Nolan v. Cnty. of Erie, Case No. 1:19-cv-01245

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Writing for the CourtChristina Reiss, District Judge United States District Court
PartiesJEREMIAH NOLAN, JR., and SANDRA NOLAN, Individually and as Husband and Wife, Plaintiffs, v. COUNTY OF ERIE, TIMOTHY B. HOWARD, MARK N. WIPPERMAN, THOMAS DIINA, and JEFFREY HARTMAN, Defendants.
Docket NumberCase No. 1:19-cv-01245
Decision Date16 December 2020

Individually and as Husband and Wife, Plaintiffs,

Case No. 1:19-cv-01245


December 16, 2020

10 & 11)

Plaintiffs Jeremiah Nolan, Jr., ("Plaintiff J. Nolan") and Sandra Nolan ("Plaintiff S. Nolan" and, collectively, "Plaintiffs") bring this action against Defendants County of Erie (the "County"), Sheriff of Erie County Timothy B. Howard, Undersheriff of Erie County Mark N. Wipperman, and Sheriff of Erie County employees Thomas Diina and Jeffrey Hartman (collectively, "Defendants") pursuant to 42 U.S.C. § 1983 and New York common law, alleging that Plaintiff J. Nolan was wrongfully terminated from his employment at the Erie County Sheriff's Department (the "Sheriff's Department") following a negligent investigation into an alleged incident of theft.

On April 24, 2020, the court issued an Opinion and Order granting in part and denying in part Defendants' motion to dismiss Plaintiffs' original Complaint and

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conditionally granting Plaintiffs leave to amend. On May 14, 2020, Plaintiffs filed a proposed Amended Complaint (the "PAC"), which Defendants moved to dismiss on May 21, 2020. (Doc. 10.) Plaintiffs filed an opposition on June 4, 2020 in which they also requested sanctions against Defendants for prematurely moving to dismiss their PAC. (Doc. 11.) On June 15, 2020, Defendants filed a reply, at which time the court took the pending motions under advisement.

Plaintiffs are represented by Steven M. Cohen, Esq., and William A. Lorenz, Jr., Esq. Defendants are represented by Erin Elizabeth Molisani, Esq., and Kenneth R. Kirby, Esq.

I. Allegations in the PAC.

Plaintiffs are husband and wife who reside in the County of Erie in New York. Plaintiff J. Nolan has been a full-time employee of the County since December 2005. Pursuant to a collective bargaining agreement, Plaintiff J. Nolan has been considered a permanent employee of the County since approximately December 2015. Sheriff Howard, Undersheriff Wipperman, and Defendants Diina and Hartman reside in the County and were, at all relevant times, employees of the County (the "individual Defendants"),1 Plaintiffs allege that these individual Defendants engaged in all acts alleged in the Complaint in the course of their employment and under the color of New York law in their official and individual capacities. Alternatively, Plaintiffs allege that these individual Defendants acted maliciously and intentionally outside the scope of their employment.

On approximately May 27, 2018, Plaintiff J. Nolan was working in a Sheriff's Department facility at the Erie County Medical Center ("ECMC") and found a magazine pouch in a desk drawer on the ninth floor. Based on written directives "detailed in said ECMC [o]ffice," he "moved the magazine pouch to the top of a gun box" in the ECMC office. (Doc. 9 at 5, ¶ 29.) His union representative informed him approximately six days

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later that he was accused of stealing an ammunition magazine from the ECMC office.

On June 8, 2018, Plaintiff J. Nolan met with Defendant Hartman, who gave Plaintiff the option to either resign from the employment of the County or charges would be filed against him and he would be arrested that day. Plaintiff J. Nolan attempted to explain "the circumstances surrounding the accusation, explained it was a magazine pouch without a magazine, where he put it and why, and Defendants refused to listen." Id. at 6, ¶ 33. The same day, Plaintiff received a letter from the Sheriff's Department, signed by Defendants Diina and Hartman, placing him on administrative leave without pay and ordering him to home confinement from June 8, 2018 through June 14, 2018. He asserts that the order of home confinement "was improper, unlawful[,] and without legal justification[,]" id. at ¶ 35, and that his attempts "to explain the facts of the situation[] and the errors and legal insufficiencies of and committed by Defendants were futile." Id. at ¶ 37.

On or about June 22, 2018, Plaintiff J. Nolan's employment was terminated by Undersheriff Wipperman, Defendants Diina and Hartman, and the County "as a result of an intentionally deficient and improper and negligent investigation[.]" Id. at 7, ¶ 38. He subsequently had night terrors and "feelings of paranoia, duress, chest pains, trouble breathing, severe sweating, and disorientation upon waking up." Id. at ¶ 39.

On or about June 26, 2018, Plaintiff J. Nolan was arrested for Petit Larceny, a Class A misdemeanor, which he contends, "if sustained, would forever be an impediment to future employment as a police officer." (Doc. 9 at 7, ¶ 42.) That same day, Sheriff Howard published or released the following allegedly defamatory statement to various press and media outlets regarding Plaintiff J. Nolan: "I cannot understand how a sworn officer could take another officer's lifeline—the magazines for his duty gun. It was evident that his misconduct warranted his termination." Id. at ¶ 43. This statement was then published in a news article titled: "What one Erie County Sheriff's deputy did that got him arrested and fired[.]" Id. at 10, ¶ 62. Plaintiff J. Nolan asserts that Sheriff Howard's statement accusing him of committing a crime "and/or conduct involving moral turpitude" was false when made, was made with malice, and that Sheriff Howard

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"knew or should have known the statements were false or should have had serious doubts about their truth, and published the statements anyway, with a reckless disregard of [their] probable falsity." Id. at ¶¶ 64-67.

Following a bench trial on December 17, 2018, Plaintiff J. Nolan was acquitted of misdemeanor Petit Larceny. He was informed on December 22, 2018 that he would be reinstated as an employee of the County, and Defendants and Plaintiff J. Nolan's union representative advised he was entitled to full payment of back wages. Plaintiff J. Nolan returned to work on March 26, 2019 but has not yet received any back pay.

Upon returning to work, Plaintiff J. Nolan experienced "hostility and retaliation" from "agents and/or employees of all Defendants[,]" which, in conjunction with the negative publicity of his arrest and his termination, caused "great stress" to him and his wife. Id. at 8, ¶¶ 48-49. Plaintiff J. Nolan alleges he has "a history of asserting his rights and filing grievances through proper channels against . . . Defendants" and of "seeking legal redress against Defendants for conduct [he] deemed illegal or wrong[,]" which Defendants have purportedly resented. Id. at ¶¶ 50-51. He asserts that he was "subjected to both suspension and discharge for being a 'whistleblower'[;] that is, disclosing and threatening to disclose to supervisors and the public certain negative activities, policies, or practices of [the County] and its employees" which he allegedly objected to or refused to participate in and which would violate New York and federal "laws, rules, and regulations[.]" Id. at 11, ¶ 70.

Plaintiff J. Nolan contends that upon clearing his name and attaining reinstatement as a police officer, he received from Defendants' agents "threatening comments, harassing behavior, denial to use restroom, etc., which rendered [him] deeply emotionally distraught." Id. at ¶ 71. On February 13, 2019, his extended sick leave was allegedly "abruptly stopped without just cause" even though he submitted the required paperwork. Id. at ¶ 72. On or about March 25, 2019, Defendants' "agent[,]" Lieutenant Adamek, allegedly told Plaintiff J. Nolan; "Looks like you burnt too many bridges around here[.]" Id. at ¶ 73. Lieutenant Adamek subsequently forced Plaintiff J. Nolan to work an additional eight-hour shift contrary to overtime restrictions imposed pursuant to the

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Family Medical Leave Act ("FMLA") and unjustly sanctioned Plaintiff J. Nolan for "leaving his post under circumstances which didn't warrant that sanction[.]" Id. at 12, ¶ 74. Plaintiff J. Nolan alleges other employees were not sanctioned for this same conduct.

Plaintiff J. Nolan further alleges that, on or about March 28, 2019, Deputy Marc Scarpace told Plaintiff J. Nolan to "fuck yourself" in front of others "at the behest and instance of Defendants" and that when he reported the incident, Defendants refused to "process or act on" it. (Doc. 9 at 12, ¶¶ 76-78.) On or about April 5, 2019, he was ordered to return his Policy and Procedures binder when other employees were not instructed to do so. On or about April 23, 2019, he was "written up for exhaustion of his FMLA time despite having eight hours remaining." Id. at ¶ 80. Chief Union Steward Deputy Mark Geary allegedly called this series of events a "witchhunt." Id. at ¶ 81.

In Count I of the PAC, Plaintiff J. Nolan asserts all Defendants wrongfully terminated him under N.Y. Civ. Serv. L. § 75(1) because he is a civil servant "who has been continuously employed for well over five years" and thus "had a protected property interest in his continued employment[.]" Id. at 8, ¶ 54. He alleges his employment could only be terminated under § 75(1) for incompetency or misconduct shown after a hearing upon stated charges and, because he did not receive that hearing, he was wrongfully terminated.

In Count II, Plaintiff J. Nolan asserts a defamation per se claim against unspecified Defendants based on the statements Sheriff Howard made to the media.2 In Count III, Plaintiff J. Nolan asserts a cause of action for "employer retaliation against employee" as to all Defendants. Id. at 11 (emphasis omitted). In Count IV, Plaintiff J. Nolan asserts that all Defendants violated his civil rights under...

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