Harris v. Buffardi et al
Filing
88
MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED, that County defendants' motion for summary judgment 55 is GRANTED; and it is further ORDERED, that Union defendants' motion for summary judgment 57 is GRANTED; and it is further ORDER ED, that Harris's motion for summary judgment 70 is DENIED; and it is further ORDERED, that Harris's motion for declaratory and injunctive relief 71 is DENIED; and it is further ORDERED, that Harris's February 11, 2011 letter motio n for the court to take judicial notice of Sandy Naparty's January 12, 2011 arrest 87 is GRANTED; and it is further ORDERED, that Harris's complaint is DISMISSED; and it is further ORDERED, that the Clerk close this case and provide a copy of this Memorandum-Decision and Order to the parties by regular and certified mail. Signed by Judge Gary L. Sharpe on 8/23/2011. (sg )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
ROGER L. HARRIS,
Plaintiff,
1:08-cv-1322
(GLS/DRH)
v.
HARRY BUFFARDI, Individually and in his Official
Capacity as Sheriff of the County of Schenectady;
GORDON POLLARD, Individually and in his
Official Capacity as Undersheriff of the County of
Schenectady; TIMOTHY S. BRADT, Individually
and as an Employee of the County of Schenectady;
JOHN DOES, Being Unnamed Employees of the
County of Schenectady; COUNTY OF
SCHENECTADY; RONALD WALSH, Individually
and in his Official Capacity as the President of the
Schenectady County Sheriff’s Benevolent
Association, Local 3874/#82; SCHENECTADY
COUNTY SHERIFF’S BENEVOLENT
ASSOCIATION, LOCAL 3874/#82; KATHLEEN
ROONEY, Individually and in her Official Capacity
as Chief Executive Officer for the County of
Schenectady; and SCHENECTADY COUNTY
SHERIFF’S DEPARTMENT,
Defendants.
_________________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
ROGER L. HARRIS
Pro Se
P.O. Box 4735
Schenectady, NY 12304
FOR THE DEFENDANTS:
County Defendants
Goldberg, Segalla Law Firm
8 Southwoods Boulevard, Suite 300
Albany, NY 12211-2526
LATHA RAGHAVAN, ESQ.
JONATHAN M. BERNSTEIN,
ESQ.
Union Defendants
New York State Law Enforcement
Officers Union
63 Colvin Avenue
Albany, NY 12206
MATTHEW P. RYAN, ESQ.
Gary L. Sharpe
District Court Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Roger Harris commenced this action under 42 U.S.C. §§
1981, 1983, and 1985 against defendants Harry Buffardi, Gordon Pollard,
Timothy Bradt, John Does, County of Schenectady, Kathleen Rooney,
Ronald Walsh, and Schenectady County Sheriff’s Department (County
defendants), and Schenectady County Sheriff’s Benevolent Association,
Local 3874/#82 and Walsh in his capacity as Union President (Union
defendants), alleging violations of his rights under the Fourteenth
Amendment of the United States Constitution, Title VII of the Civil Rights
2
Act of 1964,1 the ADEA,2 New York State Human Rights Law (NYSHRL),3
and New York State common law, including deprivation of property without
due process, procedural due process and equal protection violations, race
and age discrimination, bad faith inadequate investigation, fabrication of
evidence, obstruction of justice, wrongful discharge and termination,
intentional infliction of emotional distress (IIED), breach of duty of fair
representation, interference with the right to make and enforce a contract,
and conspiracy. (See 2d Am. Compl., Dkt. No. 33.) Pending are County
defendants’ motion for summary judgment, (Dkt. No. .55); Union
defendants’ motion for summary judgment, (Dkt. No. 57); Harris’s crossmotion for summary judgment, (Dkt. No. 70); and Harris’s untimely motion
for declaratory and injunctive relief, (Dkt. No. 71).4 For the reasons that
follow, defendants’ motions are granted, Harris’s motions are denied, and
the complaint is dismissed.
1
42 U.S.C. § 2000e, et seq.
2
Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.
3
N.Y. EXEC. LAW § 296.
4
Additionally pending is Harris’s February 11, 2011 letter motion requesting that the
court take judicial notice of Sandy Naparty’s January 12, 2011 arrest. (Dkt. No. 87.) Although
unable to discern how Ms. Naparty’s arrest is at all relevant to this matter, the court will
nonetheless grant Harris’s request.
3
II. Background
On May 20, 2007, plaintiff Roger Harris, a 62-year-old AfricanAmerican male, was hired by the Schenectady County Sheriff’s
Department as a correction officer at the Schenectady County Jail. (See
County Defs. SMF ¶ 3, Dkt. No. 55:2.) As a newly hired correction officer,
Harris was considered probationary for his first year of employment. (See
id. at ¶ 5.) During this probationary period, correction officers are expected
to abide by the Sheriff’s Department’s Code of Conduct, which requires
employees “to conduct themselves in a manner which brings credit to the
department,” “to represent themselves in the highest standards and
traditions,” “to conduct themselves in a professional manner at all times,”
not to “engag[e] in any criminal, infamous, dishonest, notorious or
disgraceful conduct,” and not to “use physical force or deadly physical force
on any person except as defined by law.” (Bernstein Aff., Ex. H, Code of
Conduct, Dkt. No. 55:17.)
On September 28, 2007, Harris was involved in an off-duty
altercation outside of McArthur’s Pub in Schenectady, New York. (See
County Defs. SMF ¶ 13, Dkt. No. 55:2.) As a result of his involvement in
this altercation, members of the Schenectady City Police Department
4
arrested Harris and charged him with assault in the third degree, N.Y.
PENAL LAW § 120.00. (See Union Defs. SMF ¶¶ 14-15, Dkt. No. 57:1.)
After being arrested, charged, and released, Harris’s employment with the
County was immediately terminated, (see id. at ¶ 16; County Defs. SMF ¶
10, Dkt. No. 55:2), which was memorialized in a letter issued to Harris on
September 28, 2007, by Undersheriff Gordon Pollard, (see Bradt Aff., Ex.
J(a), Dkt. No. 55:25). Sheriff’s Department Chief Timothy Bradt conducted
an investigation into the alleged assault, during which he reviewed a video
of the incident that had been recorded by MacArthur’s Pub’s surveillance
camera. (See County Defs. SMF ¶¶ 12-13, Dkt. No. 55:2.) The video
recording showed Harris assaulting an individual, Byron Lake, outside of
McArthur’s Pub. (See County Defs. June 23, 2010 Letter Exs., Dkt. No. 52;
County Defs. SMF ¶ 13, Dkt. No. 55:2.) Ultimately, on March 15, 2010,
after a jury trial in Schenectady City Court, Harris was found guilty of thirddegree assault. (See County Defs. SMF ¶ 21, Dkt. No. 55:2; Bernstein Aff.,
Ex. K, Trial Tr. at 443-44, Dkt. No. 55:29.)
On September 29, 2007, Harris contacted Ronald Walsh, President
of the Schenectady County Sheriff’s Benevolent Association, Local 3874,
Council 82. (See Union Defs. SMF ¶ 17, Dkt. No. 57:1.) In response to
5
Harris’s questions regarding his termination, Walsh avers that he explained
to Harris that, as a probationary employee, he “could be dismissed for any
legitimate purpose including being arrested,” that he was “not entitled to a
hearing under the collective bargaining agreement challenging [his]
termination,” and that the Union “would not be filing a grievance on [his]
behalf given the [Sheriff’s Department’s] broad power to terminate a
probationary employee.” (Walsh Aff. ¶¶ 4-6, Dkt. No. 57:7.) Walsh,
however, did advise Harris that the Union—though not obligated to—would
assist in paying the costs associated with Harris’s criminal matter by paying
for the assistance of criminal attorney Steven Kouray. (See id. at ¶¶ 8-9.)
In October 2007, Harris met with Walsh and attorney Ennio Corsi,
General Counsel to Council 82, to review and discuss Harris’s termination
and evaluate whether any action could be taken to challenge it. (See id. at
¶ 12.) During this meeting, Harris was again advised that the Sheriff’s
Department could terminate his probationary employment simply based on
his arrest. (See id.) Harris was further advised to seek a second opinion
and that he had the right to contact or file a grievance with the New York
State Division of Human Rights (DHR) and the Equal Employment
Opportunity Commission (EEOC). (See id. at ¶ 14; Union Defs. SMF ¶ 23,
6
Dkt. No. 57:1; Corsi Aff. ¶ 16, Dkt. No. 70:5.)
Shortly thereafter, on October 31, 2007, Harris filed a notice with the
Sheriff’s Department requesting a “name clearing hearing” on the grounds
that his termination violated his Fourteenth Amendment rights because it
was based on “false and manufactured information ... [that] the parties
knew or should have known was false[ly] manufactured (video evidence)
and bias [sic].” (See Ryan Aff., Ex. E, Dkt. No. 57:6.)
On March 5, 2008, Harris filed a verified complaint with the DHR,
charging the Sheriff’s Office with race- and age-based discrimination. (See
Bernstein Aff., Ex. G, Dkt. No. 55:10.) After conducting an investigation,
the DHR determined that no probable cause existed for Harris’s claims,
dismissed his complaint, and notified Harris that he may file an appeal with
the New York State Supreme Court, which must be filed “within sixty (60)
days,” and that he may request a review of his complaint by the EEOC.
(See id.) On November 13, 2008, the EEOC issued a decision adopting
the DHR’s findings and notifying Harris of his right to file a civil action under
Title VII in state or federal court. (See 2d Am. Compl., Ex. 1, Dkt. No. 33.)
Harris commenced this action on December 19, 2008, and thereafter
amended his complaint, alleging a series of claims arising under the
7
Fourteenth Amendment, Title VII, the ADEA, NYSHRL, and state common
law. (See 2d Am. Compl., Dkt. No. 33.) Following discovery, County and
Union defendants moved for summary judgment on Harris’s claims. (See
Dkt. Nos. 55, 57.) In response, Harris cross-moved for summary judgment,
(see Dkt. No. 70), and moved for declaratory and injunctive relief, seeking
to preclude the introduction of the DVD-R video recordings of the
September 28, 2007 incident, (see Dkt. No. 71).
III. Standard of Review
The standard for the grant of summary judgment is well established
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its previous opinion in Bain v. Town of Argyle,
499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007).
IV. Discussion
A.
Declaratory and Injunctive Relief
As an initial matter, Harris, by letter dated September 16, 2010,
requests the court to declare inadmissible the two DVD-Rs submitted by
County defendants. (See Harris Sept. 16, 2010 Letter Mot., Dkt. No. 71;
8
see also County Defs. June 23, 2010 Letter & Exs.,5 Dkt. No. 52.) Harris
further seeks to enjoin defendants from using or distributing, among other
things, the DVD-Rs and the County Sheriff’s Investigation Report. (See
Harris Sept. 16, 2010 Letter Mot., Dkt. No. 71; see also Bradt Aff., Ex. A,
55:25.) Essentially, Harris contends that the DVD-Rs have been
fabricated, altered, and contain dropped video frames, and that the
Investigation Report is derivatively inadmissible as it was prepared in
reliance on the contents of the DVD-Rs. (See id.)
Having viewed the DVD-Rs, reviewed the Report, and considered the
parties’ arguments, the court denies Harris’s motion for declaratory and
injunctive relief. As defendants highlight, the testimony elicited during
Harris’s criminal trial abundantly supports the accuracy and consequent
admissibility of both the DVD-Rs and the Report. (See generally Union
Defs. Resp. Mem. of Law, Dkt. No. 73:1; see also County Defs. Reply
Mem. of Law at 6, Dkt. No. 76:6; Bernstein Nov. 30, 2010 Letter, Dkt. No.
85.) As to the DVD-Rs, and pursuant to FED. R. EVID. 901, the footage was
identified by the eyewitnesses to the event in question—namely, Sandra
5
As explained by defense counsel Jonathan Bernstein, the first DVD-R, which is
marked “07-087 Harris,” was obtained from Schenectady County; and the second DVD-R,
which is marked “10124000 COA P.L. Exhibit 19,” was obtained from the NYSDHR’s files.
(See Bernstein June 23, 2010 Letter, Dkt. No. 52.)
9
Naparty, (see Bernstein Aff., Ex. K, Trial Tr. at 167, Dkt. No. 55:28), and
Byron Lake, (see id. at 271-77)—and authenticated by testimonial evidence
regarding the camera’s installation, activation, and operation, and the
recording’s chain of possession—specifically, the testimony of Michael
Bump, (see id. at 115-32, Dkt. No. 55:27), Doug Hitchcock, (see id. at 15051), Officer William Fennell, (see id. at 228, Dkt. No. 55:28), Sergeant
Edward Barbagelata, (see id. at 239-40), and Assistant District Attorney
John Healy, (see Healy Aff., Dkt. No. 55:33). As to the Report, and
pursuant to FED. R. EVID. 803(6), Chief Bradt has affirmed that it was
prepared and kept in the normal course of the Sheriff’s Department’s
business.6 (See Bradt Aff. ¶ 2, Dkt. No. 55:24.) Moreover, under FED. R.
EVID. 803(8) and as discussed by the Second Circuit in Gentile v. Cnty. of
Suffolk, 926 F.2d 142, 148 (2d Cir. 1991), the Report is admissible as a
product made in accordance with N.Y. COUNTY LAW §§ 650 and 652. (See
Union Defs. Mem. of Law at 1, 8-9, Dkt. No. 73:1.) Therefore, since there
is no viable question regarding the actual relevance of the content of the
6
Even if the report was not excepted under FED. R. EVID. 803, the court concurs with
Union defendants’ assertion that they offer the report not for the truth of the matter asserted
but rather to show that Walsh and Local 3874 played no role in Harris’s termination and that
Harris’s termination occurred for legitimate reasons. (See Union Defs. Mem. of Law at 8-9,
Dkt. No. 73:1.)
10
DVD-Rs and the Report, the court denies Harris’s motion to preclude
defendants’ submission and the court’s consideration of the DVD-Rs and
the Report.
B.
Failure to Serve and File a Notice of Claim
“Notice of claim requirements are construed strictly by New York
state courts. Failure to comply with these requirements ordinarily requires
a dismissal for failure to state a cause of action.” Hardy v. N.Y.C. Health &
Hosp. Corp., 164 F.3d 789, 793-94 (2d Cir. 1999) (internal quotation marks
and citations omitted); see also Olsen v. Cnty. of Nassau, No. CV 05-3623,
2008 WL 4838705, at *3-4 (E.D.N.Y. Nov. 4, 2008).
County defendants assert that this court lacks subject matter
jurisdiction over Harris’s state law claims as a result of Harris’s failure to
serve a notice of claim on the County in accordance with N.Y. COUNTY LAW
§ 52. (See County Defs. Mem. of Law at 18-19, Dkt. No. 55:1; see also
Gardner Aff. ¶ 4, Dkt. No. 55:32 (“A search of the County’s records reveals
that a Notice of Claim was never served and filed by ... Harris with regard
to any of the claims asserted in this action.”).) In response, Harris has
submitted a copy of his purported notice of claim dated December 20,
2007, and a series of certified mail receipts, (see Harris Ex. 19, Dkt. No.
11
70:4), to establish that he served a notice of claim upon the County, (see
Pl. Resp. Mem. of Law ¶ 20, Dkt. No. 70). While the court has significant
reservations regarding the individual County defendants’ amenability to suit
for failure to serve each of them with a notice of claim, (see County Defs.
Mem. of Law at 18-19, Dkt. No. 55:1), the court nonetheless declines to
dismiss Harris’s claims on this basis in light of both his pro se status and
the documents submitted by him which on their face suggest that he did file
a notice of claim with the County.
C.
Title VII, the ADEA, and NYSHRL
Under Title VII, it is “an unlawful employment practice for an
employer ... to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
In analyzing claims of race discrimination, courts apply the burdenshifting rules first set forth in McDonnell Douglas Corp. v. Green, which
place upon the plaintiff the initial burden of making out a prima facie case
of discrimination. 411 U.S. 792 (1973). A plaintiff must satisfy this burden
by showing: “(1) membership in a protected class; (2) satisfactory job
12
performance; (3) termination from employment or other adverse
employment action; and (4) the ultimate filling of the position with an
individual who is not a member of the protected class.” Farias v.
Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). The fourth prong
may be satisfied by demonstrating that “the discharge or adverse
employment action occurred under circumstances giving rise to an
inference of discrimination” based on the plaintiff’s membership in a
protected class. Id. The Second Circuit characterizes the plaintiff’s prima
facie burden as “minimal.” Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76
(2d Cir. 2005) (citations omitted).
“A plaintiff’s establishment of a prima facie case gives rise to a
presumption of unlawful discrimination that shifts the burden of production
to the defendant, who must proffer a ‘legitimate, nondiscriminatory reason’
for the challenged employment action.” Id. at 76 (internal citations
omitted). If the defendant proffers a legitimate, nondiscriminatory reason
for the challenged employment action, the presumption of discrimination
drops out of the analysis, and the defendant “will be entitled to summary
judgment ... unless the plaintiff can point to evidence that reasonably
supports a finding of prohibited discrimination.” James v. N.Y. Racing
13
Ass’n, 233 F.3d 149, 154 (2d Cir. 2000).
Ultimately, once the burden shifts back to the plaintiff, the plaintiff
must show, without the benefit of the presumption, “that the employer’s
determination was in fact the result of racial discrimination.” Holcomb v.
Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). The plaintiff must
demonstrate by a preponderance of the evidence that “the legitimate
reasons offered by the defendant were not its true reasons, but were a
pretext for discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981). This showing may be made “either directly by persuading
the court that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is unworthy
of credence.” Id.; see also Tyler v. Bethlehem Steel Corp., 958 F.2d 1176,
1180-81 (2d Cir. 1992). Thus, to avoid summary judgment, “the plaintiff is
not required to show that the employer’s proffered reasons were false or
played no role in the employment decision, but only that they were not the
only reasons and that the prohibited factor was at least one of the
motivating factors.” Holcomb, 521 F.3d at 138 (internal quotation marks
and citation omitted).
“The ADEA makes it unlawful for employers to discriminate on the
14
basis of age against employees age 40 or older.” Dist. Council 37 v. N.Y.
City Dep’t of Parks & Recreation, 113 F.3d 347, 351 (2d Cir. 1997)
(citations omitted). Employers are prohibited from refusing to hire,
discharging, or otherwise discriminating against an employee with regard to
compensation, terms, conditions, or privileges of employment because of
age. See 29 U.S.C. § 623(a).
ADEA cases operate under the same McDonnell Douglas burdenshifting framework. See Holtz, 258 F.3d at 76; see also Gorzynski v.
Jetblue Airways Corp., 596 F.3d 93, 105-06 (2d Cir. 2010). Accordingly,
the plaintiff bears the initial burden of establishing a prima facie case of age
discrimination by showing that “(1) [he] was within the protected class; (2)
[he] was qualified for the position; (3) [he] was subject to an adverse
employment action; and (4) the adverse action occurred under
circumstances giving rise to an inference of discrimination.” Leibowitz v.
Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009) (citations omitted). In turn,
the defendant must come forward with evidence of a legitimate,
nondiscriminatory reason for the challenged actions. Id. at 498-99. If the
defendant articulates such a reason, “the burden shifts back to the plaintiff
to demonstrate by competent evidence that the legitimate reasons offered
15
by the defendant were not its true reasons, but were a pretext for
discrimination.” Id. at 499 (internal quotation marks and citation omitted).
In carrying this burden, the plaintiff “must prove by a preponderance of the
evidence (which may be direct or circumstantial), that age was the ‘but-for’
cause of the challenged employer decision.” Gross v. FBL Fin. Servs.,
Inc., 129 S.Ct. 2343, 2351 (2009) (citation omitted).
“[C]laims brought under [NYSHRL] are analytically identical to claims
brought under Title VII. Torres v. Pisano, 116 F.3d 625, 629 n.1 (2d Cir.
1997) (citation omitted); see also Weinstock v. Columbia Univ., 224 F.3d
33, 42 n.1 (2d Cir. 2000) (“The identical standards apply to employment
discrimination claims brought under Title VII ... [and] New York Executive
Law § 296 ....” (citations omitted)). Likewise, NYSHRL claims are analyzed
under the same standard as claims brought under the ADEA. See id. at
1304 n.4; see also Abrahamson v. Bd. of Educ. of Wappingers Falls Cent.
Sch. Dist., 374 F.3d 66, 70 n.2 (2d Cir. 2004) (“Since the [NYSHRL] statute
mirrors the requirements of the ADEA, violation of one necessarily implies
violation of the other.” (citations omitted)). However, unlike Title VII and the
ADEA, it is also unlawful “for any person to aid, abet, incite, compel or
coerce the doing of any of the acts forbidden under [NYSHRL].” N.Y.
16
EXEC. LAW § 296(6); see also Feingold v. New York, 366 F.3d 138, 158
n.19 (2d Cir. 2004). Thus, an individual defendant “who actually
participates in the conduct giving rise to a discrimination claim may be held
personally liable under [NYSHRL].” Tomka v. Seiler Corp., 66 F.3d 1295,
1317 (2d Cir. 1995), abrogated on other grounds, Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742 (1998).
Here, the court is not convinced that Harris can even make out a
prima facie case of race- or age-based discrimination. Other than offering
conjectural and unsubstantiated assertions that the County had a “racially
discriminatory employment policy” and that certain individuals were
“known” to be racists, had a history of fabricating evidence against AfricanAmerican correction officers, or “display[ed] acts of racial prejudice,” (see
Pl. SMF ¶¶ 11, 13, 16, 22, 94-96, Dkt. No. 69:1), Harris has not provided
any actual evidence, direct or circumstantial, showing that his discharge
occurred under circumstances that could give rise to an inference of racial
discrimination. And having scoured Harris’s submissions, (see generally
Pl. Exs. 1-74, Dkt. No. 70:1-20), the court finds no allegation, let alone
evidence, setting forth how Harris’s age played a role in his discharge.
Consequently, Harris’s claims for unlawful termination based on his race
17
and age are prima facie insufficient. Moreover, even if Harris could
establish a prima facie case of race or age discrimination, there is nothing
in the record to rebut or undermine the legitimate reason offered for his
termination, namely his arrest for assault, the charges filed against him,
and, ultimately, his conviction. Therefore, the court grants defendants’
motions for summary judgment on Harris’s Title VII, ADEA, and NYSHRL
claims, and those claims are dismissed.
D.
Wrongful Discharge and IIED
“[A] common-law cause of action in tort for abusive or wrongful
discharge based upon the termination of an at-will employment ... may not
be maintained under New York law.” McEntee v. Van Cleef & Arpels, Inc.,
166 A.D.2d 359, 359-60 (1st Dep’t 1990); see also Murphy v. Am. Home
Prods. Corp., 58 N.Y.2d 293, 301-03 (N.Y. 1983) (refusing to recognize a
common-law cause of action for wrongful discharge of an at-will employee
since “[t]o do so would alter [the] long-settled rule that where an
employment is for an indefinite term it is presumed to be a hiring at will
which may be freely terminated by either party at any time for any reason
or even for no reason” (citation omitted)), modified by statute, N.Y. LABOR
LAW § 740 (1984). Furthermore, since there is “no cause of action in tort in
18
New York for abusive or wrongful discharge of an at-will employee, [a]
plaintiff should not be allowed to evade that conclusion or to subvert the
traditional at-will contract rule by casting his cause of action in terms of a
tort of [IIED].” Murphy, 58 N.Y.2d at 303 (citation omitted). In other words,
absent the “rare instances” involving “significant battery, or improper
physical contact,” a claim for IIED will not lie in the employment context.
Curto v. Med. World Commc’ns, Inc., 388 F. Supp. 2d 101, 112 (E.D.N.Y.
2005) (internal quotation marks and citations omitted).
Here, because there is no dispute that Harris, as a probationary
correction officer, was an at-will employee, and in light of his allegations
and the evidence on record, his claims for wrongful discharge and IIED are
subject to dismissal as a matter of law.7
7
As County defendants highlight, (see County Defs. Mem. of Law at 12-13, Dkt. No.
55:1), Harris’s IIED claim would likely be subject to dismissal in the alternative under the oneyear statute of limitations. See N.Y. C.P.L.R. § 215(3); Patterson v. Balsamico, 440 F.3d 104,
112 n.4 (2d Cir. 2006); Jemison v. Crichlow, 139 A.D.2d 332, 336 (2d Dep’t 1988).
The court also notes, and generally concurs with, defendants’ contention that the
DHR’s findings and determination operate under the doctrines of res judicata and collateral
estoppel to bar Harris from presenting here his wrongful discharge and IIED claims, NYSHRL
claims, and several of his §§ 1981, 1983, and 1985 claims. (See County Defs. Mem. of Law at
2-6, Dkt. No. 55:1 (relying on, inter alia, DeCintio v. Westchester Cnty. Med. Ctr., 821 F.2d
111, 118 & n.13 (2d Cir. 1987); Joseph v. HDMJ Rest., Inc., 685 F. Supp. 2d 312, 317
(E.D.N.Y. 2009); Reubens v. N.Y.C. Dep’t of Juvenile Justice, 930 F. Supp. 887, 889-90
(S.D.N.Y. 1996); Bolecek v. Bd. of Educ. of City of N.Y., 289 A.D.2d 328, 328-29 (2d Dep’t
2001)); Union Defs. Mem. of Law at 14-15, Dkt. No. 57:9.) Nonetheless, in consideration of
Harris’s pro se status and the somewhat confused, overlapping nature of his claims, the court
has chosen to address his remaining constitutional challenges on their merits below—to the
extent that is legally and factually possible.
19
E.
Breach of Duty of Fair Representation
A union, as the exclusive bargaining representative of all employees
in the bargaining unit, is statutorily obligated “to serve the interests of all
members without hostility or discrimination toward any, to exercise its
discretion with complete good faith and honesty, and to avoid arbitrary
conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967) (citation omitted). “A
union breaches its duty of fair representation if its actions can fairly be
characterized as so far outside a wide range of reasonableness that they
are wholly arbitrary, discriminatory, or in bad faith.” Spellacy v. Airline
Pilots Ass’n-Int’l, 156 F.3d 120, 126 (2d Cir. 1998) (internal quotation
marks and citations omitted). This duty, which “extends to both the
negotiation of a collective bargaining agreement, and its enforcement and
administration,” id. at 126 (citations omitted), stands “as a bulwark to
prevent arbitrary union conduct against individuals stripped of traditional
forms of redress by the provisions of federal labor law,” Vaca, 386 U.S. at
182. Nonetheless, while a court’s supervision of union action is vital, its
review of such action “must be highly deferential, recognizing the wide
latitude that [unions] need for the effective performance of their bargaining
responsibilities.” Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 78 (1991)
20
(citation omitted).
To establish a claim for breach of the duty of fair representation, a
plaintiff must satisfy two elements. First, the plaintiff must demonstrate that
the “union’s conduct toward [him as] a member of the collective bargaining
unit [was] arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190
(citation omitted). Second, the plaintiff must demonstrate “a causal
connection between the union’s wrongful conduct and [the plaintiff’s]
injuries.” White v. White Rose Food, 237 F.3d 174, 179 (2d Cir. 2001)
(internal quotation marks and citation omitted). Arbitrary conduct includes
both intentional conduct and “acts of omission which, while not calculated
to harm union members, may be so egregious, so far short of minimum
standards of fairness to the employee and so unrelated to legitimate union
interests as to be arbitrary.” NLRB v. Local 282, Int’l Bhd. of Teamsters,
740 F.2d 141, 147 (2d Cir. 1984) (internal quotation marks and citations
omitted). For instance, “a union may not arbitrarily ignore a meritorious
grievance or process it in perfunctory fashion.” Vaca, 386 U.S. at 191; see
also Caputo v. Nat’l Ass’n of Letter Carriers, 730 F. Supp. 1221, 1229
(E.D.N.Y. 1990) (“[T]he failure to act does make out a claim ... because it is
not the result of an error of judgment, given that it was not the result of a
21
deliberative process, but rather an omission which is properly characterized
as arbitrary.”); see, e.g., Moore v. Roadway Express, Inc., No. 07-CV-977,
2008 WL 819049, at *4-5 (E.D.N.Y. Mar. 25, 2008) (denying motion to
dismiss where plaintiff alleged that the union failed to respond to and
conduct any investigation into his complaints). Thus, a union has a “duty to
perform some minimal investigation ... [and] must exercise special care in
handling a grievance which concerns a discharge.” Evangelista v.
Inlandboatmen’s Union of Pac., 777 F.2d 1390, 1395 (9th Cir. 1985)
(citations omitted). However, “[t]actical errors are insufficient to show a
breach of the duty of fair representation; even negligence on the union’s
part does not give rise to a breach.” Barr v. United Parcel Servs., Inc., 868
F.2d 36, 43 (2d Cir. 1989). In other words, “courts cannot intercede on
behalf of employees who may be prejudiced by rationally founded
decisions which operate to their particular disadvantage.” Id. at 44 (internal
quotation marks and citations omitted).
Harris’s claim against Union defendants for breach of fair duty of
representation cannot survive in light of the unrefuted testimony provided
by both Walsh and Mr. Corsi establishing that they met multiple times with
Harris, evaluated the merits of his claim, provided more than adequate
22
advice and guidance, and offered to and actually assisted in paying the
costs associated with Harris’s criminal matter. Furthermore, both Walsh
and Mr. Corsi aver that at no point in their conversations with Harris did he
mention the possibility that race played a role in his termination. (See
Walsh Aff. ¶ 13, Dkt. No. 55:31; Corsi Aff. ¶ 10, Dkt. No. 70:5.) These
averments are corroborated by the contents of Harris’s October 31, 2007
notice to request a “name clearing hearing,” which alleges due process
violations, fabrication of evidence, and slander, but does not contain any
reference to race or discrimination. (See Ryan Aff., Ex. E, Dkt. No. 57:6.)
And most importantly, the evidence—particularly when viewed in the light
of the Code of Conduct, (see Bernstein Aff., Ex. H, Code of Conduct, Dkt.
No. 55:17), and the Collective Bargaining Agreement, (see Walsh Aff., Ex.
A, Dkt. No. 57:7)—overwhelmingly demonstrates that Harris’s grievance
had no merit. Therefore, the court grants Union defendants’ motion for
summary judgment on Harris’s breach of duty of fair representation claim.
F.
Section 1981
Section 1981 protects each individual’s right “to make and enforce
contracts ... including the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges,
23
terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(a)(b). “To establish a § 1981 claim, a plaintiff ... must show: (1) that [he] is a
member of a racial minority; (2) an intent to discriminate on the basis of
race by the defendant; and (3) that the discrimination concerned one or
more of the activities enumerated in § 1981.” Lauture v. Int’l Bus. Machs.
Corp., 216 F.3d 258, 261 (2d Cir. 2000) (citation omitted). Claims under §
1981 operate under the same McDonnell Douglas burden-shifting
framework as Title VII and ADEA claims do. See Martin v. Citibank, N.A.,
762 F.2d 212, 216-17 (2d Cir. 1985). This is because “[m]ost of the core
substantive standards that apply to claims of discriminatory conduct in
violation of Title VII are also applicable to claims of discrimination in
employment in violation of § 1981.” Patterson v. Cnty. of Oneida, 375 F.3d
206, 225 (2d Cir. 2004). Accordingly, “the factors justifying summary
judgment dismissing [a plaintiff’s] Title VII claim ... for termination of his
employment equally support the summary dismissal of his claims for
termination brought under 42 U.S.C. §§ 1981 and 1983.” Id.
As to Harris’s claims under § 1981 against County defendants, these
claims are dismissed for the same reasons that warrant dismissal of his
Title VII, ADEA, and NYSHRL claims. Likewise, for these reasons and
24
those warranting dismissal of his breach of duty of fair representation
claim, Harris’s § 1981 claim against Union defendants—to the extent he is
asserting one—is dismissed. See Harmon v. Matarazzo, 162 F.3d 1147,
1998 WL 639400, at *2 (2d Cir. Mar. 27, 1998).
G.
Section 1983
1.
Deprivation of Property
Harris’s first claim brought pursuant to § 1983—aside from the
wrongful discharge claims, (see 2d Am. Compl. ¶¶ 351-62, 383-87, Dkt.
No. 33), which have already been found subject to dismissal—appears to
be that his termination constituted a deprivation of his property without due
process, (see id. at ¶¶ 333-337). This claim fails on two fronts. First,
Harris had no constitutionally protected property interest in his probationary
position. See Baron v. Port Auth. of N.Y. & N.J., 271 F.3d 81, 89 (2d Cir.
2001) (“[A]t-will employment is not a constitutionally protected property
interest.”); see, e.g., Anderson v. State of N.Y., Office of Court Admin. of
Unified Ct. Sys., 614 F. Supp. 2d 404, 426 (S.D.N.Y. 2009). And second,
even if Harris did have a property right in his employment, he failed without
excuse to pursue an Article 78 proceeding to challenge his termination.
See Gudema v. Nassau Cnty., 163 F.3d 717, 724 (2d Cir. 1998) (“A
25
deprivation of ... property through the conduct of a state [entity] whose acts
are random and unauthorized ... does not constitute a procedural due
process violation so long as the state provides a meaningful remedy
thereafter.” (citations omitted)); Hellenic Am. Neighborhood Action Comm.
v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996) (same); see also
Vargas v. City of New York, 377 F.3d 200, 208 (2d Cir. 2004) (“[A]n Article
78 proceeding ... provides a meaningful remedy where violations of due
process by a local governmental entity are alleged.” (citing Gudema, 163
F.3d at 724-25)); see, e.g., Longo v. Suffolk Cnty. Police Dep’t, 429 F.
Supp. 2d 553, 559-60 (E.D.N.Y. 2006). Consequently, Harris’s property
deprivation claim is dismissed.
2.
Equal Protection
Second, Harris asserts—though not clearly—that his equal protection
rights were violated by defendants. (See 2d Am. Compl. ¶¶ 2, 5, 384, Dkt.
No. 33.) “To prove a violation of the Equal Protection Clause ... a plaintiff
must demonstrate that he was treated differently than others similarly
situated as a result of intentional or purposeful discrimination ... [and] that
the disparity in treatment cannot survive the appropriate level of scrutiny
....” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005) (citations omitted).
26
As the court has already discussed, Harris has not proffered any direct
evidence demonstrating or circumstantial evidence from which to infer that
any of the defendants acted with a racial or otherwise impermissible
animus. Equally important, Harris has failed to identify any similarly
situated person or persons compared to whom he was selectively
treated—which is not surprising in light of the uniqueness of his criminal
conduct. As a result, Harris’s equal protection claim cannot survive
summary judgment.
3.
Collateral Estoppel
The third set of § 1983 claims appears to implicate Harris’s
underlying criminal conviction. Specifically, these claims are based on
alleged violations of his due process rights, fabrication of evidence,
obstruction of justice, and bad faith inadequate investigation. (See 2d Am.
Compl. ¶¶ 363-79, 388-91, Dkt. No. 33.) These claims also fail as they are
barred by collateral estoppel.
In New York, the doctrine of collateral estoppel “precludes a party
from relitigating in a subsequent action or proceeding an issue clearly
raised in a prior action or proceeding and decided against that party,
whether or not the tribunals or causes of action are the same.” Parker v.
27
Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349 (N.Y. 1999) (internal
quotation marks and citations omitted). The doctrine applies when:
(1) the issues in both proceedings are identical, (2) the issue in
the prior proceeding was actually litigated and actually decided,
(3) there was full and fair opportunity to litigate in the prior
proceeding, and (4) the issue previously litigated was
necessary to support a valid and final judgment on the merits.
Liona Corp. v. PCH Assocs. (In re PCH Assocs.), 949 F.2d 585, 593 (2d
Cir. 1991) (citations omitted). In accordance with these principles, an
action for damages pursuant to § 1983 “for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid” can only be
maintained if the plaintiff’s “conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus.” Heck v. Humphrey,
512 U.S. 477, 486-87 (1994).
It is undisputed that Harris was convicted for third-degree assault and
that conviction has not been overturned, expunged, or otherwise
invalidated. Accordingly, Harris’s claims for violation of his due process
rights, fabrication of evidence, obstruction of justice, bad faith inadequate
28
investigation, and §§ 1983 and 1985 conspiracy—all of which are patent
attacks on the validity of his conviction—are barred. See, e.g., Channer v.
Mitchell, 43 F.3d 786, 787 (2d Cir. 1994) (per curiam) (affirming dismissal
of claims against police officers for perjury and coercion of witnesses as
precluded by plaintiff’s valid conviction); Amaker v. Weiner, 179 F.3d 48, 52
(2d Cir. 1999) (holding that Heck also applies to claims challenging a
plaintiff’s conviction under §§ 1981, 1983, 1985, and 1986); Jasper v.
Fourth Ct. App., No. 08 Civ. 7472, 2009 WL 1383529, at *1 (S.D.N.Y. May
18, 2009) (dismissing claim of violation of due process right to a fair trial as
precluded by plaintiff’s valid conviction); Perez v. Cuomo, No. 09-CV-1109,
2009 WL 1046137, at *7 (E.D.N.Y. Apr. 17, 2009) (same); Fernandez v.
Holzbach, No. 3:04-CV-1664, 2007 WL 1467182, at *1 (May 15, 2007)
(dismissing claims against judge, prosecutor, detectives, witnesses, and
other state officials for perjury and fabrication of evidence as precluded by
plaintiff’s valid conviction); Duamutef v. Morris, 956 F. Supp. 1112, 1116-18
(S.D.N.Y. 1997) (dismissing claims for false arrest, malicious prosecution,
perjury, First Amendment retaliation, and § 1985 conspiracy—all of which
formed the basis for plaintiff’s overall claim that defendants conspired
against him to frame him for a crime—as precluded by plaintiff’s valid
29
conviction). Therefore, Harris’s remaining § 1983 claims are clearly barred
in light of the factual grounds upon which they rest.
H.
Conspiracy
In the absence of an underlying constitutional violation, Harris’s
charges of conspiracy under § 1983 or § 1985 cannot be maintained. See
Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001); Gray v. Town of
Darien, 927 F.2d 69, 73 (2d Cir. 1991). Moreover, aside from a series of
conclusory, general, and implausible allegations and suppositions that all of
the defendants conspired to violate his rights, Harris has failed to offer any
evidence demonstrating that any of the defendants entered into an
agreement or reached an understanding to willfully deprive him of any
rights protected by § 1983 or § 1985. See United Bhd. of Carpenters &
Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 828-29 (1983) (“[T]o
make out a violation of 42 U.S.C. § 1985(3) ... the plaintiff must [prove] four
elements: (1) a conspiracy; (2) for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protection of the
laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person
is either injured in his person or property or deprived of any right or
privilege of a citizen of the United States.”); Malsh v. Austin, 901 F. Supp.
30
757, 763 (S.D.N.Y. 1995) (“To sustain a conspiracy claim under 42 U.S.C.
§ 1983, a plaintiff must demonstrate that a defendant acted in a wilful
manner, culminating in an agreement, understanding or ‘meeting of the
minds,’ that violated the plaintiff’s rights ... secured by the Constitution or
the federal courts.” (internal quotation marks and citation omitted)); see
also Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (per curiam). Nor
has Harris even alleged facts sufficient to enable the court to infer a
conspiracy. Therefore, Harris’s claims of conspiracy are dismissed.
I.
Monell Liability and Personal Involvement
A municipality may be liable under § 1983 only “when execution of a
government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts
the injury.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658,
694 (1978). To establish a municipal policy or custom, a plaintiff must
allege:
(1) the existence of a formal policy officially endorsed by the
municipality; (2) actions taken or decisions made by municipal
officials with final decision making authority, which caused the
alleged violation of plaintiff’s civil rights; (3) a practice so
persistent and widespread that it constitutes a custom of which
constructive knowledge can be implied on the part of the
policymaking officials; or (4) a failure by policymakers to
31
properly train or supervise their subordinates, amounting to
“deliberate indifference” to the rights of those who come in
contact with the municipal employees.
Prowisor v. Bon-Ton, Inc., 426 F. Supp. 2d 165, 174 (S.D.N.Y. 2006)
(citation omitted). However, a municipality and its supervisory officials may
not be held liable under § 1983 based on the theory of respondeat
superior. See Monell, 436 U.S. 658, 691 (1978). Moreover, “a single
incident alleged in a complaint, especially if it involved only actors below
the policy-making level, does not suffice to show a municipal policy.”
Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) (citations
omitted); see also City of Canton v. Harris, 489 U.S. 378, 387 (1989). Still,
a policy may be inferred from circumstantial proof that the municipality
displayed a deliberate indifference to the constitutional rights of an
individual by failing to train its employees or repeatedly failing to make any
meaningful investigation into complaints of constitutional violations after
receiving notice. See Ricciuti, 941 F.2d at 123.
Here, Harris appears to allege that the defendants should be subject
to liability under Monell for negligently hiring, training, and retaining their
employees and subordinates, for participating in some grandiose
conspiracy to violate his rights, and for allowing a practice or unwritten
32
policy to persist and thereby cause the violations alleged. However, Harris
has failed to identify any policy or practice that any of the defendants
endorsed or allowed to persist that led to or caused the violations alleged.
Nor has Harris proffered any facts or evidence that would suggest that any
defendant failed to properly train and supervise subordinates, or was
otherwise indifferent to Harris’s or any other individual’s rights. And as to
defendant Buffardi, Harris has failed to put forth any evidence
demonstrating his personal involvement in the violations alleged.
Consequently, while the court has already found dismissal of all claims
warranted, Harris’s Monell claims against each defendant are subject to
dismissal.
J.
State Actor Status
“In order to state a claim under [42 U.S.C.] § 1983, a plaintiff must
allege that he was injured by either a state actor or a private party acting
under color of state law.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307,
323 (2d Cir. 2002) (citation omitted). However, “[a] merely conclusory
allegation that a private [individual] acted in concert with a state actor does
not suffice to state a § 1983 claim against the private [individual].” Id.
(citation omitted).
33
As to the Union and Walsh in his capacity as Union President, Harris
has offered nothing beyond conjectural, conclusory allegations that they
conspired with the County defendants and thereby qualify as state actors.
Accordingly, Union defendants’ motion for summary judgment on Harris’s §
1983 claims against them is granted on this alternative ground.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that County defendants’ motion for summary judgment
(Dkt. No. 55) is GRANTED; and it is further
ORDERED that Union defendants’ motion for summary judgment
(Dkt. No. 57) is GRANTED; and it is further
ORDERED that Harris’s motion for summary judgment (Dkt. No. 70)
is DENIED; and it is further
ORDERED that Harris’s motion for declaratory and injunctive relief
(Dkt. No. 71) is DENIED; and it is further
ORDERED that Harris’s February 11, 2011 letter motion for the court
to take judicial notice of Sandy Naparty’s January 12, 2011 arrest (Dkt. No.
87) is GRANTED; and it is further
ORDERED that Harris’s complaint is DISMISSED; and it is further
34
ORDERED that the Clerk close this case provide a copy of this
Memorandum-Decision and Order to the parties by regular and certified
mail.
IT IS SO ORDERED.
August 23, 2011
Albany, New York
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