UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ANDREA D. LOGUIDICE,

Plaintiff,

v.

EDWARD MCTIERNAN, STUART
BRODY, BENJAMIN CONLON,
MARLINE AGNEW, DEBORAH
CHRISTIAN, PHIL LODICO, MARC
GERSTMAN, and JOHN DOES 1-5,

Defendants.

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ECF Case


Civil Action No. _____________


JURY TRIAL DEMANDED



COMPLAINT

Plaintiff Andrea D. Loguidice as and for her complaint herein, alleges as follows:
INTRODUCTION
1. This is an action for injunctive and declaratory relief and damages arising from
the wrongful termination of the employment of Plaintiff Andrea D. Loguidice by the New York
State Department of Environmental Conservation (DEC).
2. Plaintiffs termination was in retaliation for her protected speech, in violation of
the First and Fourteenth Amendments of the United States Constitution and Article I, Section 8
of the New York State Constitution.
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3. Plaintiff is also entitled to recover costs and attorneys fees under both 42 U.S.C.
1988 and N.Y. CPLR 8601.
PARTIES
4. Plaintiff Andrea D. Loguidice is a New York resident residing at 1075 Keyes
Ave., Schenectady, NY 12309.
5. Upon information and belief, Defendant Edward McTiernan is the Deputy
Commissioner and General Counsel for the DEC and a citizen of New York. He is sued in his
individual and official capacities. In his role as General Counsel, McTiernan has ultimate
authority over all of the DECs attorneys, including Defendants Conlon, Brody, Christian, and
Lodico.
6. Upon information and belief, Defendant Benjamin Conlon is the Remediation
Bureau Chief of the Office of General Counsel in the DEC and a citizen of New York. He is sued
in his individual and official capacities. Conlon was Plaintiffs direct supervisor and was
responsible for periodically evaluating Plaintiffs performance.
7. Upon information and belief, during the events at issue in this action Defendant
Stuart Brody was the Ethics Counsel for the Office of General Counsel in the DEC and a citizen
of New York. He is sued in his individual and official capacities. As Ethics Counsel, Brody was
responsible for determining employee compliance with the DECs ethics rules, including the
Conflict of Interest Policy.
8. Upon information and belief, Defendant Marline Agnew is the Director of
Personnel for the DEC and a citizen of New York. She is sued in her individual and official
capacities. As Director of personnel, Agnew is responsible for implementation of the DECs
policies and procedures governing employee discipline and termination.
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9. Upon information and belief, Defendant Phil Lodico is an Associate Attorney in
the Corporate Bureau of the Office of General Counsel in the DEC and a citizen of New York.
He is sued in his individual and official capacities. His duties included advising the department
with respect to employment issues such as terminations, discipline, and disability
accommodations.
10. Upon information and belief, Defendant Deborah Christian is the Corporate
Bureau Chief of the Office of General Counsel in the DEC and a citizen of New York. She is
sued in her individual and official capacities. As Corporate Affairs Bureau Chief, Christian
supervised Defendants Brody and Lodico.
11. Upon information and belief, Defendant Marc Gerstman is the Executive Deputy
Commissioner of the DEC and a citizen of New York. He is sued in his individual and official
capacities. As Executive Deputy Commissioner, Gerstman exercises ultimate authority over
many day-to-day operations of the DEC and supervises the implementation of and compliance
with departmental policies and procedures, including the DECs Conflict of Interest Policy.
12. Does 15 are officials of the State of New York who directly participated in the
decision to terminate Loguidices employment with the DEC.
JURISDICTION AND VENUE
13. This Court has jurisdiction pursuant to 28 U.S.C. 1331 because this is a civil
action arising under the laws of the United States, in particular, 42 U.S.C. 1983 and the United
States Constitution.
14. This Court has jurisdiction over Plaintiffs state law claims pursuant to the
doctrine of supplemental jurisdiction under 28 U.S.C. 1367.
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15. Venue is proper in this District pursuant to 28 U.S.C. 1391(b)(2) because a
substantial part of the events giving rise to Plaintiffs claims occurred in this District.
16. On information and belief, venue is also proper in this District pursuant to 28
U.S.C. 1391(b)(1) because all Defendants are residents of the State of New York, and at least
one Defendant is a resident of this District.
ALLEGATIONS OF FACT

WANDERING DAGO LITIGATION

17. In 2012, Loguidice and Brandon Snooks formed Wandering Dago Inc.
(Wandering Dago), a food truck business operating under the Wandering Dago brand name.
The Wandering Dago food truck is a mobile kitchen that serves food at a variety of events,
including festivals open to the public and private catered functions, primarily in and around the
Capital District and the Hudson Valley.
18. In May of 2013, Wandering Dago applied to participate in the Empire State Plaza
Summer Outdoor Lunch Program, a program for food vendors on the Empire State Plaza
sponsored by the New York State Office of General Services (OGS).
19. Wandering Dagos application to participate in the Summer Outdoor Lunch
Program was denied. OGS justified this application denial in part on the grounds that it had
deemed Wandering Dagos name to be offensive.
20. In the Spring of 2013, Wandering Dago was selected to participate as a vendor at
Saratoga Race Course during the 2013 track season beginning in July 2013. The Saratoga Race
Course is operated by the New York Racing Association (NYRA), a state agency. On July 19,
2013, opening day of the Saratoga Race Course 2013 season, Wandering Dago was ordered by a
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NYRA official to remove its truck from Saratoga Race Course. The NYRA official informed
Wandering Dago that this expulsion was because its name had been deemed offensive.
21. On August 27, 2013, Wandering Dago brought an action in the United States
District Court for the Northern District of New York alleging violations of its First and
Fourteenth Amendment rights by various State officials in connection with the Empire State
Plaza application denial and the Saratoga Race Course expulsion (the First Amendment
Action).
22. The First Amendment Action has been covered extensively by local print and
television news media and received attention from national media, including the Wall Street
Journal.

EMPLOYMENT WITH THE DEC

23. On October 28, 2013, Loguidice accepted an offer of employment as a Senior
Attorney in the Remediation Bureau of the Office of General Counsel in the DEC.
24. On information and belief, Defendants were not aware of Loguidices connection
with Wandering Dago or with the First Amendment Action against State officials at the time she
was hired.
25. On November 7, 2013, Loguidice began working at the DEC.
26. Loguidice worked on a number of different matters at the DEC, including matters
related to the Hudson River Natural Resource Damage Assessment (Hudson River NRD)
associated with the PCB contamination of the Hudson River by General Electric (GE). The
majority of her work was not related to the Hudson River NRD.
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27. On information and belief, at some time on or after November 7, 2013,
Loguidices status as a new employee was announced at a Bureau Chiefs meeting. A meeting
attendee called attention to Loguidices involvement with Wandering Dago and its litigation
against New York State officials.
28. Subsequent to this Bureau Chiefs meeting, Defendant Brody requested a meeting
with Loguidice. Brody informed Loguidice that the meeting was being conducted at Defendant
McTiernans request to evaluate potential ethical implications of Loguidices involvement with
Wandering Dago.
29. Loguidice met with Defendant Brody on November 28, 2013. Brody told
Loguidice that the purpose of the meeting was to be prepared in the event that there was a
challenge to Loguidices employment from the Governors office. During the meeting, Brody
asked detailed questions regarding Wandering Dagos business structure, daily activities, and
business practices. He also inquired about the facts underlying the First Amendment Action.
Brody stated that by bringing an action against state officials Loguidice was effectively attacking
the Governor, whom Brody regarded as her ultimate boss. Although Brody asserted that it was
inappropriate for a state employee to bring a lawsuit against state officials, he also stated that her
involvement with Wandering Dago did not create a conflict of interest or raise other ethical
concerns. Loguidice nevertheless agreed to voluntarily remove herself from the day-to-day
activities of Wandering Dago.
30. On November 28, 2013, Defendant Brody sent a memorandum to Defendant
McTiernan entitled Ethical Implications of Andrea Loguidices Outside Activities. In this
memorandum, Brody stated:
The Companys operations do not appear to implicate any regulatory function of the
DEC, or the natural resource damage action matters with which she is
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directlyconcerened. [sic] Andrea discussed this matter with Tom Berkman and Ben
Conlin [sic] and no overlap of official duties with Company activities could be identified.
In the absence of any foreseeable interaction between the Company and Andreas official
duties, there appears to be no actual or apparent conflict of interest under either CP-7 or
Sections 73 and74 [sic] of the POL.

31. After the November 28, 2013 meeting, Loguidice severely limited her
involvement with Wandering Dago. With the exception of one occasion on which she
transported items to an offsite venue, Loguidices role with respect to Wandering Dago was
limited to routine paperwork. Loguidice had no involvement in scheduling events.
32. On May 29, 2014, Loguidice met with Defendant Conlon and Andrew Guglielmi
for a six month performance evaluation. The performance evaluation rated Loguidice on eight
Performance Factors. Loguidice received a rating of Meets Requirements on four of the
eight factors, and a rating of Greatly Exceeds Requirements on the other four factors, including
Overall Work Performance. The narrative comments accompanying the ratings on each of the
eight factors were uniformly positive.
33. On June 5, 2014, Loguidice sent an email to Defendants Brody and McTiernan
requesting that she be permitted to take a more active role with Wandering Dago on weekends.
34. On June 11, 2014, Defendant Conlon sent an email expressing concerns about
Loguidice doing additional work for Wandering Dago, purportedly due to concerns about her
health.
35. On July 2, 2014, Loguidice met with Defendant Brody to discuss the possibility
of Loguidice taking a more active role in Wandering Dago on weekends. During this meeting,
Brody discussed the First Amendment Action, labeled it as a distraction, and indicated that
management had concerns about the time Loguidice would not be available to work as a result of
the litigation. Brody asked numerous questions about Loguidices personal relationship with her
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business partner Snooks. Brody pointed out that the Governor himself had publicly denounced
the name of the business, and Brody suggested that Loguidice should not take on a more visible
role given the notoriety of the name. Loguidice assured Brody that her work at the DEC came
first and that she would not allow her weekend involvement with Wandering Dago to interfere
with her work obligations. At no time in the conversation did Brody suggest that Loguidice was
not completing her work in a timely manner, that her work was not completely satisfactory, or
that her involvement with Wandering Dago was interfering with her work at the DEC. In fact,
Brody stated that every time he passed Loguidices desk she appeared to be hard at work.
36. Defendant Brody never provided an official opinion as to whether Loguidice
would be permitted to take a greater role in Wandering Dago.
WIND RIVER EVENT
37. On July 1, 2014, Snooks signed a contract on behalf of Wandering Dago with
Holly McAlpine from Wind River Systems to cater a lunch at One Research Circle, Niskayuna,
New York on July 9, 2014. One Research Circle is property owned by General Electric (GE).
The contract for this event does not mention GE, and Loguidice had no involvement in booking
this catering event, nor was she aware of it.
38. Wind River Systems is a wholly owned subsidiary of Intel and is not owned in
any part by GE.
39. On July 9, 2014, the Wandering Dago food truck, operated by Snooks, provided
lunch to fifty GE employees on behalf of Wind River Systems.
40. On July 14, 2014, the Schenectady Gazette published an article providing an
update on the status of Wandering Dagos lawsuit and describing Wandering Dagos current
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operations. Although Loguidice was mentioned in the article as an owner of Wandering Dago,
she did not speak with reporters concerning the article and was not quoted in it.
41. On July 14, 2014, Loguidice was called into a meeting with Defendants Conlon
and Lodico. Conlon accused Loguidice of having done business with GE via Wandering Dago.
Conlon accused Loguidice of committing an ethical violation by doing business with GE.
Loguidice explained that she was unable to respond to these allegations because she had no
knowledge of Wandering Dago doing business with GE. Conlon would not accept her response
and badgered her for an answer, stating that due to Loguidices personal relationship with
Snooks, she must have been involved in discussions of Wandering Dagos business.
42. After the meeting, Loguidice contacted Snooks and learned about the July 9, 2014
Wind River event.
43. On the afternoon of July 14, 2014, Loguidice attempted to speak with Defendant
Conlon to correct his misapprehensions about the July 9, 2014 catering event, and to explain that
Wandering Dago had entered into a contract with Wind River, not GE.
44. Loguidices request for a private meeting with Defendant Conlon to explain the
facts surrounding the catering event was denied. Left with no other alternative, Loguidice
presented the facts to Conlon at his cubicle and asked how he became aware of the event.
Conlon stated that he had reviewed the calendar on the Wandering Dago website after receiving
a telephone call from an unidentified state official.
45. Loguidice asked Defendant Conlon what the next steps would be and whether
there would be a formal hearing process in which she would be permitted to present evidence.
Conlon informed her that because she had been hired to work on GE-related matters and her
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position was funded by Hudson River NRD funds, and because a conflict of interest had already
been created, the DEC no longer had any use for her.
46. Defendant Conlons statement was a purely pretextual justification for
Loguidices termination. The majority of Loguidices workload consisted of matters unrelated to
GE or the Hudson River NRD. On information and belief, Loguidices position was not funded
out of Hudson River NRD funds.
47. Shortly after meeting with Defendant Conlon, Loguidice requested an opportunity
to speak with Defendant Brody about this issue, but he refused to speak with her.
48. On July 14, 2014, as a precautionary measure, Loguidice sent a memorandum to
Andrew Guglielmi, informing him that she was immediately recusing herself from GE matters
until the issue was resolved.
49. In the evening of July 14, 2014, Loguidice drafted a memo to Defendant
McTiernan explaining the circumstances of the Wind River events and her current lack of
involvement in Wandering Dagos day-to-day operations. Loguidice hand delivered this
memorandum to McTiernan on the morning of July 15, 2014.
50. Upon information and belief, Defendants Conlon, Brody, Lodico, and Christian
engaged in multiple discussions concerning Loguidices proposed termination. Conlon, Brody,
Lodico, and Christian requested that Defendant McTiernan approve Loguidices termination.
51. Upon information and belief, Defendant McTiernan approved the proposal to
terminate Loguidice and presented it to Defendant Gerstman. Gerstman approved the proposal
to terminate Loguidice and ordered her termination.
52. Upon information and belief, Defendant Agnew approved and signed off on the
decision to terminate Loguidice.
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DEC TERMINATION
53. On August 5, 2014, at approximately 4:55 pm, Loguidice was summoned to a
meeting with Defendants McTiernan and Christian. During the meeting McTiernan presented
Loguidice with two letters both signed by Defendant Agnew, the DECs Director of Personnel.
One letter purported to acknowledge Loguidices resignation effective beginning of business
August 13, 2014. The other letter stated that Loguidice was being terminated effective close of
business August 12, 2014 due to violation of the Departments Conflict of Interest Policy (CP-
7). McTiernan informed Loguidice that she had until 9:00 am on August 6, 2014, to decide
whether she would resign or be terminated.
54. During the same meeting, although Loguidices next regularly scheduled
performance evaluation was not until her twelve-month review in November 2014, Defendant
McTiernan presented Loguidice with a new performance evaluation, dated August 5, 2014, and
signed by Defendant Conlon. On this evaluation, in stark contrast to her earlier evaluation,
Loguidice was rated Fails to Meet Requirements on five out of eight performance factors. One
of the eight factors was accompanied with the narrative Violations of laws and policies
governing public employee conduct including creating a conflict of interest. No narrative
explanation was provided for any of the other seven factors.
55. The August 5, 2014 performance evaluation was manufactured for the sole
purpose of creating a pretext for Loguidices termination.
56. On August 12, 2014, Plaintiffs counsel delivered a letter to Defendant
McTiernan informing him that Plaintiff would not resign.
57. On August 13, 2014, Plaintiff received a letter from Defendant Agnew informing
her that her termination was effective close of business that day.
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58. The DECs Conflict of Interest Policy has a section governing Outside
Employment/Outside Activities. This section cites [s]ale of goods to the State or to companies
regulated by DEC as an example of prohibited activity. Wandering Dago never contracted with
GE, sold goods to GE, or received any payment of money from GE. Defendants were aware that
Wandering Dago had not contracted with GE, sold goods to GE, or received any payment of
money from GE at least as early as July 15, 2014.
CAUSES OF ACTION

COUNT I
42 U.S.C. 1983, Abridgement of Freedom of Speech in Violation of the First Amendment
of the U.S. Constitution
(All Defendants)

59. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 to 58 above
as if fully set forth herein.
60. Defendants actions constitute actions under color of law and deprive Plaintiff of
its civil rights and liberties and constitutional rights, privileges, and immunities.
61. The actions taken by Defendants were not in good faith and constitute knowing
and willful denials, deprivations, and/or violations of Plaintiffs civil rights and liberties and
constitutional rights, privileges, and immunities.
62. In directly terminating, and/or participating in and/or authorizing the termination
of, Plaintiffs employment on constitutionally impermissible bases, and acting under color of
law, Defendants knowingly and willfully engaged in retaliation on the basis of constitutionally
protected speech and, thus, knowingly and willfully denied, deprived, and/or violated Plaintiffs
civil rights and liberties and constitutional rights, privileges, and immunities.
63. Upon information and belief, Defendants intentionally created a fraudulent
performance evaluation in order to create a pretextual justification for Plaintiffs termination.
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64. In light of the foregoing, pursuant to 42 U.S.C. 1983, Defendants are liable to
Plaintiff in an action at law and suit in equity for redress of Defendants denials, deprivations,
and violations of Plaintiffs civil rights and liberties and constitutional rights, privileges, and
immunities.
COUNT II
42 U.S.C. 1983, Abridgement of the Right to Petition the Government for Redress of
Grievances in Violation of the First Amendment of the U.S. Constitution
(All Defendants)

65. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 to 64 above
as if fully set forth herein.
66. Defendants actions constitute actions under color of law and deprive Plaintiff of
its civil rights and liberties and constitutional rights, privileges, and immunities.
67. The actions taken by Defendants were not in good faith and constitute knowing
and willful denials, deprivations, and/or violations of Plaintiffs civil rights and liberties and
constitutional rights, privileges, and immunities.
68. In directly terminating, and/or participating in and/or authorizing the termination
of, Plaintiffs employment on constitutionally impermissible bases, and acting under color of
law, Defendants knowingly and willfully engaged in retaliation on the basis of Plaintiffs attempt
to seek redress of grievances through the courts and, thus, knowingly and willfully denied,
deprived, and/or violated Plaintiffs civil rights and liberties and constitutional rights, privileges,
and immunities.
69. Upon information and belief, Defendants intentionally created a fraudulent
performance evaluation in order to create a pretextual justification for Plaintiffs termination.
70. In light of the foregoing, pursuant to 42 U.S.C. 1983, Defendants are liable to
Plaintiff in an action at law and suit in equity for redress of Defendants denials, deprivations,
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and violations of Plaintiffs civil rights and liberties and constitutional rights, privileges, and
immunities.
COUNT III
Abridgement of the Liberty of Speech in Violation of New York State Constitution, Article
I, Section 8
(All Defendants)

71. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 to 70 above
as if fully set forth herein.
72. Defendants actions constitute actions under color of law and deprive Plaintiff of
its civil rights and liberties and constitutional rights, privileges, and immunities.
73. The actions taken by Defendants were not in good faith and constitute knowing
and willful denials, deprivations, and/or violations of Plaintiffs civil rights and liberties and
constitutional rights, privileges, and immunities.
74. In directly terminating, and/or participating in and/or authorizing the termination
of, Plaintiffs employment on constitutionally impermissible bases, and acting under color of
law, Defendants knowingly and willfully engaged in retaliation on the basis of constitutionally
protected speech and, thus, knowingly and willfully denied, deprived, and/or violated Plaintiffs
civil rights and liberties and constitutional rights, privileges, and immunities.
75. Upon information and belief, Defendants intentionally created a fraudulent
performance evaluation in order to create a pretextual justification for Plaintiffs termination.
76. In light of the foregoing, Defendants are liable to Plaintiffs in an action at law and
suit in equity for redress of Defendants denials, deprivations, and violations of Plaintiffs right
to freedom of speech, protected by Article I, Section 8 of the New York State Constitution.
COUNT IV
Abridgement of the Right to Petition the Government in Violation of New York State
Constitution, Article I, Section 9
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(All Defendants)

77. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 to 76 above
as if fully set forth herein.
78. Defendants actions constitute actions under color of law and deprive Plaintiff of
its civil rights and liberties and constitutional rights, privileges, and immunities.
79. The actions taken by Defendants were not in good faith and constitute knowing
and willful denials, deprivations, and/or violations of Plaintiffs civil rights and liberties and
constitutional rights, privileges, and immunities.
80. In directly terminating, and/or participating in and/or authorizing the termination
of, Plaintiffs employment on constitutionally impermissible bases, and acting under color of
law, Defendants knowingly and willfully engaged in retaliation on the basis of Plaintiffs attempt
to seek redress of grievances through the courts and, thus, knowingly and willfully denied,
deprived, and/or violated Plaintiffs civil rights and liberties and constitutional rights, privileges,
and immunities.
81. Upon information and belief, Defendants intentionally created a fraudulent
performance evaluation in order to create a pretextual justification for Plaintiffs termination.
82. In light of the foregoing, Defendants are liable to Plaintiffs in an action at law and
suit in equity for redress of Defendants denials, deprivations, and violations of Plaintiffs right
to freedom of speech, protected by Article I, Section 8 of the New York State Constitution.
COUNT V
Attorneys Fees under 42 U.S.C. 1988
(All Defendants)

83. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 to 82 above
as if fully set forth herein.
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84. Pursuant to 42 U.S.C. 1988, Plaintiff is entitled to reasonable attorneys fees
incurred in enforcing its rights and seeking recovery under 42 U.S.C. 1983.

COUNT VI
Attorneys Fees under CPLR 8601
(All Defendants)
85. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 to 84 above
as if fully set forth herein.
86. The actions taken by the OGS Defendants and the NYRA Defendants were not
substantially justified under the laws of the United States or New York State.
87. Pursuant to N.Y. CPLR 8601, Plaintiff is entitled to fees and other expenses
incurred in this action.
RELIEF REQUESTED
WHEREFORE, Plaintiff Andrea D. Loguidice respectfully requests the following relief:
a) preliminary and permanent injunctive relief ordering Defendants to reinstate
Plaintiff as an Associate Attorney in the Department of Environmental
Conservation, and enjoining Defendants from taking future adverse
employment actions against Plaintiff on the basis of her involvement with
Wandering Dago or its lawsuit against State officials;
b) a declaratory judgment declaring that Defendants conduct violates the United
States and New York State Constitutions;
c) monetary damages including, but not limited to, lost wages and benefits,
exemplary or punitive damages, compensatory damages, costs, interest,
attorneys fees, expert witness fees, and all other damages recoverable under