Stalter v. County of Orange et al
Filing
62
OPINION AND ORDER. For the foregoing reasons, the Plaintiff's First Amendment retaliation claim and Monell claim, premised on the right of intimate association, are dismissed. Defendants' motion for summary judgment is GRANTED. The Court re spectfully directs the Clerk to terminate the motion at ECF No. 45, to enter judgment in favor of the Defendants and to terminate the action. So ordered. re: 45 MOTION for Summary Judgment filed by County of Orange, Kenneth Jones, Dennis Barry. (Signed by Judge Nelson Stephen Roman on 11/5/2018) (rjm) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHARLES STALTER,
Plaintiff,
No. 15-cv-5274 (NSR)
-againstCOUNTY OF ORANGE, KENNETH JONES, and
DENNIS BARRY,
OPINION & ORDER
Defendants.
NELSONS. ROMAN, United States District Judge
Plaintiff Charles Stalter ("Plaintiff'') brings this action against Defendants the County of
Orange ("County of Orange"), Undersheriff Kenneth Jones ("Undersheriff Jones"), and Sheriffs
Captain Dennis Barry ("Captain Barry") (collectively, "Defendants") alleging retaliation under
the First Amendment and that his Constitutional right to intimate association was violated.
Presently before the Court is Defendants' motion for summary judgement pursuant to Rule 56 of
the Federal Rules of Civil Procedure (ECF No. 45.) For the following reasons, Defendants'
motion is GRANTED.
BACKGROUND
The following facts are taken from the Complaint, ECF No. 1, Defendants' Rule Local
Civil Rule 56.1 Statement ("Def. Statement"), ECF No. 51, and the Plaintiffs Response and
Counterstatement to Defendants' Local Civil Rule 56.1 Statement ("Plf. Resp."), ECF No. 54,
unless otherwise noted, and are accepted as true for purposes of deciding this motion.
In 2006, the County of Orange hired Plaintiff as a Corrections Officer in the Orange
Ci:mnty JaiF(Plf-;°Resp/1,r 1.) In 2010, Plaintiff was hired as a Deputy Sheriff and successfully
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completed his approximately eighteen-month probationary period. (Plf. Resp. ¶¶ 8-9).
In
about mid-January 2013, Plaintiff began a romantic relationship with another Deputy in the
Sheriff’s Department, Janine Johnson (“Johnson”). (Plf. Resp. ¶12.) Plaintiff was married at the
time to Melissa Stalter (“Melissa”), who was pregnant although Stalter and Melissa were
separated at the time. (Plf. Resp. ¶13.) Johnson and Plaintiff had begun their relationship while
working in a unit known as the “Deadbeats Task Force” where Stalter was a Deputy Investigator,
a position that was senior to Johnson, who worked in the Task Force on a part-time basis. (Plf.
Resp. ¶14.)
Stalter testified that his then mother-in-law, Susan Bodensizek (“Bodensizek”), called
him at 6 a.m. on Feb. 5, 2013, on his County-issued phone (to which only the Sheriff’s Office
Administration and 911 have the number) and told him that she was with Captain Dennis Barry
(“Barry”) and that she was going to ruin Plaintiff’s career. (Michael Sussman Declaration
(“Sussman Decl.”), ECF No. 55, Ex. 3 (“Stalter Dep.”), 87:7-18.
On or about that same day,
Plaintiff initiated a meeting with Barry and told Barry that he was romantically involved with
Johnson. (Plf. Resp. ¶20.) There is a dispute over what was actually said in the meeting and its
purpose. Defendants submit that Stalter told Barry he was in an “inappropriate relationship” with
Johnson and that he wanted to disclose this fact to Barry before the chain of command heard
rumors about the relationship. (Worthy-Spiegl Declaration (“Worthy-Spiegl Decl.”), ECF No.
46, Ex. E (“Barry Dep.”), 12:1-9.) Plaintiff denies this (Stalter Declaration (“Stalter Decl.”),
ECF No. 56 , ¶17) and contends that he simply advised Barry that he was getting a divorce, that
he was romantically interested in Johnson, and that the two had started seeing each other socially
outside of work and planned to take the relationship to the next level. (Stalter Dep. 96:1-101:18.)
2
Plaintiff further states that Barry already knew about the relationship. (Plf. Resp. to Def.
¶22.) Defendants submit that Barry did not ask the Plaintiff any questions about the length or
nature of the relationship. (Plf. Resp. to Def. ¶ 22.) Plaintiff stated Barry asked him if he was
having sex with Johnson. (Plf. Resp. to Def. ¶ 25.) Defendants stated that Barry did not give
Stalter advice, direction, guidance or any orders regarding the relationship. (Stalter Dep. 87:189:25.) In a later personnel complaint that Barry prepared against Stalter, Barry stated that he
told Stalter in the Feb. 5 conversation that Salter could not have a personal/sexual relationship
with another member who is subordinate and the fact that he was married would “further
complicate the issue.” (Sussman Decl. Ex. 6 (“Personnel Complaint”), March 4, 2013, ¶¶2-3.)
Stalter stated that Barry advised him he should limit his contact with Johnson, though he
did not issue any formal directive. (Stalter Decl. ¶17.) Stalter further stated that Barry told him
that, if the two were in love, then he would just change their shifts and the relationship would not
be a problem. (Id.) Stalter said he understood Barry’s comments to mean that he did not want the
relationship to cause any issues at work but that, off duty, what Stalter did in his personal life
was not his concern. (Id.) Barry did not advise Stalter’s direct supervisors in the Deadbeat Task
Force, about the subject of their meeting. (Plf. Resp. ¶27.)
On or about Feb. 15, 2013, Stalter and Johnson were passengers in the back seat of a
vehicle when they rode together to a meeting to and from White Plains. (Plf. Resp. to Def. ¶31.)
Barry was a front seat passenger in the same vehicle. (Plf. Resp. to Def. ¶32.) Barry did not
direct or request that Stalter and Johnson travel in separate vehicles. (Plf. Resp. to Def. ¶34.) On
the return ride back to the office, Barry suspected that Stalter and Johnson were texting messages
to each other while in transit. (Plf. Resp. to Dep. ¶35.)
3
When Barry returned to the office, he accessed the Verizon management account for
Stalter’s County-issued telephone and confirmed that Stalter used the County phone to text
Johnson during the ride. (Plf. Resp. to Dep. ¶37.) Barry testified that he accessed Stalter’s
account to determine whether he exceeded the data limit on his County issued phone. (Sussman
Decl. Ex. 5 (“Barry Dep.”) at 24:1-26:25.) If an employee exceeds the data limit, the user must
reimburse the County for any excess charges. ( Plf. Resp. to Def. ¶39.) Barry did not recall
whether Stalter exceeded the allotted data or whether the Sheriff’s Office ever sought
reimbursement from him. (Barry Dep. 25: 7-16.)
Later on February 15, 2013, Barry inquired why Stalter and Johnson were texting each
other back and forth more than 50 times. (Worthy-Spiegl Decl. Ex. E (“Barry Dep.”) 29:13-19.)
Stalter and Johnson told Barry that they did not believe the texting was inappropriate. (Plf.
Resp.¶44.) Barry did not issue any kind of order to Stalter or Johnson during that meeting.
Stalter submits that Barry then removed Johnson from the Deadbeats project (Stalter Decl. ¶19.)
On Feb. 22, 2013, Plaintiff stated that he told his supervisor and got approval to take a
few hours off to take care of some financial business, assuming that he would return to work that
same day. (Plf. Resp. to Def. ¶55.) The Defendants state that Plaintiff took a Sheriff-issued car
out of County without telling anyone. (Def. Statement ¶¶58-59.) Plaintiff stated that he had
already received approval from Barry to take the car to Johnson’s residence, as Plaintiff had been
staying there pending his separation and divorce. (Stalter Decl. ¶17.)
Plaintiff did not return to work that day and an altercation occurred at Johnson’s
residence between Stalter, his wife, Stalter’s mother-in-law Bodensizek, and Johnson, which
required intervention by law enforcement (Plf. Resp. to Def. ¶67-70.) Stalter was carrying a gun
during the incident. (Plf. Resp. to Def. ¶65.) There is a dispute between the parties about what
4
happened during the incident. (Plf. Resp. ¶65.) The Defendants contend that Stalter punched
Bodensizek in the arm, injuring her arm. (Def. Worthy-Spiegl Decl. Ex. C 147:5-14) Plaintiff
contends that he had to punch her in the arm because she was attempting to reach for his gun and
he thought that she would kill him. (Janine Stalter Declaration 1 (“J. Stalter Decl.”), ECF No. 57,
¶¶25-29; Ex. 3-4.) The State Police arrived and charged Bodensizek with assault against
Johnson. (Plf. Resp. to Def. ¶69.) Thereafter, Bodensizek was issued a restraining order to stay
away from Johnson. (Plf. Resp. to Def. ¶70.) A year later she was eventually found not guilty by
a jury. (Plf. Resp. to Def. ¶71.)
Stalter testified that Bodensizek called Barry during the incident, advised him that she
was at Johnson’s house with her daughter and Stalter, and that a domestic incident had occurred.
(Stalter Dep. 87:7-18- 94:9-14.) Barry had known Bodensizek for nearly a year when the
domestic incident occurred. (Sussman Decl. Ex. 6 ¶8.) Bodensizek was the girlfriend of the
owner of Orange Hollow racquet club and a member of his golf league and had previously had
several conversations with her. (Id.) Barry submits that the only social conversation he had had
with Bodensizek about Stalter was when she mentioned to him that Stalter was her son-in-law,
and Barry told Bodensizek that he was “a good guy” and had just promoted him to investigator.
(Id.)
Plaintiff submits that after receiving the call from Bodensizek, Barry advised Chief
Onorati that there was a domestic incident at Johnson’s residence involving Stalter, his wife and
Bodensizek. (Plf. Resp. ¶72.) Barry advised Defendant Undersheriff Jones that the state police
responded to a domestic incident that occurred at Johnson’s residence involving Orange County
Sheriff’s personnel, Stalter, Johnson, Stalter’s wife and Bodensizek. (Plf. Resp. ¶73.)
1
Janine Johnson has since married Stalter and changed her last name to Stalter.
5
Undersheriff Jones sent internal affairs investigator Barry Gorelick (“Gorelick”) to speak to the
state police. (Plf. Resp. ¶75.) When Gorelick returned to the office, he advised Jones that
Stalter’s pregnant wife and her mother went to Johnson’s apartment, saw Stalter there, a
confrontation ensued regarding Stalter’s romantic affair with Johnson, and Bodensiek and
Johnson began fighting. (Plf. Resp. to Def. ¶75.) Plaintiff denies that Johnson began fighting
with Bodensiek, but stated that Bodensiek physically attacked Johnson. (J. Stalter Decl. ¶25-29;
Ex. 3-4.)
After the Feb. 22 incident, Defendants state that Chief Onerati met with Stalter and
ordered him to stay away from Johnson. (Def. Statement ¶89; Worthy-Spiegl Decl. Ex. D
(Deposition of Kenneth Jones (“Jones Dep.”)) 15:3-5.) Plaintiff submits it was Barry who
formally ordered Stalter to cease all contact with Johnson on Feb. 22, the day of the incident.
(Personnel Complaint ¶6.) Plaintiff points to the personnel complaint that Barry wrote against
Stalter in the aftermath of the Feb. 22 incident. (Plf. Resp. ¶82.) Barry testified that he did not
recall directing the Plaintiff to cease further contact with Johnson. (Barry Dep. 52:13-20.) The
Personnel Complaint notes that Defendant Undersheriff Jones also ordered Stalter and Johnson
to have no contact. (Personnel Complaint ¶6.) Before giving the order, Undersheriff Jones
conferred with Chief Onorati about the domestic incident at Johnson’s house. (Plf. Resp. ¶86.)
They decided it “it was too volatile of a situation to allow it to continue at that time” and thus
decided to order Stalter and Johnson to stay away from each other. (Jones Dep. 38:1-39:1-5.)
Defendants submit that Chief Onerati gave the order to cease contact after the incident. (Jones
Dep. 15:1-25.)
Plaintiff states there is no evidence that Stalter and Johnson’s relationship interfered with
their work performance. (Plf. Resp. to Def ¶86.)
6
On February 23, 2013, Stalter testified that he returned to work and submitted that he
followed up with a formal request for leave given his unexpected absence. (Stalter Decl. ¶20.)
Following the incident, Defendants claim that Barry did not alter Stalter’s employment status or
duties and had no authority to do so. ( Barry Dep. 54:1-15.) However, Plaintiff proffers evidence
showing that Barry ordered both Johnson and Stalter to desk duty, confiscated their weapons and
made Stalter turn in his investigator ID for a regular Deputy ID, in effect altering his duties.
(Personnel Complaint ¶6.)
On Feb. 26, 2013, Stalter sent an email to Sheriff DuBois, relative to the Feb. 5 meeting
with Barry and stated that he was going to take care of the situation with Janine Johnson and
“work it all out.” (Plf. Resp. to Def. ¶28.) Barry and Undersheriff Jones testified that at the
time, there had never been a policy governing the romantic relationships of the members of the
Orange County’s Sheriff’s Office. (Plf. Resp. to Def ¶29.) Furthermore, the Sheriff’s Office at
that time did not have an “anti-fraternization” policy. ( Plf. Resp. to Def ¶30.)
On March 18, 2013, Chief Onorati brought disciplinary charges against Johnson and
Stalter and specifically sought Stalter’s termination. (Compl. ¶¶50-51.) Plaintiff submits that
although Chief Onorati drafted the charges against both Johnson and Stalter, he conferred with
Undersheriff Jones and Barry when doing so. (Sussman Decl. Ex. 1 (Defendants’ Response to
Plaintiff’s Interrogatories ( “Def. Resp. Interrogs.”) No. 5. At 10.)
Johnson was suspended without pay for two weeks and her probationary term was
extended six months. (Plf. Resp. to Def. ¶97.) Johnson did not challenge the disciplinary charges
or the penalty and returned to work on April 6, 2013. (Plf. Resp. to Def. ¶98. ) Chief Onorati
directed Johnson to have no contact with Stalter on or off-duty when she returned to work. (Plf.
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Resp. to Def. ¶99.) Plaintiff submits that he also conferred with his superior, Undersheriff Jones,
about giving the no-contact order. (Jones Dep. 39: 2-5.)
In light of the charges, Plaintiff was specifically directed to return all items issued to him
by the Sheriff’s Office, including but not limited to clothing, pins, tacks and “literally
everything.” (Plf. Resp. to Def. ¶108.) As a result of the charges, and consistent with the
disciplinary procedure identified in the collective bargaining agreement between Stalter’s union
and the County of Orange, Stalter was placed on a 30-day unpaid suspension. (Plf. Resp. to Def.
¶109.)
On April 18, 2013 Barry received an unsolicited text message from Stalter’s ex-wife,
Melissa, that Johnson and Stalter were seeing each other. ( Susman Ex. 9 (“text messages”) at
1). The text message asked, “… do you still need any proof against Janine Johnson?” Barry
replied, “I will take whatever you have.” (Sussman Decl. Ex.9 at 2.)
On May 10, 2013, Johnson admitted in a memo to Barry that she continued to have
contact with the Plaintiff regularly while off-duty. (Plf. Resp. ¶100.) On May 10, 2013, Chief
Onorati terminated Johnson’s probationary employment for failing to complete her probationary
term. (Plf. Resp. to Def. ¶101.) Plaintiff further submits that though the termination letter was
drafted by Onerati, the decision to terminate Johnson’s employment was made by Barry and
Jones. (Id.) Defendants state that Barry did not recommend Johnson’s termination from
employment to the Undersheriff or anyone else. Plaintiff disputes this, pointing to a May 9, 2013
investigative memorandum written by Barry, as evidence that he was the driving force behind
the decision. ((Id.); Sussman Decl. Ex. 8 (“Barry Memorandum, May 9, 2013.”) at 1.) In the
Memorandum, Barry noted the exchange that he had with Stalter’s ex-wife and that she sent him
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an additional text with a photograph of Stalter’s truck parked near Janine Johnson’s driveway.
(Id.) The memorandum makes no mention of Undersheriff Jones.
On September 3, 2013, Chief Onorati brought misconduct charges against Stalter. (Plf.
Resp. to Def. ¶110.)
On September 6, 2013, Johnson commenced an Article 78 proceeding against the County
of Orange and Sheriff Dubois in New York State Supreme Court, alleging that her termination
from employment was arbitrary and capricious and in violation of her right to intimate
association on the basis of her relationship with Stalter. 2 (Plf. Resp. ¶114.) Stalter provided a
sworn affidavit (“Supporting Affidavit”) dated September 6, 2013 in support of Johnson’s
petition. (Plf. Resp. to Def. ¶115.) In his Supporting Affidavit, Stalter gave three examples of
officers in the corrections division only who were married or having an affair with a subordinate
officer. (Plf. Resp. ¶116.)
Barry has no supervisory role or responsibilities with respect to corrections officers or
employees in the corrections division. (Barry Aff., ECF No. 48, ¶¶8-9.) Stalter does not recall
ever speaking with anyone in the command staff about the Supporting Affidavit, including Barry
or Jones. (Plf. Resp. ¶119.) Nor did Plaintiff ever observe Barry or Jones looking at or reviewing
the Affidavit, and Jones never told Stalter that he reviewed it. (Plf. Resp. ¶120.) Stalter is certain
he never spoke with Sheriff DuBois about the Supporting Affidavit. (Plf. Resp. ¶119.)
Defendants maintain that Barry was not aware of and did not discuss the statements or
allegations with any officer or individual in 2013 or 2014. (Plf. Resp. to Def. ¶121.)
2
The Court takes judicial notice that the Second Department affirmed the Supreme Court’s dismissal of
Johnson’s Article 78 proceeding. See Johnson v. City. Of Orange, 138 A.D.3d 850, 852 (2d Dep’t 2016.) appeal
dismissed, 27 N.Y.3d 1120 (2016.)
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Plaintiff submits that Undersheriff Jones’s testimony that “everyone knew” Johnson had
commenced Article 78 proceeding because the papers were served at the Sheriff’s Office and
went up the chain of command, contradicts the notion that Barry was unaware of the suit. (Jones
Dep. 114:1-125.) Furthermore, Plaintiff contends that given the Supporting Affidavit makes
certain allegations against Barry (Stalter Decl. Ex. 2, ¶18), Plaintiff asserts that it is implausible
that Barry was not presented with these allegations by the County’s attorneys or others to
confirm their veracity. (Plf. Resp. ¶121.) This contention, however, is argument rather than
fact.
On September 12, 2013, the March 18, 2013 and September 3, 2013 misconduct charges
against Stalter were resolved in arbitration when Stalter and the County entered into a Stipulation
of Settlement of the Charges, also known as a “Last Chance Agreement.” (Plf. Resp. ¶110.)
Stalter agreed to a 120 day suspension without pay and further agreed that if he engaged in
similar conduct to that alleged in the charges, including failure to follow a direct order, the
penalty if found guilty would be termination. (Plf. Resp. ¶112.)
In December 2013, Stalter returned to work and he was temporarily changed from the Aline to the B-line shift, where he remained for approximately one week before returning to the Aline shift. (Plf. Resp. ¶126.) The decision to temporarily transfer Stalter was not made by
Undersheriff Jones but by a lower-ranking officer. (Plf. Resp. ¶127.) When Plaintiff returned to
work following his 120-day suspension, he was directed to take field training. (Plf. Resp. ¶126.)
The Defendants state that the term “field training” or “FTO” is interchangeably used with the
term “refresher training” and is required of any officer who has been absent from the Sheriff’s
Office for an extended length of time. (Plf. Resp. ¶129.) Plaintiff contests this statement. He
submits that refresher training and FTO are distinct and that he was required to undertake the
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latter, which is training provided to new recruits only. (Stalter Decl. ¶¶26-27; J. Statler Dec. ¶¶68 ) He further submits that refresher training refers to informal training to bring an officer up to
speed after being out an extended period of time. (Id.; Barry Dep. 152:2-9.)
Barry testified that not everyone who comes back from an extended absence is required
to complete FTO. (Barry 152:18-23.) Plaintiff admits there is no policy governing the length of
refresher training. (Plf. ¶130.) Plaintiff further admits that Deputies other than Stalter who have
been absent for a period of time have been required to undergo refresher training. (Plf. Resp.
¶132.) Plaintiff admits that a Deputy on refresher training receives the same wages, leave
accruals and benefits as all other deputies. (Plf. Resp. ¶133.) However, Plaintiff disagrees with
Defendant’s contention that the refresher training was not disciplinary in nature. Plaintiff states
that the refresher training was imposed in a manner that unduly and unnecessarily restricted his
ability to perform his job and served no purpose other than to punish him. (Plf. Resp. ¶133.)
Plaintiff underwent training for approximately a four-month period (Butterfield Affidavit
(“Butterfield Aff.”), ECF No. 49, ¶19). For most of that period he was subject to desk duty.
(cite). Sgt. Butterfield, who is not a Defendant in the lawsuit, stated that this type of training is
uniquely tailored to each individual officer. (Butterfield Aff. ¶18.) Furthermore, Sgt. Butterfield
stated that unlike other deputies who underwent the training, Plaintiff was not required to repeat
the training. (Butterfield Aff. ¶19.)Some Deputies are ordered to repeat refresher training two or
three times. (Butterfield Aff. ¶21.) Defendants Barry and Undersheriff Jones were involved in
the decision to require Plaintiff to complete FTO training. ( Def. Resp. Interrogs. No. 9 at 12.)
On April 8, 2014, Stalter was assigned to the communications desk when a call came in
from another police agency. (Plf. Resp. to Def. ¶144.) Defendant maintains the call was for
backup assistance. (Compl. ¶108.) Plaintiff states the call was for an officer in distress and such
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calls require a more urgent response. (Stalter Decl. ¶32.) Stalter responded to the call and on his
way to the scene his motor vehicle got into a collision. (Plf. Resp. ¶148.) The extent of the
damage is in dispute. Defendants state Stalter hit a guardrail, causing front end damage to the
police department vehicle. (Jones Dep. 101:1-25-102:1-4.) Plaintiff denies this, stating that the
collision only caused superficial scratches to the body of the vehicle near the rear driver-side tire.
(Stalter Decl. ¶ 33.) Defendants state Barry determined Stalter was driving at an unreasonable
rate of speed when he slid through an intersection and crashed into a guardrail on the other side
of the intersection. (Barry Dep. 112:1-25-113:2-24.) Plaintiff denies that he was traveling at an
unreasonable rate of speed and points to Barry’s testimony asserting that he does not remember
what rate of speed Plaintiff was traveling at. (Id.) Section 44 of the Orange County Sheriff’s
Policies and Procedures states that a Deputy Sheriff must operate a vehicle within the limits of
the law and in a safe manner. (Plf. Resp. ¶156.)
On May 12, 2014, Barry brought disciplinary charges against Stalter, charging him with
responding to a call with poor judgment, driving recklessly, leaving the scene of an accident and
damaging a department vehicle. (Plf. Resp. ¶157.) Plaintiff admits that Barry relied upon
information he received from other Deputy Sheriffs, including a written memorandum from
various officers, when he wrote disciplinary charges against Stalter related to the events of April
8, 2014. (Plf. Resp. ¶158.) Barry proposed Stalter’s termination. ( Plf. Resp. ¶159.) Statler was
suspended pending arbitration with an order to return to work on July 30, 2014 (Plf. Resp.¶¶ 166,
68).
On July 30, 2014, Plaintiff resigned from his position in the Sheriff’s Department. Earlier
in the morning, Captain Hamil called Barry while he was on his way to the office and advised
him that Stalter wanted to resign from employment. (Plf. Resp. to Def. ¶170.) Plaintiff states that
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a Captain in the Sheriff’s Department told him he had three minutes to sign a generic resignation
letter and that if he failed to do so, he would be brought up on charges of leaving his post without
authorization. (Stalter Dep. 301:1-25-302:1-25.) Defendants deny that Captain Hamil or anyone
else said that. (Barry Dep. 186:1-25-187:1-25.) Barry and Captain Hamil were involved with
negotiating the terms of Plaintiff’s resignation. (Plf. Resp. to Def. ¶¶182, 185.)
I.
First Amendment Retaliation Claim
“A plaintiff asserting a First Amendment retaliation claim must establish that: ‘(1) his
speech or conduct was protected by the First Amendment; (2) the defendant took an adverse
action against him; and (3) there was a causal connection between this adverse action and the
protected speech.’” Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015) (quoting
Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011)). To sustain a claim, a
plaintiff must show that a reasonable employee would have found the retaliatory action to be
“materially adverse.” Burlington Northern v. Santa Fe Railway, 548 U.S. 3, 68, 126 S. Ct. 2406
(2006).
Plaintiff argues that he was subject to a number of adverse actions in retaliation for
submitting his Supporting Affidavit in Johnson’s Article 78 proceeding. However, Plaintiff is
unable to proffer sufficient evidence to sustain a retaliation claim as a matter of law.
Plaintiff has not demonstrated that his refresher training was adverse or caused by his
submission of the Supporting Affidavit. Furthermore, Plaintiff cannot prove that his refresher
training was wrongful or subjected him to more onerous requirements than other deputies. Both
Plaintiff and Defendant focus on whether Plaintiff’s training was similar to the training of other
deputies with his experience level. But that focus ignores a key point: the training deputies
receive is not one-size-fits-all. Sgt. Butterfield, who is not a Defendant in the lawsuit and
responsible for deputy training, testified that deputy refresher training was uniquely tailored to
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individual officers. Plaintiff does not proffer specific facts showing that the Sheriff’s Department
must give the exact same training to everyone. In fact, Plaintiff admits that there is no policy
governing the length of refresher training. The record is void of any evidence that his refresher
training was more onerous than any others in terms of length or intensity.
Plaintiff admits that he received the same wages, leave accruals and benefits during his
four month training period and was not treated adversely with regards to compensation. But
Plaintiff argues that because he was effectively relegated to desk duty during his training period,
his opportunities for advancement were materially impacted. It is true that the law recognizes
that a lateral transfer that does not result in a reduction in pay or benefits may be an adverse
employment action so long as the transfer alters the terms and conditions of the plaintiff's
employment in a materially negative way. See De la Cruz v. New York City Human Resources
Admin. Dep’t of Social Servs., 82 F.3d. 16, 21 (2d Cir. 1996) (transfer to “less prestigious” unit
of social services department with reduced opportunities for professional growth was adverse
employment action); Rodriguez v. Board of Educ., 620 F. 2d. 362, 366 (2d. Cir. 1980) (transfer
of experienced middle school art teacher to elementary school constituted adverse action).
However, this Court finds Plaintiff’s argument that four months of desk during his
retraining period was a materially adverse action lacks merit. While he may have felt slighted by
the retraining, hurt feelings are not tantamount to an adverse action. For an action to be
materially adverse, it “must be more disruptive than a mere inconvenience or an alteration of job
responsibilities” and “might be indicated by a termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices ... unique to a particular situation.” (Id.)
(internal quotation and citation omitted). Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466
14
(2d Cir.1997). Stalter cannot show his Affidavit caused Defendants to take a materially adverse
action against him nor can he show he suffered a cognizable injury by undergoing a four month
training period in the circumstances of this case and as required of all officers who are out on
leave.
Furthermore, Plaintiff’s argument that Defendant Barry would not have taken the same
action against the Plaintiff but for the Supporting Affidavit does not sustain the retaliation claim.
Plaintiff argues that because Defendant Barry had not read the specific terms of the “Last Chance
Agreement” between the Plaintiff and the Sheriff’s Department, it shows that Barry would not
necessarily have proposed termination. However, the fact that Barry did not read the Last Chance
Agreement line by line does not necessarily mean he was not generally aware that the Plaintiff
had two prior misconduct charges against him. Barry could have proposed Stalter’s termination
regardless of whether he knew the specifics of the “Last Chance” agreement.
In any event, Plaintiff’s argument that he was coerced into resigning (or constructively
discharged) fails as a matter of law. Defendants proffered charges against Plaintiff pursuant to
the “Last Chance Agreement,” which was a stipulation pursuant to a settlement provided that
Defendant would be terminated if he committed another offense. In that agreement, Plaintiff
knowingly and voluntarily waived his right to challenge his termination by pursuing claims like
the ones he filed in this Court. Courts in our Circuit have upheld these agreements as valid and
enforceable where the waiver is knowing and voluntary. Taddeo v. County of Niagara WL
980260 at *7 (W.D.N.Y. March 15, 2010); Kwok v. New York City Transit Authority, WL 82986
at *5 (W.D.N.Y. July 23, 2001); Knight v. State of Conn. WL 306447 at *7 (D.Conn. February
22, 2000). Therefore, any argument that he was wrongly terminated or retaliated against is not
supported by the facts.
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II.
Monell Liability Claim
Plaintiff argues that his due process rights to intimate association were violated and that
the County should be held liable under Monell v. New York City Dept. of Social Services, 436
U.S. 658 (1978).
The Constitution protects individual rights of privacy and intimate association. Roberts v.
United States Jaycees 468 U.S. 609, 617-18, 104 S.Ct. 3244 (1984). (“The Court has long
recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford
the formation and preservation of certain kinds of highly personal relationships a substantial
measure of sanctuary from unjustified interference by the State.”) In Roberts, the Court
articulated the kinds of relationships afforded this type of Constitutional protection. 3 The Court
stated relationships “that attend to the creation and sustenance of a family” were protected. (Id. at
619-20.) “Family relationships, by their nature, involve deep attachments and commitments to
the necessarily few other individuals with whom one shares not only a special community of
thoughts, experiences and beliefs but also distinctively personal aspects of one’s life.” (Id.)
However, the Supreme Court has since declined to elaborate on whether adulterous
relationships are constitutionally protected under the umbrella of a right to intimate association.
City of North Muskegon v. Briggs, 473 U.S. 909, 105 S.Ct. 3535 (1985)( White, J., dissenting
from denial of certiorari)(observing a disagreement among federal courts “over whether extramarital sexual activity, including allegedly unlawful adulterous activity is constitutionally
3
The Roberts court rooted the right of intimate association in both the First Amendment and the Fourteenth
Amendment’s due process clause. Subsequently, there has been a question as to the Constitutional source of the
right – whether it is the First or Fourteenth Amendment. Adler v. Pataki, 185 F.3d. 35, 42 (2d Cir. 1999) (“The
source of the intimate association right has not been authoritatively determined.”) However, in Adler, the Second
Circuit suggested that courts have generally analyzed claims that some adverse state action burdens an individual
marital relationship under a First Amendment doctrine of marital association, as opposed to broader regulations
affecting a class of burdened persons, which have been analyzed under equal protection and due process clauses. (Id.
43.) As such, we will analyze Plaintiff’s claims under the First Amendment.
16
protected in a way that forbids public employers to discipline employees who engage in such
activity.”). In Patel v. Searles, 305 F.3d. 130, 138-139 (2d. Cir. 2002), the court acknowledged
that the plaintiff had a clear right to intimate association that extended to his family relationships
but the Court said it still had to determine, in the “specific factual context, whether defendants’
actions violated a clearly established ‘constitutional right [] of which a reasonable person would
have known.’ (Id.)(citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.2727 (1982)). In
Bates v. Bigger, 56 Fed.Appx.527, 529 (2d. Cir. 2002), a case with similar facts as those here
and involving the same Orange County Sheriff’s Department, the Second Circuit affirmed in a
summary order the District’s Court’s conclusion that it was inconclusive whether the right of
intimate association protected an extramarital affair (noting that plaintiffs’ association was not
the kind that ‘attend to the creation and sustenance of a family’ (quoting Roberts, 468 U.S. at
620, 104 S.Ct. 3244 ) but rather, “plaintiffs’ relationship was of the sort that serve to break
families apart ...”(Id. 170)).
Here, given that Plaintiff was involved in an extramarital affair, it is not clear that the
Defendants’ actions violated a “clearly established” Constitutional right. However, it was not
the adulterous relationship alone that was the only matter of concern here. Plaintiff and his
paramour were involved in a domestic dispute with his wife and mother-in-law, where the state
police had to be called. Plaintiff allegedly got into a physical altercation with his mother-in-law
while in possession of his holstered gun. Plaintiff purportedly punched his mother-in-law’s arm,
although Plaintiff contends that he did this to prevent her from reaching for his gun. Whether
Plaintiff or Bodensizek was the instigator of the incident is irrelevant. Chief Onerati issued the
“no-contact” order in an effort to calm a tense situation and Plaintiff did not follow that order.
17
The Sheriff’s Department Code of Conduct specifically states: “Employees shall
conduct themselves at all times, both on and off duty, in such a manner as to reflect most
favorably on the Orange County Sheriff’s Office. Conduct unbecoming of an employee shall
include that which bring the Orange County Sheriff’s Office into disrepute or reflects discredit
upon the employee as an employee of this office or that which impairs the operation or efficiency
of the Office or employee.” (Worthy-Spiegl Decl. Ex. H at 1.) It is not beyond reason to
determine that Plaintiff’s involvement in the domestic incident that turned physical, while
someone reached for his gun, brings disrepute to the Office and was unbecoming of the Plaintiff.
While numerous Courts have acknowledged a police officer’s right to privacy regarding his
sexual affairs, they also maintain that when his personal sexual activities and living arrangements
impairs his job performance, the police department has a legitimate concern. Briggs v. North
Muskegon Police Dept., 563 F. Supp. (W.D. Michigan May 5, 1983) aff'd 746 F.2d. 1475 (6th Cir.
1984); Shuman v. City of Philadelphia, 470 F. Supp. 449, 459 (April 18, 1979) (“Conceding that the
police Department has “an interest and may legitimately investigate some areas of personal, sexual
activities engaged in by its employees where those activities impact upon job performance.”).
Given that there was an ongoing internal affairs investigation of the incident, Plaintiff’s
privacy interest was lessened. Adler, 185 F.3d 35 at 44 (1999) (“Recognizing that in cases where a
public employee is discharged because of the allegedly disruptive effect of his own, normally
protected speech, courts are required to seek ‘a balance between the interests of the [employee], as a
citizen, in commenting upon matters of public concern and the interest of the State, as an employer,
in promoting the efficiency of public services it performs through its employees.’” (quoting
Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731 (1968))); Shawgo v. Spradlin,
701 F.2d. 470, 483 (1983) (“… police officers enjoy no constitutionally protected right to privacy
18
against undercover and other investigations of their violations of departmental regulations …”);
Arellanes v. Civil Services Com, 41 Cal. App. 4th 1208, 1218 (1995)(asserting that police
departments normally may determine what kind of conduct comes within scope of rule concerning
associations detrimental to image of the department).
For purposes of establishing liability, the question is whether a reasonable person would
have known that Defendants’ actions violated a clearly established constitutional right. Given the
context here, it was not unreasonable for Defendants to issue the no contact order. The personal
drama in Plaintiff’s life was starting to spill over into the public eye and suggests that his private,
off-duty living arrangements was affecting the performance of his duties. When state police are
called to a domestic incident, it becomes a matter of concern for the Sheriff’s Department.
Perhaps the Sheriff’s Department could have issued a less intrusive and more narrowly tailored
“no contact” order, one, which ordered the Deputies to refrain from contact on the job only or
discussing an internal investigation of the matter, as opposed to a total prohibition on all contact.
But, as our Supreme Court has stated about an employee’s First Amendment rights, “a federal
court is not the appropriate forum in which to review the wisdom of a personnel decision taken
by a public agency allegedly in reaction to the employee’s behavior.” Connic v. Myers, 461 U.S.
138, 147, 103 S.Ct. 1684 (1983). Under Connic, a court gives “wide discretion and control over
the management of its personnel and internal affairs. This includes the prerogative to remove
employees whose conduct hinders efficient operation and to do so with dispatch.” Id. at
151. Here, there was nothing objectively unreasonable about the “no contact” order given that
an ongoing internal affairs investigation was underway, the situation had become heated and
seeped into public view, and had the potential to cause further damage to the reputation of the
19
County Sheriff’s Department given that two Sheriff’s deputies were involved in the domestic
incident.
Further, it is well settled that “[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft
v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937 (2009). A municipal entity can only be held
vicariously liable under § 1983 if the “execution of a government’s policy or custom . . . inflicts
the injury . . . .” Monell v. Dep’t of Social Servs. of the City of N.Y., 436 U.S. 658, 694 (1978).
Thus, Monell dictates that any § 1983 claim against a municipal entity must be premised on the
theory that the municipal actor’s allegedly unconstitutional “acts were performed pursuant to a
municipal policy or custom.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004);
see generally Monell, 436 U.S. at 692–94.
Courts in this Circuit apply a two prong test for § 1983 claims brought against a
municipal entity. Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (internal
citation omitted). First, the plaintiff must “prove the existence of a municipal policy or custom
in order to show that the municipality took some action that caused his injuries beyond merely
employing the misbehaving officer.” Id. “Second, the plaintiff must establish a causal
connection—an ‘affirmative link’—between the policy and the deprivation of his constitutional
rights.” Id. (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 836, n.8 (1985)).
To satisfy the first requirement, a plaintiff must allege the existence of:
(1) a formal policy which is officially endorsed by the municipality; (2) actions
taken or decisions made by government officials responsible for establishing
municipal policies which caused the alleged violation of the plaintiff’s civil rights;
(3) a practice so persistent and widespread that it constitutes a custom or usage and
implies the constructive knowledge of policy-making officials; or (4) a failure by
official policy-makers to properly train or supervise subordinates to such an extent
that it amounts to deliberate indifference to the rights of those with whom municipal
employees will come into contact.
20
Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996) (internal citations and quotation
marks omitted); see also Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y.
2010) (quoting Moray and updating citations to cases). A plaintiff is not required to identify an
express rule or regulation in order to establish a Monell claim, and a court may infer a municipal
policy from acts or omissions of the municipality’s policy makers, 4 but in the absence of other
evidence, a “single incident of errant behavior is an insufficient basis for finding that a municipal
policy caused plaintiff’s injury.” Sarus v. Rotundo, 831 F.2d 397, 402–03 (2d Cir. 1987); see
also DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (“[A] single incident alleged in a complaint,
especially if it involved only actors below the policy-making level, does not suffice to show a
municipal policy.”) (quoting Ricciuti v. N.Y. City Transit Auth., 941 F.2d 119, 123 (2d Cir.
1991)) (internal quotation marks omitted); see also City of St. Louis v. Praprotnik, 485 U.S. 112,
123, 125 (1988) (plurality opinion) (explaining that only municipal officials with “final
policymaking authority” concerning particular activities giving rise to plaintiff’s claims “may by
their actions subject the government to § 1983 liability”) (internal citation omitted). “In the end,
therefore, a plaintiff must demonstrate that, through its deliberate conduct, the municipality was
the moving force behind the alleged injury.” Hayes, 853 F. Supp. 2d at 439 (quoting Roe v. City
of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008)) (internal quotation marks omitted).
Plaintiff contends that Sheriff Dubois delegated all final, disciplinary authority to
Defendant Jones, and that Jones’s actions constitute municipal policy. Authority to make
municipal policy may be granted either directly by legislative enactment or may be delegated by
an official who possesses such authority. Pembaur, 475 U.S. at 483. The official need not
4
In Pembaur v. City of Cincinnati, the Supreme Court stated that municipal liability under § 1983 may be
established by even the single act of a municipal policymaker whose acts represent official policy. 475 U.S. 469,
480 (1986).
21
possess broad, policymaking authority; rather, the inquiry for the court is whether the official
“had final policymaking authority in the particular area involved.” Jeffes v. Barnes, 208 F.3d 49,
57 (2d Cir. 2000) (citing Jett, 491 U.S. at 737; Praprotnik, 485 U.S. at 123–25).
The plaintiff in Baity asserted a nearly identical theory of Monell liability. In Baity,
Plaintiff’s counsel “argued that [the sheriff] delegated his hiring authority to the undersheriff [],
thus making [the undersheriff] the official policymaker for the County with respect to
employment policy in the Sheriff’s Office and rendering [the undersheriff] the ‘policymaker’ for
Monell purposes.” 51 F. Supp. 3d at 441–42. Judge Karas rejected this argument on a number
of grounds: (1) there was no evidence in the record to support the plaintiff’s theory; (2) the
plaintiff failed to provide the court with any supporting case law; and (3) the plaintiff did not
name the undersheriff as a defendant. Id. at 442.
Here, the Complaint alleges that Sheriff DuBois “delegated all final policy-making
authority as to disciplinary matters to defendant Jones.” (Compl. ¶¶ 160, 173.) That assertion is
bolstered by the allegation that Captain Hamil told Plaintiff he would have to seek approval of
Plaintiff’s proposed resignation letter from the Number 2, which Plaintiff contends is a reference
to Defendant Jones. (Id. ¶ 136.)
At the Motion to Dismiss stage of this case, the Court cautioned Plaintiff that as the case
progressed, to prove such a claim, Plaintiff would have to marshal sufficient evidence that
Sheriff Dubois delegated final policymaking authority about disciplinary matters to Defendant
Undersheriff Jones. The Court said that Sheriff Dubois’s non-involvement in Plaintiff’s
termination, absent additional evidence of delegation of policymaking authority to Defendant
Undersheriff Jones, cannot substantiate Monell liability. The Plaintiff argues that the record
demonstrates the Plaintiff delegated all day-to-day responsibility for managing the Department’s
22
operations to Undersheriff Jones. The Plaintiff points to evidence that Undersheriff Jones
testified he did not have to go to the Sheriff before deciding to approve or deny personnel
decisions. In fact, his testimony was not exactly as Plaintiff suggests. Undersheriff Jones stated
that there was no requirement that he brief the Sheriff about personnel decisions but that he did
that on his own initiative, as a matter of course.
But the key question is not what Undersheriff Jones believed his authority was at the
time, but rather what was the actual scope of Jones’s authority as a matter of law. “An official
has final authority if his decisions, at the time they are made, for practical or legal reasons
constitute the municipality’s final decisions.” Rookard v. Health and Hospitals Corp. 710 F.2d
41, 46 (2d. Cir. 1983). To meet his burden, Plaintiff must point to evidentiary proof that an
official’s scope of employment and his role within the municipal organization reflects their
“policy-making authority.” Plaintiff asserts that Undersheriff Jones handled all the day-to-day
operations with respect to personnel decisions. However, the discretion to hire and fire
employees does not necessarily mean one has the final policy-making authority for establishing
county employment policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292 (1986).
Furthermore, even if there was sufficient evidence that Sheriff Dubois informally delegated
formal or informal policy-making authority to Undersheriff Jones, there is no evidence that
Undersheriff Jones was violating Plaintiff’s Constitutional rights or that his right to intimate
association was clear in the context.
Furthermore the Second Circuit has clearly held that “isolated acts…by nonpolicymaking municipal employees are generally not sufficient to demonstrate a municipal
custom, policy or usage that would justify municipal liability under §1983.” Jone v. Town of East
Haven, 691 F.3d 72,81 (2012) (holding that evidence of two or three instances of excessive force
23
over several years fell far short of showing a municipal policy or custom that showed deliberate
indifference to the abuse of the Constitutional rights of black people); see also, Carmichael v.
City of New York, 34 F.Supp.3d. 252,263 (2014) (Holding that the plaintiff failed to produce
evidence sufficient to show that the NYPD had a widespread and persistent but unspoken
practice of failing to conduct immediate searches for African-American persons reported
missing).
In short, Plaintiff has failed to show that the "no contact" order was clearly
unconstitutional or that it was practice that was widespread. For this reason, his Monell claim
fails.
CONCLUSION
For the foregoing reasons, the Plaintiffs First Amendment retaliation claim and Monell
claim, premised on the right of intimate association, are dismissed. Defendants' motion for
summary judgment is GRANTED. The Court respectfully directs the Clerk to terminate the
motion at ECF No. 45, to enter judgment in favor of the Defendants and to terminate the action.
Dated:
November
2018
White Plains, New York
SO ORDERED:
NELSON S. ROMAN
United States District Judge
24
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