Baross v. Greenlawn Volunteer Fire Dep't, Inc.
| Decision Date | 10 March 2021 |
| Docket Number | 16-CV-4805(JS)(SIL) |
| Parties | JOAN BAROSS, as Executor of the Estate of, and on behalf of, John F. BaRoss, Sr., Plaintiff, v. GREENLAWN VOLUNTEER FIRE DEPARTMENT, INC., KURT ALLEN, STAN SADOWSKI, SCOTT WARYOLD, and LEE JOSEPH, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES
For Plaintiff:
Scott Michael Mishkin, Esq.
Paul Carruthers, Esq.
Scott Michael Miskin, P.C.
One Suffolk Square, Suite 240
Islandia, New York 11749
For Defendants:
Gregory Bertram Reilly, Esq.
Aisling Margaret McAllister, Esq.
Bond, Schoeneck & King
600 Third Avenue, 22nd Floor
New York, New York 10016
Plaintiff Joan BaRoss, as Executor of the Estate and on behalf of John BaRoss, Sr. ("Plaintiff"),1 initiated this action against the Greenlawn Volunteer Fire Department, Inc. ("GVFD"), Kurt Allen ("Allen"), Stan Sadowski ("Sadowski"), Scott Waryold ("Waryold"), and Lee Joseph ("Joseph," together with Allen, Sadowski, and Waryold, the "Individual Defendants," and with GVFD"Defendants") asserting violations of Title II of the Americans with Disabilities Act ("ADA") and 42 U.S.C. § 1983 ("Section 1983") arising out of his two-year suspension from GVFD. Currently before the Court is Defendants' motion for summary judgment. (Defs. Mot., ECF No. 83; Defs. Br., ECF No. 83-1; Pl. Opp., ECF No. 85; Defs. Reply, ECF No. 86; Pl. Supp. Br., ECF No. 89; Defs. Supp. Br., ECF No. 90; Pl. Supp. Reply, ECF No. 91; Defs. Supp. Reply, ECF No. 92.) For the following reasons, Defendants' motion is GRANTED.
GVFD owns the property and equipment of the Greenlawn Volunteer Fire Department (the "Department") and engages in fundraising activities to support the Department. (56.1 Stmt., ECF No. 83-2, ¶ 4.) During the relevant period, Defendant Joseph served as GVFD's President; Defendant Waryold served as the Department's Chief; Defendant Allen served as Department's Assistant Chief; and Defendant Sadowski served as a member of the GVFD Board of Directors (the "Board"). (Id. ¶¶ 5-8.)
Plaintiff served as a volunteer firefighter with GVFD for over fifty years. (Id. ¶ 9.) Sometime in 2008, Plaintiff was diagnosed with Alzheimer's disease, and around that time he became an inactive member of GVFD. (Id. ¶ 10.) As an inactive member, Plaintiff was entitled to participate in social events sponsored by GVFD, although he was required to pay for tickets to these events. (Id. ¶ 10; Bylaws, Joseph Decl., Ex. D, ECF No. 83-3, ECF pp. 22, 40, § 7.2.9.3) Moreover, unlike active members, as an inactive member Plaintiff was not entitled to vote in GVFD elections, hold GVFD office, or respond to alarms. (Bylaws § 7.3.2.) Nevertheless, Plaintiff continued to participate in GVFD social events, including the annual Fireman's Fair. (56.1 Stmt. ¶ 10.) As detailed herein, the incident giving rise to this action occurred at the 2013 Fireman's Fair.
Plaintiff volunteered to sell pizza at the 2013 Fireman's Fair, which was held on the last weekend of August. (Id. ¶ 12.) At some point on the night of the 30th, it came to the Individual Defendants' attention that Plaintiff was pocketing proceeds from the pizza booth. (Id. ¶¶ 14-15.) The following evening, Defendant Joseph, co-chair of the 2013 Fireman's Fair,and other GVFD members confronted Plaintiff about his conduct and escorted him off the premises after discovering marked bills in Plaintiff's pockets. (Id. ¶ 16.)
On September 18, 2013, GVFD sent a letter to Plaintiff that advised him that GVFD had commenced a "disciplinary investigation" pursuant to GVFD Bylaws in response to the Fireman's Fair incident. (Sept. 18 Letter, Joseph Decl., Ex. B, ECF p. 13.) The September 18 Letter also requested that Plaintiff contact GVFD by September 30, 2013 with any response to the allegations, which would be addressed at a "special meeting" on October 3, 2013. (Id. at ECF p. 14; 56.1 Stmt. ¶ 18.) In connection with its disciplinary investigation, GVFD collected witness statements. (Witness Statements, Joseph Decl., Ex. A, ECF p. 6.)
On September 22, 2013, Plaintiff's son, John BaRoss, Jr. ("BaRoss Junior"), met with the Individual Defendants. (56.1 Stmt. ¶ 20.) At the meeting, BaRoss Junior informed the Individual Defendants that his father suffered from Alzheimer's disease, which he believed explained Plaintiff's conduct at the Fireman's Fair. (Id. ¶ 22.) The parties dispute whether, at that meeting, BaRoss Junior stated that Plaintiff was amendable to GVFD suspending Plaintiff from participating in GVFD activities for two years. (See 56.1 Stmt. ¶¶ 25, 38.)
The parties also dispute whether BaRoss Junior communicated to Waryold that Plaintiff accepted the two-year suspension in a follow-up letter he sent on September 27, 2013. (See 56.1 Stmt. ¶¶ 30, 32; see also Sept. 27 Letter, Joseph Decl., Ex. C, ECF p. 16.) In the September 27 Letter, BaRoss Junior enclosed a letter from Plaintiff's doctor, Dr. Musarat Shareef, that explained Plaintiff's conduct at the 2013 Fireman's Fair was consistent with the "poor judgment and odd behavior" exhibited by those suffering from Alzheimer's disease. (Sept. 27 Letter at ECF p. 21.) The September 27 Letter noted that Dr. Shareef "recommend[ed] that [Plaintiff] remain an active member [of GVFD] (to help his morale, self-esteem, etc.)," but added that this was not Plaintiff's wish; rather, BaRoss Junior communicated that "[Plaintiff] feels we (the BaRoss family) agreed to your terms (you and the other 3 GFD leaders) for him to stay away from the fire house for 2 years and will honor that agreement (even with this explanation of conduct provided by his doctor)." (Id. at ECF pp. 17-18.) The letter concludes by reiterating that (Id. at ECF p. 20.) As BaRoss Junior explained in his deposition, "The intention [of the September 27 Letter] was to be a good cop and .. . just try to throw ourselves at their mercy but hope they can read between the lines what we're saying here, please drop the penalty . . . ." (BaRoss, Jr. Dep. Tr., Reilly Decl., Ex. C, Tr. at 139:16-20, ECF pp. 26, 64; see also 56.1 Stmt. ¶ 32 ().)
On October 3, 2013, GVFD held a special meeting to address the Fireman's Fair incident. (56.1 Stmt. ¶ 42.) The parties dispute whether the October 3 Meeting complied with GVFD's Bylaws. According to GVFD Bylaws, a member can be suspended or expelled for "conduct [that] serves to dishonor or discredit" GVFD. (Bylaws § 8.3.1.) Once an allegation has been made in writing to the GVFD President, the President must notify the Board and provide a copy of the allegations to the charged member. (Id. § 8.3.2.) Subsequently, the Board must conduct an investigation into the allegations and present its finding to GVFD membership at a special meeting. (Id. § 8.3.3.) At the special meeting, a seventy-five percent affirmative vote is required to suspend or expel a member. (Id. § 8.3.4.)
At the October 3 Meeting, which Plaintiff did not attend, the Individual Defendants, supposedly in line with the parties'agreement, proposed suspending Plaintiff for two years. (56.1 Stmt. ¶¶ 43-44.) There were no "factual findings by the Defendants about why [P]laintiff engaged in misappropriation," and there was no "disciplinary hearing," because Defendants believed that Plaintiff had agreed to the two-year suspension. (Id. ¶¶ 47-48.) Moreover, the Individual Defendants did not advise GVFD membership of Dr. Shareef's letter, which had been provided to Defendant Waryold on September 27, and which explained that Plaintiff's conduct at the 2013 Fireman's Fair was consistent with behavior exhibited by those suffering from Alzheimer's disease. (56.1 Stmt. ¶ 70.) Indeed, it does not appear Defendant Waryold ever showed Dr. Shareef's letter to the other Individual Defendants. (Id. ¶¶ 64-68.) GVFD members voted unanimously to implement the two-year suspension. (Id. ¶ 45.) Pursuant to the suspension, Plaintiff was banned from attending GVFD social events. (Id. ¶ 46.) The suspension did not affect Plaintiff's receipt of length of service award program payments ("LOSAP payments") or pension payments. (Joseph Decl., ¶ 23.) That same day, GVFD communicated the suspension to Plaintiff in a letter. (Oct. 3 Letter, Joseph Decl., Ex. E, ECF p. 58.)
After the suspension, BaRoss Junior began contacting media outlets and state representatives in an effort to clear his father's name. (56.1 Stmt. ¶ 50.) He also filed a discrimination complaint with the New York State Division of Human Rights, whichwas dismissed. (Id.) Plaintiff died on November 5, 2016, shortly after this lawsuit was filed. (Id. ¶ 2.)
Plaintiff initiated this action on August 26, 2016, alleging claims pursuant to (1) the ADA, (2) Section 1983 for violation of Plaintiff's due process, equal protection and liberty rights, and (3) the New York State Human Rights Law and other state laws. (See generally Compl., ECF No. 1.) After Defendants moved to dismiss the Complaint, Plaintiff opposed and withdrew the state law claims. (Pl. Br., ECF No. 38 at 23.) In an order dated May 16, 2017, the Honorable Arthur D. Spatt granted in part and denied in part Defendants' motion to dismiss. (May 16, 2017 Order, ECF No. 43.) Specifically, Judge Spatt held that GVFD is a state actor and public entity subject to the Section 1983 and the ADA (id. at 10-13); that Plaintiff's claims were not time-barred (id. at 13-14); and that Pl...
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