Broich v. Incorporated Village of Southampton

• Decision Date: 23 July 2009
• Docket Number: No. CV-08-0553 (SJF)(ARL).,CV-08-0553 (SJF)(ARL).
• Citation: 650 F.Supp.2d 234
• Parties: Christopher BROICH, Plaintiff, v. The INCORPORATED VILLAGE OF SOUTHAMPTON, The Board of Trustees of the Incorporated Village of Southampton, Mark Epley, Individually and as Mayor of the Incorporated Village of Southampton, Bonnie M. Cannon, Individually and as Trustee of The Incorporated Village of Southampton, Nancy C. McGann, Individually and as Trustee of the Incorporated Village of Southampton, Paul L. Robinson, Individually and as Trustee of the Incorporated Village of Southampton, Lars Kings, Individually and as former Chief of Police of the Incorporated Village of Southampton, and William Wilson, Jr., Individually and as Chief of Police of the Incorporated Village of Southampton, Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 234

650 F.Supp.2d 234

Christopher BROICH, Plaintiff, v. The INCORPORATED VILLAGE OF SOUTHAMPTON, The Board of Trustees of the Incorporated Village of Southampton, Mark Epley, Individually and as Mayor of the Incorporated Village of Southampton, Bonnie M. Cannon, Individually and as Trustee of The Incorporated Village of Southampton, Nancy C. McGann, Individually and as Trustee of the Incorporated Village of Southampton, Paul L. Robinson, Individually and as Trustee of the Incorporated Village of Southampton, Lars Kings, Individually and as former Chief of Police of the Incorporated Village of Southampton, and William Wilson, Jr., Individually and as Chief of Police of the Incorporated Village of Southampton, Defendants.

No. CV-08-0553 (SJF)(ARL).

United States District Court, E.D. New York.

July 23, 2009.

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Eric Scott Tilton, Steven A. Morelli, Anthony Christopher Giordano, The Law Office of Steven A. Morelli, P.C., Carle Place, NY, for Plaintiff.

Jeltje Dejong, Kelly E. Wright, Devitt Spellman Barrett, LLP, Smithtown, NY, for Defendants.

OPINION & ORDER

FEUERSTEIN, District Judge.

On February 8, 2008, plaintiff Christopher Broich ("plaintiff) commenced this action against defendants the Incorporated Village of Southampton ("the Village"), the Board of Trustees of the Incorporated Village of Southampton ("the Village Board"), and Mark Epley, Bonnie M. Cannon, Nancy C. McGann, Paul L. Robinson, Lars Kings and William Wilson, Jr., all in their individual and official capacities (collectively, "the individual defendants"). Plaintiffs second amended complaint, filed on June 11, 2008, alleges violations of, inter alia, 42 U.S.C. §§ 1981, 1983 and 1985, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), New York State Executive and Civil Service Laws and the New York State Constitution.

Defendants now move pursuant to Rules 12(b)(1) and (c) of the Federal Rules of Civil Procedure to dismiss the complaint against them for lack of jurisdiction and for judgment on the pleadings, respectively. For the reasons stated herein, defendants' motion is granted in part and denied in part.

I. Background

A. Factual Background¹

1. The Parties

Plaintiff is a Caucasian man who has been employed by the Village Police Department ("SVPD") since May 16, 1988. (Second Amended Complaint [Compl.], ¶¶ 9, 15). From May 16, 1988 until approximately 1998, plaintiff was employed as an officer in the SVPD. (Compl., ¶ 15). In approximately 1998, plaintiff was promoted to sergeant. (Compl., ¶ 15).

Defendant Lars King ("King") is the former chief of police of the SVPD. (Compl., ¶ 13). Defendant William Wilson, Jr. is the current chief of police of the SVPD. (Compl., ¶ 13). According to plaintiff, the SVPD is led by the chief of police, who reports directly to the Village Board. (Compl., ¶ 24).

At all relevant times, the Village Board consisted of five (5) members: defendant Mark Epley ("Epley"), the Village mayor; defendants Bonnie M. Cannon ("Cannon"), Nancy C. McGann ("McGann") and Paul L. Robinson ("Robinson"); and non-party William F. Bates ("Bates"). (Compl., ¶¶ 12, 21). According to plaintiff, there are at least two (2) political parties in the Village and Bates is a member of "The Good Sense Party" ("GSP"), while the other four (4) members of the Village Board are members of "The Citizens with Integrity Party" ("OP"). (Compl., ¶¶ 20-21). Plaintiff further alleges that King and Wilson are also affiliated with the CIP. (Compl., ¶ 21). Plaintiff, on the other hand, "is an outspoken supporter of GSP." (Compl., ¶ 22).

2. Factual Allegations

a. Allegations Relating to Plaintiff's First EEOC Charge, as Amended

Plaintiff alleges that throughout 2003 and 2004, James McFarlane ("McFarlane"), who at the time was the police commissioner and a trustee of the Village Board, recommended that plaintiff be promoted to chief of police upon the retirement of James J. Sherry ("Sherry") from that position. (Compl., ¶ 26). According to plaintiff, the president of the police officers' union lobbied, over the objection of Wilson and other CIP party members, to open the civil service examination for the chief of police position to all SVPD employees at or above the level of sergeant, rendering plaintiff eligible for that position. (Compl., ¶ 26). Plaintiff alleges that King was eventually appointed to the chief of police position on a provisional basis, to become permanent upon his passing the civil service examination for that position. (Compl., ¶ 27). According to plaintiff, King was eventually removed from the chief of police position for failing to pass the civil service examination. (Compl., ¶ 28).

In February 2005, plaintiff sought a promotion to the position of detective sergeant. (Compl., ¶ 29). At that time, he displayed signs on his lawn supporting Peter Tufo, a member of the GSP running for Village mayor. (Compl., ¶ 32). According to plaintiff, members of the CIP party, including Epley, who was also running for mayor; King; Sherry; then-Village Board trustee Ed Britt ("Britt"); and the outgoing mayor, Romonsky, conspired to promote "an unqualified black Detective, Herman Lamison ("Lamison"), up two ranks to the position of Detective Sergeant despite that there were at least six other white Sergeants (including [plaintiff])" who were more qualified. (Compl., ¶ 33). According to plaintiff, the purpose of the conspiracy was to "secur[e] a substantial portion of the black vote for candidate Epley in the upcoming mayoral election." (Compl., ¶ 34). Lamison was promoted to detective sergeant in February 2005 and Epley was elected Village mayor in June 2005. (Compl., ¶¶ 35, 37).

On December 27, 2005, plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). (Compl., ¶ 39). In addition, in December 2005, plaintiff reported to the Suffolk County District Attorney's Office ("the DA's office") "what he believed to be highly unethical behavior" in the SVPD, including, inter alia, ticket-fixing schemes and Lamison's operation of a private security business without a license. (Compl., ¶¶ 40-41). According to plaintiff, the DA's office failed to take any action on his complaints. (Compl, ¶ 43).

Plaintiff alleges that approximately one (1) month later, the New York State Commission of Investigation ("NYSCI") contacted him regarding his complaints to the DA's office. (Compl., ¶¶ 44-45). Thereafter, plaintiff reported to the NYSCI on a weekly basis regarding his concerns about the SVPD. (Compl, ¶ 46). According to plaintiff, the NYSCI eventually "issued a scathing report to the Village that it had serious problems with respect to how it handled tickets," and the New York State Department of Licensing Services fined Lamison for his operation of a security business without a license. (Compl, ¶ 47).

Plaintiff alleges that on January 22, 2006, he observed a handwritten memorandum signed by Lamison in the detectives' office indicating that all doors were to be kept locked when plaintiff was in the building. (Compl., ¶ 50). On January 23, 2006, plaintiff updated his EEOC charge to include a claim of retaliation. (Compl., ¶ 51).

b. Allegations Relating to Plaintiffs Second EEOC Charge

Plaintiff alleges: (1) that on April 15, 2006, he received a formal review for the first time in seven (7) years, in which he received an overall rank of 3.46 out of 5 for the reviewing period between October 2005 and April 2006, (Compl, ¶ 52); (2) that on May 12, 2006, King, at the direction of the Village Board trustees and mayor, placed him on paid administrative leave pending the preparation of disciplinary charges against him, (Compl, ¶¶ 53, 57); (3) that on August 16, 2006, Wilson, at the direction of the Village Board trustees and mayor, filed eighteen (18) administrative charges with twenty (20) specifications against him and suspended him without pay, (Compl, ¶¶ 56, 57); and (4) that on August 30, 2006, Wilson threatened to terminate his employment if he proceeded with an administrative hearing to defend the charges against him instead of resigning. (Compl, ¶ 59). Plaintiff further alleges that he was continuously denied promotions to two (2) vacant lieutenant positions for which he was qualified. (Compl, ¶ 61).

On August 31, 2006, plaintiff filed a second charge of retaliation with the EEOC. (Compl, ¶ 63).

c. Allegations Relating to Plaintiffs Fourth EEOC Charge²

Following an eleven (11) day administrative hearing, the charges against plaintiff were decided in favor of the Village. (Compl., ¶¶ 66, 68). Plaintiff commenced a proceeding in the Supreme Court of the State of New York, Suffolk County, pursuant to Article 78 of the New York Civil Practice Laws and Rules and Section 8-806 of the New York Village Law (the "Article 78 proceeding"), seeking to annul the determination of the Village, Village Board and Wilson to terminate his employment. (Compl., ¶ 68).

On December 13, 2007, the Village Board voted to terminate plaintiffs employment. (Compl., ¶ 69). On or about January 14, 2008, plaintiff filed a fourth charge of discrimination and retaliation with the EEOC. (Compl., ¶ 69).

B. Procedural History

On February 8, 2008, plaintiff commenced this action against defendants pursuant to, inter alia: (1) Title VII, 42 U.S.C. §§ 1981 and 1983 and the New York Executive Law, alleging that he was subjected to discrimination and retaliation in violation of his equal protection rights and First Amendment rights to free speech and free association based upon his political affiliation and race; and (2) 42 U.S.C. § 1985, alleging that defendants conspired together to violate his constitutional rights. Plaintiff seeks, inter alia, compensatory and punitive damages, back pay and front pay "in an amount no less than $5,000,000.00 (Five Million Dollars)," as well as injunctive relief granting him...