Monette v. Cnty. of Nassau & Lawrence Mulvey
| Decision Date | 31 March 2015 |
| Docket Number | No. 11-CV-539 (JFB) (AKT),11-CV-539 (JFB) (AKT) |
| Parties | DENIS J. MONETTE, Plaintiff, v. THE COUNTY OF NASSAU AND LAWRENCE MULVEY, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Dennis Monette ("plaintiff") brought this employment discrimination action against the County of Nassau ("the County") and Lawrence Mulvey ("Mulvey") (collectively "defendants") after he was terminated as Assistant Commissioner of the Nassau County Police Department ("NCPD") on November 13, 2009. His termination occurred ten days after the election for Nassau County Executive, when the result was still unknown and too close to call. In that election, Ed Mangano ("Mangano") ultimately defeated Tom Suozzi ("Suozzi"), who had held the position since 2001. Plaintiff had been a fervent supporter of Suozzi until the 2009 election, when he switched his support to Mangano because plaintiff was frustrated with his treatment by his superior, NCPD Commissioner Mulvey. Plaintiff frequently complained to Suozzi about his treatment, and felt that Suozzi failed to address his concerns.
In this lawsuit, plaintiff alleged that he was fired for several unlawful purposes, including in retaliation for the exercise of his First Amendment right to support Mangano instead of Suozzi. After a trial in January 2014, a jury found for plaintiff on his First Amendment claim against the County,1 brought under 42 U.S.C. § 1983, and awarded plaintiff $150,000 in compensatory damages. The parties agreed that back pay, front pay, and reinstatement were equitable remedies for the Court's determination, and they have submitted post-trial briefs on these issues, as well as on post-trial motions by the County forjudgment as a matter of law and a new trial on damages, or remittitur of the $150,000 award.
The three specific issues addressed by the County's post-trial brief are as follows. First, the County renews its motion under Federal Rule of Civil Procedure 50 based on the "policymaker" defense, which was originally presented as a motion to amend defendants' answer to assert that defense. The defense was not in the answer, not in the summary judgment motion (and was disavowed by the County at oral argument on the summary judgment motion), not in the pretrial order, and not raised until a few days before trial. The Court concludes that the motion to amend on the eve of trial was properly denied because of the overwhelming prejudice to the plaintiff of having to respond to such a defense with such late notice. In the alternative, based upon the evidence defendants presented at trial, the Court concludes that the defense does not apply to plaintiff's position (as reconstituted) and, thus, fails on the merits. Next, the County moves for a new trial under Rule 59, arguing that the jury charge's definition of "motivating factor" as an element of the § 1983 claim was improper. This motion is denied because the instruction correctly defined "motivating factor" in accordance with prevailing Second Circuit precedent. Finally, the County seeks a new trial on damages or remittitur of the jury's award of $150,000 in compensatory damages for emotional harm, arguing that the award is unsupported by plaintiff's testimony alone, absent any medical or psychological evidence. This motion is also denied, because this award for emotional damages, given the evidence at trial, does not shock the Court's conscience, and is close in value to awards in other similar cases.
Plaintiff's post-trial brief seeks back pay and either reinstatement or front pay. The Court grants the request for back pay, but only for the period from plaintiff's termination on November 13, 2009, until December 31, 2009, because plaintiff would not foreseeably have continued his employment after Mangano was sworn in as County Executive on January 1, 2010.2 In particular, even assuming arguendo that the County has the burden of proving that the plaintiff's employment would have terminated on December 31, 2009 in the absence of the retaliatory termination on November 13, 2009, the Court concludes that the County has clearly met that burden. There was overwhelming (and uncontroverted) evidence in the record that Police Commissioner Mulvey wanted to terminate plaintiff for over two years (dating back to 2007) for reasons unrelated to plaintiff's political affiliation, but that County Executive Suozzi prevented Mulvey from doing so. Therefore, it was abundantly clear from the trial that, had Suozzi not authorized the termination of plaintiff for retaliatory reasons in November 2009 after the election (as the jury found), Police Commissioner Mulvey (who continued as Police Commissioner under County Executive Mangano) would have terminated plaintiff for non-retaliatory reasons as soon as Suozzi left office. In other words, given that Mulvey wanted to terminate plaintiff for over two years for reasons unrelated to political association, and was only prevented from doing so by Suozzi, allowing plaintiff to recover back pay beyond Suozzi's last day on December 31, 2009 would result in an inequitable windfall to plaintiff that hasabsolutely no basis in the evidence. For the same reason, plaintiff's motion is denied with respect to reinstatement and front pay.
Set forth below is a summary of the evidence that was adduced at trial.
Plaintiff joined the NCPD in 1968 (Tr. at 104), and served as a uniformed police officer until 1991, when he retired with a disability pension after sustaining knee and back injuries at a crime scene (id. at 116-19). After he retired, plaintiff worked periodically for his family's restaurant, but was not employed full time. (Id. at 124.) In 2000, plaintiff met Suozzi, who was preparing to run for Nassau County Executive. (Id. at 125.) Plaintiff was introduced to Suozzi by an old friend, Louis Yevoli, and was impressed with Suozzi's credentials and vision for the county. (Id. at 125-28.) Plaintiff became a friend and supporter of Suozzi's, hosting fundraisers for him and accompanying him on the campaign trail. (Id. at 128-32.) Overall, plaintiff estimated that he raised $210,000 for Suozzi during the 2001 election. (Id. at 136.)
After Suozzi was elected, he named plaintiff the Director of Public Safety, based on plaintiff's 22 years of experience in the police department and his ideas about streamlining public safety services. (Id. at 145-48.) After five or six months in that position, Suozzi appointed plaintiff as an Assistant Commissioner of the NCPD. (Id. at 153.) Initially, plaintiff's new position was dedicated solely to counter-terrorism, and he represented the NCPD as a member of STARCOM, a regional collaboration of local and federal agencies dedicated to sharing intelligence information and coordinating their response to the threat of terrorism. (Id. at 202.) However, when new Commissioner James Lawrence arrived a few months later, plaintiff was assigned additional duties involving departmental management, analysis, and planning. (Id. at 154.)
Suozzi was re-elected in 2005, and plaintiff supported and raised funds for him in that election as well. (Id. at 173-77.) After he was re-elected, Suozzi needed to name a new Commissioner of Police, because Commissioner Lawrence announced his retirement. (Id. at 180.) One of the candidates was defendant Mulvey, and Suozzi told plaintiff that he was aware of personal friction between Mulvey and plaintiff. (Id. at 181-82.) The friction stemmed from two incidents when both Mulvey and plaintiff were still police officers; one incident involved a search warrant, and the other involved the alleged misappropriation of property in Mulvey's unit. (Id. at 182-93.) As a result of his past experiences with plaintiff, Mulvey told a commissioner-selection committee that he would not work with plaintiff because he questioned plaintiff's integrity. (Id. at 518.)
Suozzi named Mulvey the NCPD Commissioner in mid-2007. (Id. at 194.) Before doing so, he assured Mulvey that plaintiff would not be part of his administration in the NCPD. (Id. at 527.) Suozzi later proposed a compromise in which plaintiff would be moved to the Office of Emergency Management (OEM), a separate entity from the police department which was located in a separate facility. (Id. at 536.) Mulvey insisted that plaintiff not have authority to order around police and should not be considered critical staff, and Suozzi agreed. (Id. at 537.) Instead, plaintiff would serve as a liaison betweenthe NCPD and OEM, and would continue to administer STARCOM. (Id.) Otherwise, Mulvey could assign plaintiff tasks at his discretion. (Id.) Suozzi immediately called plaintiff to inform him of the change, and also to inform plaintiff that Suozzi was giving him a raise of between $9,000 and $10,000, despite what plaintiff perceived to be a reduction in his duties. (Id. at 202-03; 538.)
Plaintiff was then re-located from the second floor of police headquarters to a cubicle in the basement of a county jail. (Id. 204; 539.) Plaintiff complained to Mulvey, Suozzi, Yevoli, and Deputy County Executive for Public Safety Frank Ryan about his working conditions in the basement, which he felt were a form of punishment or harassment because of his history with Mulvey, but there was no action in response to plaintiff's complaints. (Id. at 206-09.) Plaintiff remained in the basement cubicle for more than two years, until his termination in November 2009. (Id. at 209.) During that period, plaintiff had minimal job responsibilities. (Id. at 202.) Although he was located in OEM, he did not attend OEM meetings. (Id. at 201.) He continued to attend STARCOM meetings, but had far less of an operational role than he did under Commissioner Lawrence, when he helped to get STARCOM off the ground. (Id. at 201-02.) Plaintiff testified that, under Commissioner Mulvey, "there was no function for me to perform." (Id.) Mulvey testified that he assigned ...
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