Carmody v. Village of Rockville Centre
| Decision Date | 30 September 2009 |
| Docket Number | No. CV-05-4907 (SJF)(ETB).,CV-05-4907 (SJF)(ETB). |
| Citation | 661 F.Supp.2d 299 |
| Parties | Mike H. CARMODY, Plaintiff, v. VILLAGE OF ROCKVILLE CENTRE, Rockville Centre Police Department, Nassau County Civil Service Commission, John P. McKeon, in his official and individual capacity, and Brian Burke, in his official and individual capacity, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Frederick K. Brewington, Gregory Calliste, Jr., Law Offices of Frederick K. Brewington, Hempstead, NY, for Plaintiff.
Michael E. Gorelick, Abrams, Gorelick, Friedman & Jacobson, PC, New York, NY, Damon S. Levenstien, Jennean R. Rogers, Sara A. Wells, Mary E. Neggie, Office of the Nassau County Attorney, Mineola, NY, John Francis McKay, III, Ruffo, Tabora, Mainello & McKay, P.C., Lake Success, NY, for Defendants.
Before the Court are objections by defendants Village of Rockville Centre ("the Village"), the Rockville Centre Police Department ("the RVCPD") and John P. McKeon ("McKeon") (collectively, "the Village defendants") and Brian Burke ("Burke") to so much of a Report and Recommendation of United States Magistrate Judge E. Thomas Boyle dated August 5, 2009 ("the Report") that recommends denying in part their respective motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated herein, the Report of Magistrate Judge Boyle is accepted in its entirety.
Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct proceedings on dispositive pretrial matters without the consent of the parties. Fed.R.Civ.P. 72(b). Any portion of a report and recommendation on dispositive matters, to which a timely objection has been made, is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The court, however, is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See, Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, the district judge need only be satisfied that there is no clear error on the face of the record. See, Fed. R.Civ.P. 72(b); Baptichon v. Nevada State Bank, 304 F.Supp.2d 451, 453 (E.D.N.Y. 2004), aff'd, 125 Fed.Appx. 374 (2d Cir. 2005); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
The Village defendants contend that Magistrate Judge Boyle erred, inter alia, in: (1) overlooking "certain undisputed facts" occurring after February 13, 2003, (Memorandum of Law in Support of the Village Defendants Objections [Vill. Obj.], p. 2); (2) misapplying the summary judgment standard, (Vill. Obj., p. 4); (3) misapplying the standard to establish a prima facie case of retaliation, (Vill. Obj., p. 6); (4) finding a question of fact regarding the individual liability of McKeon under 42 U.S.C. § 1983 absent evidence of McKeon's personal involvement in the alleged violations of plaintiffs First Amendment rights, (Vill. Obj., pp. 14-15); (5) denying McKeon's qualified immunity defense absent "particularized evidence" that McKeon uttered any statements or expressions which would indicate a retaliatory motive, (Vill. Obj., pp. 16-17); (6) failing to apply the test to establish a prima facie case for First Amendment retaliation under 42 U.S.C. § 1983, (Vill. Obj., pp. 17-22); (7) recommending that a claim for "employment discrimination" against McKeon pursuant to 42 U.S.C. § 1983 remains absent specification of the alleged constitutional violation underlying that claim, (Vill. Obj., pp. 22-23); and (8) recommending that the branch of the Village defendants' motion seeking summary judgment dismissing plaintiffs claim against McKeon pursuant to 42 U.S.C. § 1981 be denied since, inter alia, plaintiff has not established that McKeon was personally involved in any of the alleged discriminatory acts and, in any event, cannot establish a causal connection between McKeon's acts in or before February 2003 and his termination in August 2003, (Vill. Obj., pp. 23-25).
Burke contends, inter alia, that Magistrate Judge Boyle erred, inter alia, in: (1) failing "to address the temporal connection of the alleged conduct and the alleged adverse employment action," (Burke's Objection to the Report [Burke Obj.]); (2) failing "to assess BURKE'S supervisory role in relation to his authority to terminate Plaintiffs employment," since only McKeon had the authority to terminate plaintiff, (id.); and (3) denying the branch of Burke's motion to dismiss plaintiffs First Amendment retaliation claim because, inter alia, plaintiffs complaints about Burke's behavior do not constitute "protected speech," (id.)
Upon de novo review of the Report and consideration of the Village defendants' and Burke's objections and plaintiffs responses thereto, the objections are overruled and the Report is accepted in its entirety as an order of the Court.1
Upon de novo review of the Report, the Village defendants' and Burke's objections are overruled and the Report is accepted in its entirety. The motion of defendant Nassau County Civil Service Commission ("CSC") seeking summary judgment dismissing plaintiffs complaint against it is granted and the complaint is dismissed in its entirety as against the CSC. The branches of the Village defendants' and/or Burke's motions seeking summary judgment dismissing plaintiffs (1) Title VII claims against McKeon in both his individual and official capacities; (2) 42 U.S.C. §§ 1981 and 1983 employment discrimination claims against McKeon and Burke in their official capacity; (3) Monell and employment discrimination claims pursuant to 42 U.S.C. §§ 1981 and 1983 against the Village and the RVCPD; (4) 42 U.S.C. § 1983 due process claims against all defendants; (5) Title VI claims in their entirety; and (6) breach of contract claims against the Village defendants are granted and those claims are dismissed with prejudice. The branches of the Village defendants' and/or Burke's motions seeking summary judgment dismissing plaintiffs (1) Title VII retaliation claim against the Village and the RVCPD; (2) New York State Human Rights Law, N.Y. Exec. Law § 296, claim against the Village defendants and Burke; (3) 42 U.S.C. §§ 1981 and 1983 employment discrimination claims against McKeon and Burke in their individual capacity; and (4) First Amendment retaliation claims against the Village defendants and Burke are denied. In addition, all claims against the RVCPD are sua sponte dismissed.
SO ORDERED.
REPORT AND RECOMMENDATION
TO THE HONORABLE SANDRA J. FEUERSTEIN, UNITED STATES DITRICT JUDGE:
Plaintiff, Mike H. Carmody ("plaintiff' or "Carmody"), commenced this action on October 20, 2005, alleging employment discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq., Title VI, 42 U.S.C. § 2000d et seq., 42 U.S.C. §§ 1981 and 1983, the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq., as well as breach of contract, pursuant to New York state law. Specifically, plaintiff alleges that his employment was terminated in retaliation for his opposition to discriminatory practices within the Rockville Centre Police Department. Before the Court are three separate motions for summary judgment by the following defendants: (1) the Village of Rockville Centre (the "Village"), the Rockville Centre Police Department ("RVCPD"), and John P. McKeon ("McKeon") (collectively referred to as the "Village Defendants"); (2) Sergeant Brian Burke ("Burke"); and, (3) the Nassau County Civil Service Commission (the "CSC"). For the following reasons, I recommend that the Village Defendants' and Sergeant Burke's motions be granted in part and denied in part and that the CSC's motion be granted in its entirety.
Plaintiff is a thirty-five year old white male who was formerly employed as a probationary police officer for the RVCPD. (Village Def. R. 56.1 Statement ("Village 56.1") ¶¶ 1-2; Def. Burke R. 56.1 Statement ("Burke 56.1") ¶ 1; Def. CSC R. 56.1 Statement ("CSC 56.1") ¶ 1.)
Defendant McKeon was the Commissioner of the RVCPD during plaintiffs employment there and remains in that position today. (Burke 56.1. ¶ 1; CSC 56.1 ¶¶ 7-8.)
Defendant Burke is a sergeant with the RVCPD. (Burke 56.1 ¶ 2.) During plaintiffs employment with the RVCPD, Burke had a general supervisory role with respect to all police officers employed there. (Burke 56.1 ¶ 2.) Burke was also plaintiffs direct supervisor from January 15, 2003 until approximately February 15, 2003. (Burke 56.1 ¶ 3.) Burke did not have any direct supervision with respect to plaintiff after February 15, 2003. (Burke 56.1 ¶ 19; Burke Dep. 210-11.)
The Nassau County CSC is an agency responsible for establishing, maintaining and certifying civil service eligibility lists and for verifying that competitive class appointments are made in accordance with New York Civil Service Law. (CSC 56.1 ¶ 15.) The CSC consists of three Commissioners, an Executive Director, and specialized divisions, which include the Placement Division. (CSC 56.1 ¶ 10.) The Commissioners of the CSC possess sole authority to determine whether an applicant or candidate may be reinstated to an eligible civil service list. (CSC 56.1 ¶ 16.)
Plaintiff began working for the RVCPD as a probationary police officer on March 22, 2002. (Village 56.1 ¶ 2; Burke 56.1 ¶ 5; CSC 56.1 ¶ 2.) Pursuant to the RVCPD Rules and Regulations in effect at the time plaintiff commenced his employment, new police officers were required...
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