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WHITING v. INCORPORATED VILLAGE OF OLD BROOKVILLE

June 17, 1998

JOSEPH M. WHITING, Plaintiff,
v.
THE INCORPORATED VILLAGE OF OLD BROOKVILLE, THE OLD BROOKVILLE BOARD OF POLICE COMMISSIONERS, and CHIEF CHARLES K. SMITH, LTN. JOHN POST and LTN. MAURICE SULLIVAN, individually and as members of the Old Brookville Police Department, Defendants.


Hon. Arthur D. Spatt, United States District Judge.


The opinion of the court was delivered by: SPATT

MEMORANDUM DECISION AND ORDER

SPATT, District Judge:

 This case arises from the claims of a discharged police officer, Joseph M. Whiting ("Whiting" or "the plaintiff") against the defendants, the Incorporated Village of Old Brookville, the Old Brookville Board of Police Commissioners (collectively referred to as "the Village defendants"), and the individual defendants, Chief Charles K. Smith and Lieutenants John Post and Maurice Sullivan, for alleged violations of 42 U.S.C. ยง 1983 ("Section 1983"), and Sections 40-c and 44-a of the Civil Rights Law of the State of New York ("NYCRL"). Presently before the Court are two motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, one filed by the Village defendants, and the other on the individual defendants' behalf.

 I. BACKGROUND

 A. The Factual Allegations Set Forth in the Complaint

 The following factual allegations are derived from the complaint, except where indicated otherwise.

 The plaintiff is an individual who identifies himself as "Italian American" (Complaint, at P 10). On or about June 2, 1989, he joined the Old Brookville Police Department, where he served under the direct supervision of Sergeants Thomas Egan and Kevin Quigley, as well as defendants Chief Charles K. Smith ("Smith"), and Lieutenants John Post ("Post") and Maurice Sullivan ("Sullivan").

 According to the plaintiff, "from [his] starting day, he [was] an outspoken advocate for police officers [ sic ] rights, writing articles for the Police Benevolent Association, and speaking out on behalf of fellow officers being mistreated and abused by the Supervising members of the force." (Complaint, at P 12). In addition, Whiting asserts that he "notified the Nassau County District Attorneys [ sic ] Office when he learned that . . . Sullivan was using illegal drugs . . . [and that members of the] Department[] [were] illegally accepting gratuities . . . . (Complaint, at P 13). He also states that told Chief Smith about Sullivan's purported drug use and extramarital affair (Complaint, at P 13).

 The plaintiff does not provide the dates for these incidents. Nevertheless, the Court assumes that they occurred prior to August 1989, because the complaint alleges that as a " result of these actions and involvements, plaintiff has, in retaliation, been subject to continuous and ongoing selective persecution, harassment, intimidation and discrimination," with the first complained-of act occurring in August 1989 (Complaint, at P 14). This "harassment, intimidation, and discrimination" involves the following alleged incidents, which are numbered according to the paragraphs designated in the complaint:

 
15. Beginning in August 1989, defendant Sullivan began "constantly" referring to the plaintiff as a "know it all Guinea."
 
16. After a June 1990 incident, the exact nature of which is unspecified but during which the plaintiff purportedly "spoke out [regarding an unidentified issue] on behalf of fellow police officer Buddy Shuck, he was reprimanded by . . . Sullivan, and thereafter consistently given undesirable assignments, and ordered to fill out extra paperwork. On December 29, 1990, the plaintiff was ordered, in the snow, to remove signs from lampposts with a shovel, an "activity . . . outside the scope of routine police duties [which] was never done by any other police officer[,] and as a result, plaintiff suffered a severe back injury. Thereafter, plaintiff was constantly denied sick leave for this injury"
 
17. Several months later, on July 22, 1991, Sullivan "encouraged" other police officers to throw the plaintiff, who was dressed in uniform, into a swimming pool at a police department party. Consequently, the plaintiff sustained injuries to his arm, elbow and thumb. Sullivan "rewarded" the officer who managed to throw the plaintiff into the pool by offering him a day off.
 
18. When the plaintiff complained about the pool incident to his superiors, Smith "ignored" him, while Egan subjected him to "racially derogatory and discriminatory statements." For example, Egan called him a "dumb guinea wop who had hair like a nigger" and asked, "What's with your hair, anyway? What are you half nigger?"
 
19. On March 4, 1992, fellow police officer Anthony Lavardo allegedly assaulted the plaintiff, who missed several days of work because of the resulting injuries. Unnamed police department supervisors purportedly "encouraged" the attack. When the plaintiff reported this to Smith, Post and another sergeant, "the incident was ignored and no investigation [was] conducted."
 
20. In August 1992, the plaintiff was involved in a "dispute" with a "friend" named Lynn Barringer, who reported the matter to the plaintiff's supervisors. Smith and Post investigated Barringer's complaint, and purportedly "closed" the case after designating it a "civil" matter. However, the plaintiff contends, at or about that time, he was "for no reason" removed from the desirable "overtime list."
 
21. On or about October 14, 1992, Sullivan "improperly influenced plaintiffs [ sic ] girlfriend Donna Quinn, to file charges against plaintiff, by stating false allegations against him relating to abuse, harassment and stalking of other woman [ sic ]. These allegations were entirely false, and on or about November 2, 1992, when Donna Quinn realized the deception, she was not permitted . . . by Sullivan, to withdraw the charges, despite her every effort to do so."
 
22. On October 9, 1992, the plaintiff was ordered by an unspecified person not to have any contact with Donna Quinn or her family, "in violation of the plaintiffs [ sic ] civil rights, and against the wishes of Ms. Quinn." Plaintiff was threatened with dismissal if he violated this order.
 
23. On October 30, 1992, "in an attempt to humiliate plaintiff, Whiting became the subject of a seven (7) hour departmental interrogation by Ltn. Sullivan, in the presence of Ltn. Post, Det. Sgt. Kenary, P.O. Lamb, and P.O. Larry Gordon. At that interrogation plaintiff appeared with an attorney, who was not permitted to actively participate in the proceedings, in direct violation of established departmental procedures. As a result of the abusive conduct of the interrogation, which plaintiff was denied the right to memorialize in any way, plaintiff suffered an emotional breakdown, and the interrogation had to be stopped." When the plaintiff began crying, he was "relieved of his identification, weapon and shield, and placed on involuntary sick leave, absent any departmental authority."
 
24. On October 31, 1992, when the plaintiff went to the precinct to inquire why he had been treated this way, he was ordered to leave and threatened with arrest for trespass if he remained on the premises.
 
25. On November 3, 1992, Sullivan and Post conducted another interrogation, during which the plaintiff was "totally deprived [of] his right to counsel, in violation of department procedures." Consequently, the plaintiff developed "severe chest pains, and shortness of breath" requiring his "removal" to a local hospital.
 
26. On November 26, 1992, after being released from the hospital, "plaintiff was again interrogated by Ltn. Sullivan, and denied his right to have counsel present during the interrogation." The complaint states that the Department refused to accept and consider the "medical and psychological reports" that plaintiff submitted on his own behalf, indicating that he was fit to return to duty.
 
27. On February 1, 1993, the plaintiff was suspended without pay and served with six (6), unspecified, departmental charges, to which he pleaded not guilty. The plaintiff states that he filed an EEOC complaint because he felt he had been "unjustly treated." The complaint does not indicate the basis for the EEOC complaint.
 
28. On April 2, 1993, in "retaliation for his filing with the EEOC, sixty (60) amended charges were filed against him, to which he pled not guilty. The gravamen of these charges were the incidents with Donna Quinn, defendants [ sic ] girlfriend, and Lyn Barringer, defendants [ sic ] friend of 10 years, which defendant police supervisors had improperly initiated, influenced and investigated."
 
29. While under suspension and awaiting his departmental trial on these charges, the defendants "engaged in a systematic pattern of harassment against plaintiff in that they: undermined and inaccurately filled out his workman [ sic ] compensation application; failed to forward his employment information to his life insurance company; undermined any attempts on his part to get other employment during the pendency of his suspension; failed to forward his mail from doctors and medical insurance companies for injuries sustained while in their employ; and removed most positive portions of plaintiffs [ sic ] personnel file, including request[s] for commendations. All of these acts were in direct violation of departmental procedures and the Workman [ sic ] Compensation Laws."
 
30. The Old Brookville Board of Police Commissioners ("the Board") designated a Hearing Officer, Richard P. Goodwin, who also is the Mayor of Brookville. On June 29, July 26, and July 29, and August 23, 1993, a transcribed, departmental hearing was held before Goodwin. According to the complaint, the plaintiff was "not permitted to call any witnesses at the ...

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