Fishman v. Cnty. of Nassau
| Decision Date | 01 April 2013 |
| Docket Number | 10-CV-3231 (MKB) |
| Parties | ALAN FISHMAN, Plaintiff, v. COUNTY OF NASSAU, NASSAU COUNTY CIVIL SERVICE COMMISSION, THE NASSAU COUNTY LEGISLATURE, WILLIAM MULLER and PETER SCHMITT, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Alan Fishman brought the above-captioned action against Defendants County of Nassau, Nassau County Civil Service Commission, the Nassau County Legislature, William Muller and Peter Schmitt, alleging violations of his First Amendment and Fourteenth Amendment rights pursuant to 42 U.S.C. §§ 1983, 1985 and 1988, as well as a number of state law claims.1 Defendants moved to dismiss the Complaint, and Senior District Judge Denis R. Hurley2 granted in part and denied in part Defendants' motion. Judge Hurley dismissed Plaintiff's Fourteenth Amendment due process claim, New York State constitutional claims, and intentional and negligent infliction of emotional distress claims. Judge Hurley denied Defendants' motion as to Plaintiff's First Amendment claim, §§ 1983 and 1985 conspiracy claims, § 1988 claim and New York Labor Law claims. Defendants now move for summary judgment on Plaintiff's remaining claims. The Court heard argument on January 22, 2013. OnJanuary 31, 2013, Plaintiff moved to substitute the Estate of Peter Schmitt, Lois Schmitt and Samantha Schmitt Kennedy for Defendant Peter Schmitt, who died on October 17, 2012. For the foregoing reasons, Plaintiff's motion to substitute is granted in part and denied in part. Lois Schmitt, as Peter Schmitt's successor, is substituted for Peter Schmitt as a defendant in this action. Defendants' motion for summary judgment is granted in part and denied in part. Defendants' motion for summary judgment is denied as to Plaintiff's First Amendment and New York Labor Law claims. Defendants' motion for summary judgment is granted with respect to Plaintiff's §§ 1983 and 1985 conspiracy claims and all claims brought against Defendant Schmitt in his official capacity.
Plaintiff began working as a records clerk in the Clerk's Office of the Nassau County Legislature on December 28, 2006. (Def. 56.1 ¶¶ 1, 12.) While Plaintiff was working in the Clerk's Office, he was an active member of the Democratic Party, attending political meetings at the Mid-Nassau Democratic Club in East Meadow. Id. at ¶ 13. On September 18, 2007, Plaintiff was elected to the office of Member of the County Committee in the Town of Hempstead (the "Democratic Committee"). Id. at ¶ 14. Carol Dunkel, Kate O'Hagen and Carol Muller were also members of the Nassau County Democratic Committee and worked in the Clerk's Office. Id. at ¶ 25.
When Plaintiff began working in the Clerk's Office, his job responsibilities included: (1) copying and scanning all clerk items, which could include contracts, pieces of legislation or any other matters to be addressed by the legislature; (2) keeping track of all of the clerk items in the database; (3) researching passed ordinances, local laws and resolutions; (4) assisting in the set up for legislative meetings by putting orders on the tables and making sure the tables wereavailable; and (5) attending legislative meetings and recording votes. (Def. 56.1 ¶ 15; Pl. 56.1 ¶ 18.) Chumi Diamond, the former Clerk of the Nassau County Legislature, stated that Plaintiff's initial duties "included putting together the agendas for meetings, processing items that came in, including making copies of items and assisting in making copies of items." (Def. 56.1 ¶ 16.) On a few occasions, Plaintiff attended meetings with Diamond, Dave Gugerty, Michele Darcy, Sarah Flammer and Marianne Weiss. (Pl. 56.1 ¶ 20.) Gugerty, Darcy and Flammer all worked for Diane Yaturo, the Presiding Officer at that time. Id. Weiss, according to Plaintiff, is a Republican who worked in the Clerk's Office with him. (Pl. Aff. ¶ 21.) The meetings were informal and involved discussions between Diamond, Gugerty, Darcy and Flammer regarding what would be put on the legislative agenda. (Pl. 56.1 ¶ 20.) Plaintiff was not involved in any of the discussions and his sole duty at the meetings was to write down what legislative committees were on the agenda. Id. On May 9, 2008, Plaintiff received a raise and his title changed from "Journal Clerk" to "Special Assistant to the Clerk." (Pl. Decl. Ex. 1.) Plaintiff's duties did not change except he assumed a more active role in running the audio/visual system used to stream the legislative meetings live. (Diamond Dep. 18:13-20:7.)
In November of 2009, the Republicans took control of the Nassau County Legislature, and "it was common knowledge that the Clerk of the Legislature would be replaced." (Def. 56.1 ¶ 26; Pl. 56.1 ¶ 26.) After the election, Plaintiff claims that Jerome "Jay" Gallucio, an active member of the Republican Committee, asked Plaintiff where he intended to work in January. (Def. 56.1 ¶ 27; Pl. 56.1 ¶ 27.) Gallucio told Plaintiff that "they are not going to keep you." (Fishman Dep. 108:3-4.) After speaking to Gallucio, Plaintiff became worried about his job. (Fishman Dep. 107:5-6.) Gallucio was never employed by the Clerk's Office and was not involved in the hiring or firing of anyone in the Clerk's Office. (Def. 56.1 ¶ 28.) However,Gallucio worked for Republicans in the Nassau County Legislature and "seemed to have substantial knowledge of how the Republican committee operated." (Pl. 56.1 ¶ 27; Fishman Dep. 107:5-11, 108:24-109:11.) According to Plaintiff, Gallucio worked closely with Defendant Schmitt and served as his legislative aide on many occasions. (Pl. 56.1 ¶ 29.)
Defendant Schmitt was appointed by the Nassau County Legislature to the position of Presiding Officer. (Def. 56.1 ¶ 3.) Defendant Muller replaced Diamond as the Clerk of the Nassau County Legislature. (Def. 56.1¶ 4.) Defendant Muller visited the Clerk's Office in December of 2009. (Def. 56.1 ¶¶ 4, 40; Pl. 56.1 ¶ 40.) Plaintiff provided Defendant Muller with a copy of his resume, which listed his duties as follows: (1) creating agendas and calendars for legislative meetings; (2) researching ordinances, resolutions and local laws; (3) organizing and maintaining databases of all current legislation, meeting documents and meeting minutes; (4) implementing computerized scanning of Clerk's Office documents to minimize the need for paper documents; and (5) working for all nineteen Nassau County Legislators on a daily basis. (Def. 56.1 ¶ 43.) At Defendant Muller's request, Plaintiff also provided an itemized list of his duties, which included among other things: (1) create agendas for each legislative meeting; (2) attend all legislative meetings for the Clerk's Office; (3) record votes for all meetings; (4) research past legislation, including ordinances, local laws and resolutions; and (5) deal with Newsday on a daily basis in order to publish proposed ordinances and local law hearings prior to each legislative meeting and emergency resolutions and bond ordinances after each legislative meeting. Id. at ¶ 44.
In December of 2009, three new hires were brought on in the Clerk's Office — Janice Pinto, Barbara Janowitz and Crystal Albert. (Pl. 56.1 ¶ 49; Fishman Dep. 180:4-18.) All of these individuals were Republicans. (Fishman Dep. 178:2-5.) Janowitz was the wife of aRepublican judge, and Pinto was the wife of a Republican councilman. (Fishman Dep. 154:11-13.) Defendant Schmitt hired Albert on December 24, 2009 and Janowitz on December 28, 2009, as legislative aides. (Pl. Decl. Exs. 6, 7.) Soon after, if not immediately, Albert and Janowitz were transferred to the Clerk's Office.3 (Pl. 56.1 ¶ 49.) Plaintiff, Dunkel, and Carol Muller were instructed to train the new hires. (Fishman Dep. 180:4-11.) Plaintiff testified that Defendant Muller told Plaintiff that the original plan was to fire Plaintiff, Dunkel and Carol Muller right away, but Defendant Schmitt told Defendant Muller, "you can't fire all these people because who's going to train my new staff?" (Fishman Dep. 181:16-24.)
After learning about the new hires, Plaintiff asked Christina Brennan, Defendant Schmitt's press secretary, whether Plaintiff's job was in jeopardy. (Def. 56.1 ¶ 31; Fishman Dep. 145:7-11.) Brennan asked Plaintiff whether he was "a committee person" and offered to find out more information for Plaintiff. (Def. 56.1 ¶ 31.) In January, Plaintiff spoke to Brennan again. (Fishman Dep. 150:15-18.) Brennan told Plaintiff that she spoke to Defendant Schmitt directly and told Defendant Schmitt "how helpful [Plaintiff had] been to her and to the Republicans for the last three years in the building." (Fishman Dep. 150:20-24.) Brennan informed Plaintiff that she had heard from either Defendant Schmitt or another Republican that Defendant Schmitt had concerns about keeping Plaintiff, given his active contributions to the Democratic Party. (Pl. 56.1 ¶ 30.) Brennan recommended that Plaintiff withdraw his involvement in the Democratic Party in order to save his job. (Pl. 56.1 ¶ 30; Fishman Dep. 152:19-21.) On one occasion, Defendant Muller asked Plaintiff to accompany him to a Republican ceremony. (Pl. 56.1 ¶ 45.) Plaintiff thought that he was attending the meeting tooperate the audio/visual equipment, but at the ceremony Defendant Muller continuously introduced Plaintiff to individuals who were associated with the Republican Party. Id. Plaintiff felt very uncomfortable at the meeting. Id. After the meeting, Defendant Muller suggested to Plaintiff that he join the Republican clubs that the people at the meeting belonged to, but Plaintiff informed Defendant Muller that he was already a member of a Democratic club. Id. Plaintiff also testified that on several occasions Defendant Muller would come into the area where Plaintiff worked and discuss participation in Republican clubs. (Fishman Dep. 208:3-14.)
On January 11, 2010, Carol Dunkel, a Democratic Committee member, was terminated. (Def. 56.1 ¶ 47; Fishman Dep....
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