O'Brien v Incorporated Vil. of Val. Stream of the State of N.Y.
Annotate this CaseDecided on April 17, 2012
Supreme Court, Nassau County
Kyle O'Brien, Plaintiff,
against
Incorporated Village of Valley Stream Of the State of New York, FIRE COUNCIL OF THE VALLEY STREAM FIRE DEPARTMENT a/k/a VALLEY STREAM FIRE COUNCIL, VALLEY STREAM FIRE DEPARTMENT, INCORPORATED VILLAGE OF VALLEY STREAM SEXUAL HARASSMENT COMMITTEE, PATRICK M. McKENNA, ANTONIO NUZZI, KEVIN R. CALHOUN, SR. and TRACEY CALHOUN, Defendants.
020265/09
Appearances:
Counsel for the Plaintiff:
Law Offices of Judith Reardon
Judith Reardon, Esq.
20 Woodsbridge Road, 2nd Fl.
Katonah, New York 10536
(914) 666-5566
Counsel for the Defendants:
Ryan, Brennan & Donnelly LLP
John M. Donnelly, Esq.
131 Tulip Avenue
Floral Park, NY 11001
(516) 328-1100
Randy Sue Marber, J.
Papers Submitted:
[*2]
Notice of Motion (Mot. Seq. 01).................x
Affirmation in Opposition...........................x
Reply............................................................x
Notice of Motion (Mot. Seq. 02).................x
Affidavit.......................................................x
Memorandum of Law...................................x
Affirmation in Opposition............................x
Memorandum of Law...................................x
Reply Affirmation........................................x
Sur-Reply Affirmation.................................x
Upon the foregoing papers, the motion (Mot. Seq. 01) by the attorney for the Plaintiff seeking an order pursuant to CPLR § 3212 granting the Plaintiff summary judgment against the Defendants and the motion (Mot. Seq. 02) by the attorneys for the Defendants seeking an order pursuant to CPLR § 3212 dismissing the Plaintiff's complaint are determined as hereinafter set forth.
The Plaintiff, Kyle O'Brien and the Defendant, Tracey Calhoun, were volunteer firefighters with the Defendant, Valley Stream Fire Department (VSFD). On or about March 11, 2008, the Defendant, Kevin R. Calhoun, Sr., Tracey's father and also a VSFD firefighter (as well as an VSFD officer) filed a complaint alleging gender harassment on behalf of his daughter. Due to a byzantine relationship between some of the individual firefighter litigants that gave the appearance of impropriety, the Incorporated Village of Valley Stream Sexual Harassment Committee (the Committee), rather than the Valley Stream Fire Council, conducted a fact-finding investigation and made recommendations to the Valley Stream Fire Council.
The Committee made the following recommendations:
This Committee does not have the jurisdiction to order or impose either sanctions or remedial action. Such responsibility rests with the Fire Council. However, in fashioning an appropriate remedy, the Committee recommends that the Fire Council impose disciplinary action and curative steps to insure that discriminatory conduct does not occur in the future. The Committee suggests the following:
1. Appropriate disciplinary action should be taken against Kyle O'Brien for his insensitive and excessive hazing of Ms. Calhoun. The severity of the penalty should be left to the prudent judgment of the Fire Council.
2. The Company should issue a formal written apology to Ms. Calhoun which shall include an invitation to rejoin the Company.
3. The Department should undertake a comprehensive review of its recruitment policies to enlist more female members to the Department. The Department and each company should also examine its hazing practices towards new members to assess 1) whether it is consistent with a modern, professional fire department and 2) whether its potential abuse impedes a cohesive and collegial membership of firefighters from diverse backgrounds.
By letter dated September 18, 2008 to the Plaintiff, the Fire Council suspended the Plaintiff [*3]for 15 days. The letter stated that:
The Fire Council, at the September 16, 2008 meeting, suspended you from the Valley Stream Fire Department for 15 days commencing at 00:01 on October 1, 2008 for your acts of harassment against Firefighter Tracey Calhoun. You have also been placed on probation for 1 year commencing on the same time and date as your suspension. Should, during your probation period you commit acts specific to any type of harassment, formal charges will be brought against you and if you are found guilty of those charges you will face termination from the Department. Lastly, within 90 days of the start of your suspension you are required to participate and complete a sensitivity/diversity training class. This training must be done at your expense.
The Plaintiff was also a part-time employee with the Incorporated Village of Valley Stream (the Village). In September 2009, the Plaintiff was laid off from his part-time job with the Village.
The complaint in the within action consisted of 100 decretal paragraphs and 19 pages. The complaint alleges the Plaintiff's lay-off from his part-time position from the Village was related to and effected by the 15-day suspension he received from the Fire Department.
In paragraph 81a. of the complaint the Plaintiff alleges the determination by the Committee and the disciplinary action by the Fire Council of the Fire Department was not sustained by substantial evidence as provided and required by CPLR § 7803 (3).
Indubitably, counsel recognizes that were this an Article 78 proceeding the action would be summarily dismissed based on CPLR § 217 (1) for failing to commence the action within four months of the determination.
To get around the statute of limitations, the Plaintiff's attorney brings the within plenary action and asserts a claim against the Defendants pursuant to 42 U.S.C. § 1983 and General Municipal Law § 209-l for money damages allegedly sustained as a result of the alleged denial of "due process." The Plaintiff is also seeking damages for "loss of employment."
General Municipal Law § 209-l authorizes fire departments to make regulations governing removal of volunteer officers and volunteer members of fire departments and member companies. However, it only grants the right to a hearing upon written notice of charges before being removed on the ground of incompetence or misconduct. See Matter of Armstrong v. Centerville Fire Co., 83 NY2d 937 (1994). However, the legislature did not intend to interfere with the discipline in connection with the internal affairs of a fire department. Matter of Armstrong v. Centerville Fire Co., supra. A hearing was not necessary and General Municipal Law § 209-l does not apply for the discipline imposed by the Fire Department. See Leahy v. Jordan, 207 AD2d 385 (2nd Dept. 1994). The Fire Department was aware that had it intended to initiate a termination proceeding, "formal charges" would have had to be brought against the Plaintiff. Having missed the statute of limitations period in which to bring an Article 78 proceeding to vacate the determination of the Fire Department, the Plaintiff commenced the within plenary action for "loss of wages" or "wrongful termination" arguing that the Plaintiff should not have been suspended without a hearing. The proceeding pursuant to CPLR Article 78 should have been commenced within four months after the determination to suspend became final and binding. See CPLR § 217; Matter of Rapoli v. Village of Red Hook, 29 AD3d 1007 (2nd Dept. 2006).
The Court will now address the Plaintiff's claim that he was terminated from his part-time position with the Village as a result of the 15-day suspension by the Village Fire Department. [*4]
Counsel entered into a "So-ordered" Stipulation (Marber, J.) dated November 22, 2011, wherein it was agreed that a further deposition of the Village Defendant by its Human Resources Director, Alison Walsh, would be held. The Village made a prima facie showing of entitlement to summary judgment (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegard v. New York University Medical Center, 64 NY2d 851 [1985]) by demonstrating that the Plaintiff's lay-off from the Village in September 2009 was not related to his suspension from the Fire Department the previous year, but rather was the result of cost cutting by the Village. In an affidavit sworn to September 23, 2011, Alison Walsh explained the process followed in September 2009 "to streamline the workforce for cost efficiency purposes". Ms. Walsh explained that each of the four (4) Village Parks Department supervisors were instructed to evaluate the part-time and seasonal employees on various criteria determined to be appropriate for continued employment with the Village. The written evaluation sheets completed by the four (4) supervisors in September 2009 were attached as Exhibits "A" - "D" to Ms. Walsh's affidavit. In addition, a summary of the raw scores given to the subject employees by each supervisor, together with each employees' average score, is annexed as Exhibit "E" to Ms. Walsh's affidavit. The summary established that the Plaintiff, Kyle O'Brien's average score ranged amongst the lowest of all employees evaluated in 2009. The last exhibit attached to Ms. Walsh's affidavit is a copy of the September 25, 2009 Memorandum from Village Mayor Edward W. Cahill listing which of the evaluated employees would be offered further employment by the Village. Due to his low score, the Plaintiff was not included on this list. Nor is any employee that scored lower than the Plaintiff on the list.
In opposition to the Defendants' motion for summary judgment as a whole and Ms. Walsh's affidavit in particular, the Plaintiff argues that "almost half of those (employees retained) scored lower the Plaintiff or were not evaluated. See Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment at p. 6). To support this contention, counsel for the Plaintiff subsequently annexed as an exhibit to her Reply Affirmation copies of the results of employee evaluations which she claimed refuted the Village's position. See Reply Affirmation of Judith Reardon, dated November 14, 2011 at Exhibit "D." The Village argued that the results relied upon by the Plaintiff and annexed to counsel's Reply Affirmation stemmed from evaluations performed of the seasonal and part-time employees of the Village Parks Department in 2008, not 2009. The Plaintiff was laid off following evaluations in 2009. The documents stemming from the 2009 evaluation process do not indicate that any employees that scored lower than the Plaintiff were retained. To resolve any confusion resulting from the separate evaluation processes, it was agreed amongst counsel and the Court that Ms. Walsh would be produced for a deposition on December 21, 2011. Ms. Walsh did, in fact, appear for such a deposition on December 21, 2011. Ms. Walsh's deposition testimony is completely consistent with her September 23, 2011 affidavit detailing the 2009 evaluation process. Ms. Walsh testified that the evaluation sheets annexed to her affidavit as Exhibits "A" - "D" were the sheets "prepared for the evaluation for the summer of 2009." As for why these evaluation forms are not dated, Ms. Walsh explained that she "forgot to put a line for the date." Nevertheless, given that Ms. Walsh prepared the evaluation forms at issue, specifically for the 2009 evaluation process, she readily identified those forms. Ms. Walsh further testified that the 2009 evaluation forms were distributed to the four (4) Parks Department supervisors so that each supervisor could evaluate the employees. The supervisors were instructed to objectively complete the evaluation forms. Upon receipt of the completed evaluation forms, Ms. Walsh prepared a "tally [*5]sheet" summarizing the scores provided by the four supervisors. A review of the "tally sheet" reveals that the Plaintiff ranked among the lowest of all employees evaluated. Ms. Walsh testified that the determinations as to which employees were to be laid off were based solely upon the evaluations set forth in her affidavit. The Plaintiff's status within the Valley Stream Fire District was not considered.
The Village has demonstrated there is no merit to Plaintiff's claims that he was laid off from his part-time position with the Village in September 2009 due to his status with or as a result of the 15 day suspension from the Fire Department in September 2008. The record in this matter is devoid of any evidence establishing a nexus between these two (2) events. The record in this matter contains unrefuted evidence (i.e., the 2009 evaluations) that the Plaintiff and several other employees were laid off in an effort to save money for the Village. More importantly, the determination as to which employees would be laid off was based upon objective evaluations of their job performance. The Plaintiff admitted that he was aware of both the evaluation process being performed of part-time employees of the Village's Parks Department in the Summer of 2009 and the purpose, to wit: to determine which employees would be offered "further employment." The Plaintiff also acknowledged that none of his co-workers or supervisors ever offered any indication that they knew of the claims of Tracey Calhoun that resulted in his suspension from the Fire Department. In view of the Plaintiff's acknowledgments, coupled with the evidence substantiating the evaluation process that resulted in the simultaneous lay-offs of several employees, the Plaintiff's allegations of wrongful termination are conclusory and speculative and without any basis in fact. Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to raise a triable issue of fact. Banco Popular North America v. Victory Taxi Management, Inc., 1 NY3d 381 (2004); see Billordo v. EP Realty Associated, 300 AD2d 523 (2nd Dept. 2002).
Accordingly, it is hereby
ORDERED, that the motion by the Plaintiff (Mot. Seq. 01), seeking an order pursuant to CPLR § 3212 granting the Plaintiff summary judgment is DENIED; and it is further
ORDERED, that the motion by the Defendants (Mot. Seq. 02) seeking an order pursuant to CPLR § 3212, granting summary judgment dismissing the Plaintiff's complaint is GRANTED.
This decision constitutes the order of the Court.
DATED:Mineola, New York
April 17, 2012
________________________________
Hon. Randy Sue Marber, J.S.C.
XXX
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