Frisenda v. the Inc. Vill. of Malverne

• Decision Date: 31 March 2011
• Docket Number: No. 08–CV–4198 (JFB)(ARL).,08–CV–4198 (JFB)(ARL).
• Citation: 775 F.Supp.2d 486
• Parties: Richard FRISENDA, Plaintiff,v.The INCORPORATED VILLAGE OF MALVERNE, Patricia Ann Norris–McDonald, Individually and In Her Official Capacity; James J. Callahan, III, Individually and In His Official Capacity; Joseph J. Hennessy, Individually and In His Official Capacity; John Aresta, Individually and In His Official Capacity; and James Frankie, Individually and In His Official Capacity, County of Suffolk, Richard Dormer, Henry Mulligan, Thomas Palmieri, and Michael Murphy, In Their Individual and Official Capacities, Defendants.
• Court: U.S. District Court — Eastern District of New York

775 F.Supp.2d 486

Richard FRISENDA, Plaintiff,

v.The INCORPORATED VILLAGE OF MALVERNE, Patricia Ann Norris–McDonald, Individually and In Her Official Capacity; James J. Callahan, III, Individually and In His Official Capacity; Joseph J. Hennessy, Individually and In His Official Capacity; John Aresta, Individually and In His Official Capacity; and James Frankie, Individually and In His Official Capacity, County of Suffolk, Richard Dormer, Henry Mulligan, Thomas Palmieri, and Michael Murphy, In Their Individual and Official Capacities, Defendants.

No. 08–CV–4198 (JFB)(ARL).

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

March 31, 2011.

Steven A. Morelli, Esq., The Law Offices of Steven A. Morelli, P.C., Garden City, NY, Anthony Christopher Giordano, Esq., Law Office of Anthony C. Giordano, P.C., Oceanside, NY, for Plaintiff.Brian S. Sokoloff, Esq., Adam I. Kleinberg, Esq., Anthony F. Cardoso, Esq., of Sokoloff Stern LLP, Westbury, NY, for Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge.

On October 15, 2008, plaintiff Richard Frisenda (“plaintiff” or “Frisenda”) brought this action against defendants The Incorporated Village of Malverne (“the Village”), Patricia Ann Norris–McDonald (“McDonald”), James J. Callahan, III (“Callahan”), Joseph J. Hennessy (“Hennessy”), John Aresta (“Aresta”), and James Frankie (“Frankie”), individually and in their official capacities as employees of the Village (collectively, the “individual defendants”), alleging that defendants violated plaintiff's rights under the First and Fourteenth Amendments of the United States Constitution, pursuant to 42 U.S.C. §§ 1983 (“Section 1983”) and 1985, as well as under Section 209–a of the New York State Civil Service Law and Section 201–d(2)(d) of the New York Labor Law.¹

Plaintiff was a Lieutenant in the Malverne Police Department and was employed by the Department for over twenty-seven years. Plaintiff asserts that the disciplinary charge that was brought against him in March 2008 (to which he pled guilty as part of a negotiated plea agreement)—namely, donating blood in the Village of Rockville Centre while on duty on October 31, 2006—was in retaliation for his First Amendment activities. Specifically, plaintiff contends that, in the winter of 2007–2008, the defendants threatened to bring numerous disciplinary charges against him, initiated a disciplinary proceeding, and constructively discharged him by forcing him to resign, all in retaliation for certain First Amendment activity—namely, (1) his membership and participation in the Malverne Police Benevolent Association, including certain union-related activities in November 2007; (2) his involvement as a witness in a federal lawsuit filed by another Malverne police officer alleging retaliation, including testifying at the officer's trial in March 2008; and (3) a December 2007 memo written by plaintiff to the Village Board and Chief of Police regarding what plaintiff believed was a failure by members of the Malverne Police Department to follow procedure in responding to a particular emergency situation.

On April 27, 2010, defendants moved for summary judgment, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure on various grounds.² For the reasons set forth below, defendants' motion is denied with respect to plaintiff's Section 1983 claim for retaliation in violation of his First Amendment rights. Similarly, the motion is denied as to the state law claims. However, the motion is granted as to the plaintiff's Section 1983 claim under the Equal Protection Clause.

I. Facts

The Court has taken the facts set forth below from the parties' depositions, affidavits, and exhibits, and from the parties' respective Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2005). Unless otherwise noted, where a party's 56.1 statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it.³

In 1981, the Village hired plaintiff as a probationary police officer for the Malverne Police Department (“MPD”) and, after three months, was hired to be a permanent MPD police officer. (Defs.' 56.1 ¶¶ 5–6.) Plaintiff was promoted to Lieutenant in 1993. (Defs.' 56.1 ¶ 7.) The Chief of Police is the highest-ranking member of the MPD, followed by Lieutenant, then Sergeant, and then police officer. (Defs.' 56.1 ¶¶ 9–10.) Between 2006 and 2008, there were approximately 20–22 members of the MPD, which included anywhere from 3–5 Sergeants and 15–16 police officers. (Defs.' 56.1 ¶¶ 8, 11.)

As a Lieutenant, plaintiff was directly responsible for the daily oversight of approximately 2–5 police officers. (Defs.' 56.1 ¶ 12.) Plaintiff typically worked the day shift. (Defs. 56.1 ¶ 13.) In April 2008, plaintiff resigned from the MPD. (Defs.' 56.1 ¶ 14.)

Plaintiff was a member of the Malverne Police Benevolent Association (“PBA”) during his entire period of employment with the MPD. (Defs.' 56.1 ¶ 29.) The members of the MPD were also members of the PBA. (Defs.' 56.1 ¶ 30.) The PBA is responsible for negotiating a collective bargaining agreement (“CBA”) with the Village on behalf of the MPD Lieutenants, Sergeants and police officers, and also attempts to ensure that the CBA is complied with by the Village. (Defs.' 56.1 ¶¶ 31, 33.) The PBA holds monthly membership meetings, which have rarely been attended by the MPD's Chief of Police, and the Chief of Police negotiates his own employment contract with the Village. (Defs.' 56.1 ¶ 34.)

The PBA has four elected officer positions: President, Vice President, Secretary, and Treasurer, each of whom serve two-year terms of office. (Defs.' 56.1 ¶¶ 35–36.) Plaintiff served as PBA Treasurer from approximately 1984 to 1986, and as PBA Vice President for a single two-year term beginning in approximately 1986. (Defs.' 56.1 ¶¶ 37–38.) Plaintiff ran for PBA President in 1989, but lost. (Defs.' 56.1 ¶ 39.)

The PBA Contract Committee consists of the PBA President and 2–3 other individuals appointed by the President. (Defs.' 56.1 ¶ 41.) Plaintiff served on the PBA Contract Committee in approximately 1988 or 1989, and again beginning in October 2007 when he was appointed by PBA President John Cantanno. (Defs.' 56.1 ¶¶ 42, 50.) At the time of plaintiff's appointment in October 2007, Cantanno had been the PBA President for 4–5 years, and plaintiff served on the Contract Committee with Police Officers Thomas Martini and Thomas Winters. (Defs.' 56.1 ¶¶ 51–52.) Plaintiff served on this committee until his resignation in April 2008. (Defs.' 56.1 ¶ 53.) Plaintiff's first involvement in the 2007 CBA negotiations occurred in or about November 2007, when plaintiff attended a contract negotiation session with the Village. (Defs.' 56.1 ¶ 57.) The parties had not reached a new CBA by the time of plaintiff's resignation in April 2008. (Defs.' 56.1 ¶ 69.)

Plaintiff asserts that the reassignment of his loyalty from management to personnel came as a surprise to the Village Defendants. (Frisenda Decl. ¶ 15.) Specifically, plaintiff contends that, in front of other members of the PBA Contract Committee during the November 2007 negotiating meeting, Village Attorney James Frankie looked at plaintiff and said in an angry tone, “What is he doing here?” and Frankie was advised that plaintiff had been added to the committee. (Defs.' 56.1 ¶¶ 58, 61.) According to Frankie, his comment at this daytime meeting was prompted by his concern that as to who was manning the front desk at the police station, since plaintiff typically worked as the daytime desk officer and was wearing his police uniform. (Defs.' 56.1 ¶¶ 65–66.) Plaintiff asserts that Frankie, even after being advised that plaintiff was part of the Contract Committee, continued to display mannerisms indicating that he was angry with plaintiff's participation. (Pl.'s 56.1 ¶ 68.). Plaintiff further asserts that, on or about November 16, 2007, the Village received opposition to its motion for summary judgment in the lawsuit of Donovan v. The Incorporated Village of Malverne, No. 05–cv–3726, which included a declaration from PBA President Cantanno in which he stated that the Village had been threatening the PBA with respect to an issue that came up during the contract negotiations should the PBA members not unite with the trustees for the purpose of convincing Donovan to drop his lawsuit. (Pl.'s 56.1 ¶ 57.)

In the months prior to the November 2007 negotiating session between the Village and the PBA, plaintiff was part of a group of the high-ranking MPD officers who were exploring the possibility of breaking off from the PBA and forming their own collective bargaining unit—called the Malverne Superior Officers Association (the “SOA”). (Defs.' 56.1 ¶¶ 70–71.) The SOA was to consist solely of the Lieutenants and Sergeants of the MPD. (Defs.' 56.1 ¶ 72.) Plaintiff and the other superior officers were in favor of creating this new bargaining unit, but first needed to see how contract issues with the Village would play out. (Defs.' 56.1 ¶ 73.) According to plaintiff, all potential members of the SOA kept their efforts hidden from the PBA. (Frisenda Decl. ¶ 14.) With regard to the proposed SOA, plaintiff and Sergeant Kid met with Chief Aresta and Trustee James J. Callahan III. (Defs.' 56.1 ¶ 76.) According to plaintiff, Callahan indicated that the Village Board wanted to see the SOA get formed, but plaintiff would not proceed any further without having a CBA for the SOA to sign. (Defs.' 56.1 ¶ 77.) A proposed CBA was circulated for the SOA, but plaintiff believed there were too many sticking points that could not be resolved. (Defs.' 56.1 ¶ 78.) Plaintiff further asserts that the SOA would have left the PBA with less negotiating power, lower membership, and less individuals at the top. (Pl.'s 56.1 ¶ 76.)...