Garvey v. Town of Clarkstown, New York et al
Filing
257
OPINION & ORDER re: 187 MOTION for Summary Judgment; 192 MOTION for Summary Judgment. For the reasons stated above, the Court GRANTS summary judgment in favor of defendants. The Clerk of Court is directed to enter judgment and terminate case 13-cv-8305. SO ORDERED. (Signed by Judge Katherine B. Forrest on 2/22/2018) (anc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MICHAEL GARVEY,
:
:
Plaintiff,
:
:
-v:
:
TOWN OF CLARKSTOWN, NEW YORK,
:
TOWN BOARD OF THE TOWN OF
:
CLARKSTOWN, ALEXANDER J. GROMACK, :
Individually, and as Supervisor for the Town of :
Clarkstown, New York, MICHAEL SULLIVAN, :
Individually, and as Chief of Police for the Town:
of Clarkstown, New York, and JOHN AND
:
JANE DOES “1-10”,
:
:
Defendants.:
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: February 22, 2018
13-cv-8305 (KBF)
OPINION & ORDER
KATHERINE B. FORREST, District Judge:
On January 9, 2008, Sergeant Michael Garvey, a police officer employed by
the Town of Clarkstown, injured his knee while making an arrest. Over the next
two years, he received disability benefits under N.Y. Gen. Mun. Law § 207-c (“§ 207c”) and was not required to work. In April 2010, defendants1 requested a physical
examination pursuant to the collective bargaining agreement (“CBA”) between the
Town of Clarkstown (“the Town”) and Garvey’s union. The doctor determined that
the 2008 injury had healed and that any remaining injury was due to a pre-existing
Defendant Alexander Gromack is the Town Supervisor for the Town of Clarkstown. Defendant
Michael Sullivan was the Police Chief of Clarkstown until his termination in 2017. The Town of
Clarkstown maintains the police department and was Garvey’s employer. The Town acts through
the Town Board as the Police Commission.
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“gouty” condition. As a result, defendants ordered Garvey to return to work and
offered him a transitional “light duty” position. This spurred a complicated chain of
events—described in detail below—that involved a § 207-c hearing, an adjudication
that Garvey has a permanent disability that did not occur in the line of duty,
several state court proceedings, and even a surprise early-morning quarrel on a
Saturday at 6:30 a.m. in the police station. These events gave rise to the instant
action, which Garvey filed in federal court on November 20, 2013, during the
pendency of state court proceedings.
Here, Garvey asserts five causes of action: an Americans with Disabilities Act
(“ADA”) claim for failure to make a reasonable accommodation available; an ADA
claim for retaliation; two analogous state law claims; and a First Amendment claim
under 42 U.S.C. § 1983. In July-September 2017, the parties cross-moved for
summary judgment. Initially, the Court denied that motion, (ECF No. 233), as
there seemed to be a question of fact as to whether a reasonable accommodation
was available for plaintiff.
However, upon review of the parties’ submissions in advance of trial, it
became clear to the Court that, in reality, no question of fact exists. As will be
discussed more fully below, the Clarkstown police department does not have
positions that require only “light duty”—and it was never the case that it did.
While three other officers have served in a light duty capacity, this position does not
exist as a matter of course; when it has existed, it was for a previously-specified
period of time, and in two instances, it was the specific result of a sui generis
2
settlement. Garvey—who rejected a similar settlement—has not raised a triable
issue of fact as to whether a reasonable accommodation existed; it is clear from the
evidence presented that one did not.
For the reasons presented below, the Court GRANTS summary judgment in
favor of defendants.
I.
BACKGROUND2
A. The Role of a Police Sergeant and Various Past Accommodations
The Town of Clarkstown has three roles to which sergeants may be assigned
for a particular shift: patrol sergeants, turnout sergeants, and, as particularly
relevant here, desk sergeants. There is one desk sergeant per shift, and he or she
“takes command of communications, takes command of the dispatch, . . . [and] [h]as
responsibility for interfacing with lieutenants, the captains and chiefs during the
day tours. It’s the point person for the tour, but you’re inside.” (ECF No. 201-3,
Dorfman Decl. in Supp. of Def.’s Mot. for Summ. J. (“Dorfman Decl.”), Ex. C
(“Garvey Dep.”) at 63:5-11, 70:11-12.) The desk sergeant also supervises officers
with perpetrators or suspects in the cell area. (Id. at 74:21-75:3.) All police
Pursuant to Local Civ. R. 56.1(c), “[e]ach numbered paragraph in the statement of material facts
. . . will be deemed to be admitted . . . unless specifically controverted . . . in the statement required
to be served by the opposing party.” Courts may reject conclusory, non-responsive objections that
“advocate for a different spin on otherwise uncontroverted facts.” Hartley v. Rubio, 785 F. Supp. 2d
165, 171 n.1 (S.D.N.Y. 2011) (citing Local Rule 56.1(c)); see also Major League Baseball Props., Inc.
v. Salvino, Inc., 542 F.3d 290, 312 (2d Cir. 2008)).
There are numerous instances where plaintiff neither admits nor denies a fact, but rather (1)
adds additional facts, (2) quibbles with defendants’ characterization of the fact, (3) argues a fact is
immaterial to resolution of the motion for summary judgment, or (4) makes legal arguments. There
are also numerous instances where, although plaintiff “denies” a fact in form, he does not actually
controvert the fact in substance. In all such instances, defendants’ asserted facts are deemed
admitted to the extent they are properly supported and to the extent plaintiff’s dispute is not in fact
supported by the exhibits he cites.
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sergeants—including desk sergeants—must be able to walk, stand, sit, run for
prolonged periods of time and/or over rough terrain, stoop, bend, kneel, crawl,
crouch, reach, twist, carry things and people, subdue people, tackle people, and
wrestle with people. (ECF No. 201-26, Dorfman Decl., Ex. K (“May 18, 2012 § 207-c
Hearing Tr.”) at 190–93 (Garvey’s testimony).) Typically, sergeant roles are
assigned anew for each shift; no sergeant is permanently designated as “the desk
sergeant.”
At certain times, however, when a police officer or sergeant is injured, the
Town works with him or her to devise a specific resolution such that the officer may
continue to work in some “light duty” capacity until he or she has healed.3 The
Town has no formal policy defining when officers or sergeants may serve on “light
duty.” Its only policy, General Order 215, became effective on December 5, 1988
and states that the “Chief of Police shall retain complete discretion in approving or
denying any officer the privilege of light duty.” (ECF No. 201-63, Dorfman Decl.,
Ex. NN.)
Other injured sergeants and officers who required a “light duty” post were
assigned the desk sergeant or desk officer roles for a longer-than-usual period of
time (i.e., for more than one shift at a time). In at least one case, the assignment
involved additional restrictions, such as an inability to sit for more than forty-five
minutes at a time. Often, the specific accommodations would be coordinated
The parties’ 56.1 statements and responses, as well as their briefs, quibble over the definition and
characterization of a “light duty” assignment. The characterization of the work performed by Garvey
and/or Sgt. No. 1 is immaterial to resolution of the case.
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4
pursuant to settlement agreements. Each instance of a “light duty” post presented
by the parties has differed, as each was tailored to specific restrictions that arose
from a particular officer’s injury. The position of desk sergeant never existed as a
permanent assignment for any officer—nor did any other “light duty” post.
For example, Sgt. No. 14 served in the role of desk sergeant from August 2011
until his retirement in January 2013 pursuant to a settlement agreement with the
Town. The agreement limited his assignment to 18 months in a “restricted or light
duty capacity at police headquarters,” which allowed him to reach twenty years of
service and retire. (ECF No. 201-65, Dorfman Decl., Ex. PP.) Sgt. No. 1 was
restricted from standing or sitting for long periods of time; he was not subject to
restrictions regarding physical contact with the public or prisoners, nor did he have
to be insulated from emergency situations. Neither the cause of his injury nor its
permanence was determined at any formal hearing.
Separately, Sgt. No. 2 was given a light duty assignment under § 207-c due to
line of duty injuries to both of his ears, which caused significant hearing loss. When
Sgt. No. 2’s doctor found that he was permanently disabled, he subsequently “filed
for service retirement,” remarking in his notice that it “was a pleasure to be of
service to the residents of the Town of Clarkstown for the past 22 years.” (ECF No.
225-7, Dorfman Decl., Ex. MMM.) The Town submitted a letter to the union noting
that it did not offer any “permanent ‘light duty’ positions and the filing of [Sgt. No.
The names of two sergeants and one officer are under seal; in this Opinion, the Court uses the
pseudonyms that the parties have used throughout this litigation.
4
5
2’s] service retirement should in no way be interpreted . . . as [Sgt. No. 2] having
voluntarily removed himself from the workforce.” (ECF No. 225-9, Dorfman Decl.,
Ex. OOO.)
Police Officer No. 3 (“P.O. No. 3”) also suffered a line-of-duty injury. Like
Sgt. No. 1, he entered into a settlement agreement with the Town to continue his
§ 207-c status until he was granted a New York State disability retirement or was
eligible for service retirement. Pursuant to his settlement agreement, P.O. No. 3
would only be ordered back to work when his disability ended or when he became
capable of performing a light duty assignment. Like Sgt. Nos. 1 and 2, he was never
adjudicated permanently disabled.
B. Garvey’s History and Adjudication
On January 17, 1994, Garvey was hired by the Town of Clarkstown as a
police officer. At that time, he was fit for full duty—that is to say, he was able to
perform all of the essential functions of a police officer. In 2004, Garvey was
promoted to sergeant, a supervisory position within the department. On January 9,
2008, Garvey injured his left knee in the line of duty while making an arrest.
Defendants accepted the injury as occurring in the line of duty under § 207-c,
afforded Garvey disability benefits, and assumed responsibility for the medical costs
associated with his left knee. (ECF No. 201-73, Dorfman Decl., Ex. XX (“Decision
and Order of Hon. Gerald E. Loehr, dated February 21, 2013”) at 2.) On July 20,
2008, Garvey underwent arthroscopic surgery on his left knee. (Id.)
6
Under the CBA between the Town and the Rockland County Patrolmen’s
Benevolent Association, Inc. (“PBA”), the Town could have Garvey medically
examined from time to time to determine whether the disability had ceased or
whether Garvey was able to physically perform his duties. (ECF No. 201-60,
Dorfman Decl., Ex. KK at 15.) Accordingly, on April 5, 2010, Garvey was examined
by Dr. John Mazella, a Board-certified orthopedic surgeon. Dr. Mazella concluded
that Garvey had a pre-existing “gouty” condition in his left knee that was
exacerbated by his injury on January 9, 2008, but that the line-of-duty injury had
“resolved to status quo ante through the orthopedic treatment . . . and that
[Garvey’s] complaints of continuing pain were not supported by his physical
condition.” (Decision and Order of Hon. Gerald E. Loehr, dated February 21, 2013.)
In response, the Town notified Garvey on April 19, 2010 that he was to report
for full duty on April 22, 2010—more than two years after the line-of-duty injury
occurred—and that his § 207-c benefits were terminated. However, Garvey
requested time to see his own doctor before returning to work. On April 26, 2010,
the Town sent Garvey a letter notifying him that he could “start [his] return on
transitional, restricted-duty status to allow [him] time to reacquaint [him]self with
the relevant procedures and routines of [his] position.” (Id.) On May 12, 2010,
Garvey’s own physician, Dr. Jordan Simon, disputed Dr. Mazella’s conclusion that
Garvey could return to full duty as a police officer, though he noted that “light duty”
would be an option if available. The Town again directed Garvey to report for
“restricted duty.” However, Garvey refused to return to work, even in this
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capacity—which both doctors had approved. He received an additional letter
instructing him to return on May 29, 2010 to work in a transitional, restricted duty
capacity consistent with the limitations described by Garvey’s own physician. Thus,
on May 29, 2010, Garvey returned to work in a restricted desk sergeant position.
However, on May 26, 2010, Garvey had requested a § 207-c hearing; the
Town denied the request on June 2, 2010. The PBA, pursuant to the CBA, then
requested a hearing on Garvey’s behalf to determine, inter alia, whether Garvey
was fit for full duty. The Town denied that request because all doctors agreed that
Garvey could at least perform a light duty position, which he had been offered. On
October 19, 2010, the PBA demanded arbitration to resolve whether a § 207-c
hearing was required. While arbitration was pending, defendants had Dr. Mazella
reexamine Garvey; on April 25, 2011—over a year after defendants’ first order—
defendants issued another order that directed Garvey to return to full duty on May
2, 2011. (Dorfman Decl., Ex. DD.) In May 2011, Garvey sought an injunction in
state court prohibiting the Town from terminating him based on his refusal to
return to full duty. In response, the Town represented in open court that it would
not take an adverse employment action against Garvey while the arbitration was
pending. Thus, Garvey’s action for injunctive relief was dismissed as moot. On
July 14, 2011, the Town issued a letter re-instituting Garvey’s restricted duty
status pending the determination of whether a hearing would be granted. (ECF No.
201-53, Dorfman Decl., Ex. DDD.)
8
On January 7, 2012, the Arbitrator ruled that under the CBA, Garvey had
the right to a § 207-c hearing. In accordance with the arbitrator’s decision, a
hearing officer was appointed to determine (1) whether Garvey was able to perform
his regular police duties and (2) whether his left knee complaints are related to an
injury in the line of duty.5
At the time of the Arbitrator’s ruling, Garvey had been serving as a desk
sergeant for eighteen months (since May 2010) and he had received at least one
positive performance evaluation from his supervisors. (Garvey Dep. at 78:9-81:22.)
But after the Arbitrator’s decision, Garvey took the position that he no longer had to
report for restricted duty. (ECF No. 201-56, Dorfman Decl., Ex. GG.) This decision
was not connected in any way with the condition of his knee injury. (Garvey Dep.
85:21-86:1.) Rather, it was Garvey’s position that he was not required to work until
the hearing was held and a conclusion was reached. Sullivan informed Garvey that
if he failed to fulfill his light duty assignment, he would be considered absent from
duty without proper authorization. (ECF No. 201-57, Dorfman Decl., Ex. HH.)
Nevertheless, Garvey did not return to work.6
Between March 23, 2012 and August 10, 2012, the § 207-c hearing was held
over seven days. Garvey, Town representatives, three doctors, and a physical
A third question—whether Garvey had absented himself from the light duty assignment he was
performing prior to the arbitrator’s decision granting the request for a hearing—was at one point
certified. After Garvey objected, the hearing officer ruled that this question was not timely and more
appropriately reviewed as a grievance.
6 Even now, Garvey contends that he should receive § 207-c benefits for this time. The Town
maintains that Garvey elected to use his accumulated sick leave in lieu of § 207-c payments to cover
his absence.
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therapist testified. During those proceedings, Garvey testified that his knee
condition was permanent and that he could not perform various functions of a police
officer. (See, e.g., ECF No. 201-29, Dorfman Decl., Ex. L (“May 24, 2012 § 207-c
Hearing Tr.”) at 444:17-445:19; Garvey Dep. at 55:7-12.) Garvey testified that, as of
the hearing, the problem with his knee was that it buckled once in a while, but less
than it did immediately after the injury. (May 24, 2012 § 207-c Hearing Tr. at
241:4-242:6.) Specifically, he identified two occasions on which his knee buckled on
the slanted ramp to the lower-level food court in Grand Central Station—neither of
which is alleged to have been related to any activity in Garvey’s capacity as a police
sergeant. (Id. at 242:7-19.)
The hearing officer ultimately determined that Garvey was permanently
unable to perform regular police duties, but that this inability was the result of his
pre-existing gout condition, rather than the January 9, 2008 line-of-duty incident.
Notably, during the hearing, defendants offered Garvey a settlement similar to Sgt.
No. 1’s agreement.7 However, Garvey rejected the offer, “waved his hand in the air
and said, I’ll get what I want in Federal Court.” (ECF No. 201-8, Dorfman Decl.,
Ex. D-3 at 228:15-17.)
On November 20, 2012, the Town accepted and adopted the hearing officer’s
Findings of Fact and Recommendations. (ECF No. 201-62, Dorfman Decl. Ex. MM.)
In the same resolution, the Town terminated Garvey’s § 207-c benefits, as the
While Garvey disputes the existence of this offer, the evidence he cites—his own declaration—
makes no mention of the receipt or non-receipt of a settlement offer. (See ECF No. 206, Garvey Aff.)
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adjudicator had decided his knee condition was not connected to a line-of-duty
injury. The Town further determined that the arbitrator’s grant of the § 207-c
hearing did not excuse Garvey from continuing the transitional light duty
assignment he had received; accordingly, the leave time Garvey had used up was
not re-credited as he had demanded.
As a result of the hearing, Garvey’s attorney, Dennis Lynch, sent the Town’s
attorney, Amy Mele, a letter on November 8, 2012 requesting, inter alia, that the
Town advise Garvey of the reasonable accommodation that would be made for him
pursuant to the ADA, as he is not “physically able to perform ‘regular police duties’
at this time.” (ECF No. 201-66, Dorfman Decl., Ex. QQ.) Chief Sullivan determined
that a light duty position was not available for Garvey, as light duty positions were
provided only on a temporary basis—there was no permanent position for someone
with permanent restrictions.8 On November 28, 2012, Mele notified Lynch that
Garvey was due to run out of his accrued leave time on December 7, 2012 and
requested more information about Garvey’s request under the ADA. (ECF No. 20168, Dorfman Decl., Ex. SS.) Specifically, she asked how Garvey is disabled, what
barriers to job performance his disability created, and what reasonable
accommodation Garvey suggested that would permit his return to work without
eliminating any of the essential functions of a police officer. (Id.)
Plaintiff disputes this, arguing that Sullivan’s deposition testimony demonstrates that the timeline
of the denial was slightly different. (ECF No. 208, Pl.’s Response to Def. Michael Sullivan’s
Statement of Undisputed Material Facts Pursuant Local Rule 56.1 ¶ 167.) Plaintiff further argues
that Sullivan testified that he denied light duty solely because light duty was not available to
permanently disabled officers. (Id.) These disputes are immaterial to the resolution of this case.
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On Saturday, December 1, 2012 at 6:30 a.m., after almost eleven months of
absence and without any prior notification, Garvey arrived at the police station and
attempted to relieve the desk sergeant. He was informed that there was no position
available for him. Sullivan went to the station to respond to Garvey’s surprise
grandstanding, and he advised Garvey that Garvey could make a formal request for
a light duty position under General Order 215; Sullivan then sent Garvey home.
Garvey maintains that his arrival at work was in response to the May 27, 2010
letter—which he had received 18 months earlier—ordering him back to work.
(Garvey Dep. at 89:10-18.)
On December 4, 2012, Sullivan sent a memo to Garvey reminding him that
the correct course of action—rather than simply showing up at the station and
“attempt[ing] to order a working sergeant to stand down so [Garvey] could assume
the desk”—was to request a temporary light duty assignment under General Order
215. (ECF No. 205-30, Marzolla Decl., Ex. CC.) Sullivan also noted that he would
consider Garvey’s previous request to return to work as a request under General
Order 215, and informed him that such request requires “a doctor’s note advising
the nature of the injury, the duration that light duty will be required and any
restrictions and limitations the doctor feels should be followed.” Because Garvey’s
previously submitted doctor’s note did not indicate a period of time, Sullivan would
not consider his request. (Id.) Garvey responded in an email the same day, arguing
that by asking for a doctor’s note, Sullivan was “directing me to follow a futile
exercise when you know (more so than anyone in the administration) my medical
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situation and have a position currently available for me . . . .” (ECF No. 205-12,
Marzolla Decl., Ex. L.)
Also on December 4, 2012, the parties’ lawyers were in communication. Mele
notified Lynch that based on Garvey’s testimony at the § 207-c hearing, he could not
perform the essential functions of a police officer, including “taking resistant
persons into custody, breaking up fights, carrying a distressed child, extracting
accident victims from a motor vehicle or subduing a physically attacking person.”9
(ECF No. 201-69, Dorfman Decl., Ex. TT.) Again, Mele requested a response as to
“what ‘reasonable accommodation(s)’ . . . Sgt. Garvey envision[s] as allowing him to
safely overcome his impairment.” (Id.) On December 5, Garvey’s attorney
responded, claiming that the “Town has continued to refuse to engage in the ADA’s
interactive process” and that the “Town is aware of Sergeant Garvey’s physical
conditions, his limitations, and his suitability for a Desk Sergeant post or office
work.” (ECF No. 201-70, Dorfman Decl., Ex. UU.) While the letter accused the
defendants of “retaliatory conduct” and advised that this would be Lynch’s “final
reply letter,” it failed to provide the information previously requested and did not
describe in any detail the position Garvey sought. It did contend that another
individual with similar limitations—presumably Sgt. No. 1—had been given a “desk
Garvey purports to dispute the characterization of this back-and-forth. (ECF No. 208, Pl.’s
Response to Def. Michael Sullivan’s Statement of Undisputed Material Facts Pursuant Local Rule
56.1 ¶ 179.) However, for the reasons discussed in more depth below, Garvey’s objections are
immaterial to the resolution of the case; furthermore, Garvey himself agreed that “a sergeant has all
the requirements of a police officer at the base level” and that a sergeant has the “physical fitness
requirements of a regular cop.” (ECF No. 188-20, Flannery Decl., Ex. T at 189:23-190:14.)
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sergeant” position as a reasonable accommodation and assert a view that “the
position is currently available.” (Id.)
By December 7, 2012, Garvey’s leave had depleted; he was accordingly
removed from payroll and notified of a termination of his medical benefits. The
next day, Sullivan sent Garvey a memo advising him that he was “not authorized to
return to work at this time and any attempt to do so will be considered a direct
violation of orders.” (ECF No. 205-31, Marzolla Decl., Ex. DD (emphasis in
original).) The memo also stated that it was “not true” that Sullivan knows the
“true nature” of Garvey’s disability, and if he was “truly serious about returning to
work,” he would have “called my secretary and set up an appointment to discuss.”
(Id.) Sullivan also notified Garvey that, “[o]ut of concern for your family I have
contacted the Personnel Department and you will be receiving a letter stating how
you can arrange to have your family medical benefits continue uninterrupted while
these issues are worked out.” (Id.) On December 12, 2012, Sullivan sent Garvey a
letter informing him that “until your employment status can be worked out, you are
no longer authorized to act as a police officer under the authority of the Clarkstown
Police Department” and directing him to turn in his badge, identification, and
firearm. (ECF No. 205-42, Marzolla Decl., Ex. OO.)
On December 18, 2012, Garvey commenced a proceeding in state court to
annul the Town’s November 20, 2012 Resolution. The New York Supreme Court
denied that request but transferred the proceedings to the Appellate Division for
determination of whether the hearing officer’s findings were supported by the
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evidence. While that action was pending, Garvey filed this federal action on
November 23, 2013. On June 24, 2015, the Appellate Division confirmed the
hearing officer’s determination, which held that there was
no dispute that the petitioner was able to perform a light-duty
assignment. In May 2010, he received and followed an order to return
to work and perform a restricted duty assignment, for which he
received his full salary. On January 17, 2012, he refused an offer to
continue performing this light-duty assignment, although he remained
able to [do] so. Under the statute, the granting of a General Municipal
Law § 207-c hearing did not excuse him from performing his light-duty
assignment. The petitioner later received an unequivocal order to
return to his light-duty assignment, and he again refused, electing
instead to use his accumulated leave time. Since the petitioner refused
to return to his light-duty assignment commencing January 17, 2012,
the Town was entitled to discontinue his benefits without a hearing.
Accordingly, the Town’s determination not to re-credit the accumulated
leave time . . . was not arbitrary and capricious and must be confirmed.
(ECF No. 201-74, Dorfman Decl., Ex. YY, Decision, Order & Judgment of the
Appellate Division, at 4.)
Subsequently, on July 7, 2015, the Town notified Garvey that it intended to
terminate his employment pursuant to Civil Service Law § 73, which states that
“when an employee has been continuously absent from and unable to perform the
duties of his position for one year or more by reason of a disability other than a
disability resulting from occupational injury . . . his employment status may be
terminated . . . .” (ECF No. 201-75, Dorfman Decl., Ex. ZZ.) (At this point, Garvey
had been absent for more than three years due to an injury that had been
adjudicated non-duty related, not including his two-year absence while he received
§ 207-c benefits between 2008-2010.) Garvey objected in a letter dated August 4,
2015, arguing, inter alia, that his injury was work-related and that he was entitled
15
to a light-duty accommodation under the ADA and General Order 215. (ECF No.
205-41, Marzolla Decl., Ex. NN.) On August 11, 2015, Garvey was terminated
based on, inter alia, over a year of absence. (ECF No. 205-11, Marzolla Decl., Ex.
K.)
Garvey challenged his termination in a letter on September 4, 2015, in which
he argued he was “ready, willing and able to return to work”; he also demanded a
post-termination hearing. After the Town responded that an article 78 hearing
would be the appropriate vehicle, Garvey initiated an article 78 proceeding on
December 10, 2015 in the New York Supreme Court. The basis of the new petition
was that Garvey’s disability was work-related, but even if it were not, he was fully
fit to return to work and was also fit for what in his view constituted light duty.
Garvey also argued that the Town violated the ADA and General Order 215, and
that he was denied pre- and post-termination hearings.
The New York Supreme Court dismissed Garvey’s petition, holding that the
July 7, 2015 letter was sufficient notice of his termination—indeed, his attorneys
had responded with a ten-page letter of their own, (ECF No. 205-41, Marzolla Decl.,
Ex. NN)—and that a post-termination hearing was not required, as petitioner had
been adjudicated disabled and had not offered new evidence that he was able to
return to full duty. “[S]ince Petitioner’s position was that of a full time Sergeant
and not some type of light-duty hybrid, absent a voluntary accommodation under
General Order 215 or as mandated under the ADA, again, there is nothing to have a
hearing about.” (ECF No. 201-77, Dorfman Decl., Ex. BBB (“Decision and Order of
16
Hon. Gerald E. Loehr, dated December 21, 2016”) at 10.) Because a federal ADA
action had already been commenced by Garvey, the Court declined to address the
ADA question and dismissed the rest of the petition on the merits without
prejudice.
The federal action, now pending for almost four-and-a-half years, was
initially before Judge Karas. It was transferred to the undersigned on September
28, 2017.
II.
LEGAL PRINCIPLES
A. Summary Judgment Standard
“The court shall grant summary judgment 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). The moving party bears the initial
burden of demonstrating “the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear
the ultimate burden on a particular claim or issue, it need only make a showing
that the non-moving party lacks evidence from which a reasonable jury could find in
the non-moving party’s favor at trial. Id. at 322-23.
In making a determination on summary judgment, the court must “construe
all evidence in the light most favorable to the nonmoving party, drawing all
inferences and resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604
F.3d 732, 740 (2d Cir. 2010). Once the moving party has discharged its burden, the
opposing party must set out specific facts showing a genuine issue of material fact
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for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “[A] party may not rely
on mere speculation or conjecture as to the true nature of the facts to overcome a
motion for summary judgment,” as “[m]ere conclusory allegations or denials cannot
by themselves create a genuine issue of material fact where none would otherwise
exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal citations
omitted).
B. ADA Claims
Plaintiff has brought both discrimination and retaliation claims under the
ADA, 42 U.S.C. §§ 12112(a), 12203(a). The ADA makes it unlawful for an employer,
with respect to hiring or discharge, to “discriminate against a qualified individual
with a disability because of the disability of such individual.” 42 U.S.C. § 12112(a).
In addition, the ADA prohibits employers from retaliating against an individual for
“oppos[ing] any act or practice made unlawful” by the ADA. 42 U.S.C. § 12203(a).
The ADA applies to employers; it does not confer individual liability. Spiegel v.
Schulmann, 604 F.3d 72, 79 (2d Cir. 2010). For that reason, the ADA claims
against the individual defendants here—i.e., Gromack and Sullivan—cannot
succeed. Id. However, the Court still must consider whether plaintiff has made out
an ADA claim against the Town and the Town Board.
1. Reasonable Accommodations
To establish a prima facie case of discrimination based on failure to
accommodate, a plaintiff must establish that (1) he is a person with a disability; (2)
defendant had notice of his disability; (3) plaintiff could perform the essential
18
functions of the job at issue with reasonable accommodation; and (4) defendant
refused to make such accommodations. Graves v. Finch Pruyn & Co., 457 F.3d 181,
184 (2d Cir. 2006). “A reasonable accommodation can never involve the elimination
of an essential function of a job.” Shannon v. New York City Transit Auth., 332
F.3d 95, 100 (2d Cir. 2003) (citing Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir.
1991)). “The term ‘essential functions,’ which is not defined in the statutes
themselves, is generally defined in ADA regulations . . . to mean the ‘fundamental’
duties to be performed in the position in question, but not functions that are merely
‘marginal.’” Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997) (citing 29
C.F.R. § 1630.2(n)(1) (1996)). The considerations in the regulations are “factintensive” and “no one listed factor will be dispositive.” Id.
The plaintiff bears the burdens of both production and persuasion as to “the
existence of some accommodation that would allow [him] to perform the essential
functions of [his] employment, including the existence of a vacant position for which
[he] is qualified, as well as “whether the costs of the accommodation do not on their
face obviously exceed the benefits.” McBride v. BIC Consumer Prods. Mfg. Co., 583
F.3d 92, 97 & n.3 (2d Cir. 2009); see also Jackan v. New York State Dep’t of Labor,
205 F.3d 562, 567 (2d Cir. 2000) (holding that an ADA plaintiff must demonstrate
that a “suitable vacancy existed at the time he sought transfer”). “An ADA plaintiff
does not satisfy [his] burden to identify a potential accommodation merely by
reciting the formula that [his] employer could have reassigned [him].” McBride, 583
F.3d at 97.
19
Assuming plaintiff can make out a prima facie case (and this Court does not
find that plaintiff here can), the burden would shift to defendant under the analysis
of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), to show a
legitimate, nondiscriminatory purpose for its allegedly adverse action. See
Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50, (2003); Reg’l Econ. Cmty. Action
Program, Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir. 2002).
2. Interactive Process
“The ADA envisions an ‘interactive process’ by which employers and
employees work together to assess whether an employee’s disability can be
reasonably accommodated.” Jackan, 205 F.3d at 566 (citing Beck v. University of
Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996); 29 C.F.R. § 1630.2(o)(3)).
This engagement may occur through, inter alia, “request[ing] information about the
condition and what limitations the employee has, ask[ing] the employee what he or
she specifically wants, show[ing] some sign of having considered [the] employee’s
request, and offer[ing] and discuss[ing] available alternatives when the request is
too burdensome.” Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 219 (2d
Cir. 2001) (alterations in original) (citing Taylor v. Phoenixville Sch. Dist., 174 F.3d
142, 162 (3d Cir. 1999)).
“Nevertheless, an employee may not recover based on his employer’s failure
to engage in an interactive process if he cannot show that a reasonable
accommodation existed at the time of his dismissal.” Stevens v. Rite Aid Corp., 851
F.3d 224, 231 (2d Cir.), cert. denied, 138 S. Ct. 359 (2017) (citing McElwee v. County
20
of Orange, 700 F.3d 635, 642 (2d Cir. 2012)); see also McBride, 583 F.3d at 100-01
(noting that “failure to engage in an interactive process does not form the basis of
an ADA claim in the absence of evidence that accommodation was possible . . .
because the ADA imposes liability for . . . discriminatory refusal to undertake a
feasible accommodation, not mere refusal to explore possible accommodations
where, in the end, no accommodation was possible” (internal quotations and
citations omitted)).
3. Retaliation
“The ADA makes it unlawful for an employer ‘to coerce, intimidate, threaten,
or interfere with any individual in the exercise or enjoyment of . . . any right
granted or protected by this chapter’” or to “discriminate against any individual
because such individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
chapter.” Lovejoy-Wilson, 263 F.3d at 222-23 (2d Cir. 2001) (citing 42 U.S.C. §
12203(a)-(b)).
To establish a prima facie case of retaliation, a plaintiff must show that: (1)
he engaged in a protected activity; (2) defendant was aware of that activity; (3) he
suffered an adverse employment action; and (4) there was a causal connection
between that protected activity and the adverse employment action. Distasio v.
Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998). McDonnell Douglas burdenshifting likewise applies to retaliation claims under the ADA. Terry v. Ashcroft,
21
335 F.3d 128, 141 (2d Cir. 2003). “With respect to the first element of a retaliation
claim, participation in a protected activity, . . . a ‘plaintiff need not establish that
the conduct he opposed was actually a violation of the statute so long as he can
establish that he possessed a good faith, reasonable belief that the underlying
challenged actions of the employer violated that law.’” Muller v. Costello, 187 F.3d
298, 311 (2d Cir. 1999) (quoting Sarno v. Douglas-Elliman Gibbons & Ives, Inc., 183
F.3d 155, 159 (2d Cir. 1999)).
C. First Amendment Claims Under § 1983
“To state a prima facie claim of First Amendment retaliation under Section
1983, [a plaintiff] must offer some tangible proof that 1) [his] speech was
constitutionally protected; 2) [he] suffered an adverse employment action; and 3) a
causal relationship between the two existed in that the speech was a substantial or
motivating factor for the adverse employment action.” Burkybile v. Bd. of Educ.,
411 F.3d 306, 313 (2d Cir. 2005). The First Amendment confers protection on
government employee speech made “‘as a citizen addressing matters of public
concern.’” Weintraub v. Bd. of Educ., 593 F.3d 196, 200 (2d Cir. 2010) (quoting
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006)). “Whether the employee spoke solely
as an employee and not as a citizen is also largely a question of law for the court.”
Jackler v. Byrne, 658 F.3d 225, 237 (2d Cir. 2011).
Speech addresses a matter of public concern when it may be “‘fairly
considered as relating to any matter of political, social, or other concern to the
community.’” Wrobel v. Cnty. of Erie, 692 F.3d 22, 28 (2d Cir. 2012) (quoting
22
Connick v. Myers, 461 U.S. 138, 146 (1983)). “Whether an employee’s speech
addresses a matter of public concern must be determined by the content, form, and
context of a given statement, as revealed by the whole record.” Johnson v. Ganim,
342 F.3d 105, 112 (2d Cir. 2003) (citing Connick, 461 U.S. at 146). “If the speech,
however, is focused on matters personal to the employee, it cannot be classified as
being on a matter of public concern and the government, acting as an employer, ‘has
greater latitude to discipline’ the employee.” Id. (quoting Connick, 461 U.S. at 146).
In other words, “the court should focus on the motive of the speaker and
attempt to determine whether the speech was calculated to redress personal
grievances or whether it had a broader public purpose.” Lewis v. Cowen, 165 F.3d
154, 163–64 (2d Cir. 1999); see also Hanig v. Yorktown Cent. Sch. Dist., 384 F.
Supp. 2d 710, 722 (S.D.N.Y. 2005) (“The key inquiry is whether the statements were
made by plaintiff in her role as a disgruntled employee or her role as a concerned
citizen.”).
D. Spoliation
“Spoliation is the destruction or significant alteration of evidence, or the
failure to preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d
Cir. 1999). “[A]nyone who anticipates being a party or is a party to a lawsuit must
not destroy unique, relevant evidence that might be useful to an adversary.”
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003). “The
obligation to preserve evidence arises when the party has notice that the evidence is
23
relevant to litigation or when a party should have known that the evidence may be
relevant to future litigation.” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436
(2d Cir. 2001).
“The state of mind of a party that destroys evidence is a major factor in
determining whether an adverse inference is the appropriate sanction.” Turner v.
Hudson Transit Lines, Inc., 142 F.R.D. 68, 74 (S.D.N.Y. 1991). “Where a party
destroys evidence in bad faith, that bad faith alone is sufficient circumstantial
evidence from which a reasonable fact finder could conclude that the missing
evidence was unfavorable to that party.” Residential Funding Corp. v. DeGeorge
Fin. Corp., 306 F.3d 99, 109 (2d. Cir. 2002). “Similarly, a showing of gross
negligence in the destruction or untimely production of evidence will in some
circumstances suffice, standing alone, to support a finding that the evidence was
unfavorable to the grossly negligent party.” Id.
By contrast, “where the destruction was merely negligent,” plaintiff must also
“demonstrate that the destroyed evidence would have been favorable to” him, “since
in those cases it cannot be inferred from the conduct of the spoliator that the
evidence would even have been harmful to him.” Zubulake, 220 F.R.D. at 221; see
also Residential Funding Corp., 306 F.3d at 109 (“[T]he party seeking an adverse
inference must adduce sufficient evidence from which a reasonable trier of fact
could infer that the destroyed [or unavailable] evidence would have been of the
natvire alleged by the party affected by its destruction.”) (internal quotation
omitted); Turner, 142 F.R.D. at 77 (“[W]here the destruction was negligent rather
24
than willful, special caution must be exercised to ensure that the inference is
commensurate with information that was reasonably likely to have been contained
in the destroyed evidence.”).
To establish the relevance of destroyed documents, plaintiff must
“demonstrate through extrinsic evidence, such as other existing documents or
deposition testimony, that a reasonable jury could find that the missing [evidence]
would have been favorable to his claims.” Curcio v. Roosevelt Union Free Sch. Dist.,
283 F.R.D. 102, 113 (E.D.N.Y.2012).
Although a district court has broad discretion in crafting a proper
sanction for spoliation, we have explained that the applicable sanction
should be molded to serve the prophylactic, punitive, and remedial
rationales underlying the spoliation doctrine. The sanction should be
designed to: (1) deter parties from engaging in spoliation; (2) place the
risk of an erroneous judgment on the party who wrongfully created the
risk; and (3) restore the prejudiced party to the same position he would
have been in absent the wrongful destruction of evidence by the
opposing party.
West, 167 F.3d at 779 (internal citation and quotation omitted).
III.
DISCUSSION
A. ADA Claims
Garvey has failed to demonstrate the existence of a vacant position which he
was able to fill. Furthermore, he—not defendants—failed to engage in the
interactive process required by the ADA. As such, his claim under the ADA for
discrimination on the basis of failure to accommodate fails as a matter of law.
Second, he has not established that there was a causal connection between any
adverse employment action and any protected activity on his part; as such, his
25
retaliation claim also fails. Accordingly, the Court grants summary judgment to
defendants on both ADA claims.
1. Failure to Demonstrate Existence of a Reasonable Accommodation
There is simply no evidence in the record that a desk sergeant position
existed in the way Garvey sought to have it exist. Rather, the position existed on a
case-by-case basis for officers with impermanent disabilities: the Town would work
with injured officers to identify a “light duty” position while they healed or until
they reached retirement. As such, there was never an “open slot” for a light duty
position, which Garvey might have been able to fill. Garvey has sought to
transform a temporary light duty assignment provided to other officers, often
pursuant to a settlement, into an open position with reduced responsibilities and
physical demands—this is not what the ADA requires. Nor does it require
defendants “to create new jobs or reassign disabled employees if no positions are
vacant.” Felix v. New York City Transit Auth., 154 F. Supp. 2d 640, 655 (S.D.N.Y.
2001), aff’d, 324 F.3d 102 (2d Cir. 2003) (citing Norville v. Staten Island Univ.
Hosp., 196 F.3d 89, 99 (2d Cir. 1999)); see also Norville, 196 F.3d at 99 (“For
example, an employer need not reassign an employee if no position is vacant. Nor is
the employer obliged to create a new position to accommodate the employee.”
(internal citations omitted)).
Garvey maintains that the Town’s accommodations for Sgt. No. 1, Sgt. No. 2,
and P.O. No. 3 demonstrate that a vacant position existed for him. But this is not
the case. First, none of the others’ situations were analogous to Garvey’s. Sgt. No.
26
1 and P.O. No. 3 both received accommodations pursuant to settlements.
Accordingly, their “light duty” roles cannot be evidence of the existence of a
permanent position; rather, they were allowed as terms of settlement agreements.10
Sgt. No. 2’s circumstances are also inapposite; once it was determined that he was
permanently disabled, he retired.
Moreover, even if their situations did apply, the fact that someone else
occupied a light-duty position does not mean that a similar position was available
for Garvey to fill. Garvey argues that Sgt. No. 1 was “contemporaneously vacating
his light duty Desk Sergeant assignment in and around the time Defendants
constructively terminated Plaintiff (i.e., 1/2013).” (ECF No. 211, Pl.’s Mem. of Law
in Opp. to Def.’s Mots. for Summ. J. and in Supp. of Pl.’s Cross Mot. for Partial
Summ. J. (“Pl.’s Mem. in Opp.”) at 3.) However, as noted, Sgt. No. 1 was not
occupying a position that typically existed within the apartment; rather, he was
acting in a light duty capacity pursuant to a settlement agreement with the Town.
It is not as if, once Sgt. No. 1 retired, there would be a vacant position that
defendants would need to fill. Rather, once Sgt. No. 1 retired, the department could
simply return to its usual state—which includes desk sergeants who have no
physical restrictions. Additionally, P.O. No. 3’s settlement was not signed until
October 16, 2014—well after this case was filed. (ECF No. 205-46, Marzolla Decl.,
Ex. SS.)
Furthermore, Sgt. No. 1 was restricted only from standing or sitting for long periods at a time;
Garvey’s restrictions were much more cumbersome and more likely to interfere with a police officer’s
usual duties.
10
27
The Town is not “obligated to create a new light-duty position for a disabled
employee or make permanent previously temporary light-duty positions. Moreover,
lax enforcement of the temporary nature of temporary light-duty assignments does
not transform such assignments into permanent positions.” King v. Town of
Wallkill, 302 F. Supp. 2d 279, 291 (S.D.N.Y. 2004) (internal citations omitted). The
fact that Garvey and others served in light-duty positions temporarily does not,
therefore, mean that the Town must create these vacancies where they would not
otherwise exist.
Furthermore, Garvey did not demonstrate that he engaged in the ADA’s
“interactive process” in good faith. Rather, the post-hearing letters and emails
submitted by both parties demonstrate that the Town repeatedly asked for
information as to Garvey’s disability as well as a suggestion as to which position
might be a reasonable accommodation. Rather than respond to these questions,
Garvey accused the Town of retaliation, threatened legal action, and refused to
engage. His sudden appearance at the police station on December 1, 2012—after an
eleven-month absence—was no more than grandstanding in response to being
notified that he was due to run out of leave. Showing up at 6:30 a.m. on a Saturday
is not an attempt to engage; had Garvey wanted to negotiate, he would have taken
Sullivan’s suggestion and set up a time to discuss options.
2. Retaliation
Similarly, Garvey has failed to demonstrate that defendants retaliated
against him for exercising his rights under the ADA. Garvey argues that he
28
engaged in a protected activity by requesting a reasonable accommodation in the
form of a light duty position, and that defendants took adverse action by “requiring
more of Sgt. Garvey (in the form of a doctor’s note giving the disability’s end [date])
than was required under the [department’s] express written policy or had ever been
required of anyone else during his tenure.”11 (Mem. Opp. at 28-29.)
As discussed above, Sullivan instructed Garvey to submit a request for a light
duty position under General Order 215, which requires a doctor’s note that specifies
how long an injury or disability is expected to last. While General Order 215 does
not list specific requirements that must accompany a sergeant or officer’s request, it
does leave the decision to the “complete discretion” of the Chief of Police. Certainly,
this leaves room for the Chief to require certain documentation with requests.
Garvey argues that a doctor’s note explaining the expected duration of a disability
had never been required of anyone else, but he offers no evidence to support this
assertion. And even if it were the case, it could be the case that, consistent with
General Order 215, the Chief may require documentation from some officers and
not others, based upon the circumstances presented.
Additionally, while not clearly stated, Garvey alludes to a claim that
defendants took adverse action by denying his request for a light duty position. As
Garvey notes that this allegedly adverse action was one of several actions taken in retaliation, but
does not specify any other actions. Additionally, the evidence submitted does not clearly identify any
retaliatory action.
11
29
discussed at length above, this denial was proper, as no reasonable accommodation
existed for Garvey.12
*
*
*
Accordingly, the Court grants summary judgment on Garvey’s ADA claims in
favor of defendants.
B. Section 1983 Claim
Garvey has also filed a claim under 42 U.S.C. § 1983 for violation of his First
Amendment rights. He identifies the following activities as protected by the First
Amendment: (1) filing a union grievance; (2) testifying at his GML § 207-c hearing;
and (3) filing the federal complaint. (Pl.’s Mem. in Opp. at 37-40.) None of these
actions give rise to a First Amendment retaliation claim. Government employees
have First Amendment rights when speaking on matters of public concern—all of
the speech and actions identified by Garvey focus on “matters personal to the
employee.” Johnson, 342 F.3d at 112.
Additionally, the materials in support of Garvey’s spoliation claim imply that after this litigation
was filed, defendants engaged in a number of actions to retaliate against plaintiff. (ECF No. 210,
Decl. of Donald J. Feerick (“Feerick Decl.”).) Specifically, Garvey claims that defendants released
confidential information about him, investigated him for illegal campaign contributions, and
boycotted his car wash. However, “a party cannot assert a claim for the first time in its motion
papers.” Dominick & Dominick LLC v. Deutsche Oel & Gas AG, 2017 WL 3669619, at *5 (S.D.N.Y.
Aug. 24, 2017).
Garvey did not plead claims of post-termination retaliation in his complaint; indeed, he filed
his complaint almost two years before he was terminated. These claims are asserted only through
the Feerick Declaration, which was submitted in opposition to the motion for summary judgment, in
support of a spoliation motion, and after the close of discovery. None of the allegations are
mentioned in plaintiff’s Rule 56.1 Statement or in his memorandum of law. On this basis as well,
plaintiff cannot succeed on these retaliation claims. Moreover, the assertions in the Feerick
Declaration are unsupported by evidence connecting any protected action by Garvey—under the
ADA or the First Amendment—to adverse actions by defendants. Conclusory statements alleging
libel or slander are not enough.
12
30
Citing Jackler, 658 F.3d 225, Garvey argues that “[o]fficial misconduct is
always a public concern.” (Mem. in Opp. at 29.) That is certainly the case. But
Jackler addressed a public official who, the Court held, was acting as a private
citizen when he refused to file a dishonest police report. Jackler, 658 F.3d at 241242. The circumstances here are quite different. Garvey’s speech—i.e., his
grievance, his hearing testimony, and his federal complaint—was “calculated to
redress personal grievances.” The actions all related to Garvey’s employment
status; he was not acting “‘as a citizen addressing matters of public concern.’”
Weintraub v. Bd. of Educ., 593 F.3d 196, 200 (2d Cir. 2010). There was no broader
public purpose manifested. Lewis, 165 F.3d at 163-64.
Even if Garvey’s speech were protected by the First Amendment, he has not
established that his alleged “speech” was a substantial factor in any adverse
employment action. Garvey was not terminated until 2015—two years after the
filing of this federal action, and three-five years after the bulk of the events at issue.
Defendants repeatedly directed him to report for a light duty position until 2012; at
that time, his disability status had been adjudicated, and as discussed, defendants
were within their rights to inform him that no position was available. There is no
evidence in the record that his termination—or any other action by defendants—
was motivated by Garvey’s grievance, testimony, or federal lawsuit. Thus,
judgment on Garvey’s § 1983 claim is granted in favor of defendants.
31
C. Spoliation Claim
In his cross-motion for summary judgment, Garvey argues that defendants
have engaged in “massive spoliation of evidence.” (Mem. in Opp. at 34.)
Specifically, Garvey asserts that “despite their discovery sanctions,”13 defendants
“disregarded” their discovery obligations despite actual notice, and “engaged in a
rolling production, in delayed fashion.” (Id. at 36.) Specifically, Garvey claims that
defendants failed to search or review information which would likely show that
Sullivan continued to retaliate against Garvey through July 20, 2016, and that
12,413 files were deleted from his computer during the pendency of this case. He
also claims that defendants failed to produce emails surrounding the November
2015 elections, during which Sullivan claimed that Garvey made illegal campaign
contributions to achieve a settlement.
No finding of spoliation was made during the pendency of this action, and in
any case, the spoliation assertion is inadequate on the merits. Garvey fails to
proffer facts supporting the requisite intent for a spoliation claim. He claims that
evidence of intent “is found in the “actions of the Police Department in allowing
Police Chief Sullivan himself to investigate” the disclosure of personal information
In 2014, defendants moved to amend their answer to include five additional defenses. Plaintiff
opposed, alleging, inter alia, bad faith. Magistrate Judge Smith held that defendants’ “delay in
seeking to add the new affirmative defense appears to be the result of a lack of diligence, as opposed
to an intention to vex Plaintiff or the Court.” (ECF No. 41, Decision & Order at 11.) However, she
also noted, inter alia, that “[w]hat suggests bad faith is Defendants’ assertion that Plaintiff would
not be prejudiced because ‘Plaintiff was informed that Defendants would be seeking to amend their
answer to include the additional affirmative defenses before any depositions had been taken, and
nearly three months prior to the close of discovery.” (Id.) As a result, Magistrate Judge Smith
ordered defendants to pay for any additional discovery costs due to the amended answer. (Id. at 41.)
13
32
about Garvey to a local newspaper “when the Chief had personal involvement in the
matter, as the communication with the local news reporter in Spring 2016 appears
to have been the purpose behind why the Chief put his thoughts about Plaintiff in
written form. The Chief assumed control over that investigation and intentionally
limited that investigation to avoid disclosure of his own misconduct in scheming to
leak the preferred story to the press. The Chief thus only documented ‘evidence’
that he wanted discovered.” (ECF No. 230, Pl.’s Reply Mem. of Law in Opp. to
Def.s’ Mots. for Summ. J. and in Further Supp. Of Pl.’s Cross Mot. for Partial
Summ. J. (“Pl.’s Reply Mem.”) at 20-21.) Additionally, Garvey argues, other police
captains severed the police departments with a car wash of which Garvey was a coowner “because they did not want to do any business with any entity in which
Plaintiff could benefit, as owner.” (Id. At 17.) However, Garvey cites no evidence in
support of any of these assertions—they are merely self-serving, conclusory
allegations. This is not enough to meet the substantial burden a plaintiff bears in a
motion for spoliation sanctions.14
Even if there had been deletion of evidence, that does not, on its own, support
a motion for spoliation sanctions. Garvey has not demonstrated that the deleted
information was relevant to his claims in this litigation, and he has not
demonstrated—or even suggested—defendants had the requisite intent.
Accordingly, this application also fails.
The Court notes that plaintiff’s motion for spoliation sanctions appears, in several respects, to be
an effort to introduce new allegations of retaliation in violation of the ADA and the First
Amendment. This is not the appropriate vehicle for those claims.
14
33
D. State Law Claims
Having granted summary judgment in favor of defendants on all of Garvey’s
federal claims, the Court declines to exercise supplemental jurisdiction over his
remaining state law claims.
IV.
CONCLUSION
For the reasons stated above, the Court GRANTS summary judgment in
favor of defendants. The Clerk of Court is directed to enter judgment and terminate
case 13-cv-8305.
SO ORDERED.
Dated:
New York, New York
February 22, 2018
____________________________________
KATHERINE B. FORREST
United States District Judge
34
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