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KALB v. WOOD

February 19, 1999

TIMOTHY KALB, PLAINTIFF,
v.
THOMAS WOOD, INDIVIDUALLY, ANN LINDAU, INDIVIDUALLY, GLENN CESTARO, INDIVIDUALLY, LINDA PUGLISI, INDIVIDUALLY, AND THE TOWN OF CORTLANDT, NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.

  MEMORANDUM AND ORDER

Plaintiff Timothy Kalb, a police officer in the Town of Cortlandt, New York, commenced this action against defendants, Thomas Wood, Ann Lindau, Glenn Cestaro, Linda Puglisi, and the Town of Cortlandt, pursuant to 42 U.S.C. § 1983 and 1985 alleging violations of his rights protected by the First Amendment to the United States Constitution.*fn1 Kalb has also asserted a claim pursuant to New York State Human Rights Law, N.Y.Exec.Law § 296, for alleged employment discrimination based on a disability.

In essence, Kalb claims that his First Amendment rights were violated when his request for § 207-c line of duty disability benefits based on depression caused by an "overwhelming fear of job loss" was denied. The defendants move pursuant to Fed.R.Civ.P. Rule 56 for summary judgment dismissing the complaint. For the reasons stated below, the motion is granted.

BACKGROUND

This suit involves the denial of benefits under New York's compensation law for police officers. General Municipal Law § 207-c provides, in part:

  Any . . . [police officer] . . . who is injured in
  the performance of his duties or who is taken sick as
  a result of the performance of his duties so as to
  necessitate medical or other lawful remedial
  treatment shall be paid by the municipality by which
  he is employed the full amount of his regular salary
  or wages until his disability arising therefrom has
  ceased, and, in addition such municipality shall be
  liable for all medical treatment and hospital care
  necessitated by reason of such injury or illness.
  Provided, however, . . . the municipal health
  authorities or any physician appointed for the
  purpose by the municipality, after a determination
  has first been made that such injury or sickness was
  incurred during, or resulted from, such performance
  of duty, may attend any such injured or sick
  policeman . . . for the purpose of providing medical,
  surgical or other treatment. . . .

Section 207-c(1).

Timothy Kalb has been a police officer in the Town since 1988. Linda Puglisi is the Supervisor of the Town; Ann Lindau is a member of the Town Board; Thomas Wood, Esq. is the Town Attorney; and Glenn Cestaro is the Town Comptroller.

Upon Kalb's divorce in February 1997, Kalb's former wife and son relocated to Florida. The same month, Kalb began taking medicine for depression and on February 20, 1997, began weekly therapy sessions with Nancy Morris, a psychiatric nurse practitioner. In her evaluation report to Kalb's insurance carrier following the initial session, Morris wrote that "client has sought treatment for feelings of depression following a divorce from wife who has relocated to Florida with their 11 [year old] son."

On March 6, 1997, Kalb saw Dr. John McGurty at the suggestion of his superiors, either Chief Pavone or Sergeant Macaluso. After this visit, Dr. McGurty wrote on his prescription pad that Kalb had "situational depression" and that he should: (1) continue anti-depressant and therapy, (2) return to work only when medication was no longer needed, (3) not work for fourteen days, and (4) consider returning to work in two to three weeks. Dr. McGurty's notes for this visit state, "Patient depressed over his ex-wife's taking of his son to Florida." In addition to being Kalb's personal physician, Dr. McGurty holds the title of "police surgeon." His responsibilities in this capacity, however, do not include making determinations of eligibility for § 207-c benefits. Kalb's visit on March 6 was at Dr. McGurty's private office, and the bill was submitted to Kalb's private insurance company.

In early March 1997, Kalb informed Chief Pavone that he was receiving psychological treatment and had been taking anti-depressant medication since February 1997. He told Chief Pavone that his depression was due to recent announcements concerning the possible loss of his job. On March 4, Kalb submitted a number of firearms to the police department for safekeeping in anticipation of his pre-planned vacation to Florida in March. At some point before Kalb's vacation, he submitted Dr. McGurty's note on a prescription pad and a letter from Nancy Morris to Chief Pavone. Morris' letter dated March 13, 1997 stated, in part:

  My opinion concerning [Kalb's] depression is that it
  appears to be a reaction to several stressors
  occurring in his life simultaneously. The most
  apparent of these is the recent relocation of his
  former wife to a distant state along with their 11
  year old son. It also appears that a large degree of
  stress is related to job insecurity. The potential
  loss of his present position has clearly added
  considerable strain such that Mr. Kalb has had
  difficulty coping. I would recommend, therefore, at
  this time Mr. Kalb be given a leave of absence with
  the understanding that this will be reevaluated
  frequently.

Chief Pavone forwarded these two notes to Thomas Wood. In response, Wood wrote to Chief Pavone on March 18, 1997 stating:

  I am in receipt of two medical notes . . . It would
  appear from these notes that the officer is seeking a
  medical leave of absence. If that is the case, please
  advise the officer that he must put his request in
  writing to the Town board . . . A third party request
  cannot be considered as a request from the employee.

In response, Chief Pavone wrote back to Wood on March 19, 1997 stating:

  [I]t is my opinion that Officer Kalb would be
  eligible for leave pursuant to the provisions of GML
  207-C, as it has been alleged his disability is a
  direct result ...

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