Donovan v. Incorporation Village of Malverne

• Decision Date: 19 February 2008
• Docket Number: No. CV 05-3726(ARL).,CV 05-3726(ARL).
• Citation: 547 F.Supp.2d 210
• Parties: John G. DONOVAN, Plaintiff, v. INCORPORATED VILLAGE OF MAVERNE, Anthony J. Panzarella, Mayor of the Village of Malverne, Individually and in his Official Capacity, James J. Callahan, III, Deputy Mayor and Board of Trustee of the Village of Malverne, Individually and in his Official Capacity, Joseph J. Hennessy, Board of Trustee of the Village of Malverne, Individually and in his Official Capacity, Patricia Ann Mc-Donald, Board of Trustee of the Village of Malverne, Individually and in her Official Capacity, William G. Malone, Board of Trustee and Police Commissioner of the Village of Malverne, Individually and in his Official Capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

547 F.Supp.2d 210

John G. DONOVAN, Plaintiff, v. INCORPORATED VILLAGE OF MAVERNE, Anthony J. Panzarella, Mayor of the Village of Malverne, Individually and in his Official Capacity, James J. Callahan, III, Deputy Mayor and Board of Trustee of the Village of Malverne, Individually and in his Official Capacity, Joseph J. Hennessy, Board of Trustee of the Village of Malverne, Individually and in his Official Capacity, Patricia Ann Mc-Donald, Board of Trustee of the Village

of Malverne, Individually and in her Official Capacity, William G. Malone, Board of Trustee and Police Commissioner of the Village of Malverne, Individually and in his Official Capacity, Defendants.

No. CV 05-3726(ARL).

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

February 19, 2008.

Steven A. Morelli, William Matthew Groh, Leeds, Morelli & Brown, P.C., Carle Place, NY, for Plaintiff.

Brian S. Sokoloff, Steven Seltzer, Miranda & Sokoloff, LLP, Mineola, NY, for Defendants.

MEMORANDUM & ORDER

LINDSAY, United States Magistrate Judge.

The plaintiff, John G. Donovan ("Donovan"), filed this action in August 2005, pursuant to 42 U.S.C. § 1983, New York Civil Service Law § 107 and New York Labor Law § 201-d. The plaintiff alleges that the defendants, the Incorporated Village of Malverne, the Mayor and the Deputy Mayor of the Village, the Police Commissioner and the members of the Board of Trustees (collectively referred to as "the Village" or "the defendants") retaliated against him for statements he made in connection with his political and union activities and for giving deposition testimony in a suit brought against the Village. The defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the defendants' motion is granted, in part.

BACKGROUND

The plaintiff has been employed by the Village of Malverne as a Police Officer since 1989. Def. 56.1 Statement at ¶ 1.¹ The plaintiff is also a member of the Malverne Chapter of the Police Benevolent Association (the "PBA") and has served as both a union delegate and a member of the executive board. See Donovan Aff. at ¶ 2; Def. 56.1 Statement at ¶¶ 5-6. The plaintiff has not held a union office since 2002. Def. 56,1 Statement at ¶ 7.

Sometime in 1996, the plaintiff applied for a promotion to become a sergeant. The sergeant position is supervisory in nature and affords a larger compensation package than the police officer position. See Donovan Aff. at ¶ 6. The application process consists primarily of taking a civil service examination and then, when a position opens, promotions are made by the Mayor subject to the consent of the Trustees.² Def. 56.1 Statement at ¶ 60. Donovan took the civil service examination three times and his test scores were among the top three each time. See Donovan Aff. at ¶ 7; Def. 56.1 Statement at ¶¶ 10, 15.

Donovan first sat for the civil service examination in October of 1996 and was ranked number three on the 1996 Eligible List. See Complaint at ¶¶ 45-46. Following the examination, the plaintiff was interviewed by the Mayor and four of the Village Trustees. Id. at ¶ 47. Donovan contends that during the interview, the defendant Joseph Hennessy inquired as to how he would be able to advocate for PBA interests and simultaneously perform supervisory functions. Id. at ¶ 48.³ Donovan also claims that both the President of the PBA and the Police Commissioner told several officers that if they wanted to be promoted they should consider curtailing his P.B.A. activities. Pls. 56.1 Counter-Statement at 13. The candidates that were ranked number two and four on the 1996 Eligible List received promotions. Complaint at ¶ 51.

Donovan sat for a second civil service examination in June of 1999. Id. at ¶ 59. On November 30, 1999, the Civil Service Commission established the 1999 Eligible List and the plaintiff was ranked number one. Def. 56.1 Statement at ¶ 10. On November 15, 2001. Police Officer Wade Engel was appointed from the 1999 Eligible List. Def. 56.1 Statement at ¶ 9. In 2002, Donovan was again interviewed by the Board of Trustees in connection with a promotion and although there was no discussion of his union activities, once again he was not promoted. Def. 56.1 Statement at ¶ 12. Instead, on March 1, 2002, Police Officer Robert Modica was promoted from the Eligible List.

Donovan took the sergeant examination for the third time in June 2002. See Complaint at ¶¶ 67-68,⁴ On February 27, 2003, the Civil Service Commission establish another Eligible List naming the following top five candidates: (1) Andy Heuser, (2) John Donovan, (3) Robert Lawlor, (4) Warren Clements, and (5) John Oddo. Def. 56.1 Statement at ¶¶ 14-15. In February 2004, Andy Hauser who had been ranked number one retired from the Police Department and the list was renumbered with the remaining four candidates. Def. 56.1 Statement at ¶¶ 16-17. In January 2005, Robert Lawlor, who was then number two on the list also retired and the list was again renumbered. Def. 56.1 Statement at ¶ 18. On May 19, 2005, Warren Clements was promoted to sergeant. Def. 56.1 Statement at ¶ 20. Clements was number two on the revised list at the time of his promotion. Id. Donovan was not even interviewed for the third promotion although he was ranked number one. Donovan Aff. at ¶ 13

Donovan contends that the reason he was never promoted was threefold. Donovan first claims he was denied a promotion because of his PBA Executive Board Membership. Donovan Aff. at 8. Next, Donovan claims he was denied a promotion because he gave truthful deposition testimony in a fellow police officer's personal injury lawsuit against the Village. Complaint at ¶ 30. Finally, Donovan states that the reason he was not promoted is because he campaigned for Andrew Chernoff ("Chernoff"), a non-incumbent candidate for Village Trustee, in March 2005, and in doing so, handed out leaflets indicating the PBA's endorsement of Chernoff and placed a campaign sign on his mother's property. See Donovan Aff. at ¶ 18-11.

The defendants contend that they did not retaliate against the plaintiff for any of the above-mentioned activities and were not even aware that Donovan has given testimony in the personal injury lawsuit or that he had campaigned for Chernoff. Def. Mem. at 5-9. The defendants argue that one of the reasons Donovan was denied a promotion was that he was involved in a car accident in which he was accused of leaving the scene of the accident. Specifically, on May 25, 2000, Nadira Ramtahal, a Malverne resident filed a citizen's complaint against the plaintiff in which she reported:

Upon exiting my vehicle I noticed that the other driver (who had exited his vehicle) was dressed in what appeared to be police department issued slacks. I approached the other driver and stated that I will pull over so that we can have a report of the accident taken, to which he responded in somewhat slurred speech, `file a report?'

As I entered my car and proceeded to pull over, the other driver reentered his car ... and took off. He entered the railroad parking lot through the exit ramp, proceeded north through the lot and then around the rear of village hall exiting back on to Church Street heading north onto Ocean Avenue, and disappeared.

Defs. 56.1 Statement, Ex. E. Mayor Panzarella, named in this action in both his individual and official capacity, contacted Ms. Ramtahal and then requested that the Police Chief conduct an investigation. Defs. 56.1 Statement, Ex. H. at 23. The plaintiff does not deny that he left the scene of the accident or that he did not have his license or registration with him at the time, but contends that Ms. Ramtahal did not consider the accident "a big deal." Pis. 56.1 Counter-Statement at ¶ 47. He further notes that although an official investigation was conducted, the report found that he did not leave the scene of the accident and that the Ramtahal complaint was the result of a "miscommunication between the parties." Id.; see also Donovan Aff. at ¶ 16; Internal Investigation Report, annexed to Morelli Dec. at B.

The defendants contend that another reason they did not promote Donovan is that they had received complaints about the plaintiff directly from one the defendants, Patricia McDonald ("McDonald"), a Village Trustee. McDonald reported that Donovan would not answer the phone while he was assigned to desk duty. Defs. 56.1 Statement at ¶¶ 53-54. Specifically, McDonald reported that in August 2002, she called the police twice to report noises outside her house and the plaintiff did not answer the call although he was the officer assigned to desk duty. Defs. 56.1 Statement, Ex. I at 16-18. When McDonald attempted to call the police for the third time, the plaintiff finally answered the phone, but put her on hold. Id. The next day, McDonald learned that Donovan had put her call on hold to take another call from a resident who was complaining about overnight parking and that he may have been sleeping when the first two calls were made because he had participated in a triathalon that morning. Id. at 17, 28. At her deposition, McDonald testified that she conveyed her feelings about the incident to the other Trustees when they discussed the promotion. Id. at 44.

The plaintiff does not dispute the incident with McDonald occurred, but explains that he was in the basement chocking and that neither he, nor Officer Cantanno, heard the phone ring. Donovan Aff. at ¶ 17. In addition, while Donovan acknowledges that he did not tell the defendants that he had suffered from a medical condition at his 2001/2002 interview, he notes that he was never disciplined. Id.

The defendants finally contend that they considered that the plaintiff had been criticized for incorrectly documenting the amount of mileage he did on his tour of duty and that he has been accused of not responding to a report of a shooting. Defs. 56.1 Statement, Exs. H at 14-15; I at 19-20. The plaintiff responds that while he...