Crown v. Danby Fire District et al
MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Plaintiff's # 30 motion for summary judgment is DENIED. The Court further ORDERS that Defendants' # 51 motion for summary judgment is GRANTED. The Court further ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this case. Signed by Senior Judge Frederick J. Scullin, Jr. on 3/31/2016. (nmk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DANBY FIRE DISTRICT, DANBY
VOLUNTEER FIRE COMPANY,
PAT CAVENEY, RICHARD OLTZ,
RALPH BOWLES, WAYNE
HOLDEN, MATT COOPER, and
BLOOM & BLOOM, PC
530 Blooming Grove Turnpike
New Windsor, New York 12553
Attorneys for Plaintiff
KEVIN D. BLOOM, ESQ.
OFFICE OF ROBERT N. ISSEKS
6 North Street
Middletown, New York 10940
Attorneys for Plaintiff
ROBERT N. ISSEKS, ESQ.
TADEO & SHAHAN, LLP
472 South Salina Street
Syracuse, New York 13202
Attorneys for Defendants
STEVEN C. SHAHAN, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Adam Crown brings this case against Defendants Danby Fire District (“Fire
District”), Danby Volunteer Fire Company (“Fire Company”), Pat Caveney, Richard Oltz, Ralph
Bowles, Wayne Holden, Matt Cooper, and John Gaden. Plaintiff’s complaint alleges a First
Amendment retaliation claim in connection with Plaintiff raising safety and health issues within
Defendants Fire Company and Fire District. See generally Dkt. No. 1, Complaint. Currently
before the Court are the parties’ motions for summary judgment. See Dkt. Nos. 30, 51.
A. The parties and conduct underlying Plaintiff’s cause of action
Plaintiff joined Defendant Fire Company in January of 2007. See Admin. R. at 20. 1 His
association with Defendant Fire Company ended on March 23, 2010, when he resigned. See
Dkt. No. 65-17, Pl.’s Ex. “12.” Defendant Chief John Gaden is the chief of Defendant Fire
Company and held that position during the entire interval at issue in this case. See Dkt. No. 6525, Gaden Dep., at 5:3-6. Defendant Fire District is Defendant Fire Company’s governing body.
See Admin. R. at 366, 657. Defendants Caveney, Oltz, Bowles, Holden, and Cooper were the
commissioners of Defendant Fire District during the time interval at issue. See Dkt. No. 58-3,
Defs.’ Ex. “LL,” at 2. Additionally, Defendant Commissioners Holden, Oltz, and Bowles were
The New York Industrial Board of Appeals conducted a four-day hearing in connection with
these events, see infra Part II.B., resulting in a record of nearly 1,300 pages. These documents
appear on the docket as Dkt. Nos. 30-8 through 30-11. To the extent that they represent a
consecutively-paginated transcript of the proceedings, this outline cites to the transcript as the
Administrative Record and will refer to the transcript’s original pagination. Unless otherwise
noted, all other citations refer to the system-generated ECF pagination in each document’s
members of Defendant Fire Company during the time interval at issue in this case. See Admin.
R. at 173-77.
During Plaintiff’s membership in Defendant Fire Company, he perceived a variety of safety
and health issues with respect to Defendant Fire Company’s management and operations.
Plaintiff raised such issues frequently and often publicly. For example, in the spring of 2008,
Plaintiff openly opposed voting to admit an individual into Defendant Fire Company who had
not fulfilled the requirements for membership according to Defendant Fire Company’s bylaws.
See Admin. R. at 173-77. He wrote to Defendant Chief Gaden detailing this objection and
requesting official action and also wrote to Defendant Commissioners. See Dkt. No. 53-8, 55-5,
Defs.’ Exs. “M,” “T.” Plaintiff also made multiple requests for information in connection with
Defendant Fire Company’s training, response records, injury records, and the like. See Dkt. Nos.
53-10, 55-11 Defs.’ Exs. “O,” “Z.”
Another core issue from Plaintiff’s perspective was Defendant Fire Company members
being assigned to and undertaking fire rescue tasks for which they had not been properly trained.
Plaintiff raised such issues in company meetings, and one of Defendant Commissioners told him
that he was going to “too far.” See, e.g., Dkt. No. 30-13, Pl.’s Ex. “6f,” at 78. Plaintiff also
spoke to a number of individuals outside Defendants Fire Company and Fire District about his
concern that Defendant Fire Company was operating unsafely including, among others, the
Tompkins County Fire Supervisor. See Admin. R. at 174. He also published a blog concerning
fire safety in the Town of Danby that supported candidates for fire commissioner, and he ran for
Danby fire commissioner twice on a platform based upon, among other things, the issues noted.
See id. at 754; Dkt. No. 52-2, Crown Dep., at 46. 2 Plaintiff testified that the reaction to his
concerns was at best indifferent and at worst hostile; other members of Defendant Fire Company
testified that they were treated poorly within Defendant Fire Company because of their
relationship with Plaintiff. See Admin. R. at 328.
During his membership in Defendant Fire Company, Plaintiff pursued an ambitious
schedule of training and classes at the New York Fire Academy of Fire Science at Montour Falls
in Schuyler County. See Admin. R. at 62-64, 480-87. According to Plaintiff, Defendant Fire
Company’s protocol with respect to training was informal and that in practice members of
Defendant Fire Company generally could take those classes they wished to take so long as they
paid the expenses themselves. See id. at 65, 75-76; see also Dkt. No. 30-13, Pl.’s Ex. “6f,”at 133
(providing that “[a]ll active members [of Defendant Fire Company] will need approval of the
Chief and the Board of Fire Commissioners before enrolling in any District funded courses
(emphasis added)). One series of classes about which Plaintiff told Defendant Chief Gaden, and
in which he enrolled, included Fire Officer I, II, and III. See id. at 23-24. Plaintiff further
testified that Defendant Chief Gaden signed a blank enrollment form and instructed him to make
photocopies of the signed form for the classes that Plaintiff wished to take. See id. at 24.
Plaintiff then took the first two courses, Fire Officer I and II, and “sent in” his certificates of
completion. See id. During this time, according to Plaintiff, Defendants did not raise any issue
with respect to his taking classes at the Academy. See id. at 25. Further, it is undisputed that
Plaintiff paid for all of his courses at the Academy.
On January 25, 2010, Plaintiff requested response data and membership rosters of
Defendant Fire Company for the interval 1989-2009 together with certain historical information
Plaintiff’s deposition appears on the docket in multiple parts, Therefore, citations referring to it
will use the document’s original pagination.
about Defendant Fire Company. See Dkt. No. 55-11, Defs.’ Ex. “Z.” He did so in connection
with a research project in his Fire Officer III course and to “anticipate future needs” of
Defendant Fire Company. See id. He ultimately gained access to much of this information by
way of a Freedom-of-Information-Law (“FOIL”) request that the Supreme Court, Tomkins
County, upheld through an Article 78 proceeding. See Dkt. No. 60-4, Defs.’ Ex. “SS,” at 4.
Defendant Chief Gaden testified that, when he learned of Plaintiff’s January 25, 2010
request for information, he began to wonder how Plaintiff could take the Fire Officer III class
without authorization. See Admin. R. at 530. He then retrieved Plaintiff’s authorization form for
the Fire Officer III course by way of a FOIL request. See id. Defendant Chief Gaden further
testified that he did not remember authorizing Plaintiff to take the course. See id. at 669-72. It is
undisputed that the Defendant Danby Fire Commissioners did not vote to approve Plaintiff’s
enrollment in the Fire Officer III course.
Defendant Chief Gaden then ordered Plaintiff to attend a meeting on March 12, 2010,
where, he testified, he intended to ask Plaintiff about how he was able to enroll in the class. See
id. at 546; Dkt. No. 56-6, Defs.’ Ex. “EE.” Plaintiff asked for an alternate meeting time, asked
Defendant Chief Gaden for the reason for the meeting, and challenged his authority for ordering
Plaintiff to a meeting during his free time. See Dkt. No. 30-12, Pl.’s Ex. “6e,” at 140- 48. When
Plaintiff failed to appear for the meeting, Defendant Chief Gaden suspended him by way of a
letter dated March 12, 2010. See Dkt. No. 56-8, Defs.’ Ex. “GG.” The letter further ordered
Plaintiff to appear at a meeting of the commissioners of Defendant Fire District on March 23,
2010. See id.
At the March 23, 2010 Fire District meeting, Plaintiff testified that he attempted to tape
record the proceedings and that Defendant Fire District’s attorney told him that he could not do
so. See Admin. R. at 42. Plaintiff did acknowledge in his deposition testimony that he received
a notice of hearing and that he was advised of his rights. See Dkt. No. 52-3, Pl.’s Dep., at 57, 58.
He also testified in response to the same line of questioning that “I’m not sure the order of
things” and that he was presented a notice of hearing only after agreeing to turn off his audio
recording device. See id. at 56:21, 56:24-57:12. He further testified that, after he denied the
charges, Defendant Commissioners left the room and Defendant Fire District’s attorney told him,
“if I didn’t resign, I was going to be subject to departmental charges and criminal charges.” See
id. at 58:21-59:6, 61:6-9; Dkt. No. 52-4, Pl.’s Dep., at 102 (recalling that “[Attorney] Butler said
I would be charged with criminal charges if I did not resign”).
According to Defendants, Plaintiff was suspended and subsequently charged for
disobeying Defendant Chief Gaden’s order to meet with him and also for submitting allegedly
forged authorization forms for the Fire Officer II and III classes. See Dkt. No. 57-3, Defs.’ Ex.
At their depositions, Defendant Commissioners had varying degrees of recollection of
Plaintiff, of his speech while he was a member of Defendant Fire Company, and of whether they
voted to bring disciplinary charges against him. Defendant Commissioner Caveney testified that
Plaintiff was in frequent communication with Defendant Commissioners expressing his concerns
that the chief officers of the Defendant Fire Company were not capable and that Defendant
Commissioners did not have proper oversight over them. See Dkt. No. 59-2, Caveney Dep., at
7:20-8:10. He also testified that Defendant Chief Gaden did not specifically tell him that
Plaintiff had forged his signature. See id.at 23:16-20.
Additionally, Defendant Commissioner Bowles testified that he did not recall voting on
Plaintiff’s disciplinary charges. See Dkt. No. 65-22, Bowles Dep., at 7:24-8:4. Defendant
Commissioner Holden testified that Defendant Commissioners did vote to charge Plaintiff. See
Dkt. No. 65-23, Holden Dep., at 6:17-21. Defendant Commissioner Cooper testified that he was
aware that Plaintiff had raised criticisms against Defendant Fire Company but did not remember
voting to bring disciplinary charges against Plaintiff. See Dkt. No. 65-24, Cooper Dep., at 6:1718, 11:4-13.
B. Administrative proceedings
Plaintiff testified that he had been in contact with the New York State Department of
Labor for some time in connection with the issues detailed above, among others. See Admin. R.
at 122; Dkt. No. 30-12, Pl.’s Ex. “6e,” at 81. Plaintiff compiled a list of the issues he observed
and drafted a formal complaint. See id. He then filed the complaint with the New York
Department of Labor under the Public Employees’ Health and Safety Act of 1980 (“PESH”).
See Dkt. No. 56-7, Defs.’ Ex. “FF.” The complaint was dated March 5, 2010, and stamped
received on March 11, 2010. See id. at 2-3. It is undisputed that Defendants were not aware of
Plaintiff’s PESH complaint until Safety and Health Inspector Michael Cappelli arrived at a Fire
Company meeting on March 29, 2010—six days after the meeting of Defendant Fire District at
which Plaintiff was served with disciplinary charges. See Dkt. No 58-4, Defs.’ Ex. “MM.”
In response to Plaintiff’s complaint, Inspector Cappelli found that Plaintiff had not made
out a prima facie case of discrimination and dismissed his complaint. See Dkt. No. 65-3, Pl.’s
Ex. “3.” Plaintiff then appealed this finding to the New York Board of Industrial Appeals
(“Board”), which conducted a hearing over four days on the question of whether Inspector
Cappelli’s investigation of Plaintiff’s PESH complaint was “valid and reasonable.” See Dkt. No.
30-3, Pl.’s Ex. “1,” at 7. The proceedings included testimony from Plaintiff, Defendant Chief
Gaden, Defendant Commissioner Caveney, and others.
Defendant Chief Gaden testified that he did not remember which of Plaintiff’s enrollment
forms he signed or specifically which course or courses he authorized Plaintiff to take. See
Admin. R. at 669-72. He further testified, under questioning by the hearing officer, that he had
no problem with Plaintiff taking some classes without a signed enrollment form because he had
given Plaintiff verbal permission to do so. See id.
The hearing also included the testimony of Jeffrey Baker, a former Danby Volunteer
Firefighter. Mr. Baker testified that he too took courses at the Academy using a photocopy of
the Chief’s signature and without the commissioners’ approval. He further testified that he did
this under the Chief’s direction and that he was not terminated or otherwise disciplined as a
result. See Admin. R. at 133-34.
The Board issued a thirteen-page resolution of decision after the hearing in which it
found that “there is no evidence that DOL conducted even the most cursory of investigations.”
See Dkt. No. 30-3, Pl.’s Ex. 1, at 8. The Board further found that the safety and health inspector
in charge of the initial investigation “took no steps to interview the witnesses proposed by
[Plaintiff], and summarily dismissed [Plaintiff’s] complaint . . . .” See id. It reasoned that
Inspector Cappelli misunderstood the scope of Plaintiff’s PESH complaint:
Safety and Health Inspector Cappelli dismissed the complaint because he
misconstrued the complaint to be based solely on retaliation for the safety and
health complaint [Plaintiff] had filed on March 8, 2010, when in fact, the
discrimination complaint clearly alleged retaliation for raising safety and health
concerns throughout [Plaintiff’s] tenure with the [Fire Company].
Turning to Plaintiff’s retaliation claim, the Board then found that the record was
“replete with evidence to establish a prima facie case of retaliation.” See id. at 9. In so
doing, the Board found that Plaintiff had prima facie shown the elements of his claim:
protected activity, adverse employment action, and a causal nexus between the two. See
id. It then discussed Defendant Fire Company’s explanation that it suspended Plaintiff
because he forged Defendant Chief Gaden’s signature on the enrollment form for certain
Fire Academy courses. See id. at 9-13. It found the explanation to be a pretext for
bringing disciplinary charges against Plaintiff. See id. at 13.
Neither Plaintiff nor the Commissioner of Labor sought judicial review of the
Board’s decision. The Board referred the matter to the New York Attorney General, who
appears not to have taken further action in prosecuting the case. See Dkt. No. 60-3, Defs.’
C. Instant litigation
Plaintiff then filed his complaint in the instant action, which contained a single cause of
action for First Amendment retaliation with respect to the conduct described above. See
generally Dkt. No. 1, Compl. In connection with his claim, Plaintiff seeks the following relief:
compensatory and punitive damages in an unspecified amount, together with attorney fees; an
order directing Defendants to remove any mention of discipline from Plaintiff’s personnel file;
and reinstatement to Defendant Fire Company. See id. at 11.
Plaintiff’s motion for partial summary judgment seeks to hold Defendants liable for First
Amendment retaliation based upon the Board’s findings. See Dkt. No. 30-23, Pl.’s Mem., at 23.
Defendants have moved for summary judgment on two grounds. First, the individual Defendants
seek qualified immunity from Plaintiff’s claim. Second, Defendants Fire Company and Fire
District argue a lack of any unconstitutional policy or custom. See Dkt. No. 38 at 28-29; Dkt No.
61-2 at 8.
A. Legal standard
Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment.
Under that provision, the entry of summary judgment is warranted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact is “material” for purposes of
this inquiry if it “might affect the outcome of the suit under the governing law[.]” Anderson, 477
U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A material
fact is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there
is no genuine dispute of material fact to be decided with respect to any essential element of the
claim in issue, and the failure to meet this burden warrants denial of the motion. See Celotex,
477 U.S. at 330. If the moving party meets this initial burden, the opposing party must show,
through affidavits or otherwise, that there is a material dispute of fact for trial. See Fed. R. Civ.
P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and
draw all inferences, in a light most favorable to the nonmoving party. See Anderson, 477 U.S. at
255 (citation omitted); Jeffreys, 426 F.3d at 553 (citation omitted). The entry of summary
judgment is justified only in the event of a finding that no reasonable trier of fact could rule in
favor of the non-moving party. See Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d
501, 507-08 (2d Cir. 2002) (citation omitted); Anderson, 477 U.S. at 250 (instructing that
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summary judgment is appropriate only when “there can be but one reasonable conclusion as to
the verdict” (citation omitted)).
B. Plaintiff’s motion for partial summary judgment
Issue preclusion, or collateral estoppel, which applies not to claims or to causes of
action as a whole but rather to issues, bars litigation of an issue when “(1) the
identical issue was raised in a previous proceeding; (2) the issue was actually
litigated and decided in the previous proceeding; (3) the party had a full and fair
opportunity to litigate the issue; and (4) the resolution of the issue was necessary
to support a valid and final judgment on the merits.”
Proctor v. LeClaire, 715 F.3d 402, 414 (2d Cir. 2013) (quotation and other citations omitted).
“[t]he burden of showing that the issues are identical and were necessarily
decided in the prior action rests with the party seeking to apply issue preclusion. .
. . In contrast, the burden of showing that the prior action did not afford a full and
fair opportunity to litigate the issues rests with the party opposing the application
of issue preclusion.”
Id. (quotation omitted).
“‘[W]hen a state agency acting in a judicial capacity resolves disputed issues of fact
properly before it which the parties have had an adequate opportunity to litigate, federal courts
must give the agency's factfinding the same preclusive effect to which it would be entitled in the
state’s courts.’” Burkybile v. Bd. of Educ. of Hastings-On-Hudson Union Free Sch. Dist., 411
F.3d 306, 312 (2d Cir. 2005) (quoting [Univ. of Tenn. v. Elliott, 478 U.S. 788,] 799, 106 S. Ct.
3220 [(1986)]). “New York courts give quasi-judicial administrative fact-finding preclusive
effect where there has been a full and fair opportunity to litigate.” Id. (citing Ryan v. New York
Tel. Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 825-27, 467 N.E.2d 487 (1984)) (other citations
omitted). Additionally, “’collateral estoppel may bar relitigation of an issue even against
different defendants,’ provided that the issue in contention was necessary to the result reached in
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the prior proceeding.” LaFleur v. Whitman, 300 F.3d 256, 274 (2d Cir. 2002) (quoting Republic
Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 555 n.1 (2d Cir. 1967)). In this case, as a
preliminary matter, the Court finds that the Board was a state agency acting in a judicial capacity
because there is no dispute that the Board followed its statutory mandates with respect to
procedure. See Burkybile, 411 F.3d at 312.
“As a general rule, issue preclusion, unlike claim preclusion, ‘may be defeated by shifts
in the burden of persuasion or by changes in the degree of persuasion required.’” Dias v. Elique,
436 F.3d 1125, 1129 (9th Cir. 2006) (quoting 18 Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice & Procedure § 4422 (2d ed. 2002)) (other citations
omitted). In particular, “’issue preclusion does not apply when the party seeking to benefit from
preclusion has a significantly heavier burden in the subsequent action than in the prior action.’”
Cobb v. Pozzi, 363 F.3d 89, 113 (2d Cir. 2003) (quotation omitted).
In the Board hearing, the legal question was whether the Commissioner’s determination
that Plaintiff failed to make a prima facie showing of retaliation was “reasonable and valid.” See
Dkt. No. 30-3, Bd. Res., at 7 (citing Matter of Nadolecki, Docket No. PES 07-008, 7 (N.Y. Ind.
Bd. App. May 20, 2009) (providing that the Board does not determine the ultimate issue of
discrimination in such cases)). Thus, in finding that Plaintiff “met his burden to show that the
Commissioner’s determination was unreasonable and invalid,” see Dkt. No. 30-3 at 8, the Board
reasoned that “there is no evidence that [the New York Department of Labor] conducted even the
most cursory of investigations[,]” see id. The Board further reasoned that the safety and health
inspector in charge of the initial investigation “took no steps to interview the witnesses proposed
by [Plaintiff], and summarily dismissed [Plaintiff’s] complaint . . . .” See id. This focus on the
investigation itself, viewed in light of the legal standard that the Board applied, supports the
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conclusion that the issue concerned the propriety of the investigation and not the ultimate issue
of retaliation. Thus, it follows that any additional findings the Board made with respect to the
merits of Plaintiff’s First Amendment retaliation claim were not necessary to determining the
legal issue before it. For this reason, the Court declines to afford preclusive effect to such
findings as against Defendants, who were not parties to the Board proceeding. 3 LaFleur, 300
F.3d at 274.
C. Defendants’ motion for summary judgment
1. Qualified immunity
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 and footnote
omitted); see also Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (citations omitted); Sudler v.
Additionally, to the extent that Plaintiff argues that Defendants’ interests were adequately
represented such that they may be considered in privity with the Commissioner of Labor, the
Court finds this argument to be without merit. A “full and fair opportunity to litigate” entails the
ability to fully “raise the same factual or legal issues” by the same party or its privies. Malone v.
Bayerische Hypo-Und Vereins Bank, AG, Nos. 08 Civ. 7277 (PGG), 09 Civ. 3676 (PGG), 2010
WL 391826, *10 (S.D.N.Y. Feb. 4, 2010) (citation omitted); Mario Valente Collezioni, Ltd. v.
AAK Ltd., No. 02 Civ. 0099 (RPP), 2004 WL 724690, *7 (S.D.N.Y. Mar. 26, 2004). Parties may
be considered in privity where the interests of the nonparty were adequately represented in the
first suit. See Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 346 (2d Cir. 1995)
(holding that “[w]hether there is privity between a party against whom claim preclusion is
asserted and a party to a prior litigation is a functional inquiry in which the formalities of legal
relationships provide clues but not solutions”).
In this instance, Defendants were not parties to the prior proceeding and, as such, lacked
standing to appeal the Board’s determination. They further were unable to present evidence or
cross-examine witnesses. Thus, although Plaintiff argues that “there is no question that it was
the [Defendants’] interests that were being represented by the DOL Commissioner throughout
the hearing before the Board,” the Court finds that Defendants lacked a full and fair opportunity
to litigate these issues in the prior proceeding.
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City of New York, 689 F.3d 159, 174 (2d Cir. 2012) (citations omitted). The law of qualified
immunity seeks to strike a balance between “the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials from harassment, distraction,
and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,
A court may dismiss a claim based on qualified immunity at the summary judgment stage
only if it finds that a defendant has met his burden to demonstrate that no rational jury could
conclude (1) that he violated a statutory or constitutional right and (2) that the right was clearly
established at the time of the challenged conduct. See Tavares v. Amato, No. 9:12-CV-563, 2013
WL 3102031, *17 (N.D.N.Y. June 18, 2013) (quotation omitted). In this context, the facts
alleged must be viewed in the light most favorable to the party asserting injury. See Brosseau v.
Haugen, 543 U.S. 194, 197 (2004) (per curiam) (quotation omitted). Additionally, “[a] court
may consider these two questions in either order . . . .” Raspardo v. Carlone, 770 F.3d 97, 113
(2d Cir. 2014) (citations omitted).
If the right at issue was clearly established, a public official is still entitled to qualified
immunity if “officers of reasonable competence could disagree” on the legality of the action at
issue in its particular factual context. Malley v. Briggs, 475 U.S. 335, 341 (1986); see also
Cerrone v. Brown, 246 F.3d 194, 202 (2d Cir. 2001). Thus, qualified immunity provides a broad
shield, see Zalaski v. City of Hartford, 723 F.3d 382, 389 (2d Cir. 2013), that “provides ample
protection to all but the plainly incompetent or those who knowingly violate the law,” Malley,
475 U.S. at 341.
As a preliminary matter, the Court finds that the right at issue in this case—namely,
Plaintiff’s right to be free of retaliation for raising safety and health concerns within Defendant
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Fire Company—was clearly established at the time of the challenged conduct. 4 However, it is
clear to the Court that the individual Defendants acted in an objectively reasonable manner based
upon the undisputed facts known to them at the relevant times. First of these was Plaintiff’s
unauthorized enrollment in the Fire Officer III course. New York law requires fire district
governing boards to authorize a volunteer firefighter’s attendance at training courses when such
courses take place outside the county in which the particular fire district is located. See N.Y.
Gen. Mun. Law § 72-g(1)(a). Because Danby is located in Tompkins County, New York law
required Defendant Fire District to approve any Danby volunteer firefighter’s coursework at the
Academy. Thus, Plaintiff’s enrollment in the Fire Office III class without formal authorization
was a clear violation of New York law that objectively justified the bringing of disciplinary
charges. 5 Cf. Conn. ex rel. Blumenthal v. Crotty, 346 F.3d 84, 104 (2d Cir. 2003) (holding that
following a statute with “no transparent constitutional problems” weighs heavily in favor of
granting qualified immunity).
Second, it is undisputed that Plaintiff failed to obey Defendant Chief Gaden’s direct order
to attend a meeting on March 12, 2010, and that Plaintiff had attended very few functions of
Defendant Fire Company, of any kind, for almost a year preceding his suspension and
See Janusaitis v. Middlebury Volunteer Fire Dep’t, 607 F.2d 17, 18-19, 23 (2d Cir. 1979)
(holding that a volunteer firefighter’s report to his superiors urging that training and discipline
were inadequate within the company was protected speech); see also Shanks v. Vill. of Catskill
Bd. of Trustees, 653 F. Supp. 2d 158, 169 (N.D.N.Y. 2009) (finding that volunteer firefighter’s
speech addressing the adequacy of fire company training and the integrity of its equipment “went
to the very heart of the [c]ompany’s ability to effectively and safely perform its public
function”). The First Amendment protects such speech when it is “’made as a citizen on matters
of public concern . . . .’” Shanks, 653 F. Supp. 2d at 165 (quoting Johnson v. Ganim, 342 F.3d
105, 112 (2d Cir. 2003)).
It is not entirely clear based on this record whether Defendant Commissioners formally served
Plaintiff with the charges or, indeed, whether they formally voted to approve such charges.
Nonetheless, in the interest of viewing the facts in a manner most favorable to Plaintiff, the Court
assumes for purposes of this analysis that they did. See Brosseau, 543 U.S. at 197.
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subsequent resignation at the March 23, 2010 meeting of Defendant Commissioners. These facts
suggest that Defendants could properly have acted to remove Plaintiff from Defendant Fire
Company even without a hearing. See N.Y. Gen. Mun. Law § 209-l(3) (providing that, with
respect to volunteer firefighters, “[r]emovals on the ground of incompetence or misconduct,
except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice
and upon stated charges” (emphasis added)).
Thus, viewing the record as a whole, the Court finds that, even assuming that Defendant
Commissioners and Defendant Chief Gaden knew about Plaintiff’s protected speech, any
reasonable juror would have to conclude that the individual Defendants in this case were
objectively reasonable in bringing disciplinary charges against him for enrolling in Fire
Academy courses without authorization and by means of allegedly forged documents and for
failing to follow Defendant Chief Gaden’s orders. 6 Malley, 475 U.S. at 341. Accordingly, the
Court grants Defendants’ motion for summary judgment with regard to the individual
Defendants based on their defense of qualified immunity.
Moreover, the Court finds that Plaintiff has not proffered sufficient evidence to raise a genuine
issue of material fact as to the individual Defendants’ subjective intent for instituting disciplinary
proceedings against Plaintiff.
“Upon a motion for summary judgment asserting a qualified immunity defense in
an action in which an official's conduct is objectively reasonable but an
unconstitutional subjective intent is alleged, the plaintiff must proffer
particularized evidence of direct or circumstantial facts . . . supporting the claim
of an improper motive in order to avoid summary judgment.”
Sheppard v. Beerman, 94 F.3d 823, 828 (2d Cir. 1996) (quotation omitted). In particular,
where “a jury may find that [defendants] intentionally retaliated against plaintiffs, . . . it
follows that the same jury may find that [those defendants] did not act ‘objectively,
legally, and reasonably.’” Glenview Constr., Inc. v. Bucci, 165 F. Supp. 2d 545, 555
(S.D.N.Y. 2001) (quotation and internal citation omitted). In this case, no reasonable
finder of fact could conclude, based on this record, that the individual Defendants
intentionally retaliated against Plaintiff.
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2. Municipal liability
A municipality may be liable under § 1983 “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., 436 U.S. 658, 694,
To establish the existence of a municipal policy or custom, the 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 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).
Further, although a municipality may be held liable for a single action where officials
possess “final policymaking authority . . . with respect to the particular conduct challenged in the
lawsuit,” Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (citation omitted), Supreme
Court precedent has suggested that the “policymaker” theory of Monell liability is available only
in rare circumstances. Accordingly, the Court has instructed that, when addressing Monell
claims premised on a single act or occurrence, courts must “adhere to rigorous requirements of
culpability and causation” so as to avoid collapsing Monell liability into respondeat superior
liability. Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 415 (1997).
In light of this legal standard, courts have in many cases held that allegations that a
municipal employee’s actions evidence a pattern of suppressing a plaintiff’s protected speech in
particular have been held insufficient to rise to the level of demonstrating an actionable
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municipal policy. See, e.g. Wood v. Town of East Hampton, No. 08-CV-4197, 2010 WL
3924847, *23 (E.D.N.Y. Sept. 23, 2010) (collecting cases).
In this case, Plaintiff alleges that Defendants’ actions “constitute an ongoing, intentional
policy and practice of punishing [P]laintiff for the exercise of his First Amendment rights. . . .”
See Dkt. No. 1, Compl., at ¶ 37. Construed liberally, the record can at most be seen as
evidencing Defendants’ indifference to Plaintiff’s activism in connection with safety and health
issues over a span of some three years, followed by the single occurrence of suspending Plaintiff
and bringing disciplinary charges against him. Thus, the record is devoid of any suggestion that
the Defendant Fire Company or Defendant Fire District acted in a similar fashion with respect to
any others who were similarly situated to Plaintiff. Accordingly, the Court finds that Plaintiff’s
allegations are insufficient to sustain a claim for an unconstitutional municipal policy or custom.
See Wood, 2010 WL 3924847, at *23. 7
Accordingly, the Court grants Defendants’ motion with respect to Plaintiff’s Monell
claims against Defendants Fire Company and Fire District.
Having reviewed the entire record in this matter, the parties’ submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff’s motion for summary judgment, see Dkt. No 30, is DENIED;
and the Court further
Moreover, to the extent that Plaintiff sues the individual Defendants in their official capacities,
his claims are duplicative of his municipal liability claims against Defendants Fire Company and
Fire District. See Frank v. Relin, 1 F.3d 1317, 1325 (2d Cir. 1993). Accordingly, the Court
grants Defendants’ motion with respect to Plaintiff’s claims to the extent that he sues the
individual Defendants in their official capacities
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ORDERS that Defendants’ motion for summary judgment, see Dkt. No. 51, is
GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and
close this case.
IT IS SO ORDERED.
Dated: March 31, 2016
Syracuse, New York
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