Albertelli v. Monroe County et al
ORDER granting 20 Defendants' Motion for Summary Judgment and dismissing the Plaintiff's complaint in its entirety. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/13/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
MONROE COUNTY, PATRICK O’FLYNN,
SHERIFF, MONROE COUNTY; GARY
CAIOLA, UNDERSHERIFF, MONROE
COUNTY SHERIFF’S DEPARTMENT,
Individually and in His Official
Capacity; & DR. BORRIS SCHMIGEL,
Individually and in His Official
Capacity, and ROBERT BILSKY,
Individually and in His Official
Plaintiff Michelle Albertelli (“Albertelli” or “Plaintiff”),
represented by counsel, filed the instant proceeding against the
named Defendants charging them with, inter alia, violations of the
Americans with Disabilities Act, the New York State Human Rights
Law; and her rights to equal protection, substantive due process,
and procedural due process under the United States Constitution.
The Court granted Defendants’ motion to dismiss all the claims in
deprived her of her right to disability benefits under New York
General Municipal Law § 207-c without procedural due process.
Defendants have filed a motion for summary judgment dismissing
the sole remaining claim in the complaint, and Plaintiff has
opposed the motion. For the reasons that follow, Defendants’ motion
for summary judgment is granted.
On July 15, 2004, Albertelli injured her shoulder while
working as a deputy sheriff assigned to the Monroe County Jail. She
remained out of work for several years and collected benefits
pursuant to New York General Municipal Law (“G.M.L.”) § 207-c.1 See
Affidavit of Ronald Harling (“Harling Aff.”), Jail Superintendent
for the Monroe County Sheriff’s Office (“MCSO”), ¶ 4 (Dkt. #20-15).
Independent Medical Examination (“IME”) to assess her shoulder
injury. See Defs’ Ex. I at 32-33.2 Plaintiff was examined by
Dr. Charles M. Totero, who issued a report on September 16, 2008,
concluding that although Plaintiff was not capable of returning to
regular duty as a deputy jailor, she was capable of restricted duty
work. See Defs’ Ex. B.
Section 207–c of the General Municipal Law deals with the
payment of salary, wages, and medical expenses of, inter alia, a
deputy sheriff injured in the performance of duty. Section 207–c
entitles a deputy sheriff to be paid her salary while disabled if
she was injured during the course of duty. See N.Y. Gen’l Mun. Law
Citations herein to “Defs’ Ex. __” refer to the exhibits
attached to the Declaration of Brian Marianetti, Esq. (Dkt. #25).
Citations to “Pl’s Ex. __” refer to the exhibits contained in the
Appendix to Plaintiff’s Rule 56.1 Statement (Dkt. #22-2).
On October 31, 2008, Dr. Boris M. Schmigel, a contractor with
the MCSO, concluded that Plaintiff was able to work on “limited
duty” and could return to work on November 3, 2008. Id, ¶ 5 (citing
Defs’ Ex. D). Dr. Schmigel placed the following restrictions on
Plaintiff: may work on the computer with proper positioning of
20 pounds; no reaching above shoulders; and no twisting, pushing,
pulling, or climbing. See Defs’ Ex. D.
Also on October 31, 2008, Plaintiff’s treating physician,
Dr. Michael Maloney, notified the MCSO that Albertelli could return
to work as of that day with the following restrictions: “No use of
left arm. Use Right Arm only.” Defs’ Ex. C.
Plaintiff returned to work on November 3, 2008, and apparently
was undergoing re-training in a classroom setting. Although MCSO
employees typically do not enjoy the privilege of choosing which
light duty assignment they would prefer, Defendants accorded that
opportunity to Plaintiff. See Defs’ Ex. J. On November 24, 2008,
Plaintiff and her union representatives met with members of the
MCSO administration, who provided her the following options as far
as work assignments: working any shift inside the control room;
working the catwalk at night during lockdown; or working at the
visitation window during the day shift. Id. Plaintiff chose the
visitation window assignment. Id.
However, issues soon arose with this assignment. Defendants
characterize Plaintiff’s complaints as baseless, while Plaintiff
limitations. In particular, Plaintiff contends that she was placed
in situations where the use of force was necessary and she was not
able to defend herself because she was not carrying a weapon due to
her physical disabilities. See Plaintiff’s Statement of Material
Facts at 14-15, ¶¶ 18-21 (Dkt. #22-1).
Based upon the pay records submitted by Defendants, it appears
that at the end of November 2008, Plaintiff stopped reporting for
work and began collecting G.M.L. § 207-c benefits again.
Plaintiff by telephone to obtain an update as to when she would be
returning to work. See Defs’ Ex. F. However, she ignored their
Major Edward Krenzer directing her to contact her supervisors at
the MCSO, Plaintiff did not comply. Id.
On January 7, 2009, Plaintiff’s attorney provided MCSO’s
counsel with a note indicating that she was completely disabled due
On January 15, 2009, Harling had a letter hand-delivered to
Plaintiff ordering her to appear at a hearing on January 20, 2009,
before Hearing Officer Thomas Vasey (“HO Vasey”), Labor Relations
Manager for Monroe County. Plaintiff was informed that the purpose
of the hearing was to determine whether the MCSO could terminate
her G.M.L. § 207-c benefits based upon her refusal to a work light
duty assignment which she had been deemed capable of performing by
three physicians. See Defs’ Ex. F.
September 16, 2008 report of his IME of Plaintiff. HO Vasey
findings that Plaintiff was capable of working in a light duty
assignment in the MCSO. Accordingly, HO Vasey found, a suspension
appropriate[,]” but he deferred to the MCSO and Monroe County’s
Risk Manager, Robert Bilsky, to make the final determination. See
Defs’ Ex. K.
After the hearing had concluded, Plaintiff’s counsel handdelivered
records, the County had already terminated Plaintiff’s G.M.L.
§ 207-c benefits without a hearing on November 3, 2008, when it
returned Plaintiff to work “based on Dr. Schmigel’s unilateral
uniform.” Defs’ Ex. G (emphasis supplied). Therefore, Plaintiff’s
counsel indicated, Plaintiff would not be attending the hearing.
By letter dated February 3, 2009, Undersheriff Gary Caiola
advised Plaintiff that her failure to report for duty on her next
scheduled work date would result in the immediate termination of
her G.M.L. § 207-c benefits. Plaintiff failed to return to work,
and her G.M.L. § 207-c benefits were terminated.
Summary Judgment Standard
A court must grant a motion for summary judgment if the movant
shows that “there is no genuine issue as to any material fact” and
that “the moving party is entitled to a judgment as a matter of law
.” Fed. R. Civ. P. 56(c). Summary judgment is appropriate “[w]hen
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “An issue of
fact is ‘genuine’ if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Elec. Inspectors,
Inc. v. Vill. of E. Hills, 320 F.3d 110, 117 (2d Cir. 2003)
A fact is “material” when it “‘might affect the outcome
of the suit under the governing law.’” Id.
(quoting Anderson, 477
U.S. at 248). In deciding a summary judgment motion, the court must
determine whether, “after resolving all ambiguities and drawing all
inferences in favor of the non-moving party, a rational juror could
find in favor of that party.” Pinto v. Allstate Ins. Co., 221 F.3d
394, 398 (2d Cir. 2000) (citing Anderson, 477 U.S. at 252).
Section 1983 Claims
Title 42 of the United States Code, Section 1983 “provides an
instrument by which an individual deprived of a federal right by a
Eagleston v. Guido, 41 F.3d 865, 875 (2d Cir. 1994) (citing Parratt
v. Taylor, 451 U.S. 527, 535 (1981)). Section 1983 itself creates
redressing the deprivation of rights established elsewhere. Sykes
v. James, 13 F.3d 515, 519 (2d Cir. 1993), cert. denied, 512 U.S.
1240 (1994). The necessary elements of a claim under 42 U.S.C.
§ 1983 are (1) conduct attributable at least in part to a person
acting under color of state law; and (2) the deprivation, by such
Constitution or laws of the United States. Id. at 875–76 (citing
Dwares v. City of N.Y., 985 F.2d 94, 98 (2d Cir. 1993)).
There is no dispute that Defendants were, at all relevant
times, acting under color of state law. Plaintiff contends that
Defendants deprived her of her property interest in disability
benefits under G.M.L. § 207-c rights without due process of law as
required by the Fourteenth Amendment to the Constitution.
Procedural Due Process
“In procedural due process claims, the deprivation by state
action of a constitutionally protected interest in ‘life, liberty,
unconstitutional is the deprivation of such an interest without due
process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990)
(emphasis in original). The two-step inquiry involved in analyzing
a procedural due process claim asks “(1) whether the plaintiff
possessed a liberty or property interest and, if so, (2) what
process was due before [s]he could be deprived of that interest.”
Ciambriello v. County of Nassau, 292 F.3d 307, 313 (2d Cir. 2002);
see also Bernheim v. Litt, 79 F.3d 318, 322 (2d Cir. 1996).
Defendants concede that Plaintiff’s G.M.L. § 207-c benefits are a
protected property interest, and that she is entitled to notice and
an opportunity to be heard prior to the termination of those
benefits. Matter of Park v. Kapica, 8 N.Y.3d 302, 310 (2007);
accord, e.g., Clark v. DiNapoli, No. 1:09–cv–1037, 2011 WL 4901330,
at *9 (N.D.N.Y. Oct. 14, 2011).
Plaintiff’s clam that she did not receive a hearing before
termination of her G.M.L. § 207-c benefits is fraught with several
factual errors. First, Plaintiff’s assertion that she was returned
to work based upon the “unilateral” decision of Dr. Schmigel on
October 31, 2008, is inaccurate. Two other doctors, including
Plaintiff’s own physician, concluded that she was capable of
returning to restricted duty work. First, Dr. Totero performed an
IME of Plaintiff in September 2008, and concluded that she was
capable of returning to work with restrictions. Second, Plaintiff’s
personal physician, Dr. Maloney, also determined that she could
return to work with restrictions. In short, the determination that
“unilateral” decision of Dr. Schmigel.
Dr. Schmigel issued his opinion that Plaintiff could return to
work. See Affidavit of Michelle Albertelli, ¶ 14 (Dkt. #22-3).
which, in any event, has no bearing on the sole claim pending
before the Court–whether Defendants afforded Plaintiff the process
she was due in connection with the termination of her G.M.L. § 207c benefits.
Inaccuracies abound in Plaintiff’s assertion that her G.M.L.
§ 207-c benefits were unjustly terminated without notice or a
hearing on or about November 3, 2008, when she returned to a light
duty assignment at the MCSO. Defendants have submitted copies of
Plaintiff’s pay records from November 1, 2008, through February 6,
2009. For the period November 1, 2008, to November 14, 2008, the
pay record indicates that Albertelli worked 70 regular hours, which
is consistent with the fact that she returned to light duty work on
November 3, 2008. See Declaration of Brian Marianetti, Esq. &
Exhibits (Plaintiff’s Wage Records) (Dkt. #25-1). For the pay
period November 15, 2008, to November 28, 2008, Plaintiff was paid
for 60 regular hours, and had 8 holiday hours and 15 sick hours.
See Dkt. #25-1. As Defendants point out, Plaintiff would not have
received G.M.L. § 207-c benefits for days that she reported to
work. Instead, she would have been paid regular wages, which is
what occurred in this case.
For the period from November 29, 2008, to December 12, 2008,
Plaintiff’s records indicate that she was paid for 55 regular
hours, 7.5 vacation hours, and 12.5 hours which were categorized as
“WC Sheriff 207c”–i.e., hours for which she received G.M.L. § 207-c
benefits. See Dkt. #25-1. For the period December 13, 2008, to
December 26, 2008, Plaintiff was paid for 42.5 regular hours,
8 holiday hours, and 7 “WC Sheriff 207c” hours. See Dkt. #25-1. For
the period from December 27, 2008, to January 9, 2009, Plaintiff
had zero regular hours. She was paid for 8 holiday hours and
45 sick hours. See Dkt. #25-1. For the period from January 10,
classified as “WC Sheriff 207c” and 8 holiday hours. See Dkt. #206. Finally, from January 24, 2009, to February 6, 2009, Plaintiff
was paid for 52.5 hours classified as “WC Sheriff 207c”. See
demonstrate that Plaintiff received regular wages when she reported
to work, and, quite properly, did not receive G.M.L. § 207-c
likewise demonstrate clearly that once Plaintiff stopped reporting
for work at the end of November 2008, she automatically began
receiving G.M.L. § 207-c benefits again. Those benefits continued
to be paid until February 6, 2009, after HO Vasey issued his
recommendation that disability benefits be discontinued.
In sum, Plaintiff’s claim that her G.M.L. § 207-c benefits
baseless. Plaintiff should not be permitted to “game the system” by
electing not to attend the hearing
regarding the termination of
benefits, of which she had ample notice, and subsequently complain
that she was denied a hearing in violation of her procedural due
process rights. Simply stated, there are no material facts in
dismissal of the complaint.
municipality may not be held liable on a theory of respondeat
superior. Jeffes v. Barnes, 208, F.3d 49, 57 (2d Cir. 2000) (citing
Monell v. Dep’t of Social Servs, 436 U.S. at 694. The municipality
unconstitutional deprivation was undertaken pursuant to
a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s
officers[,] . . . [or] pursuant to governmental “custom”
even though such a custom has not received formal
approval through the body’s official decisionmaking
Monell, 430 U.S. at 690-91; accord, e.g., Jeffes, 208, F.3d at 57.
Liability cannot be imputed to the municipality unless the “injury
was inflicted by [its] ‘lawmakers or by those whose edicts or acts
may fairly be said to represent official policy.’” St. Louis v.
Praprotnik, 485 U.S. 112, 121-22 (1988) (plurality opn.) (quoting
Monell, 436 U.S. at 694).
“Under Second Circuit case law, a prerequisite to municipal
liability under Monell is an underlying constitutional violation by
a state actor.” Henry-Lee v. City of N.Y., 746 F. Supp.2d 546, 567
(S.D.N.Y. 2010). As the Second Circuit has explained, “Monell does
not provide a separate cause of action . . . [but rather] extends
liability to a municipal organization where that organization’s
sanctioned, led to an independent constitutional violation.” Segal
v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006) (emphasis in
original). Once a “district court properly [finds] no underlying
constitutional violation, its decision not to address the municipal
defendants’ liability under Monell [is] entirely correct.” Id.
Here, Plaintiff’s Monell claim cannot withstand Defendants’
motion for summary judgment. Since Monell demands a constitutional
violation by a municipality as a prerequisite, a court granting
constitutional claim must also grant summary judgment on the
associated Monell claim. Segal, 459 F.3d at 219.
Plaintiff’s procedural due process claim, summary judgment also
must be granted as to Plaintiff’s Monell claim. Accord, e.g.,
Henry-Lee, 746 F. Supp.2d at 567.
meretricious attempt to create an issue of fact where none exists
by seizing on a typographical error in Defendants’ Rule 56.1
Statement. The paragraph in question reads, “The MCSO does [sic]
have a practice of depriving individuals of their property interest
Declaration, which correctly states in ¶ 20 that the MCSO does not
have a practice of depriving individuals of their property interest
in 207-c benefits without due process in the form of a hearing.” As
Defendants note, based upon the context, it is clear that the
omission of the word “not” in Defendants’ original Rule 56.1
Statement was a mere typographical error and not an admission of
Monell liability. Defendants have submitted a corrected Rule 56.1
Statement (Dkt. #23-2) to dispel any confusion.
For the foregoing reasons, Defendants’ motion for summary
judgment (Dkt. #20) is granted, and Plaintiff’s complaint (Dkt. #1)
is dismissed in its entirety. The Clerk of the Court is directed to
close this case.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Rochester, New York
September 13, 2012
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