Gusler v. City of Long Beach
| Decision Date | 15 August 2011 |
| Docket Number | CV 10-2077 (SJF) (AKT) |
| Parties | JAY GUSLER, Plaintiff Pro Se, v. THE CITY OF LONG BEACH, THE LONG BEACH VOLUNTEER FIRE DEPARTMENT, THE LONG BEACH POLICE DEPARTMENT, CHARLES THEOFAN, GARRET ROONEY, LISA HIRSCH, COREY KLEIN, ROBERT AGOSTISI, MARCO PASSARO, JOHN GARGAN, SCOTT KEMINS, STEPHEN FRASER, JOHN MCLAUGHLIN, MICHAEL GELBERG, AND TIMOTHY RADIN, individually and in their official capacities, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
I. PRELIMINARY STATEMENT
Jay Gusler ("Plaintiff" or "Gusler"), appearing pro se, filed a Complaint against The City of Long Beach ("City"), The Long Beach Volunteer Fire Department ("LBVFD"), Charles Theofan, Lisa Hirsch, Corey Klein, Robert Agostisi, Marco Passaro, John Gargan, Scott Kemins, Stephen Fraser, John McLaughlin, Michael Gelberg, and Tomothy Radin (collectively "Defendants").1 Plaintiff is an employee of the City of Long Beach Fire Department ("LBFD"),which is alleged to be an agency of the City. Plaintiff brings this action pursuant to 42 U.S.C. § 1983 for alleged deprivations of Plaintiff's rights under the First and Fourteenth Amendments and under 42 U.S.C. § 1985(3) and § 1986. Plaintiff also brings four state causes of action. Defendants have now moved to dismiss the Complaint. DE 21. Plaintiff has filed opposition to the motion. DE 23.
This motion has been referred to me by Judge Feuerstein for a Report and Recommendation. Based on my review of the Complaint, the arguments advanced by both parties in their written submissions, and the applicable case law, I respectfully recommend to Judge Feuerstein that Defendants' motion to dismiss be GRANTED in part and DENIED in part.
II. FACTUAL BACKGROUND
The following background facts come from the Complaint [DE 1]. Plaintiff has been a firefighter with the LBFD since 1993. DE 1 ¶ 58. Plaintiff was promoted to Lieutenant in the LBFD in 1999. Id. ¶ 59. Plaintiff is also a member of the Uniformed Firefighters Association ("UFA"), the union representing the paid firefighters, and Plaintiff has at times held various titles on the Executive Board of that union. Id. ¶ 60. The LBFD is comprised of both paid firefighters, such as Plaintiff, and members of the LBVFD, who are unpaid. Id. ¶ 26. At the time of the filing of the Complaint, the LBFD was purportedly comprised of 26 paid firefighters and 106 volunteer firefighters. Id. The individual Defendants are employees of the City and/or LBVFD in various capacities, which will be discussed infra. Throughout Plaintiff's career with the LBFD, he has been outspoken in his criticism of the way the volunteer firefighters are recruited and trained, and the way the LBFD as a whole has been run. Based in part on his speech concerning this issue, Plaintiff alleges that Defendants have taken retaliatory action against him.
During 2008, the UFA had been engaged in an effort to bolster the number of paid firefighters who worked overtime during summer weekends, a busy time for the LBFD. Id. ¶¶ 84-86. Plaintiff had been appointed to the position of Executive Officer ("XO") of the paid firefighters in April 2008. Id. ¶ 73.2 The Complaint alleges that although "it was not within his duties to do so," Plaintiff became involved in the overtime staffing dispute in an effort "to convince the City of the importance of this additional staffing." Id. ¶ 87.
Plaintiff first met with Garret Rooney, who, at the time, was the Assistant City Manager. Id. ¶ 13. Rooney told Plaintiff that the City did not find it necessary to provide additional staffing, but that Plaintiff could bring it up with the City Manager, Defendant Charles Theofan. Id. ¶ 88. Plaintiff wrote a letter to Defendant Theofan describing the "dire state" of the volunteer firefighters' performance and referenced two recent incidents during which the "volunteers failed to get out at all for a cardiac emergency and a seriously injured motorcyclist." Id. ¶ 90. The letter "warned of the consequences for the publics [sic] well being, as well as the PR nightmare and potential liability that would inevitably arise out of the excessive waiting times observed by the public at the scene of calls for help." Id. ¶ 91. The Court notes that while the exact date of this letter is not stated in the Complaint, it appears to have been written very shortly after Plaintiff's appointment to XO in April 2008, but before May 10, 2008.
The day after sending the letter, Plaintiff received a telephone call from Defendant Theofan stating that the City would not be changing its position and "chastis[ing] Plaintiff forhaving taken up the cause in the first place." Id. ¶ 93. Plaintiff alleges that the "City's management" shared the contents of his letter with the leadership of the LBVFD, who then "commenced a campaign of retaliation against" the paid firefighters, including Plaintiff. Id. ¶¶ 96-97.
As alleged examples of this retaliation, Plaintiff describes four incidents that occurred on May 10, 2008 and May 11, 2008. Plaintiff himself was present for only one of these incidents, while the rest are pled on information and belief. In the first incident, Plaintiff alleges that Defendant John Gargan, a member of the LBFD,3 employed certain procedures in responding to a call that were not in the best interests of the public, but served "to spar[e] the LBVFD the embarrassment of again demonstrating its inadequate response capabilities." Id. ¶ 108. In the second incident, Plaintiff alleges that Defendant Marco Passaro,4 a member of the LBFD, similarly employed procedures that left the paid firefighters and the public "in grave danger." Id. ¶ 128. When another paid firefighter asked Defendant Passaro why he had taken the actions he did, he allegedly replied, "If you guys want to write letters and handle all the EMS calls, I figured I'd let you." Id. ¶ 130. Plaintiff alleges that this was in reference to his letter to Defendant Theofan and is "an unmistakable admission of retaliatory motive." Id. ¶ 131.
The third allegedly retaliatory incident described by Plaintiff involved Defendant Passaro "improperly interfer[ing]" with the conduct of another LBFD crew in a way that urged the crewto allegedly "commit malpractice" and take "negligent actions" that were contrary to the best interests of the patient involved. Id. ¶¶ 138-39. The fourth incident, and the only one personally witnessed by Plaintiff, involved Defendant Gargan "berating" Plaintiff for the placement of his truck at the scene of an emergency call. Plaintiff alleges that his truck's placement was proper and that Defendant Gargan's "tirade" was "in retaliation for Plaintiff's letter" to Defendant Theofan. Id. ¶ 146.
In response to these four incidents, Plaintiff drafted a letter "outlining the misconduct of the Chiefs in direct response to Plaintiffs [sic] letter to Defendant Theofan." Id. ¶ 148. The letter argued that the Chiefs should be suspended and then dismissed from the LBFD for their conduct during the four described incidents. Id. Plaintiff ultimately intended to send the letter to the Fire Commissioner, Defendant Stephen Fraser,5 but first sent a draft to Assistant City Manager Rooney on May 13, 2008. Id. ¶¶ 148-49. Plaintiff did not receive a formal response to his letter from Assistant City Manager Rooney. However, a few days after sending the letter, Plaintiff ran into Mr. Rooney in City Hall and asked him if he had received the letter. Mr. Rooney said he had reviewed the letter. Mr. Rooney then stated that he and Defendant Theofan were "reconsidering their decision to appoint Plaintiff to the title of XO because of Plaintiff's 'attitude' toward the volunteers." Id. ¶ 150. After this statement, Plaintiff decided not to forward his letter to the Fire Commissioner.
In July 2008, the City received a complaint regarding an allegedly harassing and offensive posting regarding a member of UFA which he posted to the website "craigslist.com". Id. ¶ 152-54. Plaintiff was asked to attend a meeting, in his capacity as XO, to discuss the issue. Id. ¶ 155. Defendant Theofan was present at this meeting, as was the Corporation Counsel, Defendant Corey Klein, and the Assistant Corporation Counsel, Defendant Robert Agostisi. Defendant Klein allegedly stated that the City "knew" that the offensive posting was made from the UFA computer in the fire headquarters. Id. ¶ 157. Thus, Defendant Klein "ordered that Plaintiff seize the computer" and deliver it to a forensics firm for analysis. Id. Plaintiff stated that he believed the UFA computer was "off limits to the City" and that he had "grave concerns about the legality of what he was being ordered to do." Id. ¶ 159. Plaintiff alleges that Defendant Klein used false information to compel Plaintiff to seize the computer. Id. ¶ 161.
In early October 2008, the UFA arranged to have the paid firefighters attend a "live-burn" training at the Nassau County Fire Service Academy. Plaintiff alleges that the paid firefighters had not attended this training in three years because the City refused to pay overtime for the hours required to complete the training. Id. ¶¶ 166-67. Plaintiff wrote a memorandum to Defendant Fraser apprising him of the training dates and informing him of what equipment would be needed. Id. ¶ 168. Plaintiff received no response to the memorandum. Id. Plaintiff then informed Defendant Theofan of the training and requested permission to use certain equipment. Id. The Complaint states that Defendant Theofan "expressed reservations about the overtime" that the training would require. Id. ¶ 169. After Plaintiff provided documentationstating that the training was mandatory, Defendant Theofan said he would take it...
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