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LEHMULLER v. INCORPORATED VILLAGE OF SAG HARBOR

September 25, 1997

LAURA R. LEHMULLER, Plaintiff, against INCORPORATED VILLAGE OF SAG HARBOR, Defendant.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The plaintiff, Laura R. Lehmuller ("Lehmuller" or the "plaintiff"), instituted this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2(a)(2), as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k); the New York State Human Rights Law, N.Y. Exec. Law § 296-a; the Americans With Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq. ; and 42 U.S.C. § 1983 ("Section 1983") in the context of her First Amendment right to petition the government for redress, against the defendants, the Incorporated Village of Sag Harbor (the "Village" or the "defendant"). The plaintiff alleges that the defendants have discriminated against her because of her gender, her pregnancy, and her physical disability. In addition, Lehmuller claims that the Village took retaliatory action against her in response to her discrimination claim filed with the Equal Employment Opportunity Commission (the "EEOC"), which she contends is her protected right to petition the government for redress of grievances under the First Amendment.

 By a Memorandum Decision and Order dated November 11, 1996 (the "Order"), the Court granted in part and denied in part the defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56 and plaintiff's cross motion for summary judgment. Specifically, the Court granted the defendants' motion for summary judgment, dismissing the plaintiff's claims arising under the ADA and Section 1983. Presently before the Court is the plaintiff's motion for reconsideration, pursuant to Fed. R. Civ. P. 59 and 60, of the Order granting the defendants' motion for summary judgment dismissing the plaintiff's Section 1983 claim, or in the alternative, the plaintiff seeks to certify for appeal pursuant to Fed. R. Civ. P. 54(b), that portion of the Order dismissing her Section 1983 claim.

 I. BACKGROUND

 The facts presented below are a summary of those outlined in the Court's prior opinion.

 Lehmuller is a resident of New York State and is a female and full-time police officer who has been employed by the defendant since 1988. The Incorporated Village of Sag Harbor is a municipality located in Suffolk County. The Sag Harbor Police Department (the "Police Department") currently consists of ten officers and Chief Joseph J. Ialacci ("Chief Ialacci" or "Ialacci").

 Since Chief Ialacci joined the Police Department in 1986, the Department has followed an unwritten policy whereby officers who become disabled due to illness or off-duty injury are required to use their sick leave, holidays, vacation days, or compensatory time for the period that they are unable to perform their normal patrol duties. Officers injured in the line of duty who are unable to conduct their patrol duties, but who can perform routine clerical tasks, are required to report for duty at headquarters as their physical condition permits. This policy purportedly stems from New York General Municipal Law § 207-c that mandates that officers injured in the line of duty receive full pay whether they work or not. According to the defendant, the policy is designed to insure that officers perform whatever work they can in exchange for their continued pay.

 When the plaintiff was hired as the first and only female police officer, the Village had no established policy regarding light-duty for pregnant officers. When Lehmuller announced her pregnancy and as a result, requested light-duty, Chief Ialacci referred the matter to the Mayor and Board of Trustees of the Village (the "Board"). Upon consideration of the light-duty policy, the Mayor and the Board decided that the Village would treat pregnancy as it did other non-job related injuries. Therefore,. the plaintiff would be required to use her sick leave, holidays, vacation days, or compensatory time for the period that she would be unable to perform her normal patrol duties as a result of her pregnancy.

 On October 22, 1993, Lehmuller filed a charge with the EEOC alleging that the Village discriminated against her because of her pregnancy in violation of Title VII, as a result of the denial of her request for light duty work. On April 6, 1995, the EEOC issued to the plaintiff a right-to-sue letter.

 The plaintiff continued to perform her usual job responsibilities until November 27, 1993, when she fell and sustained an on-the-job back injury while on patrol. Lehmuller reported the accident and was taken to the Southampton Hospital emergency room where she received limited treatment due to her pregnant condition. Subsequently, Lehmuller's personal orthopedic physician instructed her not to return to work. Lehmuller filed a workers' compensation claim and, on December 6, 1993, the Village prepared an "Employer's Report of Work-Related Accident/Occupational Disease."

 Lehmuller continued to work until she gave birth to her son on April 21, 1994 and used her holiday, sick, vacation, and personal time to remain at home until September 15, 1994 when she returned to work.

 Lehmuller filed this lawsuit alleging that the Village discriminated against her because of her pregnancy in violation of both Title VII and the Pregnancy Discrimination Act. In addition, the plaintiff claims discrimination because of her back-injury disability in violation of the ADA. Finally, the plaintiff maintains that the defendant deprived her of her federal right to free speech based on the alleged retaliation against her for filing the EEOC claim. Specifically, Lehmuller contends that the Village unlawfully required a second examination of her back injury that resulted in her return to work contrary to her own doctor's advice. Further, Lehmuller asserts that he EEOC claim is a protected right to petition the government for redress under the First Amendment and, therefore, the Village's alleged retaliatory actions violated her constitutional right.

 III. DISCUSSION

 A. Standard of review for Rule 6.3 motions

 Local Civil Rule 6.3 (formerly Local Rule 3(j)) provides in relevant part:

 
A notice of motion for reconsideration or reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion. There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked.... No oral argument shall be heard unless the court directs that the ...

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