Reed v. Medford Fire Dep't, Inc.

• Decision Date: 10 August 2011
• Docket Number: No. 10–CV–737 (ADS)(AKT).,10–CV–737 (ADS)(AKT).
• Citation: 806 F.Supp.2d 594
• Parties: Michael P. REED and Lisa A. Reed, Plaintiffs, v. MEDFORD FIRE DEPARTMENT, INC., Board of Fire Commissioners of the Medford Fire District, Medford, New York, Franklin Rivera, Henry Pinto, John Doe1, John Doe2, John Doe3 and Jane Doe, Defendants.
• Court: U.S. District Court — Eastern District of New York

806 F.Supp.2d 594

Michael P. REED and Lisa A. Reed, Plaintiffs,

v.MEDFORD FIRE DEPARTMENT, INC., Board of Fire Commissioners of the Medford Fire District, Medford, New York, Franklin Rivera, Henry Pinto, John Doe1, John Doe2, John Doe3 and Jane Doe, Defendants.

No. 10–CV–737 (ADS)(AKT).

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

Aug. 10, 2011.

Joseph C. Stroble, Esq., Sayville, NY, for the Plaintiffs.

Furey & Furey, PC, by: Frank Catelli, Esq., Ingrid Mercedes Rodriguez, Esq., Of Counsel, Hempstead, NY, for the Defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

Michael Reed and Lisa Reed commenced this action against the Medford Fire Department, Inc. (“the Department”), the Board of Fire Commissioners of the Medford Fire District (“the Board of Fire Commissioners”), Franklin Rivera, Henry Pinto, and unspecified members of the Department (“the Defendants”) to recover damages associated with Michael Reed's discharge from his position as a volunteer firefighter with the Department. In addition, they are seeking damages associated with Michael Reed's request for records associated with his termination. Presently before the Court is the Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (“Fed.R.Civ.P. 56”) to dismiss the complaint in its entirety. For the reasons set forth below, the Court grants in part and denies in part the Defendants' motion.

I. BACKGROUND

The following constitute the undisputed facts in the case, with exceptions noted. As an initial matter, the Court notes that while both Michael Reed and Lisa Reed are plaintiffs in this action, most of the facts and causes of action relate solely to Michael Reed. Therefore, unless otherwise stated, all references to “Reed” or “the Plaintiff” are intended to refer to Michael Reed.

On February 3, 2008, Michael Reed, a volunteer member Medford Fire Department attended a Super Bowl party at the firehouse. On or about February 8, 2008, the Department received a letter from Kathleen Zaugg, the wife of a fellow volunteer firefighter, accusing Reed of inappropriately touching her at the Super Bowl party and requesting disciplinary action against him. In response to Zaugg's allegation, on February 17, 2008, the Department conducted an interview of Reed. In attendance at this interview were Reed, Chief Franklin Rivera, First Assistant Chief Norman Melcher, and Second Assistant Chief William Wyche. According to the Defendants, at this meeting Reed admitted to Zaugg's allegations of inappropriate conduct. However, Reed denies the allegations and denies making any admissions at the February 17, 2008 meeting.

On February 20, 2008, Rivera sent Reed a letter advising him that he was suspended from the Department until the next general meeting, which was to be held on March 7, 2008, for violating the Department's sexual harassment policy. The Department's sexual harassment policy is set forth in Article IV Section 3 Subdivision (A) of the Department's by-laws, which states that “conduct unbecoming of a member of the department in public” would be met with disciplinary action or expulsion. (Rodriguez Aff., Ex. E.) Rivera also sent a letter to Henry Pinto, president of the Department, recommending that the Department terminate Reed as a volunteer firefighter. In addition, on or about February 29, 2008, the Board of Fire Commissioners received correspondence from the law firm of Cartier, Bernstein, Auerbach, and Dazzo P.C., advising them that they had been retained by Zaugg in connection with the alleged groping incident.

On March 7, 2008, William Morrissey, Esq. (“Morrissey”), attorney for the Department, sent Reed a “Notice of Charges and Disciplinary Hearing” advising him that a hearing would be held pursuant to New York General Municipal Law § 209– l (“GML § 209– l”) and the Department by-laws on March 26, 2008 at 8:00 am in order to address the charges against him. However, at the Department's general meeting on March 7, 2008, the Department membership voted to withdraw the notice of the hearing and found Reed guilty of the charges. As reflected in the minutes of the March 7, 2008 Hearing (“March 7, 2008 Minutes”), the Department membership concluded that Reed was guilty because: (1) he had been given adequate notice of the March 7, 2008 meeting but failed to appear; (2) he had failed to request a trial; and (3) allegedly he admitted the charges against him at the February 17, 2008 interview. (Rodriguez Aff., Ex. I.) After the members voted that Reed was guilty, the Department's executive committee voted to terminate Reed from the Department. The next day, on March 8, 2008, on behalf of the Department, Morrissey sent a letter to Reed advising him that the executive committee had voted to remove him from the Department based on his violation of the Department's sexual harassment policy.

Not having been present at the March 7, 2008 Hearing, Reed attempted to obtain a copy of the minutes of the meeting. On April 5, 2008 Reed called Jim Guerrasio, who he believed was the president of the Department, to request a copy of the minutes. In addition, Reed sent a follow up written request for the minutes to Guerrassio on April 10, 2008. In response, Pinto, the actual president of the Department, sent a letter to Reed advising him that “all requests for monthly minutes must be requested through [his] lawyer” and that they would “wait for [his] lawyer's notification”. (Stroble Aff., Ex. C.) Reed contends that at this point he retained a lawyer, Joseph Stroble, Esq. (“Stroble”), who then assisted him with filing a request for the March 7, 2008 Minutes with the Board of Fire Commissioners pursuant to New York's Freedom of Information Law (“FOIL”). On June 16, 2008, the Medford Fire District's Freedom of Information Officer Michelle Roston (“Roston”) sent a letter to Stroble requesting additional information in order to comply with the request.

The record does not indicate whether Reed or Stroble responded to Roston's request for additional information. However, on or about June 19, 2008, Reed filed a petition pursuant to Article 78 of the New York Civil Practice Law and Rules challenging his termination as arbitrary and contrary to law because he was not provided with a hearing in accordance with the Department by-laws and GML § 209– l (the “Article 78 Petition”). The Article 78 Petition also charged that the Defendants had violated FOIL by denying his request for a copy of the March 7, 2008 Minutes, and requested an order directing the Board of Fire Commissioners and the Department to produce the March 7, 2008 Minutes at their own cost, and to pay Reed's attorneys' fees in association with the request. The portion of the Department's response to the Article 78 Petition annexed to the Affidavit of Joseph Stroble in Opposition to the Motion for Summary Judgment (“Stroble Affidavit”), indicates that the Department attached a copy of the March 7, 2008 Minutes to its response to the Article 78 Petition.

On October 5, 2009, New York Supreme Court Justice Joseph Farneti granted the Article 78 Petition. In his decision, Justice Farneti rejected the Department's argument that Reed was not entitled to a hearing because he was discharged for a violation of the Department's by-laws, which is not governed by the municipal law. Instead, Justice Farneti held that the basis for removal was Reed's misconduct, which is governed by the municipal law. In particular, GML § 209– l provides in relevant part that:

3. Removals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges ....

....

4. a. Hearings upon such charges shall be held by the officer or body having the power to remove the person charged with incompetency or misconduct or by a deputy or employee of such officer, or body designated in writing for that purpose.

...

b. The notice of such hearing shall specify the time and place of such hearing and state the body or person before whom the hearing will be held.

c. Such notice and a copy of such charges shall be served personally upon the accused officer or member at least ten days but not more than thirty days before the date of the hearing.

N.Y. Gen. Mun. Law § 209– l (McKinney 2011). However, Justice Farneti also stated that, even assuming arguendo that Reed's removal was governed by the Department by-laws, the by-laws also required notice and a hearing. See By–Laws of the Medford Fire Department Article IV Section 6 (“Any member facing charges shall be notified in writing at least 15 calendar days before such trial.”) (Rodriguez Aff., Ex. J at 7). Thus, Justice Farneti ordered the Department to “conduct a hearing with respect to the allegations which served as the basis for petitioner's removal, in compliance with General Municipal Law section 209–l and Section 4 of the Fire Department's by-laws, within sixty (60) days” of service of the order. Reed v. Medford Fire Dep't, Inc. ( “Reed I” ), Index No. 19931/2008, at 5, 2009 WL 3443318 (N.Y. Sup. Ct. Suffolk Cnty. Oct. 5, 2009). With respect to the FOIL claims, Judge Farneti held that because the Department had provided Reed with the March 7, 2008 Minutes in response to the Article 78 Petition, his FOIL claim was moot. Id. at 3. The decision does not address Reed's request for attorneys fees or other damages associated with his FOIL request. Reed did not appeal from this decision.

In accordance with Judge Farneti's order in Reed I, on November 20, 2009, on behalf of the Department, Morrissey sent to Stroble, Reed's attorney, who had represented Reed in conjunction with his FOIL request and his Article 78 Petition, a “Notice of Charges and Disciplinary Hearing” (“the Notice”) via certified and regular mail stating that Reed's hearing would take place on December 9, 2009. However, contrary to the requirements of GML § 209– l, the Defendants did not personally serve...