Mues v. The Town of Denning, New York et al

Filing 41

MEMORANDUM-DECISION AND ORDER granting in part and denying in part 29 Motion for Summary Judgment: The Court hereby ORDERS that Defendants' motion for summary judgment is GRANTED in part and DENIED in part; and the Court furtherORDERS that Pl aintiff's First Amendment retaliation claim insofar as it relates to the passage of Resolution No. 43 of 2011 reclassifying the Recycling Manager position is DISMISSED; and the Court further ORDERS that the claims against the individual Defendan ts in their official capacities are DISMISSED; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 6/2/14. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ALBERT ED MUES,
Plaintiff,
vs.

1:12-cv-00241
(MAD/ATB)

THE TOWN OF DENNING, NEW YORK;
ROBERT BRUNNING, Town Supervisor, Town
of Denning, New York; ANDREW DEAN, Councilmen
of the Town of Denning, New York; PAUL
SCHOONMAKER, Councilmen of the Town of Denning,
New York; KEITH SMITH, Councilmen of the Town of
Denning, New York; DAVID BROOKS, Councilmen of
the Town of Denning, New York,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

DREW, DAVIDOFF & EDWARDS
LAW OFFICES, LLP.
13 Liberty Street
P.O. Drawer 1040
Monticello, New York 12701
Attorneys for Plaintiff

MICHAEL DAVIDOFF, ESQ.

ROBERT N. ISSEKS
OFFICE OF LAW
6 North Street
Middletown, New York 10940
Attorney for Plaintiff

ROBERT N. ISSEKS, ESQ.

DRAKE, LOEB, HELLER, KENNEDY,
GOGERTY, GABA & RODD, PLLC
555 Hudson Valley Avenue - Suite 100
New Windsor, New York 12553
Attorneys for Defendants

ADAM L. RODD, ESQ.
STEPHEN J. GABA, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION
On February 8, 2012, Plaintiff commenced this suit pursuant to 42 U.S.C. § 1983 alleging
that Defendants retaliated against him in violation of his "First Amendment rights to free political
speech and association." Dkt. No. 1 at ¶ 28. Currently before the Court is Defendants' motion for
summary judgment. See Dkt. No. 29.

II. BACKGROUND
The Town of Denning is a municipality located in the County of Ulster, in the State of
New York. See Dkt. No. 31 at ¶ 1.1 Plaintiff Albert Mues served as the Recycling Manager
(Solid Waste Attendant) for the Town from 2004 to January 3, 2012. See id. at ¶ 2. Plaintiff's
position of Recycling Manager was a part-time position, requiring Plaintiff to work twelve (12)
hours per week during the fall, spring and winter seasons, and fourteen (14) hours per week
during the summer season. See id. at ¶ 3.
The Town of Denning Town Board consists of one (1) supervisor and four (4)
councilmen. See id. at ¶ 4. All actions of the Town Board required (and still require) the
affirmative vote of a majority of all the members of the Town Board pursuant to Town Law § 63.
See id. at ¶ 5. During the relevant 2011 to 2012 time period, the four Town Councilmen were
Defendants Andrew Dean, David Brooks, Paul Schoonmaker and Kevin Smith. See id. at ¶ 6.
Defendant Robert Bruning served as a Town Councilman from 2002 to 2004, and then as the
Town Supervisor from 2004 to the present. See id. at ¶ 7. During the eight (8) year period of
time that he served as Recycling Manager, Plaintiff, a Democrat, and Defendant Bruning, a

Unless otherwise noted, the facts set forth in the "background" section of this
Memorandum-Decision and Order are not in dispute.
1

2

Republican, would regularly converse about politics, and would frequently engage in heated
discussions about political issues. See id. at ¶¶ 8-9. Defendants Dean, Brooks, Schoonmaker and
Smith are all Republicans. See id. at ¶¶ 10-17.
Defendants contend that, during the time that Plaintiff served as Recycling Manager, the
position of Recycling Manager was the only non-appointed position in the Town paid for out of
the Town's General Fund. See Dkt. No. 29-12 at ¶ 18. Moreover, Defendants claim that on
August 22, 2011, Defendant Bruning called the New York Association of Towns for guidance as
to whether it was appropriate to maintain the Recycling Manager's position as the only nonappointed position paid for out of the Town's General Fund. See id. at ¶ 21. Defendants claim
that a representative from the New York Association of Towns advised Defendant Bruning that
the position should be changed to an appointed position. See id. at ¶ 22. On November 9, 2011,
the Town Board enacted Resolution No. 43 of 2011 to redefine the position of Town Recycling
Manager as an appointed position. See Dkt. No. 31 at ¶ 23.
On August 25, 2011, in anticipation of the then upcoming local elections, Plaintiff sent an
email to about thirty-two (32) recipients, copied to Defendant Bruning, regarding the upcoming
caucus. The email read as follows:
Fellow Democrats and perhaps a few not,
The election for Town Supervisor is rapidly approaching (Nov. 8,
2011). It appears that the Democratic party in the Town of Denning
has no candidate for Town Supervisor.
There must be someone who can run for the position for the simple
reason that if the current supervisor, Bill Bruning, runs unopposed,
then the Town of Denning appears to all to be deeply flawed. No
matter what the office, no one should run unopposed. It is unAmerican and unhealthy for the collective psyche of our town.
It doesn't matter that Bill gets elected. He is a very good fiscal
manager, and over all, a good Town Supervisor. If someone runs
against him, then and only then, will we have autonomy. You don't
have to want to be town supervisor to run. Just to be part of a fair
3

playing field. Please consider throwing your hat in the ring. See
the announcement attached, FYI. Pass it on to other Dems you
know.
peace and light,
ed mues
Dkt. No. 1-3 at 1-2. Attached to this August 25, 2011 email were copies of announcements that
had been published in the local press alerting the public to the upcoming Town of Denning
Democratic Caucus and calling for all prospective candidates seeking the nomination of the local
Democratic Party to contact the Party Chairman. See id. at 3. On August 31, 2011, Defendant
Bruning spoke to Plaintiff to express that he had taken offense to Plaintiff's email. See Dkt. No.
31 at ¶ 25.
On September 12, 2011, the Town of Denning Democratic Caucus was held and attended
by Defendant Bruning and Plaintiff. See id. at ¶¶ 27-29. At the caucus, Defendant Bruning was
nominated by the Democratic Chairman to run for Town Supervisor under the Democratic line.
See id. at ¶ 29.
In the Fall of 2011, Defendant Bruning advised Plaintiff that there was a problem with
garbage being thrown into the dumpsters at the Recycling Facility. See id. at ¶ 40. In response to
Defendant Bruning's complaint, Plaintiff advised Defendant Bruning that he could not watch
everyone because "it's a big facility." Id. at ¶ 41. Plaintiff admitted that one of his job
responsibilities as Recycling Manager was to make sure that only appropriate material is placed
into the dumpsters at the Recycling Facility. See id. at ¶ 42. Defendants also claim that, in the
Fall of 2011, Defendant Dean smelled alcohol on Plaintiff's breath when he visited Plaintiff
during the early morning hours at the Recycling Facility. See Dkt. No. 29-12 at ¶ 46. Further,
Defendant Bruning claims that a town resident, Gordon Eck, advised him that he also smelled
alcohol on Plaintiff's breath while Plaintiff was working at the Recycling Facility. See id. at ¶ 47.
4

The possession or use of alcohol on Town property is a violation of Town policy as set forth in
the Town's Employee Handbook. See Dkt. No. 31 at ¶ 48.
In December of 2010, Plaintiff injured his back while moving portable stairs at the
Recycling Facility. See id. at ¶ 49. On January 3, 2011, Plaintiff was cleared to return to work by
his treating provider, at "full duty without restrictions." Id. at ¶ 50. Defendants claim that,
"[a]lthough cleared to return to work at 'full duty without restrictions,' Supervisor Bruning
observed that the plaintiff would not move the portable stairs accessing the recycling dumpsters
for use by Town residents – as he was required to do for his job." Dkt. No. 29-12 at ¶ 51.2
Plaintiff complained many times to the Town Board members about how difficult it was to move
the stairs to the recycling bins, which was one of his job responsibilities. See Dkt. No. 31 at ¶ 52.
Plaintiff also complained to Defendant Bruning that his inability to move the steps interfered with
his ability to clean the area in between the recycling dumpsters. See id. at ¶ 53. Due to Plaintiff's
inability to move the stairs at the Recycling Facility, Defendant Bruning had to assist Plaintiff
with this task. See id. at ¶ 55. Defendants also claim that Plaintiff's injury prevented him from
shoveling snow at the Recycling Facility. See id. at ¶ 57.
Also, in either May or June of 2011, Defendant Bruning asked Plaintiff to scrape and paint
the bottom of the garage doors at the Recycling Facility. See id. at ¶ 60. Since there were only

Plaintiff denies this allegation and refers the Court to his response to paragraph twentysix. See Dkt. No. 31 at ¶ 51. Paragraph twenty-six of Defendants' Rule 7.1 statement states that
"Supervisor Bruning did not discuss his August 31, 2011 interaction with the plaintiff with
Councilmen Brooks, Smith, Schoonmaker or dean at or prior to the January 3, 2012 Town
reorganization meeting." Dkt. No. 29-12 at ¶ 26. In response, Plaintiff responded as follows:
"Denied. Bruning's statements at the February 7, 2012 public meeting and Brooks', Smith's,
Schoonmaker's and Dean's failure to disavow those statements at that meeting constitute
admissions that the retaliatory reasons stated by Bruning for Mues' termination were the true
reasons for his termination and the non-retaliatory reasons for termination that the defendants are
now proffering to this Court are pretextual." Dkt. No. 31 at ¶ 26.
2

5

four (4) garage doors at the Recycling Facility, Defendant Bruning believed that the task to scrape
and paint the garage doors should have taken only a few days to complete. See Dkt. No. 29-12 at
¶ 61; Dkt. No. 31 at ¶ 61. Defendants contend that, as of July and August 2011, Plaintiff had not
completed scraping and painting the garage doors and Plaintiff admits that it took him "several
months" to complete this task. See id. at ¶¶ 62-63. Defendant Bruning reprimanded Plaintiff "for
his poor job performance in taking too long to complete the painting of the garage doors at the
Recycling Facility." Dkt. No. 31 at ¶ 64. Plaintiff took offense to the reprimand and believed
that Defendant Bruning unfairly assessed his job performance. See id. at ¶ 65.
Additionally, Plaintiff admitted to removing materials dropped off at the Recycling
Facility to his house, and then selling the materials on E-Bay for his own personal profit. See id.
at ¶ 67. Plaintiff believed that it was proper to keep the money he received from this activity. See
id. at ¶ 68. Defendant Bruning reprimanded Plaintiff for this conduct. See id. at ¶ 70.
During his deposition, Plaintiff also admitted that, during the hours he was supposed to be
working, he campaigned for others who were running for office. See id. at ¶ 81. Plaintiff was
warned by Defendant Bruning that he should not participate in political campaigning during the
hours he was supposed to be working. See id.
On January 3, 2012, during an organization meeting, the Town Board was presented with
a motion to vote on Resolution No. 18 of 2012. Resolution No. 18 was to appoint Plaintiff to the
position of Recycling Manager. Defendant Bruning, however, made a request to table the vote on
Resolution No. 18, and it was never adopted or voted upon by the Town Board. Later at the
meeting, Defendant Bruning introduced before the Town Board Resolution No. 23 of 2012 to
appoint Scott Mickelson to the position of Recycling Manager, which was passed unanimously.
See Dkt. No. 31 at ¶¶ 86, 88.
6

Defendants contend that Scott Mickelson was selected instead of Plaintiff "based upon
their knowledge of the plaintiff's job deficiencies, and their belief that the Town would be better
served by having the Town's Recycling Facility staffed by Mr. Mickelson." Dkt. No. 29-12 at ¶
88. Plaintiff, however, contends that Defendants' actions were in response to his political
activities. In support of his claim, Plaintiff provided a transcript of a recording, as well as the
recording itself, from a February 2012 Town Board meeting, at which a petition was read into the
record asking that the Town rehire Plaintiff. See Dkt. No. 32-1. After the petition was read into
the record, the following discussion took place:
ROBERT BRUNING: Okay. I do have a few things to say
and this is probably the first opportunity that I have had to tell my
side of the story. I have heard all kinds of stories around town, all
kinds of things that are not true, that didn’t happen. I am going all
the way back to September. I got an email forwarded to me from a
person in town, an email that Ed Mues had mailed out to a very
large distribution soliciting candidates to run against me for Town
Supervisor. I think what bothers me most in the email and I’ll
quote the email "even if you don't want the job, throw your hat in
the ring." Now to me that just makes is sound like the Town
Supervisor's job is a big joke. Throw your hat in the ring. Even if
you don't want to do it, throw your hat in the ring. I'll tell you, I
was mad when I read that email. I wouldn't have gotten that email
except that he didn't realize that some of the people he had on the
distribution were Republicans.
I got the email and I was mad. I went up and I met with Ed.
I told him "I thought you were not only an employee, I thought you
were a friend. Why are you doing this?" He said "Well, I think
everybody should have a choice." "Okay, fine Ed" I said, "but why
would you want people or encourage people who don't even want
the job to throw their hat in the ring." That is insulting to me and I
took as an insult, an absolutely personal insult. I always thought of
Ed as a friend. I've bent over backwards for Ed Mues to make his
job easier. I personally bought his TV for his shed. I went up there
early mornings to fix his electric because it wasn't working. I've
bent over backwards for Ed Mues and I thought he was a friend and
as far as I'm concerned friends don't do that kind of stuff to friends.

7

In the interest of him being a Democrat and me being a
Republic, that's what this is all about. Okay, fine. I told him at that
point, I said "Ed, why don't you do yourself a favor and just stay out
of politics. Stay here, do your job. You do a good job here, just do
your job and stay out of politics. Okay? Because you're gonna get
yourself in trouble." And he said, well I forget what he said. I said
"you have to understand, Ed. You know who appointed you to this
job?" No, I take that back. I said "Do you know who you work
for?" and he said "I work for the people." I said "you know who
appoints you to work for the people" and he said "you do." "You
know who can unappoint you. So by attacking me in your emails,
that was a personal attack as far as I'm concerned. Don't be
attacking me in your emails." I told him "Ed, stay out of politics.
This is not a job who should be involved in politics so just stay out
of it. Okay?"
So things were going fine and then suddenly I start getting
this, this, this junk in the mail. All of which is either untrue,
misleading, false. Every bit of this stuff. I know that Ed Mues was
part of the group that created this stuff, that published it, sent it to
every taxpayer. Ed Mues is part of this group. Now, so here you
have a man that this is what he thinks of the Town Board, that the
Town Board is basically not doing the job. You can say all you
want, what he said, he can say what he wants, but then when you
send it out to every taxpayer in the town that says that the Town
Board is not doing its job – because that's what this says – the Town
Board is not doing the job, and he was part of it. He was one of the
primary people who created the group that created this stuff, and I
know that. So I said this is my opinion. The Town Board will give
out her opinion when I'm done.
Nothing seemed to . . . for the purposes of campaigning for
his candidates, because he nominated these candidates, these were
his candidates, it just doesn't seem to me that as a Town employee
working at a job for the Town appointed by the Town in a position
where he has a captive audience. He has total access to the entire
town population. If this the way he feels about the Town Board and
he is going to publish this about the Town Board, why in the world
would the Town Board then say "Oh, yeah, we love you there Ed.
We'll appoint you for another year." So he continued to spread this
stuff. No, I don't work that way. You know the old expression
"you don't bite the hand that feeds you." And that's what he's done.
It wasn't only the Town Board that was mad about this stuff, there
were a lot of people in town who were mad about it because they
knew it was crap.
8

SPEAKER 1: This is not connected directly to Ed – you
can't say these fliers are connected to Ed Mues.
BRUNING: Oh, yes I can.
SPEAKER 1: How can you say that? How can you prove
that? I know for a fact that Ed didn't write those fliers, didn't mail
those fliers.
BRUNING: Ed Mues told me he was there – Ed Mues told
me . . .
SPEAKER 1: So somebody can't go to a meeting?
BRUNING: Ed Mues told me ...
SPEAKER 1: You don't know what was said at that
meeting. People have different opinions at meetings.
BRUNING:

He contributed to this.

SPEAKER 1: Ed Mues did not write that letter.
BRUNING:

He contributed to this.

SPEAKER 1: Contributed means that he wrote. He did not
write that letter. Yeah, he may have been at a meeting where a
discussion took place, where different opinions were expressed, but
he did not write and distribute that letter. And even if he had, he
wasn't at his job when he did that. So how did that interfere with
his job duties?
SPEAKER 2: What got back to me were a lot of comments
from people wondering if they were going to a recycling center or
were in the middle of some political grandstanding site and that is
not what people go there to do.
SPEAKER 1: People were saying he was grandstanding at
the dump?
SPEAKER 2: That is what I heard.
SPEAKER 1: Personally, I heard Ed Mues defend Bill
Bruning a number of times at the dump. That is what I heard.

9

SPEAKER 3: Can I address the Board before it turns into a
heated . . .
SPEAKER 1: I would also like to ask . . . what I would like
to know personally at this meeting is, politics aside, because the
people who elected the people here did so to serve the town. I don't
really care about your personal political agendas. What I want to
know is how this decision reflected the best interest of the town.
Was there a discussion about how this would affect the best interest
of the town?
BRUNING: Yup.
SPEAKER 1: And how was it meant to improve the town?
BRUNING: I don't think this kind of stuff is in the best
interest of the town.
SPEAKER 1: So you're saying by firing Ed you meant to
intimidate others from stopping to speak politically because Ed
Mues didn't do that and even if he did he could do it now. It has
nothing to do with his job.
BRUNING: Ed can speak politically all he wants to – all
he wants to. But he's not going to do it on my time, okay? And I'm
not going to provide him a captive audience to do it. That's my
point. Ed can do all the stuff he wants to, all of it. But he's not
gonna do it on town time and where I'm gonna provide him a
captive audience to do it.
Dkt. No. 32-1 at 2-6.
In their motion for summary judgment, Defendants first argue that all claims against
Defendants Bruning, Dean, Schoonmaker, Smith and Brooks in their official capacities must be
dismissed because they are redundant of Plaintiff's claims against the Town of Denning. See Dkt.
No. 29-11 at 8-10. Second, Defendants contend that Plaintiff's First Amendment retaliation
claims are without merit because (1) there is no causal connection between Plaintiff's speech and
the resolution redefining the status of the position and (2) there is no causal connection between
Plaintiff's speech and the appointment of Mr. Mickelson. See id. at 10-16. Third, Defendants
10

argue that the complained of actions on the part of the Town Board are not actionable pursuant to
the doctrine of absolute legislative immunity. See id. at 17-18. Fourth, Defendants claim that the
individual Defendants are entitled to qualified immunity. See id. at 18-20. Finally, Defendants
argue that Plaintiff's claim for punitive damages should be dismissed because the evidence
establishes that Defendants' actions were not the product of evil motive or intent, or recklessly or
callously indifferent to Plaintiff's federally protected rights. See id. at 20-21.

III. DISCUSSION
A.

Standard of review
A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at
36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where
the non-movant either does not respond to the motion or fails to dispute the movant's statement of
material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the
11

court must be satisfied that the citations to evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in
the record the assertions in the motion for summary judgment "would derogate the truth-finding
functions of the judicial process by substituting convenience for facts").

B.

Official capacity claims
Defendants contend that all claims against Defendants Bruning, Dean, Schoonmaker,

Smith and Brooks in their official capacities must be dismissed because the claims are duplicative
of Plaintiff's claims against the Town of Denning. See Dkt. No. 29-11 at 8-9. Plaintiff concedes
this point. See Dkt. No. 34 at 15-16.
In light of Plaintiff's concession, the Court grants this aspect of Defendants' motion for
summary judgment. Accordingly, the official capacity claims against Defendants Bruning, Dean,
Schoonmaker, Smith and Brooks are dismissed.

C.

Absolute immunity
Defendants argue that the individually named Defendants are entitled to absolute

legislative immunity for the following acts: (1) voting to approve Resolution No. 43 of 2011 to
designate the Recycling Manager's position as an appointed position; and (2) voting to approve
Resolution No. 23 of 2012 to appoint Scott Mickelson, not Plaintiff, as Recycling Manager. See
Dkt. No. 29-11 at 17-18. Plaintiff concedes that the individual Defendants are entitled to
legislative immunity as to the passage of Resolution No. 43 of 2011. See Dkt. No. 34 at 26.
Plaintiff, however, argues that absolute legislative immunity does not apply to the passage of
Resolution No. 23 of 2012 because it was an administrative act, not legislative. See id. at 26-27.
12

"Under the Supreme Court's functional test of absolute legislative immunity, whether
immunity attaches turns not on the official's identity, or even on the official's motive or intent, but
on the nature of the act in question." Almonte v. City of Long Beach, 478 F.3d 100, 106 (2d Cir.
2007) (citing Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 210 (2d Cir. 2003)) (other
citations omitted); see also Bogan v. Scott–Harris, 523 U.S. 44, 54 (1998); Forrester v. White,
484 U.S. 219, 224, 227 (1988). "More specifically, legislative immunity shields an official from
liability if the act in question was undertaken 'in the sphere of legitimate legislative activity.'"
Almonte, 478 F.3d at 106 (quoting Bogan, 523 U.S. at 54, 118 S. Ct. 966). "Local legislators, like
their counterparts on the state and regional levels, are entitled to absolute immunity for their
legislative activities." Id. (citing Bogan, 523 U.S. at 49, 118 S. Ct. 966; Harhay, 323 F.3d at
210). "As the Supreme Court has explained, the purpose of absolute legislative immunity is to
protect legislators from 'deterrents to the uninhibited discharge of their legislative duty, not for
their private indulgence but for the public good.'" Id. (quoting Tenney v. Brandhove, 341 U.S.
367, 377, 71 S. Ct. 783, 95 L. Ed. 1019 (1951)).
"[A]bsolute legislative immunity does not protect legislators against a claim of an
administrative firing, even if the employee's position was later abolished pursuant to a legislative
act." Almonte, 478 F.3d at 107-08 (citing Jessen v. Town of Eastchester, 114 F.3d 7, 8 (2d Cir.
1997) ("Even assuming, without deciding, that the elimination of Jessen's position was a
legislative act, his earlier termination from a position which then, at least briefly, remained open
was an administrative act that legislative immunity does not protect")). "A personnel decision is
administrative in nature if it is directed at a particular employee or employees, and is not part of a
broader legislative policy." Id. at 108 (citation omitted); see also Bogan, 523 U.S. at 55–56 ("The
ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities of
13

the city and the services the city provides to its constituents. Moreover, it involved the
termination of a position, which, unlike the hiring or firing of a particular employee, may have
prospective implications that reach well beyond the particular occupant of the office. . . . Thus,
petitioners' activities were undoubtedly legislative") (emphasis added). "Administrative
'personnel decisions, even if undertaken by public officials who otherwise are entitled to
immunity, do not give rise to [legislative] immunity because such decisionmaking is no different
in substance from that which is enjoyed by other actors.'" Id. (quoting Harhay, 323 F.3d at 21011). As such, in Harhay, the Second Circuit concluded that the town board members were not
absolutely immune for their actions with respect to the plaintiff's employment, including their
vote to table the matter of another employee's resignation, because those actions "were part of a
process by which an employment situation regarding a single individual was resolved" and not
"the kind of broad, prospective policymaking that is characteristic of legislative action." Harhay,
323 F.3d at 211.
In the present matter, the Court finds that Defendants are not entitled to legislative
immunity with respect to the passage of Resolution No. 23 of 2012 which appointed Scott
Mickelson as Recycling Manager, thereby replacing Plaintiff. As in Harhay, the town board did
not simply eliminate a position entirely, rather the tabling of the resolution to reappoint Plaintiff
and the passing of Resolution No. 23 of 2012 "were part of a process by which an employment
situation regarding a single individual was resolved." Harhay, 323 F.3d at 211. Since the Town
Board was not acting in a legislative capacity when it dealt with terminating Plaintiff's
employment through the appointment of Scott Mickelson, the individual Defendants are not
entitled to legislative immunity.

14

Based on the foregoing, the Court grants in part and denies in part Defendants' motion for
summary judgment on this ground.3

D.

First amendment retaliation
First, Defendants contend that there is no causal connection between Plaintiff's speech and

the Resolution No. 43 redefining the status of Plaintiff's position. See Dkt. No. 29-11 at 11-12.
Defendants further argue that the passage of the resolution redefining Plaintiff's position was not
an adverse employment action. See id. at 11 n.3. Second, Defendants contend that there is no
causal connection between Plaintiff's protected speech and the Town Board's January 3, 2012
decision to appoint someone other than Plaintiff to the Recycling Manager's Position. See id. at
13-17.
"To survive a motion for summary judgment on a First Amendment retaliation claim, the
plaintiff must present evidence which shows '"[(1)] that the speech at issue was protected, [(2)]
that he suffered an adverse employment action, and [(3)] that there was a causal connection
between the protected speech and the adverse employment action.'"" Cotarelo v. Vill. of Sleepy
Hollow Police Dep't, 460 F.3d 247, 251 (2d Cir. 2006) (quotation omitted). "Further, 'the causal
connection must be sufficient to warrant the inference that the protected speech was a substantial
motivating factor in the adverse employment action.'" Id. (quotation omitted). "If a plaintiff
makes a sufficient showing of each of these elements, summary judgment is not appropriate
unless the defendant establishes as a matter of law that he would have taken the same adverse

Defendants' motion is only granted insofar as it relates to the passage of Resolution No.
43 of 2011, since Plaintiff has conceded that any claim relating to this resolution is barred by
legislative immunity.
3

15

employment action even absent the protected conduct." Dillon v. Morano, 497 F.3d 247, 251 (2d
Cir. 2007) (citation omitted).

1. Adverse employment action
"In the context of a First Amendment retaliation claim . . . retaliatory conduct that would
deter a similarly situated individual of ordinary firmness from exercising his or her constitutional
rights constitutes an adverse action." Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir.
2006) (quotation marks omitted); see also Nixon v. Blumenthal, 409 Fed. Appx. 391, 392 (2d Cir.
2010) (quoting Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006)). "Adverse
employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in
pay, and reprimand." Frisenda v. Inc. Village of Malverne, 775 F. Supp. 2d 486, 510 (E.D.N.Y.
2011) (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)). "However, 'lesser actions
may also be considered adverse employment actions.'" Id.; see also Phillips v. Bowen, 278 F.3d
103, 109 (2d Cir. 2002) ("Our precedent allows a combination of seemingly minor incidents to
form the basis of a constitutional retaliation claim once they reach a critical mass" (citing
Bernheim v. Litt, 79 F.3d 318, 324-25 (2d Cir. 1996)).
In the present matter, the Court agrees with Defendants that Resolution No. 43 of 2011
cannot be considered an adverse employment action. Plaintiff has not presented any arguments to
support a finding that the redefining of the Recycling Manager's position as an "appointed"
position constituted an adverse employment action. Plaintiff has not put forth any evidence that
as an "appointed" position he had a change in responsibilities, change in job title, or a decrease in
hours or pay. Rather, the only impact that Resolution No. 43 of 2011 had was that the Recycling

16

Manager's position was now subject to appointment by a majority of the Town Board, as opposed
to being hired or fired solely by Defendant Bruning as Town Supervisor.
Based on the foregoing, the Court grants Defendants' motion for summary judgment
insofar as it seeks dismissal of Plaintiff's retaliation claim relating to the reclassification of the
Recycling Manager's position.

2. Causation
Defendants contend that there is no causal connection between Plaintiff's protected speech
"and the decision made by the Town Board, on January 3, 2012, to appoint someone other than
the plaintiff to the Recycling Manager's position[.]" Dkt. No. 29-11 at 13. Moreover, Defendants
contend that, "[e]ven as pled in the plaintiff's Complaint, the plaintiff asserts that only Supervisor
Bruning made comments to him with respect to his political activities . . . – not any of the four (4)
Town Councilmen." Id. (emphasis in original). Defendants assert that Defendant Bruning did not
report his August 31, 2011 interaction with Plaintiff regarding Plaintiff's email to the members of
the Town Board at any time prior to the Town's January 3, 2012 reorganization meeting. See id.
(citations omitted). Further, Defendants argue that the record establishes each of Town Board
members established that their vote not to appoint Plaintiff as Recycling Manager was not based
on Plaintiff's speech or political affiliation, but was rather based on Plaintiff's poor job
performance. See id. at 13-15. Finally, Defendants contend that, even assuming that Plaintiff
"could establish that the subject vote not to reappoint [him] to the position of Recycling Manager
was motivated, in part, based upon animus towards the plaintiff's political speech by a majority of
the Town Board . . . ," Plaintiff's claim must still be dismissed because the record demonstrates

17

that they would have taken the same action even absent Plaintiff's political speech. See id. at 1316.
It is well settled that proof of causation may be shown indirectly by, among other things,
demonstrating that the protected activity was followed closely by a retaliatory action. See Cifra v.
Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001) (quoting Reed v. A.W. Lawrence & Co., 95 F.3d
1170, 1178 (2d Cir. 1996)) (other citation omitted); see also Gordon v. N.Y. City Bd. of Educ.,
232 F.3d 111, 117 (2d Cir. 2000). Further, the cases demonstrate that the Second Circuit "has not
drawn a bright line to define the outer limits beyond which a temporal relationship is too
attenuated to establish a causal relationship between the exercise of a federal constitutional right
and an allegedly retaliatory action." Gorman–Bakos v. Cornell Coop. Extension of Schenectady
Cnty., 252 F.3d 545, 554 (2d Cir. 2001). The relevance of temporal proximity in a particular First
Amendment retaliation case turns on its unique facts and circumstances. See Smith v. Da Ros,
No. 09 Civ. 458(MRK), 2011 WL 839374, *13 (D. Conn. Feb. 25, 2011) (citing Burkybile v. Bd.
of Educ. of Hastings–On–Hudson Union Free Sch. Dist., 411 F.3d 306, 314 (2d Cir. 2005)).
Although the Second Circuit has not "drawn a bright line" setting the outer limits beyond
which a temporal proximity is too attenuated to find the causal relationship, it has held that
periods of time longer than the time period at issue here are sufficient to establish the plaintiff's
prima facie case. See Nagle v. Marron, 663 F.3d 100, 111 (2d Cir. 2011) ("While we have not
'drawn a bright line' defining the maximum time period that can give rise to an inference of
causation, six weeks fits comfortably within any line we might draw"); Cioffi v. Averill Park
Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 168 (2d Cir. 2006) ("Only a short time passed from
[plaintiff's protected] speech to the abolition of his job. The Board abolished [plaintiff's] position
on February 26, 2002, a little over three months after his November 7, 2001 letter and only three
18

weeks after his January 31, 2002 press conference. We cannot agree that these time periods are
too long for any inference of retaliatory motive and causation to be drawn").
In the present matter, Plaintiff has put forth sufficient evidence regarding causation to
withstand Defendants' motion for summary judgment. First, contrary to Defendants' assertions,
Plaintiff's protected activity was not too attenuated with the vote passing Resolution No. 23 for an
inference of retaliatory motive and causation to be drawn. Plaintiff sent his email on August 25,
2011 and Resolution No. 23 was passed on January 3, 2012. See Hubbard v. Total Commc'ns,
Inc., 347 Fed. Appx. 679, 681 (2d Cir. 2009) (holding that the plaintiff's termination, which
"happened a little over four months after her email complaint[,]" was sufficient for the jury to
determine that there was a causal connection); Cioffi, 444 F.3d at 168; Nally v. New York, No.
1:10-CV-1186, 2013 WL 2384252, *27 (N.D.N.Y. May 30, 2013) (holding that a period of "three
or four months" between the protected activity and the alleged retaliatory action was sufficient to
support a causal connection) (citations omitted).
Plaintiff, however, is not merely relying on temporal proximity of the events to establish
causation. As discussed above, on February 7, 2012, after Plaintiff was replaced as Recycling
Manager, Defendant Bruning made numerous statements at a Town Board meeting that could
lead a reasonable juror to believe that Plaintiff was fired because of his speech. See Dkt. No. 32-1
at 2-6. For example, Defendant Bruning stated the following:
If this the way he feels about the Town Board and he is going to
publish this about the Town Board, why in the world would the
Town Board then say "Oh, yeah, we love you there Ed. We'll
appoint you for another year." So he continued to spread this stuff.
No, I don't work that way. You know the old expression "you don't
bite the hand that feeds you." And that's what he's done. It wasn't
only the Town Board that was mad about this stuff, there were a lot
of people in town who were mad about it because they knew it was
crap.
19

Id.
Moreover, the Court finds compelling Plaintiff's argument that the silence of Defendants
Dean, Schoonmaker, Smith and Brooks regarding Defendant Bruning's statements at the February
7, 2012 meeting could be deemed as an admission by silence. See Dkt. No. 34 at 22-23. "Under
established principles an admission may be made by adopting or acquiescing in the statement of
another." Fed. R. Evid. 801(d)(2) Advisory Committee Note. "When silence is relied upon, the
theory is that 'the person would, under the circumstances, protest the statement made in his
presence, if untrue.'" Phipps v. Comprehensive Cmty. Dev. Corp., No. 00 Civ. 6063, 2005 WL
287413, *13 (S.D.N.Y. Feb. 4, 2005) (quoting Fed. R. Evid. 801(d)(2) Advisory Committee
Note); see also United States v. Ward, 377 F.3d 671, 675 (7th Cir. 2004) (holding that "a
statement may be adopted as long as the statement was made in the defendant's presence, the
defendant understood the statement, and the defendant has the opportunity to deny the statement
but did not do so") (citation omitted).
Defendant Bruner's comments regarding Plaintiff's termination and the political activities
in which he engaged are clearly the types of statements that a reasonable person in the Town
Board's position would have protested if untrue. The silence of Defendants Dean, Schoonmaker,
Smith and Brooks in the face of Defendant Bruning's comments regarding the Town Board's
reason for replacing Plaintiff "is sufficiently placed in context such that a juror could reasonably
conclude that [each Defendant] heard, understood and acceded to the statement at issue." Phipps,
2005 WL 287413, at *14; see also Amico v. County of Monroe, No. 03-CV-6097, 2004 WL
2966950, *7 (W.D.N.Y. Dec. 21, 2004) (holding that the defendant's failure to deny statement
made at a meeting constituted an admission by silence for purposes of the pending motion) (citing
United States v. Flecha, 539 F.2d 874, 877 (2d Cir. 1976)).
20

Further, according to the parties' testimony, not a single board member made any mention
of Plaintiff's alleged unsatisfactory job performance during the January 3, 2012 meeting at which
they tabled the resolution to appoint Plaintiff and then later passed a resolution to appoint Mr.
Mickelson. This lends support to the inference that Defendants' alleged non-retaliatory reasons
for their vote that they are offering is, in fact, pretextual. See Pascal v. Storage Tech. Corp., 152
F. Supp. 2d 191, 213 (D. Conn. 2001). Additionally, Defendant Bruning stated the following at
the February 7, 2012 meeting: "Ed, why don't you do yourself a favor and just stay out of politics.
Stay here, do your job. You do a good job here, just do your job and stay out of politics." Dkt.
No. 32-1 at 3. This statement supports Plaintiff's position that he was fired for his protected
activities, not because of any alleged deficiencies in the performance of his job.
Finally, again at the February 7 meeting, Defendant Bruning stated that Plaintiff needed
help performing some of his job responsibilities, including putting garbage in containers and
shoveling snow. When asked if that was the reason he was terminated, Defendant Bruning
responded, "[no], that is not why he was removed." As Plaintiff points out, this statement
contradicts one of Defendant Bruning stated reasons for Plaintiff's termination. See Dkt. No. 29-2
at ¶ 30 (stating that he voted to appoint Mr. Mickelson "based upon the numerous job deficiencies
displayed by the plaintiff during the course of his employment with the Town, and my belief that
the Town would be better served by having the Town Recycling Facility staffed by Mr.
Mickelson").
Based on the foregoing, the Court denies Defendants' motion for summary judgment on
this ground.

21

3. Rebuttal of Plaintiffs' prima facie case
It is well settled that "even if there is evidence that the adverse employment action was
motivated by protected speech, the government can avoid liability if it can show that it would
have taken the same adverse action in the absence of the protected speech." Heil v. Santoro, 147
F.3d 103, 110 (2d Cir. 1998) (citing Mt. Healthy City School District Board of Education v.
Doyle, 429 U.S. at 287, 97 S. Ct. 568) (other citations omitted). As the Second Circuit has
explained, "[t]his principle prevents an employee who engages in unprotected conduct from
escaping discipline for that conduct by the fact that it was related to protected conduct." Id.
(citations omitted). Thus, the Second Circuit has held that "[c]onduct that is properly initiated,
reasonably executed, independently justified and equally administered – regardless of any
animosity towards the plaintiff – does not give rise to a constitutional claim for retaliatory
harassment." Diesel v. Town of Lewisboro, 232 F.3d 92, 109 (2d Cir. 2000) (citing Ingraham v.
Wright, 430 U.S. 651, 674, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977)) (other citations and footnote
omitted).
In the present matter, the Court finds that Defendants have failed to establish that they
would have taken the same adverse action absent Plaintiff's protected speech. Non of the
individual Defendants made any statements regarding Plaintiff's alleged unsatisfactory job
performance during the January 3, 2012 meeting. Further, Defendants' present contentions that
Plaintiff was unsatisfactorily performing his job prior to his termination is belied by Defendant
Bruning's statement at the February 7, 2012 meeting. Specifically, Defendant Bruning claimed
that he said the following to Plaintiff: "Ed, why don't you do yourself a favor and just stay out of
politics. Stay here, do your job. You do a good job here, just do your job and stay out of
politics."
22

Based on the foregoing, the Court denies Defendants' motion for summary judgment on
this ground.

E.

Qualified immunity
Defendants contend that the individual Defendants are entitled to qualified immunity

because their affidavits "clearly establish that Resolution No. 23 of 2012 – which appointed Scott
Mickelson, not the plaintiff, as Recycling Manager – was enacted based upon the numerous
instances of poor job performance and misconduct observed by, and brought to the attention of,
the named defendants." Dkt. No. 29-11 at 19. Defendants continue that, "[b]ecause the
defendants established, prima facie, that their challenged conduct did not clearly violate an
established federally protected right, qualified immunity provides an additional ground for
granting defendants' summary judgment motion." Id. (citing Smith v. County of Suffolk, 2013 WL
752635 (E.D.N.Y. Feb. 27, 2013)).
Qualified immunity protects government officials from liability when "their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted); see also
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (holding that qualified immunity is not merely
immunity from damages but also "immunity from suit"). "[T]he salient question [in determining
qualified immunity] is whether the state of the law . . . gave [the defendants] fair warning that
their alleged treatment of [the plaintiff] was unconstitutional." Hope v. Pelzer, 536 U.S. 730, 741
(2002). As qualified immunity is an affirmative defense, the burden of pleading it falls on the
defendants. See Gomez v. Toledo, 446 U.S. 635, 640 (1980) (citations omitted); see also Varrone

23

v. Bilotti, 123 F.3d 75, 78 (2d Cir. 1997) (holding that the "defendants bear the burden of showing
that the challenged act was objectively reasonable" (citation omitted)).
The qualified immunity determination consists of two steps, which a court may consider
in either order. See Seri v. Bochicchio, 374 Fed. Appx. 114, 116 (2d Cir. 2010) (citation omitted).
The first step is to determine "whether the facts that a plaintiff has alleged . . . make out a
violation of a constitutional right." Pearson v. Callahan, 129 S. Ct. 808, 816 (2009) (citations
omitted). The second is a determination of "whether the right at issue was 'clearly established' at
the time of defendant's alleged misconduct." Id. (citation omitted).
A right is "clearly established" if "[t]he contours of the right . . . [are] sufficiently clear
that a reasonable official would understand that what he is doing violates that right." Anderson v.
Creighton, 483 U.S. 635, 640 (1987). "To determine whether a right is clearly established, we
look to: (1) whether the right was defined with reasonable specificity; (2) whether Supreme Court
or court of appeals case law supports the existence of the right in question; and (3) whether under
preexisting law a reasonable defendant would have understood that his or her acts were
unlawful." Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (citing Schecter v. Comptroller of
City of N.Y., 79 F.3d 265, 271 (2d Cir. 1996)). "Courts 'do not require a case directly on point,
but existing precedent must have placed the statutory or constitutional question beyond debate.'"
Walker v. Schult, 717 F.3d 119, 125-26 (2d Cir. 2013) (quoting Ashcroft v. al-Kidd, ___ U.S. ___,
131 S. Ct. 2074, 2083 (2011)). "As the qualified immunity defense has evolved, it provides
ample protection to all but the plainly incompetent or those who knowingly violate the law."
Malley v. Briggs, 475 U.S. 335, 341 (1986).
If there is no dispute as to any material fact, the issue of whether the official's conduct was
objectively reasonable is an issue of law to be decided by the court. See id. at 368 (citation
24

omitted). Any unresolved factual issues, however, must be resolved by the jury. See id. (quoting
Kerman, 374 F.3d at 109) (other citations omitted). Once the court has received the jury's
decision as to "what the facts were that the officer faced or perceived," the court must then "make
the ultimate legal determination of whether qualified immunity attaches on those facts."
Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (quotation omitted); see also Lennon v. Miller,
66 F.3d 416, 421 (2d Cir. 1995) (quotation omitted).
In the present matter, the Court finds that Defendants have not established that they are
entitled to qualified immunity at this stage. As discussed above, the law at the time was clearly
established that it was impermissible to terminate an employee in retaliation for engaging in
protected speech. See Cotarelo, 460 F.3d at 251 (citation omitted). Further, looking at the
evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that it was
objectively unreasonable for Defendants to believe that they were acting in a fashion that did not
violate Plaintiff's federally protected rights. As discussed, the record contains evidence indicating
that Plaintiff was replaced as Recycling Manager because of his speech and not because of his
alleged inadequate job performance and alleged policy infractions as Defendants contend. That is
to say, because a reasonable jury could conclude that it was objectively unreasonable for
Defendants to believe that they were not violating Plaintiff's federally protected rights, qualified
immunity does not provide a ground for granting Defendants' motion for summary judgment. See
Frisenda v. Incorporated Vill. of Malverne, 775 F. Supp. 2d 486, 523 (E.D.N.Y. 2011)
("Specifically, according to the Second Circuit, the very fact that the Court has determined — as
described supra — that a rational jury could find, if all of plaintiff's evidence is credited and all
reasonable inferences are drawn in his favor, that the individual defendants retaliated against
plaintiff for exercising his First Amendment rights, is independently sufficient to preclude the
25

Court from determining as matter of law that the individual defendants' actions were objectively
reasonable. In other words, if the individual defendants did in fact intentionally retaliate against
plaintiff because of his First Amendment activity, they would not be protected by qualified
immunity").
Based on the foregoing, the Court finds that questions of fact preclude the Court from
granting Defendants' motion for summary judgment on qualified immunity grounds.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion for summary judgment is GRANTED in part and
DENIED in part; and the Court further
ORDERS that Plaintiff's First Amendment retaliation claim insofar as it relates to the
passage of Resolution No. 43 of 2011 reclassifying the Recycling Manager position is
DISMISSED; and the Court further
ORDERS that the claims against the individual Defendants in their official capacities are
DISMISSED; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: June 2, 2014
Albany, New York

26