Action includes complaints of retaliation for filing anything other than the [workplace violence] and/or DOL complaints based on the Complaint itself,” (Def. Obj., at 19); (6) in denying the defense of qualified immunity to Theofan, Passaro and Gargan because none of their conduct violated plaintiffs free speech rights and, in any event, their conduct was objectively reasonable, (Def. Obj., at 21-), insofar as, inter alia, “Theofan had abundant cause to remove Plaintiff from his XO position and discipline him for his insubordination and outrageous disruption of the [Long Beach Fire] Department,” (Def. Obj., at 23), and plaintiff does not allege that “Gargan participated in the active deprivation of any clearly éstablished right enjoyed by Plaintiff,” (Def. Obj., at 23); and (7) in recommending that plaintiff be granted leave to amend his complaint since if he “cannot properly plead his claims in a ninety-page (90)[sic] Complaint, he surely should not be given the leeway to make another pointless attempt,” (Def. Obj., at 25).

Upon de novo review of the Report and consideration of defendants’ objections thereto, defendants’ objections are overruled. Accordingly, so much of the Report as recommends: (1) denying (a) in part the branches of defendants’ motion seeking dismissal of plaintiff’s first and third causes of action and (b) the branch of defendants’ motion seeking dismissal of the claims against the individual defendants based upon the defense of qualified immunity and (2) granting plaintiff leave to amend his complaint, is accepted in its entirety, with the exception that Magistrate Judge Tomlinson’s qualified immunity analysis is modified solely to correct the procedural standard for dismissal set forth on pages forty-nine (49) to fifty (50) of the Report (“ * * * [A]s with all Rule 12(b)(6) motions, the motion may be granted only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”) While Magistrate Judge Tomlin-son correctly found that a defendant presenting a qualified immunity defense on a motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure must show both that the basis for the defense appears in the facts alleged on the face of the complaint and that the procedural standard for dismissal under Rule 12(b)(6) has been met, see McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004), the correct procedural standard for dismissal under Rule 12(b)(6), as noted earlier by Magistrate Judge Tomlinson on page 18 of the Report, is a showing that the plaintiff failed to plead sufficient facts “to state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (applying facial plausibility standard to Rule 12(b)(6) motion based upon qualified immunity defense). Nonetheless, since Magistrate Judge Tomlinson rejected defendants’ qualified immunity defense, in part, because plaintiff adequately pled a First Amendment claim against Theofan, Gargan and Passaro, the erroneous standard set forth in the Report does not affect the remainder of her qualified immunity analysis, which is otherwise accepted in its entirety.

III. Conclusion

Upon de novo review of the Report, the parties’ respective objections are overruled and the Report is accepted in its entirety, as modified by this Order. Accordingly: (1) the branch of defendants’ motion seeking dismissal of plaintiffs first cause of action (a) is granted to the extent that (i) so much of plaintiffs first cause of action as is based upon plaintiffs 2008 statements in opposition to the seizure of the UFA’s computer and at the November 2008 Fire Board meeting, his statements about the 2008 Christmas staffing controversy and his workplace violence and DOL complaints is dismissed with prejudice and (ii) so much of plaintiffs first cause of action as is based upon his December 15, 2008 letter to Theofan is dismissed without prejudice, and (b) is otherwise denied; (2) the branches of defendants’ motion seeking dismissal of plaintiffs second cause of action and Section 1983 claims against Hirsch, Klein, Agostisi, Kemins, Fraser, McLaughlin, Gelberg and Radin are granted and plaintiffs second cause of action and Section 1983 claims against Hirsch, Klein, Agostisi, Kemins, Fraser, McLaughlin, Gelberg and Radin are dismissed without prejudice; (3) the branch of defendants’ motion seeking dismissal of plaintiffs third cause of action (a) is granted to the extent that so much of plaintiffs third cause of action as is based upon the March 2009 settlement offer and the workplace violence and DOL complaints is dismissed with prejudice and (b) is otherwise denied, and plaintiff is granted leave to amend his third cause of action to assert additional retaliatory acts in accordance with the Report; (4) the branches of defendants’ motion seeking dismissal of plaintiffs fourth, fifth and sixth causes of action are granted and plaintiffs fourth, fifth and sixth causes of action are dismissed with prejudice; and (5), defendants’ motion is otherwise denied. Plaintiff must file any amended complaint in accordance with the Report and this Order within thirty (30) days after this Order is served with notice of entry upon him, or all of the claims dismissed by this Order will be deemed dismissed with prejudice.

SO ORDERED.

REPORT AND RECOMMENDATION

A. KATHLEEN TOMLINSON, United States Magistrate Judge:

I. Preliminary Statement

Jay Gusler (“Plaintiff’ or “Gusler”), appearing pro se, filed a Complaint against The City of Long Beach (“City”), The Long Beach Volunteer Fire Department (“LBVFD”), Charles Theofan, Lisa Hirsch, Corey Klein, Robert Agostisi, Marco Passaro, John Gargan, Scott Kemins, Stephen Fraser, John McLaughlin, Michael Gel-berg, and Timothy Radin (collectively “Defendants”). Plaintiff is an employee of the City of Long Beach Fire Department (“LBFD”), which is alleged to be an agency of the City. Plaintiff brings this action pursuant to 42 U.S.C. § 1983 for alleged deprivations of Plaintiffs rights under the First and Fourteenth Amendments and under 42 U.S.C. § 1985(3) and § 1986. Plaintiff also brings four state causes of action. Defendants have now moved to dismiss the Complaint. DE 21. Plaintiff has filed opposition to the motion. DE 23.

This motion has been referred to me by Judge Feuerstein for a Report and Recommendation. Based on my review of the Complaint, the arguments advanced by both parties in their written submissions, and the applicable case law, I respectfully recommend to Judge Feuerstein that Defendants’ motion to dismiss be GRANTED in part and DENIED in part.

II. Factual Background

The following background facts come from the Complaint [DE 1]. Plaintiff has been a firefighter with the LBFD since 1993. DE 1 ¶ 58. Plaintiff was promoted to Lieutenant in the LBFD in 1999. Id. ¶ 59. Plaintiff is also a member of the Uniformed Firefighters Association (“UFA”), the union representing the paid firefighters, and Plaintiff has at times held various titles on the Executive Board of that union. Id. ¶ 60. The LBFD is comprised of both paid firefighters, such as Plaintiff, and members of the LBVFD, who are unpaid. Id. ¶ 26. At the time of the filing of the Complaint, the LBFD was purportedly comprised of 26 paid firefighters and 106 volunteer firefighters. Id. The individual Defendants are employees of the City and/or LBVFD in various capacities, which will be discussed infra. Throughout Plaintiffs career with the LBFD, he has been outspoken in his criticism of the way the volunteer firefighters are recruited and trained, and the way the LBFD as a whole has been run. Based in part on his speech concerning this issue, Plaintiff alleges that Defendants have taken retaliatory action against him.

A. Plaintiff’s 2008 Statements Regarding Overtime Staffing

During 2008, the UFA had been engaged in an effort to bolster the number of paid firefighters who worked overtime during summer weekends, a busy time for the LBFD. Id. ¶¶ 84-86. Plaintiff had been appointed to the position of Executive Officer (“XO”) of the paid firefighters in April 2008. Id. ¶ 73. The Complaint alleges that although “it was not within his duties to do so,” Plaintiff became involved in the overtime staffing dispute in an effort “to convince the City of the importance of this additional staffing.” Id. ¶ 87.

Plaintiff first met with Garret Rooney, who, at the time, was the Assistant City Manager. Id. ¶ 13. Rooney told Plaintiff that the City did not find it necessary to provide additional staffing, but that Plaintiff could bring it up with the City Manager, Defendant Charles Theofan. Id. ¶ 88. Plaintiff wrote a letter to Defendant Theofan describing the “dire state” of the volunteer firefighters’ performance and referenced two recent incidents during which the “volunteers failed to get out at all for a cardiac emergency and a seriously injured motorcyclist.” Id. ¶ 90. The letter “warned of the consequences for the publics [sic] well being, as well as the PR nightmare and potential liability that would inevitably arise out of the excessive waiting times observed by the public at the scene of calls for help.” Id. ¶ 91. The Court notes that while the exact date of this letter is not stated in the Complaint, it appears to have been written very shortly after Plaintiffs appointment to XO in April 2008, but before May 10, 2008.

The day after sending the letter, Plaintiff received a telephone call from Defendant Theofan stating that the City would not be changing its position and “chastising] Plaintiff for having taken up the cause in the first place.” Id. ¶ 93. Plaintiff alleges that the “City’s management” shared the contents of his letter with the leadership of the LBVFD, who then “commenced a campaign of retaliation against” the paid firefighters, including Plaintiff. Id. ¶¶ 96-97.

As alleged examples of this retaliation, Plaintiff describes four incidents that occurred on May 10, 2008 and May 11, 2008. Plaintiff himself was present for only one of these incidents, while the rest are pled on information and belief. In the first incident, Plaintiff alleges that Defendant John Gargan, a member of the LBFD, employed certain procedures in responding to a call that were not in the best interests of the public, but served “to spar[e] the LBVFD the embarrassment of again demonstrating its inadequate response capabilities.” Id. ¶ 108. In the second incident, Plaintiff alleges that Defendant Marco Passaro, a member of the LBFD, similarly employed procedures that left the paid firefighters and the public “in grave danger.” Id. ¶ 128. When another paid firefighter asked Defendant Passaro why he had taken the actions he did, he allegedly replied, “If you guys want to write letters and handle all the EMS calls, I figured I’d let you.” Id. ¶ 130. Plaintiff alleges that this was in reference to his letter to Defendant Theofan and is “an unmistakable admission of retaliatory motive.” Id. ¶ 131.

The third allegedly retaliatory incident described by Plaintiff involved Defendant Passaro “improperly interferfing]” with the conduct of another LBFD crew in a way that urged the crew tó allegedly “commit malpractice” and take “negligent actions” that were contrary to the best interests of the patient involved. Id. ¶¶ 138-39. The fourth incident, and the only one personally witnessed by Plaintiff, involved Defendant Gargan “berating” Plaintiff for the placement of his truck at the scene of an emergency call. Plaintiff alleges that his truck’s placement was proper and that Defendant Gargan’s “tirade” was “in retaliation for Plaintiffs letter” to Defendant Theofan. Id. ¶ 146.

B. Plaintiff’s May 13, 2008 Letter Regarding Alleged Misconduct

In response to these four incidents, Plaintiff drafted’ a letter “outlining the misconduct of the Chiefs in direct response to Plaintiffs [sic] letter to Defendant Theofan.” Id. ¶ 148. The letter argued that the Chiefs should be suspended and then dismissed from the LBFD for their conduct during the four described incidents. Id. Plaintiff ultimately intended to send the letter to the Fire Commissioner, Defendant Stephen Fraser, but first sent a draft to Assistant City Manager Rooney on May 13, 2008. Id. ¶¶ 148-49. Plaintiff did not receive a formal response to his letter from Assistant City Manager Rooney. However, a few days after sending the letter, Plaintiff ran into Mr. Rooney in City Hall and asked him if he had received the letter. Mr. Rooney said he had reviewed the letter. Mr. Rooney then stated that he and Defendant Theofan were “reconsidering their decision to appoint Plaintiff to the title of XO because of Plaintiffs ‘attitude’ toward the volunteers.” Id. ¶ 150. After this statement, Plaintiff decided not to foiward his letter to the Fire Commissioner.

C. Plaintiff’s 2008 Statements in Opposition to the Seizure of UFA’s Computer

In July 2008, the City received a complaint regarding an allegedly harassing and offensive posting regarding a member of UFA which he posted to the website “craigslist.com”. Id. ¶ 152-54. Plaintiff was asked to attend a meeting, in his capacity as XO, to discuss the issue. Id. ¶ 155. Defendant Theofan was present at this meeting, as was the Corporation Counsel, Defendant Corey Klein, and the Assistant Corporation Counsel, Defendant Robert Agostisi. Defendant Klein allegedly stated that the City “knew” that the offensive posting was made from the UFA computer in the fire headquarters. Id. ¶ 157. Thus, Defendant Klein “ordered that Plaintiff seize the computer” and deliver it to a forensics firm for analysis. Id. Plaintiff stated that he believed the UFA computer was “off limits to the City” and that he had “grave concerns about the legality of what he was being ordered to do.” Id. ¶ 159. Plaintiff alleges that Defendant Klein used false information to compel Plaintiff to seize the computer. Id. ¶ 161.

D. Plaintiff’s October 2008 Letter Regarding Training

In early October 2008, the UFA arranged to have the paid firefighters attend a “live-burn” training at the Nassau County Fire Service Academy. Plaintiff alleges that the paid firefighters had not attended this training in three years because the City refused to pay overtime for the hours required to complete the training. Id. ¶¶ 166-67. Plaintiff wrote a memorandum to Defendant Fraser apprising him of the training dates and informing him of what equipment would be needed. Id. ¶ 168. Plaintiff received no response to the memorandum. Id. Plaintiff then informed Defendant Theofan of the training and requested permission to use certain equipment. Id. The Complaint states that Defendant Theofan “expressed reservations about the overtime” that the training would require. Id. ¶ 169. After Plaintiff provided documentation stating that the training was mandatory, Defendant Theofan said he would take it under advisement. Id. As the date of the training neared, Plaintiff approached Defendant Theofan to ask if the training would be approved. Defendant Theofan stated that the training would not be approved because of the costs involved. Id. ¶ 170.

Plaintiff then wrote a letter to Defendant Theofan, which he intended to send to the entire City Council, stating that he was “disappointed that Theofan would put dollars above the safety of the members of the UFA.” Id. ¶ 171. Before sending the letter to the City Council, Plaintiff sent a copy to Defendant Theofan. Upon receiving the letter, Defendant Theofan telephoned Plaintiff and asked if copies had already been sent to the City Council. Plaintiff stated that they had not. Id. ¶ 172. Defendant Theofan allegedly told Plaintiff to “ ‘withdraw the letter’ or he would remove Plaintiff from the title of XO.” Id. ¶ 173. “Under duress,” Plaintiff agreed not to send the letter. Id.

E. Plaintiff’s Statements at the November 2008 Fire Board Meeting

The policy-making body of the LBFD is the Board of Fire Commissioners (“Fire Board”), which is comprised of the Fire Commissioner, the Deputy Fire Commissioner, the Chief of the LBVFD, a City Council member and the XO. Id. ¶ 50. In November 2008, a Fire Board meeting was held, which Plaintiff attended. One of the agenda items at that meeting was a proposal to reduce the coverage of the paid firefighters during certain hours. Id. ¶ 176. In advance of the meeting, Plaintiff compiled a “substantial quantity” of materials that supported an expansion of paid firefighter coverage, rather than a reduction. Id. ¶ 178.

The meeting was chaired by Defendant Theofan, although Plaintiff alleges that the Fire Commissioner was supposed to chair the Fire Board meetings. Id. ¶ 180. A discussion was had regarding the “live burn” training that the paid firefighters had not been allowed to attend. The Complaint alleges that the Defendants present at the meeting stated that the paid firefighters should agree to participate in the training without being compensated, and Plaintiff “beat down” that suggestion. Id. ¶ 184. When the discussion turned to the agenda item regarding a potential reduction in paid firefighter coverage, Defendant Theofan stated that the proposal would not actually be discussed due to time constraints, but would be taken up at a future meeting. Id. ¶¶ 187-90. Plaintiff protested that he had “spent weeks” preparing for the discussion and thought the topic “too important to be put off to another day.” Id. ¶ 190. However, the meeting was adjourned without a discussion of paid firefighter staffing. Plaintiff alleges that by cutting off the discussion, Defendants “stifled” his opposition.

F. The 2008 Christmas Staffing Controversy

One of Plaintiffs duties as XO was to determine the staffing assignments of LBFD employees. Id. ¶ 194. In December 2008, Plaintiff was notified by Lieutenant O’Dowd, who was scheduled to work on Christmas Eve, that Lieutenant O’Dowd would be taking vacation that day. Id. ¶ 196. After determining that there was a Lieutenant who had never worked over the Christmas holiday, Plaintiff telephoned that Lieutenant, Lieutenant Alfasi, and informed him that he would be ordered to work Christmas Eve. Id. ¶¶ 197-98. Lieutenant Alfasi allegedly told Plaintiff that he refused to work that day and would call in sick if so ordered. Id. ¶ 199. After a heated discussion, Plaintiff decided to discipline Lieutenant Alfasi for his behavior. Id. ¶201. Plaintiff then telephoned Defendant Theofan to inform him of the incident and that he intended to discipline Lieutenant Alfasi. Id. ¶ 202. Defendant Theofan allegedly suggested other courses of action that Plaintiff take to resolve the Christmas Eve staffing issue and the two men argued. Id. ¶¶ 203-05.

On December 12, 2008, Defendant Theofan sent a memorandum to Plaintiff instructing him to deny the request for vacation to Lieutenant O’Dowd. Defendant Theofan further instructed Plaintiff to “ignore” Lieutenant Alfasi’s behavior, stating that Plaintiff should not have asked him to work that day. Id. ¶ 206. Based on this memorandum, Plaintiff “came to believe” that Defendant John McLaughlin, a city council member, had intervened on Lieutenant Alfasi’s behalf. Id. ¶207. Thus, Plaintiff called Defendant McLaughlin and left him a voicemail message regarding Plaintiffs “suspicion of McLaughlin’s involvement.” Id. ¶ 208. Defendant McLaughlin then telephoned Plaintiff and “unleashed a withering, expletive filled tirade upon [Plaintiff].” Id.

Plaintiff then devised a plan that would require Lieutenant Alfasi to work on Christmas Eve while not disobeying Defendant Theofan’s memorandum. Plaintiff decided that he would transfer the Lieutenants to different groups so that Lieutenant Alfasi would be in the group already assigned to work on Christmas Eve. Id. ¶¶ 211-12. When Plaintiff informed Defendant Theofan of this plan, Defendant Theofan told Plaintiff “not to take this action and reiterated that Lt. Alfasi was not to have any disciplinary action taken against him ...” Id. ¶¶ 212-18. Plaintiff stated that “transfers within the Uniformed Force was [sic] his exclusive province and that he did not believe Theofan was in position [sic] to usurp his authority over such matters.” Id. ¶ 241. Shortly after this exchange, Plaintiff received a memorandum from Defendant Theofan memorializing their discussion. Plaintiff proceeded with the transfers, which he felt were appropriate. Id. ¶ 216.

On December 15, 2008, Plaintiff sent a letter to Defendant Theofan memorializing his views on the issue and criticizing the way that Defendant Theofan handled the situation. Id. ¶ 219. The Complaint states that this letter was written by Plaintiff “in his capacity as a private citizen ... [i]t was not written pursuant to Plaintiffs [sic] official duties.” Id. ¶ 221.

G. Plaintiff’s Removal as XO and December 2008 Disciplinary Charges

On December 16, 2008, Plaintiff received a memorandum from Defendant Theofan informing Plaintiff that he was being removed from the position of XO. Id. ¶ 223. The memorandum further rescinded , all of Plaintiffs “proscribed” actions, and put Plaintiff on notice of an impending disciplinary action. Id. ¶224. On December 29, 2008, Plaintiff was brought up on disciplinary charges, which he alleges were “in direct response to his constitutionally protected speech on matters of public concern.” Id. ¶ 225.

H. Plaintiff’s February 2009 Workplace Violence Complaint

On February 11, 2009, Plaintiff was part of an LBFD team that responded to the scene of a reported house fire. While inside the house, Plaintiff heard loud yelling over his radio and went outside to investigate. Id. ¶ 234. Plaintiff observed Defendant Passaro yelling at members of Plaintiffs crew. Plaintiff intervened and Defendant Passaro “directed his attack” at Plaintiff. Id. ¶ 236. Plaintiff walked away from Defendant Passaro in order to finish his work in the building. Id. ¶ 237. When he was done in the building, Plaintiff approached Defendant Passaro and was “met with a continuation of the earlier angry exchange between, the two.” Id. ¶ 239. As Plaintiff got nearer to Defendant Passaro, he detected the smell of alcohol on Defendant Passaro’s breath and concluded that Defendant Passaro was intoxicated. Id. ¶ 240. At some point during the exchange, Defendant Passaro allegedly lunged at Plaintiff and said he would “kick [Plaintiffs] ass.” Id. ¶241. Members of the LBVFD and police officers on the scene intervened and restrained Defendant Passaro. Id. ¶ 242.

Plaintiff retreated to his truck. However, after “approximately thirty seconds” of contemplation, Plaintiff decided to report his suspicion of Defendant Passaro’s intoxication. Id. ¶ 244. Plaintiff approached two members of the Long Beach Police Department (“LBPD”) who were at the scene, Defendants Michael Gelberg and Timothy Radin. Plaintiff asked if the officers realized Defendant Passaro was drunk, to which Defendant Gelberg replied “This is firehouse bullshit! Don’t get us in the middle of it! Take it back to the firehouse!” Id. ¶ 246.

Plaintiff returned to fire headquarters and telephoned the LBPD to ask how he could document the incident and report Defendant Passaro’s intoxication. Id. ¶ 250. Plaintiff was told to come to the station to complete an event report. Id. Shortly thereafter, Plaintiff arrived at the police station where he was “ushered into an office” with Defendant Gelberg. Plaintiff was asked only the time and location of the incident. All other information on the event report was allegedly provided by Defendant Gelberg. Id. ¶ 251. When Plaintiff obtained a copy of the report he was “shocked” to find that it did not comport with his memory of the incident. Id. ¶ 253. The Complaint alleges that the LBPD refused to investigate Plaintiffs allegation that Defendant Passaro was intoxicated, thus allowing “a possibly intoxicated individual to take the road endangering the motoring public and the members of the LBFD.” Id. ¶254. Plaintiff alleges that Defendant Gelberg refused to investigate the complaint because his father was a member of the LBVFD. Id. ¶¶ 262-64. Plaintiff further alleges that Defendant Gelberg had previously ignored a similar complaint concerning Defendant Passaro’s alleged drunkenness made by another paid firefighter in 2008. Id. ¶264. As such, Plaintiff alleges that Defendant Gelberg’s repeated conduct demonstrates “an institutional willingness to overlook misconduct or illegality by members of the Defendant LBVFD.” Id. ¶ 265. Plaintiff further alleges that the “LBPD is unwilling to enforce the law when the complaining party is a UFA member.” Id. ¶ 266.

On the night of the February 11, 2009 incident, Plaintiff drafted a Workplace Violence complaint pursuant to the City’s Workplace Violence Prevention Act (“WVPA”). Plaintiff sent copies of his complaint to Defendant Fraser and Defendant Theofan. Id. ¶ 268.

The next day, Plaintiff had a discussion with the firefighter who had replaced him as XO. The new XO informed Plaintiff that he had been told by Defendant Passaro that Defendant Passaro would “see Jay off his job.” Id. ¶ 270.

On February 13, 2009, Defendant Theofan allegedly discussed the February 11 incident with the UFA president. Defendant Theofan allegedly told the UFA president that Plaintiff had improperly placed his truck at the scene of the fire, which is why Defendant Passaro had yelled at him. Id. ¶272. On that same day, Plaintiff telephoned Defendant Klein to discuss the February 11 incident, but Defendant Klein stated he had no knowledge of the matter. Id. ¶ 280. Plaintiff urged Defendant Klein to discipline Defendant Passaro pursuant to his WVPA complaint. Defendant Klein stated that any such disciplinary action was discretionary under the WVPA. Id. ¶¶ 282-83. Plaintiff informed Defendant Klein that he feared for his safety if he had to continue to serve with Defendant Passaro. Id. ¶¶ 283-84.

Having concluded that the City was not going to take action on his WVPA complaint, Plaintiff filed a complaint with the Department of Labor Public Employee Safety and Health Bureau (“DOL PESH”) on February 17, 2009. Id. ¶ 286. Plaintiff then wrote a memorandum to the City advising that he had filed the DOL complaint and reiterating that he feared for his safety “absent the suspension of Passaro.” Id. ¶288. This memorandum was delivered to Plaintiffs immediate supervisor. The memorandum also stated Plaintiffs position that the City was not appropriately complying with the WVPA (an argument Plaintiff details in the Complaint, see id. ¶¶ 328-40), and described threats Defendant Passaro had made against Plaintiff since the February 11 incident. Id. ¶¶ 289-90. At the conclusion of his memorandum, Plaintiff stated that he would be “refusing to come to work until something is done that addresses Plaintiffs [sic] fears for his safety.” Id. ¶ 291.

Defendant Theofan wrote a memorandum in response to Plaintiffs memorandum, which stated that Plaintiffs WVPA complaint was being forwarded to Defendant Lisa Hirsch, an Assistant City Manager, for review. Defendant Theofan also stated that he believed Plaintiffs fears regarding Defendant Passaro to be unfounded and that Plaintiff would be subject to disciplinary action if he were to take any unauthorized absences. Id. ¶ 293. A few days after receiving this memorandum from Defendant Theofan, Plaintiff was informed that a copy of Defendant Theofan’s memorandum had been posted in various locations around fire headquarters. Id. ¶ 294. Plaintiff alleges that this violates the City’s policy to keep WVPA complaints confidential. Id. ¶ 337. Plaintiff states that “it is indisputable” that Defendant Passaro posted the copies. Id. ¶ 295. Plaintiff informed the Assistant Corporation Counsel, Defendant Robert Agostisi that the memorandum had been. posted, and Defendant Agostisi took no action. Id. ¶ 298.

On February 24, 2009, Plaintiff met with Defendant Hirsch regarding his WVPA complaint. As the interview proceeded, it became clear to Plaintiff that the subject of the interview was not his complaint against Defendant Passaro, but instead the interview was focused on Plaintiffs actions on February 11 and whether he had followed proper “firematic” procedures. Id. ¶¶ 300-09.

On February 26, 2009, a DOL compliance officer met with Plaintiff regarding his DOL complaint. Id. ¶ 312. The compliance officer informed Plaintiff that he had already interviewed Defendant Theofan regarding the complaint, and Defendant Theofan had stated that the WVPA complaint was “an attempt by Plaintiff to draw attention away from his firematic ‘mistakes’ on the date of the incident in question.” Id. ¶ 314. The Complaint also alleges that Defendant Klein sent a letter to the DOL expressing similar viewpoints. Id. ¶ 318. Additionally, Defendant Theofan allegedly told Plaintiffs union representative that he “was not happy” about the DOL complaint and that he “couldn’t believe Jay would do this.” Id. ¶ 316. Ultimately, Plaintiffs DOL complaint was not sustained and is under appeal to the New York State Board of Industrial Appeals. Id. ¶ 323. Plaintiff asserts that Defendants’ actions in delaying the appeal have deprived Plaintiff of his constitutional right to petition his government. Id. ¶ 325. Plaintiff further asserts that Defendants’ actions regarding the DOL complaint denied Plaintiff “equal protection of the laws of this State intended to promote safety in his workplace.” Id. ¶ 327.

The final report on Plaintiffs WVPA claim was prepared by Defendant Hirsch and dated April 21, 2009. However, Plaintiff did not receive a copy of the report until November 2009. Id. ¶ 343.

I. March 10, 2009 Disciplinary Charges

Plaintiff was brought up on disciplinary charges on March 10, 2009 in connection with the events of February 11, 2009 — the same events on which he based his WVPA and DOL complaints. Plaintiff alleges that these charges are in direct retaliation for his filing the complaints. Id. ¶¶ 348, 395. Plaintiff further alleges that Defendant Scott Kemins, the First Deputy Commissioner of the LBFD, was responsible for making the decision to bring these disciplinary charges. Id. ¶¶ 397-400. These disciplinary charges also involved actions taken by Plaintiff on February 3, 2009-eight days before Plaintiffs confrontation with Defendant Passaro. Id. ¶ 396. Plaintiff alleges that this charge was added by the Defendants in order to give legitimacy to the other retaliatory charges. Id. ¶ 404.

On January 21, 2010, a hearing officer attempted a mediation regarding the disciplinary charges. The City insisted that Plaintiff forfeit his right to a private action, which Plaintiff refused to do. Id. ¶ 411. As such, the mediation was unsuccessful. A disciplinary hearing was held on these charges on February 8, 2010. The charge relating to the February 3 incident was dismissed as untimely. Id. ¶402. The hearing on the February 11 incident was continued, but has not been rescheduled by the City. Id. ¶ 406.

Plaintiff alleges that the Defendants further retaliated against him for filing the WVPA and DOL complaints by denying Plaintiffs requests for leave and docking his pay for leave that was not properly approved. Id. ¶ 365, 378. Plaintiff asserts that he was treated differently in this regard from the other firefighters who were not denied leave or subject to pay-docking in similar circumstances. Finally, Plaintiff alleges that he was put under surveillance by Defendants on three dates that he called in sick, whereas other firefighters were not put under surveillance when they called in sick. Id. ¶¶ 387-89. Plaintiff alleges that while he believes these retaliatory actions were taken primarily due to his WVPA and DOL complaints, “it is suggested that the totality of Plaintiffs [sic] actions has been a factor in the Defendants motives.” Id. ¶ 391.

J. Plaintiff’s May 2009 Internet Postings

Plaintiff has been a frequent participant in discussion forums on the website “theschwartzreport.com.” Many of these discussions have concerned the LBFD. Id. ¶431. In May 2009, during a discussion concerning alleged misconduct of certain members of the LBVFD, Plaintiff posted that “three of the last four volunteer Chiefs of the LBFD all had criminal records.” Id. ¶ 438. Plaintiff then posted the criminal backgrounds of these individuals. The posts did not mention the volunteer firefighters by name, but did include their dates of birth. Id. ¶¶ 439-40.

In response to these posts, Plaintiff became the target of abusive and threatening posts from other users on the website. Plaintiff alleges that the content of these posts made it clear that they were written by volunteer firefighters. Plaintiff filed a complaint regarding these posts with the Nassau County District Attorney’s Office. Plaintiff discussed the threats with Defendant Theofan and Defendant Agostisi and Defendant Theofan suggested that Plaintiff take some time off to allow things to “cool off.” Id. ¶ 445-46. Thereafter, Plaintiff then made a WVPA complaint to Defendant Hirsch. Id. ¶ 447. Plaintiff states that no action was taken on these complaints.

K. The December 19, 2009 “Nozzle Switching” Incident

On December 19, 2009, Plaintiff alleges that Defendant Passaro changed the nozzle on a fire hose in the fire headquarters where the paid firefighters are stationed. Id. ¶ 462-63. Plaintiff alleges that this act created “a significant burn hazard to the firefighters operating that hose.” Id. ¶ 468. Defendant Gargan allegedly caught Defendant Passaro making this switch, and directed Defendant Passaro to stop. Id. ¶ 472. The Complaint asserts that Defendant Agostisi stated disciplinary action would not be taken against Defendant Passaro until after Defendant Passaro testified against Plaintiff in Plaintiffs disciplinary action. Id. ¶ 481. It appears that no disciplinary action was ever taken against Defendant Passaro for this incident. Id. ¶ 482.

L. April 20, 2010 Disciplinary Charges

In part as a result of Plaintiffs WVPA and DOL complaints, a workplace violence training was scheduled for LBFD firefighters on April 8, 2010. Id. ¶ 489. Plaintiff was scheduled to be on leave during the time of this training and when he discussed this with his superiors, he was told that he could not do the training when he was not on duty as overtime would not be paid for attendance at the training. Id. ¶ 493. Plaintiff decided to go to the training on April 8 on his own time even though he would not be compensated. Id. ¶ 494. However, once Plaintiff arrived at the training and reviewed the handout, he determined that he had seen this material previously and that the training was nothing more than “window dressing.” Id. ¶ 496. Plaintiff decided to leave the training before the lecture began. Id.

Ten minutes after leaving the training, Plaintiff received a telephone call from Defendant Theofan ordering Plaintiff to return to the seminar. Id. ¶ 498. Plaintiff stated that he was off-duty, but Defendant Theofan nevertheless ordered him to return. Id. ¶ 499. Plaintiff offered to go to one of the other seminars later that day and Defendant Theofan agreed. Id. ¶ 500. Plaintiff arrived fifteen minutes late to the later seminar because he was mistaken about the time the seminar started. Id. ¶ 501.

On April 20, 2010, Plaintiff was served with disciplinary charges arising out of his behavior in regards to the seminars. Plaintiff was also suspended without pay. Id. ¶ 503. Plaintiff alleges that these disciplinary measures were in retaliation of all his prior complaints regarding the LBFD. Id. ¶ 506.

III. Standard of Review

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006). The plaintiff must satisfy “a flexible plausibility standard.” Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir.2007), rev’d on other grounds. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “[Ojnce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court, therefore, does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955.

The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), setting forth a two-pronged approach for courts deciding a motion to dismiss. District courts are to first “identify! ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 129 S.Ct. at 1950. Though “legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. Second, if a complaint contains “well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 1949 (quoting and citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955) (internal citations omitted).

In addition, where, as here, a plaintiff is proceeding pro se, the pleadings must be considered under a more lenient standard than that accorded “formal pleadings drafted by lawyers.” Bellamy v. Mt. Vernon Hosp., 07 Civ. 1801, 2009 WL 1835939, at *3, 2009 U.S. Dist. LEXIS 54141, at *13-14 (S.D.N.Y. Jun. 26, 2009) (quoting Haines v. Kemer, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). The pleadings must be “interpreted to raise the strongest arguments they suggest.” Bellamy, 2009 WL 1835939, at *3, 2009 U.S. Dist. LEXIS 54141, at *14 (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). This principle remains the case even after Twombly and Iqbal. See Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009).

IV. Discussion

Defendants move to dismiss the Complaint on the grounds that: (1) this Court lacks personal jurisdiction; (2) the Complaint fails to state a claim as a matter of law; (3) the Complaint fails to state a claim against certain individual defendants; and (4) the individual defendants are protected by the doctrine of qualified immunity. Finally, Defendants argue that if the Federal claims are dismissed, then the state law claims must be dismissed under the principles of supplemental jurisdiction.

As an initial matter, the Court rejects Defendants’ characterization that Plaintiffs First and Fourth Causes of Action are asserted against only the individual Defendants, whereas Plaintiffs Second and Third Causes of Action are asserted against only the municipal Defendants. DE 22-1 at 25. Defendants assert that “a review of the specific language chosen in each of the first four causes of action ... necessarily indicates” this interpretation. However, reading the Complaint leniently, as the Court is required to do given Plaintiffs pro se status, I find that Plaintiff intended to bring all four of these causes of action against all Defendants. This view is supported by Plaintiffs assertions in his opposition papers. DE 23 at 13.

A. Personal Jurisdiction

Defendants argue that this Court does not have personal jurisdiction over them because Plaintiff did not properly comply with Rule 4(Z) of the Federal Rules of Civil Procedure, which provides that “unless service is waived, proof of service must be made to the court.” Fed.R.Civ.P. 4(l)(1). Defendants do not cite any case law in support of this argument.

The Complaint in this action was filed on May 12, 2010. Summonses were issued to each Defendant on the same day. On September 9, 2010, the summons for each Defendant was entered on the docket as DE 5. Defendants first appeared in this action on September 13, 2011. Defendants do not argue that service was not effected within the statutory period, nor do they argue that they were not adequately put on notice of this action within the statutory period. Defendants merely contend that because Plaintiff filed only copies of the summonses and not proofs of service, this Court did not acquire personal jurisdiction over Defendants.

After Defendants served their motion to dismiss upon the Plaintiff, Plaintiff filed affidavits of service showing that each Defendant was served within the statutory period. DE 16. Defendants do not address this argument in their subsequently filed reply brief. DE 24.

While Rule 4(1 )(1) states that proof of service must be made upon the Court, this rule is tempered by Rule 4(1 )(3), which provides that “failure to prove service does not affect the validity of service.” Fed.R.Civ.P. 4(1 )(3). Thus, the fact that Plaintiff belatedly filed proof of service does not render the service untimely or improper. See Maier v. New York City Police Dep’t, No. 08-CV-5104, 2009 WL 2915211, at *4 (E.D.N.Y. Sept. 1, 2009) (finding that Defendant was properly served even though no proof of service was provided to the court); See also Fifth Third Bank v. Mytelka, No. 50-mc-52, 2008 WL 3852170, at *2 n. 3 (E.D.N.Y. Aug. 16, 2008) (“Generally, the failure of the plaintiff to prove service of process does not necessarily affect the validity of service as the district court may permit proof of service to be amended under Fed.R.Civ.P. 4(l)(3).”). Accordingly, I respectfully recommend to Judge Feuerstein that Defendant’s motion to dismiss based on a lack of personal jurisdiction be denied.

B. Retaliation Based on First Amendment Right to Freedom of Speech

Defendants argue that Plaintiffs First cause of action, namely, retaliation based on Plaintiffs exercise of his First Amendment right to freedom of speech, must be dismissed because Plaintiff has failed to state a claim as a matter of law. The Second Circuit has explained that the necessary elements to plead a First Amendment retaliation cause of action depend on the facts of the underlying matter. See Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008). “It is well-established that the government, acting as an employer, may regulate the speech of its employees far more extensively than that of the general public.” DelBene v. Alesio, No. 00-cv-7441, 2001 WL 170801, at *6 (S.D.N.Y. Feb. 21, 2001) (citing Waters v. Churchill, 511 U.S. 661, 671-72, 114 S.Ct. 1878, 1886, 128 L.Ed.2d 686 (1994)). “In order to establish a First Amendment retaliation claim, an employee must prove that: (1) he engaged in constitutionally protected speech; (2) he suffered an adverse employment action; and (3) the speech was a ‘motivating factor’ in the adverse employment decision.” Licopoli v. Mineola Union Free School Dist., No. 09-3974, 2010 WL 4961667, at *5 (E.D.N.Y. Dec. 1, 2010) (internal quotations omitted).

1. Whether Plaintiff Engaged in Protected Speech

The determination of whether speech is protected is not a question of fact, but rather a question of law for the court. See Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999); see also Licopoli, 2010 WL 4961667, at *5. In deciding whether a public employee is engaged in constitutionally protected speech, a court must determine “whether the employee spoke as a citizen on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). “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.” Id. If the answer is yes, a court must then determine “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Id.; see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008).

In determining whether an employee speaks as a citizen or as an employee, the Supreme Court has held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. On the other hand, “employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government.” Id. at 423, 126 S.Ct. 1951. Whether an employee acted in accordance with his official duties or acted as a citizen is a practical inquiry. Id. at 424, 126 S.Ct. 1951.

With respect to whether speech is a matter of public concern, a court must “take into account the content, form and context of a given statement as revealed by the record as a whole.” Licopoli 2010 WL 4961667, at *7 (citing Ruotolo, 514 F.3d at 189). In general, a statement regards a matter of public concern where it is “of political, social, or other concern to the community.” Hueston v. City of New York, No. 00-cv-9512, 2005 WL 53256, at *6 (S.D.N.Y. Jan. 10, 2005) (quoting Connick v. Myers, 461 U.S. 138, 146,103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). However, “speech on a purely private matter, such as an employee’s dissatisfaction with the conditions of his employment, does not pertain to a matter of public concern.” Carpiniello v. Hall, No. 07-cv-1956, 2010 WL 987022, at *6 (S.D.N.Y. Mar. 17, 2010) (internal quotations omitted). While the motive of the employee in making the statement “may be one factor” in determining whether it is a matter of public concern, motive “is not, standing alone, dispositive or conclusive.” Sousa v. Roque, 578 F.3d 164, 175 (2d Cir.2009).

It is within this framework that the Court must decide whether each incidence of Plaintiffs speech was protected by the First Amendment.

a. Plaintiff’s 2008 Statements Regarding Overtime Staffing

Plaintiff explicitly states that it was not within his job duties to take up the issue of overtime staffing by meeting with Assistant City Manager Rooney and subsequently sending a letter on the subject to Defendant Theofan in 2008. DE 1 at ¶ 87. Defendants do not dispute this assertion. Instead, Defendants argue that these statements did not involve a matter of public concern because the issue was “a matter of personal interest to [Plaintiff], and constitutes efforts to secure money for himself, not to spark a public debate on issues involving Defendants’ employment policies.” DE 22-1 at 27. However, the fact that Plaintiff may have had a personal interest in the outcome of the issue does not preclude the speech from being a matter of public concern. See Hueston, 2005 WL 53256, at *7 (holding that even though plaintiffs statements encompassed, in part, his “personal problems with working conditions,” his statements were a matter of public concern where they also “addressed an issue of fundamental importance to local government.”). The Second Circuit has expressly stated that even where a person is “motivated by a personal grievance,” they may still be speaking on a matter of public concern. Sousa, 578 F.3d at 174.

Plaintiff has made sufficient allegations to support the inference that his statements were motivated, at least in part, by a desire to protect the public from what Plaintiff viewed as an insufficient firefighting force. Keeping in mind that the Court, on a Rule 12(b)(6) motion, must accept the factual allegations set forth in the Complaint as true, one may reason that the residents of Long Beach would likely be interested to know that there were alleged deficiencies in the performance of the volunteer firefighters and that the volunteers had failed to respond to emergencies on at least two occasions. Such matters concerning public safety and the purported adequacy and function of entities entrusted with protecting that safety are precisely the type of speech courts have held to be related to matters of public concern. See Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 553 n. 4 (2d Cir.2001) (holding that “speech focused on the safety of young children at horse shows involving 4-H” was a matter of public concern); Morris, 196 F.3d at 111 (holding that police officers’ speech concerning “crime rates, police staffing, equipment shortages and related budgetary matters quite plainly involve matters of public concern”); Scheiner v. New York City Health & Hospitals, 152 F.Supp.2d 487, 496 (S.D.N.Y.2001) (holding that physicians statements regarding conditions at public hospital were matters of public concern because they related to “issues of public health, safety, and the administration of public resources”). Accordingly, I find that for purposes of this motion to dismiss, Plaintiff has adequately pled that his statements in April and May of 2008 regarding UFA overtime staffing are protected speech under the First Amendment.

b. Plaintiff’s May IS, 2008 Letter Regarding Alleged Misconduct

There is no statement in the Complaint as to whether the May 13, 2008 letter was written pursuant to Plaintiffs official duties as XO. It is worth noting, however, that Defendants have not asserted that the letter was written in accordance with Plaintiffs official duties. Reading the Complaint in the light most favorable to the Plaintiff for purposes of this motion, it appears that the letter was not written by Plaintiff in his official capacity. While Plaintiff ultimately intended to send his letter to the Fire Commissioner, he first went outside the chain of command and sent the letter to Assistant City Manager Rooney. This act provides a foundation for Plaintiffs contention that he was not acting in his official capacity, but rather as a citizen. See Licopoli, 2010 WL 4961667, at *7 (stating that plaintiff acted as a citizen where he did not take his complaint