Kassel v. City of Middletown

• Citation: 272 F.Supp.3d 516
• Decision Date: 28 September 2017
• Docket Number: No. 14–CV–8922 (KMK),14–CV–8922 (KMK)
• Parties: Matthew K. KASSEL, Plaintiff, v. The CITY OF MIDDLETOWN, Joseph Destefano, Tom Amodio, Sam Barone, Nicholas Barber, Lou Morse, Don Luis, Paul Smith, and Michael Demchak, Defendants.
• Court: U.S. District Court — Southern District of New York

272 F.Supp.3d 516

Matthew K. KASSEL, Plaintiff,

v.The CITY OF MIDDLETOWN, Joseph Destefano, Tom Amodio, Sam Barone, Nicholas Barber, Lou Morse, Don Luis, Paul Smith, and Michael Demchak, Defendants.

No. 14–CV–8922 (KMK)

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

Signed September 28, 2017

Kent A. Eiler, Esq., Kelly A. Magnuson, Esq., Michael W. MacOmber, Esq., Tully Rinckey PLLC, Albany, NY, Counsel for Plaintiff

Alex J. Smith, Esq., Middletown, NY, Counsel for Defendants

OPINION & ORDER

KENNETH M. KARAS, District Judge:

Plaintiff Matthew K. Kassel ("Plaintiff"), a former member of the Middletown Fire Department ("Fire Department"), brings this Action against the City of Middletown ("Middletown"), Joseph DeStefano ("DeStefano"), Tom Amodio ("Amodio"), Sam Barone ("Barone"), Nicholas Barber ("Barber"), Lou Morse ("Morse"), Don Luis ("Luis"), Paul Smith ("Smith"), and Michael Demchak ("Demchak" and collectively, "Defendants"), alleging (1) discrimination in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. §§ 4301, et seq., N.Y. Exec. Law §§ 290, et seq., and N.Y. Mil. Law §§ 242, et seq. ; (2) retaliation under 38 U.S.C. § 4311(b) and N.Y. Exec. Law §§ 290, et seq. ; and (3) hostile work environment resulting in the denial of benefits of employment under 38 U.S.C. § 4311(a), N.Y. Mil. Law §§ 242, et seq., and N.Y. Exec. Law §§ 290, et seq. Plaintiff and Defendants have each moved for summary judgment on all of Plaintiff's causes of action. (See Dkt Nos. 80, 88.) For the reasons to follow, Plaintiff's Motion is denied and Defendants' Motion is granted in part and denied in part.

I. Background

A. Factual History

The following facts are taken from the documents submitted and the Parties' respective statements pursuant to Local Civil Rule 56.1.¹ The facts as described below are not in dispute, except to the extent indicated.

Plaintiff served as a member of the Fire Department and the New York Air National Guard (the "National Guard"). (See Statement of Material Facts Pursuant to Local Rule 56.1 ("Pl.'s 56.1") ¶ 17 (Dkt. No. 94); Defs.' Resp. to Pl.'s Rule 56.1 Statement ("Defs.' 56.1 Resp.") ¶ 17 (Dkt. No. 99).) The Fire Department consists of both volunteer and paid firefighters, (see Defs.' Rule 56.1 Statement in Supp. of Defs.' Mot. for Summ. J. ("Defs.' 56.1") ¶ 1 (Dkt. No. 81); Pl.'s Rule 56.1 Response Statement and Additional Statement of Facts in Supp. of Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s 56.1 Resp.") ¶ 1 (Dkt. No. 98)), and all named individual defendants are either current or former members of the Fire Department, (see Pl.'s 56.1 ¶¶ 3–10; Defs.' 56.1 Resp. ¶¶ 3–10).²

During the relevant time, Plaintiff was a paid firefighter with the Fire Department, (see Pl.'s 56.1 ¶ 17; Defs.' 56.1 Resp. ¶ 17), and as such was subject to the requirement set forth by the State of New York that he complete 100 hours of in-service training within a calendar year, (see Defs.' 56.1 ¶ 3; Pl.'s 56.1 Resp. ¶ 3).³ During his tenure, Plaintiff sought to become a Lieutenant at the Fire Department, (see Pl.'s 56.1 ¶ 20; Defs.' 56.1 Resp. ¶ 20), which would have put him at the helm of a group of roughly seven paid firefighters, (see Defs.' 56.1 ¶ 2; Pl.'s 56.1 Resp. ¶ 2). On June 15, 2013, Plaintiff took the Fire Department's promotion exam to become a Lieutenant, (see Pl.'s 56.1 ¶ 20; Defs.' 56.1 Resp. ¶ 20), ultimately receiving the highest score of any candidate who completed the exam in June 2013, (see Pl.'s 56.1 ¶ 28; Defs.' 56.1 Resp. ¶ 28).⁴ The Chief of the Fire Department, Amodio, an Assistant Chief, Luis, and the Mayor of the City of Middletown, DeStefano, then evaluated those candidates who took the exam. (See Defs.' 56.1 ¶ 16; Pl.'s 56.1 ¶ 32; Pl.'s 56.1 Resp. ¶ 16.)

In September 2013, not long after Plaintiff completed the Lieutenant's exam, he met in the parking lot near Middletown's Central Fire House with then-Chief of the Fire Department Amodio. (See Pl.'s 56.1 ¶ 23; see also Decl. of Kelly Magnuson, Esq. in Supp. of Pl.'s Mot. for Summ. J. ("Magnuson Decl.") Ex. B ("Amodio Dep.") 111 (Dkt. No. 95).)⁵ Plaintiff claims that the impetus for this meeting was a September 4, 2013 call he received from New York Air National Guard Senior Master Sergeant John Wilson, the Fire Chief at Stewart Air National Guard Base ("Base") in Orange County, New York ("Wilson"), who informed Plaintiff that Amodio had contacted a commander at the Base to ask why the Base was using Middletown firefighters to fulfill their manning requirements and avoid paying overtime. (See Pl.'s 56.1 ¶ 21.)⁶ During his meeting with Amodio, Plaintiff presented a PowerPoint, (see Pl.'s 56.1 ¶ 23; see also Amodio Dep. 111), which according to Plaintiff was about USERRA and his reemployment rights under the law, (see Pl.'s 56.1 ¶¶ 24–25). Plaintiff requested he be permitted to forward the PowerPoint to Lieutenant David Guattery, a request that Amodio approved. (See Pl.'s 56.1 ¶ 26; Defs.' 56.1 ¶ 26.) At the conclusion of this meeting, Amodio indicated that he was not the "driving force" behind the Fire Department's attention on military leave, (Pl.'s 56.1 ¶ 27; Amodio Dep. 112), and indicated that it was Luis who took exception to Plaintiff's requests for additional time off from work at the Fire Department, (see Pl.'s 56.1 ¶ 27; Amodio Dep. 112).

In October 2013, the Fire Department determined that it had two openings for Lieutenant positions. (See Defs.' 56.1 ¶ 18; Pl.'s 56.1 Resp. ¶ 18.) On October 28, 2013, Plaintiff received a text message from Amodio requesting that he report to DeStefano's office for an interview for one of the two Lieutenant positions. (See Pl.'s 56.1 ¶ 29; Defs.' 56.1 Resp. ¶ 29.) When Plaintiff arrived, he was greeted by DeStefano, Amodio, and Luis. (See Pl.'s 56.1 ¶ 30; Defs.' 56.1 Resp. ¶ 30.) These three individuals comprised what Defendants term the "Committee," (Defs. 56.1 ¶ 16), and conducted interviews of the top firefighters from the June 2013 promotion list who were seeking promotion to the rank of Lieutenant, (see id. ; Pl.'s 56.1 ¶ 31; Defs.' 56.1 Resp. ¶ 31).

The Parties present vastly different versions of what took place in the interview itself. According to Plaintiff, the interview began with DeStefano explaining that candidates would be graded by all three members of the Committee, and promotions would be awarded based on the ranking of the candidates' interview scores. (See Pl.'s 56.1 ¶ 32.) After this introduction, Plaintiff claims that he provided the Committee with copies of his resume and a letter of recommendation from Wilson praising Plaintiff's reliability and supervisory skills. (See Pl.'s 56.1 ¶¶ 33–34; see also Magnuson Decl. Ex. A ("Pl.'s Dep.") 53.) Plaintiff then proceeded to answer the Committee's questions, which, according to Plaintiff, began with a discussion of the military and Plaintiff's obligations therewith. (Pl.'s 56.1 ¶¶ 36–37; see also Pl.'s Dep. 53–56.) While Plaintiff does not dispute that he first brought up his military service, (see Defs. 56.1 ¶ 29; Pl.'s 56.1 Resp. ¶ 29), he alleges it was DeStefano who initiated the conversation regarding his military duties, (see Pl.'s 56.1 ¶¶ 36–37; see also Pl.'s Dep. 55). According to Plaintiff, the questions DeStefano asked highlighted a departmental concern for Plaintiff's ability to balance his dueling obligations to the National Guard and the Fire Department. (See Pl.'s 56.1 ¶ 37.) These questions covered Plaintiff's work at the Base, whether he chose to be there on his own accord, (see Pl.'s Dep. 56), and whether he was paid to be at the Base or if he was purely serving in a volunteer capacity, (see id. ). In response, Plaintiff encouraged the members of the Committee to call Wilson, which allowed Plaintiff to elaborate upon Wilson's recommendation and to discuss the extensive training that Plaintiff received at the Base. (See Pl.'s 56.1 ¶ 38.)

Not surprisingly, Defendants' version of the interview is different. Rather than DeStefano inquiring with Plaintiff about his military obligations, Defendants assert that it was Plaintiff who first brought up his military service and proceeded to use it as an excuse throughout the interview. (See Defs.' 56.1 ¶ 22; see also Magnuson Decl. Ex. C ("DeStefano Dep.") 237–43.) Specifically, the Committee was concerned that Plaintiff was the farthest behind in his mandatory training of any firefighter and that he would not successfully complete the 100 hours required of him in 2013. (See Defs.' 56.1 ¶ 22; see also Magnuson Decl. Ex. M ("Luis Dep.") 157.) This was critical, because Plaintiff could lose his certification as a firefighter were he not to meet this requirement. (See DeStefano Dep. 132.) Defendants were otherwise underwhelmed by Plaintiff's interview performance, finding that he had difficulty answering the questions asked of him and consistently deflected blame for his failure to be on track to reach his training requirements. (See Defs.' 56.1 ¶¶ 21–22; see also DeStefano Dep. 237–43.) When prompted to explain his training shortfall, Plaintiff "repeatedly brought up the military, blamed the military for his lack of training," (DeStefano Dep. 126–27), as he was ordered to be at the Base and was unable to "pick his [military] schedule," (id. at 228). In response to the Committee's concerns regarding his training shortfall, Plaintiff explained that he did not require additional training with the Fire Department "because he was getting training at the Stewart Air Force [B]ase." (Id. at 127.) Still, from Defendants' perspective, Plaintiff was unable to explain how he could successfully supervise firefighters and ensure they reached their own training requirements, while failing to complete his own annual training. (See Defs.' 56.1 ¶ 20; see also DeStefano Dep. 149). Ultimately, DeStefano, who is allegedly the ultimate decision maker for the Lieutenant positions, (see Amodio Dep. 135), believed that Plaintiff's interview performance was "horrible," bec...