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MONROE v. SCHENECTADY COUNTY

September 20, 1997

DAVID J. MONROE, Plaintiff,
v.
SCHENECTADY COUNTY, WILLIAM BARNES, Individually and as Schenectady County Sheriff, HARRY BUFFARDI, Individually and as Schenectady County Undersheriff, DONALD WILLIAMS, Individually and as a Schenectady County Correction Officer and President of Local Union 3874, WALTER CAVANAUGH, Individually and as a Representative of Council 82 and THE SCHENECTADY COUNTY SHERIFF'S BENEVOLENT ASSOCIATION, LOCAL 3874 and COUNCIL 82, AFSCME, AFL-CIO, Defendants.



The opinion of the court was delivered by: MCAVOY

MEMORANDUM, DECISION & ORDER

 This action, brought under 42 U.S.C. § 1983, centers on disciplinary actions taken by the Schenectady County Sheriff's Department ("the Department") against one of its employees, plaintiff David J. Monroe. Plaintiff claims, inter alia, that such actions were taken in violation of his due process rights under the Fourteenth Amendment to the United States Constitution. Defendants Schenectady County, William Barnes and Harry Buffardi now move for summary judgment. *fn1"

 I. BACKGROUND

 A. Facts:

 Plaintiff was hired by the Department in 1985 as a provisional correction officer. Plaintiff was promoted to Correction Sergeant in 1988, and to Correction Lieutenant in 1992. The 1992 position was a permanent appointment under the New York Civil Service Law. At all relevant times, plaintiff was a member of the Schenectady County Sheriff's Benevolent Association, Local 3874 ("the Union"), and was assigned to the Schenectady County Jail. His supervisors were defendant William Barnes, the County Sheriff, and defendant Harry Buffardi, the County Undersheriff.

 Between 1992 and 1996, a collective bargaining agreement ("CBA") was in effect between defendant Schenectady County, the Department and the Union. Article 13 in the CBA covered disciplinary procedures, wholly replacing the statutory provisions in Sections 75 and 76 of the New York Civil Service Law. Def. Rule 7.1(f) Stat. Ex. H at 30. *fn2"

 On April 29, 1994, plaintiff was on duty at the Schenectady County Jail when a group of inmates were moved from one section of the jail to another. This transfer later became the subject of an investigation by the U.S. Justice Department concerning allegations that inmates were beaten by correction officers during the transfer. On April 30, 1994, plaintiff told Major Robert Elwell, another Department employee, that if plaintiff was questioned by authorities about the incident of the previous day, he would tell the truth about what he saw. *fn3"

 On June 20, 1994, plaintiff was called to Barnes' office, where he met with Barnes, Buffardi, and Elwell. Barnes confronted plaintiff with disciplinary charges, without specifying what the charges were. Barnes then told plaintiff that if plaintiff did not resign his lieutenant's position, the charges would be filed against him and he would be terminated. In the meantime, Barnes concluded, plaintiff was suspended pending investigation of the charges. He was told to leave the jail immediately. Plaintiff told Barnes that he would not resign his lieutenant's position. Pl. Aff. P 10.

 On July 20, 1994, disciplinary charges dated five days earlier were served on plaintiff. These charges terminated plaintiff's employment with the Department. "Just cause" for the termination was supported in the charges by the following allegations: (1) plaintiff's failure to report his March 23, 1994 arrest for driving while intoxicated ("DWI") within 24 hours of the event, as required by the Department's Code of Conduct; (2) plaintiff's alleged sexual harassment of a number of his female colleagues on several occasions, mostly during March through May of 1994; and (3) various violations of plaintiff's responsibilities, including failure to timely respond to a medical code and playing ping-pong in the inmate recreation area with on-duty officers. Def. Rule 7.1(f) Stat. Ex. G at 1-4. *fn4" On July 27, 1994, the Union filed a grievance on plaintiff's behalf requesting dismissal of all charges and penalties.. Def. Rule 7.1(f) Stat. Ex. J. On September 29, 1994, the Union demanded arbitration, Id. Ex. K, and an arbitration hearing was scheduled for early January, 1995.

 On December 7, 1994, plaintiff met with his Donald Williams, Walter Cavanaugh and Buffardi at a hotel in Schenectady to discuss the grievance. Plaintiff indicated that he was not going to accept a deal. At some point during this meeting, however, Buffardi asked if he could speak to plaintiff alone. Williams and Cavanaugh obliged. Once they left, Buffardi told plaintiff that the Department had a written statement from a prostitute, Gina Berthume, claiming that plaintiff had patronized her on a number of occasions. *fn5" Pl. Aff. P 33; Buffardi Dep. at 108-115. Berthume also alleged that plaintiff accompanied her to buy crack on one occasion, though Buffardi denies revealing this to plaintiff. Buffardi Dep. at 112. Buffardi further indicated that it was the intention of Barnes and the Department's attorney, Michael Smith, to pursue disciplinary charges on this information if plaintiff should prevail in the pending arbitration. If plaintiff accepted Barnes' original offer, i.e., to withdraw the grievance and accept the loss of his position as lieutenant, the charges would not be pursued.

 Plaintiff denied Berthume's allegations, and told Buffardi that he would submit to a lie detector test to that effect. Buffardi Dep. at 113; Pl. Aff. P 34. Under the circumstances, however, he felt that because of the devastating impact such allegations would have on his family, he had no choice but to accept the settlement offer. Pl. Aff. at 35-36. Approximately one month later, plaintiff executed a Settlement Stipulation under which he agreed to withdraw his grievance, and was reinstated to the Department with loss of rank from Correction Lieutenant to Correction Officer. See Def. Rule 7.1(f) Stat. Ex. O. On January 17, 1995, plaintiff returned to work. He left within an hour, complaining of breathing difficulty, never to return. Pl. Aff. P 40.

 B. Procedural History:

 Plaintiff filed this lawsuit under § 1983 on July 6, 1995, alleging a deprivation of his due process rights under the Fourteenth Amendment to the United States Constitution, and pendent state law claims. The remaining defendants ...


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