Emanuele v. Town of Greenville, 00 CIV. 4214(CM).

• Decision Date: 08 May 2001
• Docket Number: No. 00 CIV. 4214(CM).,00 CIV. 4214(CM).
• Citation: 143 F.Supp.2d 325
• Parties: Lisa EMANUELE and Nicholas Emanuele, Plaintiffs, v. THE TOWN OF GREENVILLE and Timothy McDonald, Defendants.
• Court: U.S. District Court — Southern District of New York

143 F.Supp.2d 325

Lisa EMANUELE and Nicholas Emanuele, Plaintiffs, v. THE TOWN OF GREENVILLE and Timothy McDonald, Defendants.

No. 00 CIV. 4214(CM).

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

May 8, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Marc Smalec, White Plains, NY, for Plaintiffs.

Terry Rice, Suffern, NY, for Defendants.

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

McMAHON, District Judge.

Plaintiffs Lisa and Nicholas Emanuele sued defendants Town of Greenville and the former Supervisor of Greenville, Timothy McDonald, pursuant to 42 U.S.C. § 1983, for retaliation and defamation in violation of their rights under the First and Fourteenth Amendments to the U.S. Constitution, and for intentional infliction of emotional distress. Defendants move for summary judgment.

For the reasons stated below, defendants' motion for summary judgment is granted in part and denied in part.

FACTUAL BACKGROUND

On a motion for summary judgment, the Court views the facts most favorably to the non-moving party — in this case, the plaintiffs.

Plaintiff Lisa Emanuele was co-chairperson of the Democratic Committee in Greenville, New York. She was also a part-time records clerk for the Town of Greenville. She worked for defendant Timothy McDonald from March to May 1999.

McDonald was the Supervisor of the Town of Greenville from 1996 through 1999, elected for two successive two year terms. He was endorsed by the Democratic Party in 1995 and 1997. He ran for re-election in 1999 without the endorsement of the Democratic Party and lost his seat as Town Supervisor.

On June 6, 1999, an article appeared in the Times Herald Record entitled "Democrats Bounce McDonald." The article referred to plaintiff Lisa Emanuele by name, indicating that she did not want to endorse McDonald for re-election in the November 1999 election. That same day, Lisa Emanuele received a phone call from McDonald stating that she was going to receive a fine for building a deck on her home without a permit. Town records indicate that a building permit had, in fact, been issued to plaintiffs on June 2, 1999. McDonald also allegedly spoke to Councilman Joseph Williams, and told him that he was going to "go after" the Emanueles for agricultural violations for having livestock on their property.

On June 8, 1999, Nicholas Emanuele made a written complaint to the Town Board regarding McDonald's behavior. On June 14, 1999, another local newspaper article appeared, indicating that McDonald was facing charges of ethics violations arising from Nicholas Emanuele's complaint.

That night, defendant appeared on the WALL Radio Station and announced that Lisa Emanuele had been fired for stealing cleaning supplies from the Town on March 19, 1999. McDonald claimed that he observed plaintiff steal the supplies, confronted her, recovered the items, and terminated her on the spot.

Lisa Emanuele testified that the first notice she had of being fired was when McDonald announced her termination on the radio. There is a letter in the record dated April 9, 1999, in which McDonald purports to terminate her employment as Records Management Secretary as a result of her stealing supplies. Emanuele contends that she never received any such letter, and time sheets indicate that she was still working as of April 21, 1999. Subsequently, McDonald sent a letter to residents of the Town of Greenville on May 14, 1999, telling them to contact Lisa Emanuele with questions about Town summer programs. (Emanuele Aff. at Ex. 6.) This, too, suggests that Emanuele was not fired in March 1999.

On or about June 22, 1999, McDonald approached Nicholas Emanuele and said that he would destroy him and get him fired from his job as a New York City Police Officer.

McDonald later was censured by the Town Board in response to a Nicholas Emanuele's complaint and testimony taken from Lisa Emanuele. The censure cited McDonald's abuse of the power of his office arising out of the threats he made. The resolution stated, in part, that:

The Town Board reaffirms its policy that:

The Supervisor has a duty to report complaints and alleged violations of building, health and zoning codes to the Building Department; and

The Supervisor is prohibited from attempting to dictate or influence the performance or outcome of investigations conducted by the Building Department concerning complaints or alleged violations of the building[,] health or zoning codes.

(Def.Ex. K.) McDonald was "directed to strictly adhere to the above-stated policy of the Town Board." (Id.)

On August 26, 1999, McDonald stated on a local news show that "plaintiff was fired and now has an axe to grind." (Compl. ¶ 26.)

Lisa Emanuele was a candidate for a seat on the Town Council in the fall of 1999, and was endorsed by the Democratic Committee at its June 4, 1999 meeting. She alleges that she lost the election as a result of McDonald's false allegations.

Plaintiffs bring retaliation and defamation claims under Section 1983, as well as a state law claim of intentional infliction of emotional distress. Both plaintiffs claim that McDonald retaliated against them by firing Lisa Emanuele on the radio,¹ making false statements, and by threatening to fine them for violations of local ordinances. Lisa Emanuele further claims that she lost her election to the Town Board as a result of McDonald's statements.

For the reasons stated below, defendants' motion for summary judgment is granted in part and denied in part.

DISCUSSION

Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-movant. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. In making its determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. See id. at 255, 106 S.Ct. 2505. To defeat summary judgment, the non-moving party must go beyond the pleadings and "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When opposing a motion for summary judgment, it is not sufficient for the non-moving party to present evidence that is conclusory or speculative, with no basis in fact. See Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505.

1. Retaliation Claim

In their inartfully-pleaded Complaint, plaintiffs allege that McDonald tried to take action against them in retaliation for the County Committee's decision not to endorse him for reelection. The alleged retaliation took two forms: McDonald's threats to fine the Emanueles for their deck and to get Nicholas Emanule fired, and McDonald's alleged firing of Lisa Emanuele on the radio.

Section 1983 authorizes a party who has been deprived of a federal right under the color of state law to seek relief through "an action at law, suit in equity, or other proper proceeding for redress." See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). A Section 1983 claim has two essential elements: (i) the defendant acted under color of state law; and (ii) as a result of the defendant's actions, the plaintiff suffered a denial of her federal statutory rights, or her constitutional rights or privileges. See Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir.1998) (citation omitted).

The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law made possible only because the wrongdoer is clothed with the authority of state law. West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Generally, a person acts under color of law when he acts in his official capacity, irrespective of whether the challenged conduct advanced a state objective or constituted an abuse of the defendant's official power. See Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir.1994) (citing West, 487 U.S. at 49-50, 108 S.Ct. 2250) (other citations omitted); see also Monsky v. Moraghan, 127 F.3d 243, 245 ("`It is firmly established that a defendant in a § 1983 suit acts under color of law when he abuses the position given to him by the State."') (quoting West, 487 U.S. at 49-50, 108 S.Ct. 2250). Moreover, "under `color' of law means under `pretense' of law." Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). One who lacks actual authority nonetheless acts under color of state law if he purports to act according to official power. See Barna, 42 F.3d at 816. This Court has little difficulty concluding that when the Town Supervisor fires an employee, or telephones a citizen of the town to tell him that he is going to be fined for building a deck without a permit, he is acting under color of law.

That said, there are special rules a plaintiff must follow when alleging that adverse government action taken in retaliation for the exercise of protected speech violates the First Amendment. Mozzochi v. Borden, 959 F.2d 1174, 1179 (2d Cir. 1992). To prevail on such a claim, a plaintiff must allege and prove (i) that her speech was protected by the First Amendment, i.e., involved a matter of public concern, and (ii) that there was adverse government action was taken in retaliation for the exercise of such speech. See, e.g., Brady v. Town of Colchester, 863 F.2d 205, 217 (2d Cir.1988) (citing Mount Healthy v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Where, as here, a plaintiff appears to assert a claim of retaliation in employment, they must show not only...