Novick v. Vill. of Wappingers Falls, 17-CV-7937 (KMK)

• Decision Date: 27 March 2019
• Docket Number: No. 17-CV-7937 (KMK),17-CV-7937 (KMK)
• Citation: 376 F.Supp.3d 318
• Parties: Martin B. NOVICK, Jr., Plaintiff, v. VILLAGE OF WAPPINGERS FALLS, NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

376 F.Supp.3d 318

Martin B. NOVICK, Jr., Plaintiff,

v.VILLAGE OF WAPPINGERS FALLS, NEW YORK, Defendant.

No. 17-CV-7937 (KMK)

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

Signed March 27, 2019

Jane B. Gould, Esq., Gould & Berg LLP, White Plains, NY.

Howard M. Miller, Esq., Bond, Schoeneck & King, PLLC, Garden City, NY.

OPINION & ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE

Plaintiff Martin B. Novick, Jr. ("Plaintiff") brings this action against the Village of Wappinger Falls, New York (the "Village" or "Defendant"), pursuant to 42 U.S.C. § 1983, alleging that Defendant retaliated against him in violation of the First Amendment because he engaged in Union-related activities, and discriminated against him in the terms and conditions of employment on the basis of disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. , and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296. (See Compl. (Dkt. No. 1).) Before the Court is Defendant's Motion To Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Not. of Mot. (Dkt. No. 17).). For the following reasons, Defendant's Motion is granted in part and denied in part.

I. Background

A. Factual Background

The facts recounted below are taken from Plaintiff's Complaint and are assumed to be true for purposes of resolving the Motion.

Defendant is a municipal corporation incorporated in the State of New York. (Compl. ¶ 12.) Plaintiff has been employed as a law enforcement officer for the Village since August 1989 and has permanent competitive civil service status in that position. (Id. ¶ 9.) In October 2001, Plaintiff was promoted to the title of Detective and received an increase in pay over the pay he received as a police officer. (Id. ¶ 10.)

Since approximately 1994, Plaintiff has served as President of the Police Benevolent Association ("PBA") of Wappingers Falls, the exclusive bargaining agent for a unit consisting of all full-time and part-time police officers in the Village, with the exception of the Chief of Police and the Village Police Commissioner, Carl Calabrese ("Calabrese"), who works part-time. (Id. ¶ 13.) The PBA and the Village are parties to a Collective Bargaining Agreement ("CBA") for the period January 1, 2006 through December 1, 2013, as modified by a Memorandum of Agreement ("MOA") covering the period January 1, 2013 through December 31, 2018. (Id. ¶ 14.)

In his role as Union President, Plaintiff has actively advocated with the Village on behalf of the PBA and its members. (Id. ¶ 15.) Plaintiff alleges that Village officials, including Calabrese, "have frequently exhibited, in word and in deed, antipathy to that advocacy." (Id. ¶ 16.) For example, on April 28, 2014, Plaintiff, along with PBA Vice President Scott McHugh ("McHugh"), who was also a Detective, advocated on behalf of the PBA to the Village Police Committee that Calabrese was causing scheduling problems within the Village Police Department. (Id. ¶ 17.) There was at that time a long-standing practice within the department that Detectives prepared their work schedules. (Id. ¶ 18.) Plaintiff alleges that in retaliation for the foregoing advocacy, on April 29, 2014, the very next day, Calabrese issued an order prohibiting Plaintiff, McHugh, and two other detectives, from preparing their work schedules. (Id. ¶ 19.)

In May 2014, Calabrese told one or more PBA members that he would bankrupt the PBA. (Id. ¶ 20.) At some point in the Fall of 2014, Plaintiff, McHugh and another part-time police officer met with Calabrese to advocate for the PBA by setting forth demands for CBA negotiations. (Id. ¶ 21.) Shortly thereafter, Calabrese stated to the others who attended that meeting that he was going to "get Novick." (Id. ¶ 22.)

In June 2015, Plaintiff was diagnosed with bladder cancer. (Id. ¶ 23.) He advised Calabrese, as well as Police Sergeant Burke ("Burke") and Police Lieutenant Birdsell ("Birdsell") of that diagnosis in July 2015. (Id. ¶ 24.) In or about July 2015, Plaintiff advised Calabrese that he was going to go through a series of treatments and that it would last six weeks. (Id. ¶ 25.) In the Summer of 2015, Plaintiff explained to Calabrese, Burke, and Birdsell how the treatment known as "BCG" worked, specifically that the treatment was administered by being injected directly into the bladder, and that he did not know how he was going to feel after the treatment. (Id. ¶ 26.)

In or about July 2015, Plaintiff took time off from work for his cancer treatment. (Id. ¶ 27.) During the course of his first round of treatment, Plaintiff explained to Calabrese the effects of the treatment, including that he was very uncomfortable, and that he experienced urgency to go to the bathroom without real warning. (Id. ¶ 28.) In addition, in July 2015, Plaintiff advised Village Mayor Matt Alexander that he had bladder cancer and that the medical plan was to have six weeks of treatment and three years of periodic treatments or "preventive maintenance." (Id. ¶ 29.)

Plaintiff learned in October 2015 that the first round of treatment was not effective and he advised Calabrese and Burke that he would be going to Sloan Kettering in New York City for a second opinion. (Compl. ¶ 30.) Plaintiff was required to undergo a second round of treatment commencing in November 2015. (Id. ¶ 31.) He informed Calabrese, Birdsell, and Burke of the second round of treatment. (Id. )

During the second course of treatment, Plaintiff was out of work for a number of days and presented a note to his superiors on December 16, 2015 to the effect that he was required to be out of work. (Id. ¶ 32.) In January 2016, Plaintiff returned to work but continued to suffer the side effects of treatment, including urgency and frequency of urination and fatigue. (Id. ¶ 33.)

During the period described above, Plaintiff was assigned to the Detective Bureau, and notwithstanding the side effects of treatment, he was able to manage his caseload as a Detective without restrictions. (Id. ¶ 34.) Plaintiff alleges that during this time, his supervisors were aware of the side effects he suffered as a result of the cancer treatment. (Id. ¶ 35.)

In February 2016, in his role as PBA President, Plaintiff engaged in CBA negotiations with Calabrese who demanded that the new CBA contain language whereby new hires would be required to commit to remaining employed with the Village for five years before seeking new employment. (Id. ¶ 36.) Plaintiff advocated against the insertion of such language because he believed that it was in the interest of the PBA members to be able to better themselves by seeking other employment. (Id. ¶ 37.)

In March 2016, Police Commissioner Calabrese intentionally falsely told one of the Village's full-time police officers that the PBA did not want the Village to employ full-time police officers, that the PBA does not represent that officers' interests, that he should not trust the PBA or its leadership, and that he should look out for himself because the PBA would not do so. (Id. ¶ 38.)

During the period between March 30 and April 13, 2016, Plaintiff underwent three weeks of additional cancer treatment. (Id. ¶ 39.) As a result of those treatments, Plaintiff again suffered side effects of urgency of urination, irritability, and fatigue. (Id. ¶ 40.) Plaintiff's supervisors, including Calabrese, Birdsell, and Burke were aware that Plaintiff was suffering those side effects. (Id. ¶ 41.) During this period, Plaintiff was assigned to the Detective Bureau and had easy access to bathroom facilities. (Id. ¶ 42.)

On April 27, 2016, all three Detectives in the Detective Bureau, including Plaintiff and McHugh, were notified that as of June 1, 2016, they would be reassigned from the Detective Bureau to patrol and that all Detective functions and work they had exclusively performed and which had been exclusively performed by part-time police officers in the PBA's unit, would be transferred and performed by the Dutchess County Sheriff's Office and/or New York State Police, except that the Village detectives would assist the State Police in homicide investigations. (Id. ¶ 43.) On June 1, 2016, all three Detectives in the Detective Bureau, including Plaintiff, were reassigned to uniform patrol. (Id. ¶ 44.)

While assigned to the Detective Bureau, Plaintiff had not been required to wear a uniform. (Id. ¶ 45.) Also, while assigned to the Detective Bureau, Plaintiff and the Detectives planned their own schedules, put in their schedules weekly, and were able to change their schedules and manage their schedules around their caseloads. (Id. ¶ 48.) On patrol, Plaintiff and the other Detectives reassigned to patrol were required to put in their schedules monthly and were required to work an eight-hour tour. (Id. ¶ 49.)

Upon inquiry as to the reasons for this reassignment, Plaintiff was advised that the reasons were budgetary. (Compl. ¶ 46.) Plaintiff alleges that the Village budget was not in fact reduced by reason of the reassignment. (Id. ¶ 47.)

On July 8, 2016, while Plaintiff continued to serve as President of the PBA, the PBA filed an Improper Practice Charge against the Village of Wappingers Falls with New York State Public Employment Relations Board, alleging numerous violations of law. (Id. ¶ 50.)

Plaintiff was scheduled to work on Monday, July 25, 2016 and Thursday, July 28, 2016.¹ (Id. ¶ 51.) On July 24, 2016, Plaintiff called Police Headquarters and on a recorded call stated "I'm not coming in this week because [of] my treatment. I told the Lieutenant that I was going to try to at least do my Monday shift, but I got to go for my treatment again this week." (Id. ¶ 52.) He further stated, "[a]nd with my treatment I got to just stay close to the house ... I tried but I just can't make it." "I don't want to be put in a bad position." (Id. ) The dispatcher on duty responded, "All right, Marty, you got it." (Id. ¶ 53.) On July 24, 2016, per departmental procedure and practice, Plaintiff also called the on-call...