Swain v. Town of Wappinger

Decision Date09 July 2019
Docket Number17 Civ. 5420 (JCM)
PartiesTROY SWAIN, Plaintiff, v. TOWN OF WAPPINGER, THE TOWN OF WAPPINGER HIGHWAY DEPARTMENT, LORI JIAVA, individually and in her capacity as Supervisor of the Town of Wappinger, THE TOWN BOARD OF THE TOWN OF WAPPINGER, WILLIAM H. BEALE, individually and in his Capacity as Wappinger Town Councilman, WILLIAM CICCARELLI, individually and in his capacity as Wappinger Town Councilman, JOHN J. FENTON, individually and in his capacity as Wappinger Town Councilman, MICHAEL KUZMICZ, individually and in his Capacity as Wappinger Town Councilman, and ANTHONY STRUSS, individually and in his Capacity as an agent for the Town of Wappinger, Defendants.
CourtU.S. District Court — Southern District of New York

Plaintiff Troy Swain ("Plaintiff") commenced this action against the Town of Wappinger ("Town"), the Town of Wappinger Highway Department ("Highway Department"), Lori Jiava, the Town Board of the Town of Wappinger ("Town Board"), William H. Beale, William Ciccarelli, John Fenton, Michael Kuzmicz (collectively, the "Town Defendants"), and Anthony Struss.1 (Docket No. 1-1). Plaintiff filed his Complaint on May 19, 2017 in the Supreme Court of the State of New York, County of Dutchess. (Docket No. 1-1). Defendants removed theaction to this Court pursuant to 28 U.S.C. § 1441. (Docket No. 1).2 Before this Court are the Town Defendants' and Plaintiff's motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket Nos. 47, 53, 70). The Court heard oral argument on the parties' motions on June 21, 2019. For the reasons set forth below, the Town Defendants' motion is granted in part and denied in part, and Plaintiff's motion is granted in part and denied in part.


The following facts are taken from the Town Defendants' Statement of Material Facts submitted pursuant to Local Rule 56.1 of the United States District Courts for the Southern and Eastern Districts of New York, ("Defs. 56.1"), (Docket No. 51), Plaintiff's Statement of Material Facts, ("Pl. 56.1"), (Docket No. 72), the Town Defendants' response to Plaintiff's 56.1 statement ("Defs. 56.1 Reply"), (Docket No. 66), the parties' exhibits, and the briefs submitted by the parties in support of their contentions.

A. Plaintiff's Employment with the Town

Plaintiff, a 52-year old African-American male, worked for the Town of Wappinger from November 5, 2012 until June 14, 2016. (Defs. 56.1 ¶¶ 1-2; Pl. 56.1 ¶¶ 1, 5, 92). Plaintiff was initially employed full-time as a Motor Equipment Operator ("MEO") within the Highway Department and was appointed, on February 11, 2016, as Deputy Highway Superintendent. (Defs. 56.1 ¶¶ 4, 24; Pl. 56.1 ¶¶ 6, 35).

Of the 15 employees in the Highway Department, Plaintiff was the only African-American. (Pl. 56.1 ¶ 9). Plaintiff claims that during his time with the Highway Department, he faced an environment replete with racial hostility and racially-motivated negative treatment. For example, Plaintiff identifies several occasions where his coworkers used the word "nigger" in relation to others and directed at Plaintiff. (Defs. 56.1 ¶¶ 10, 14, 26, 29; Pl. 56.1 ¶¶ 15-19, 20-22). Plaintiff complained informally to the former Highway Superintendent as well as a union representative, but his concerns were dismissed. (Pl. Dep. at 116-17). Plaintiff claims that he stopped complaining because he did not want to lose his job and he did not think his complaints would be effective. (Pl. 56.1 ¶ 64). In addition to identifying several occasions where his coworkers in the Highway Department used racial epithets, Plaintiff alleges other incidents that he contends were racially motivated, such as the Highway Superintendent's acknowledgment that he would get "slack" for hiring Plaintiff and being passed over for favorable snow routes. (Defs. 56.1 ¶¶ 5, 18; Pl. 56.1 ¶¶ 13-14, 18).

Plaintiff was promoted to Deputy Highway Superintendent by Highway Superintendent Vincent Bettina on February 11, 2016. (Defs. 56.1 ¶ 24; Pl. 56.1 ¶ 35). When Plaintiff was promoted, Plaintiff believed that he would receive a pay raise in the form of a stipend. (Pl. 56.1 ¶ 36). Plaintiff was also permitted to use a cell phone and tablet provided by the Town and provided with exclusive use of a Town vehicle. (Pl. 56.1 ¶ 45). Plaintiff's promotion prompted backlash from his coworkers, the Town Board, and the Civil Service Employees Association, Inc. Local 1000 AFSCME, AFL-CIO ("CSEA"), the union representing Town employees. (Defs. 56.1 ¶ 26; Pl. 56.1 ¶¶ 43, 45, 51). The CSEA took the position that Plaintiff was elevated in violation of the terms of the Collective Bargaining Agreement between the Town and CSEA (the "CBA"), which required more senior employees to be promoted over Plaintiff. (Pl. Ex. J).Certain members of the Town Board adopted the position that the role of Deputy Highway Superintendent did not exist and Plaintiff, therefore, had been erroneously promoted. (Pl. 56.1 ¶ 34). Other Town Board members and members within the Highway Department took issue with Plaintiff's use of the Town vehicle, and shortly after Plaintiff's promotion, the Town Board unanimously adopted a vehicle policy that only allowed the Highway Superintendent, and not the Deputy, to have use of a Town vehicle. (Pl. 56.1 ¶¶ 51, 71). According to Plaintiff, following his promotion, one of his coworkers in the Highway Department referred to him as a "trouble making nigger." (Pl. 56.1 ¶ 21).

B. Plaintiff's Complaints of Racial Harassment

On April 7, 2016, Plaintiff filed a Workplace Violence Report with the Town, alleging racial harassment in the workplace. (Pl. 56.1 ¶ 55). He subsequently filed a complaint with the New York State Division of Human Rights on April 12, 2016. (Pl. 56.1 ¶ 56). In his complaint, Plaintiff repeated his allegations of racial harassment. (Pl. Ex. T). According to Plaintiff, he did not file a complaint earlier because he was afraid of losing his job, especially because it was the former Highway Superintendent's son-in-law who was making many of the racial slurs. (Pl. 56.1 ¶ 64; Pl. Dep. at 117-18). In response, the Town retained outside counsel, Kenneth Bernstein, to investigate Plaintiff's claims. (Pl. 56.1 ¶ 65). In a report dated May 9, 2016, Mr. Bernstein concluded that there was no credible reason to believe that Plaintiff had been subjected to racial harassment, threats or intimidation. (Pl. 56.1 ¶¶ 65-66). Upon Mr. Bernstein's recommendation, on May 23, 2016, the Town Board adopted a resolution to institute "Violence Prevention Act Compliance Measures," which required all employees within the Highway Department to attend mandatory training no later than June 30, 2016. (Pl. 56.1 ¶ 68; Pl. Ex. W).

C. Plaintiff's Termination

On May 24, 2016, Plaintiff's next-door neighbor, defendant Anthony Struss, sent the Town Board photographs and videos of Plaintiff and alleged that Plaintiff committed "theft of services" from the Town's residents by doing work around his home during the workday with Town equipment. (Defs. 56.1 ¶ 71; Pl. 56.1 ¶ 78). The Town Board consulted with outside counsel, David Wise, Esq., who determined that Plaintiff could be terminated immediately and recommended pressing criminal charges against Plaintiff for theft of Town resources. (Pl. Ex. EE). Mr. Bettina, the Highway Superintendent, refused to carry out Plaintiff's termination in accordance with counsel's recommendation and instead stated that he would follow the disciplinary procedures provided for in the CBA. (Pl. Ex. EE).

On June 13, 2016, notwithstanding Mr. Bettina's objections, the Town Board unanimously adopted a resolution terminating Plaintiff from his employment with the Town. (Defs. 56.1 ¶¶ 77-79; Pl. 56.1 ¶ 90; Bettina Dep.3 at 86; Pl. Ex. EE). On June 14, 2016, Plaintiff was served with a letter of termination, which stated that his "employment with the Town of Wappinger is terminated effective the date of this letter under Article IX, Section 5 of the Collective Bargaining Agreement between the Town and CSEA." (Pl. Ex. GG). Article IX, Section 5 of the CBA states in full:

No employee shall be disciplined or discharged without just cause. Just cause shall be subject to the grievance procedure as per this Article - section 6. There shall be a five (5) step discipline process:
1. Warning
2. Written Reprimand
3. Suspension without pay for up to three (3) days
4. Suspension without pay for no less than four (4) and no more than ten (10) days
5. TerminationAny action on the part of an employee, which endangers the safety, health or welfare of another employee or citizen of the Town, shall be cause to start at Step 4.

(CBA Article IX, § 5). It is undisputed that the Town did not follow steps (1) through (4) of the CBA's discipline process before terminating Plaintiff, but the parties disagree over whether the CBA required the Town to do so.

After his termination, Plaintiff applied for unemployment benefits and was initially denied based on the allegation that he had been terminated for cause. (Pl. 56.1 ¶ 95). Plaintiff requested a hearing, and following the hearing, an Administrative Law Judge ("ALJ") reversed the order, finding that the time stamps on the photographs and videos used to justify Plaintiff's termination were unreliable. (Pl. 56.1 ¶ 96). The ALJ also credited the Highway Superintendent's testimony that he had allowed Plaintiff to go home on his breaks and he did not have to clock in or clock out for breaks. (Pl. Ex. JJ). The Town appealed the ALJ's decision, and on March 24, 2017, the Unemployment Insurance Appeal Board denied the Town's appeal and granted Plaintiff unemployment benefits. (Pl. 56.1 ¶ 99; Pl. Ex. JJ).


Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). The moving party has the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)....

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