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COSTELLO v. MC.ENERY

July 16, 1991

VINCENT F. COSTELLO, PLAINTIFF, V.THOMAS A. MCENERY, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES; LUCIUS J. RICCIO, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF TRANSPORTATION OF THE CITY OF NEW YORK; THE PARKING VIOLATIONS BUREAU OF THE CITY OF NEW YORK; THE DEPARTMENT OF TRANSPORTATION OF THE CITY OF NEW YORK; AND THE CITY OF NEW YORK, DEFENDANTS.


The opinion of the court was delivered by: Leisure, District Judge:

ORDER AND OPINION

This is an action brought pursuant to 42 U.S.C. § 1983 asserting, in essence, that plaintiff was transferred from one job to another in retaliation for public and private comments plaintiff made regarding purportedly unethical and illegal practices at the New York City Parking Violations Bureau. Plaintiff claims that his rights under the first amendment of the United States Constitution have thereby been violated. Plaintiff has now moved for a preliminary injunction, seeking the following interim relief:*fn1

  1) reinstatement of plaintiff to his former
  position as Director of Operations at the Parking
  Violations Bureau;
  2) discontinuance of adverse personnel actions
  against plaintiff, including refusing or failing
  to assign plaintiff job duties commensurate with
  his seniority and managerial rank;
  3) continued payment to plaintiff of his present
  salary, and maintenance of plaintiff's present
  managerial rank; and
  4) a bar on defendants' reporting adverse
  personnel actions to any potential future employer
  of plaintiff.

For the reasons set forth below, plaintiff's motion for a preliminary injunction is denied.*fn2

Background

Plaintiff Vincent F. Costello was employed by the City of New York as Director of the Operations Division of the Parking Violations Bureau ("PVB"), beginning in June 1980. The function of the Operations Division of the PVB is to process parking violation summonses, including, inter alia, the resolution of public inquiries and complaints, the correction of electronic and manual files, and the processing of refund claims. Plaintiff was responsible for management of the Operations Division.

Defendant Thomas A. McEnery ("McEnery") was at all relevant times Deputy Commissioner of the New York City Department of Transportation ("DOT"), and Director of the PVB, a bureau of DOT. Defendant Lucius J. Riccio was at all relevant time Commissioner of DOT. The remaining defendants are the PVB, DOT, and the City of New York.

In early 1988, plaintiff began voicing numerous criticisms of what he claimed to be unethical or illegal PVB policies and operating methods. Specifically, plaintiff objected to: the reprogramming of the PVB computer in such a manner as to cause the computer inaccurately to record parking violations; PVB's failure to make a warranty claim with respect to the inadequate performance of a computer PVB had purchased; PVB's failure to notify citizens of overpayments of fines and interest, and to refund such overpayments; certain improper practices involving city marshals' collection of judgments; PVB's "false threats" of debt collection actions against parking violators with small outstanding judgments; PVB's instructions to administrative law judges to find persons guilty of parking violations in cases in which the PVB could not establish a prima facie case; and PVB's use of an inadequate number of private collection agencies. These criticisms were addressed to defendant McEnery, as well as to others within the PVB, from early 1988 through April 1990.

On May 14, 1990, plaintiff and McEnery attended a dinner given by the association of PVB's administrative law judges, at which plaintiff was presented with an award as "Administrator of the Year." In his acceptance speech, plaintiff restated some of his prior criticisms of PVB policies and practices. At a meeting on May 24, 1991, McEnery informed plaintiff that he was transferring plaintiff to the recently-created position of Director of Quality Control and Project Implementation, and that plaintiff would remain at the same level of seniority and salary. Plaintiff refused to accept the new position.

Defendants claim that plaintiff was transferred because he was disruptive and had difficulties cooperating with his peers and supervisors, had become rigid and isolated as Director of the Operations Division, and because McEnery believes that managers tend to become "stale" if they remain in one job for too long. McEnery also asserts that the new position had been created prior to plaintiff's May 14 speech, and that his transfer of plaintiff was in no way in retaliation for the criticisms of the PVB plaintiff made either in that speech or prior thereto.

Plaintiff, in contrast, claims that McEnery refused — and continues to refuse — to describe plaintiff's new responsibilities, or the size of his staff. He also asserts that McEnery's stated reasons for the transfer are merely pretextual, and that McEnery's true reason for removing him from the position of Director of Operations was to retaliate against plaintiff for his criticisms of the PVB. ...


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