Kalb's reliance on the denial of § 207-c benefits to officer
Reinhardt as support for his claim of retaliation, does not
assist him since Reinhardt did not claim his denial was in
retaliation for First Amendment speech, and after filing a
grievance with the Town, settled and withdrew his claim for §
207-c benefits. Similarly, the Town's denial of another police
officer's claim for § 207-c benefits, without more, does not show
a causal connection between the denial of benefits to Kalb and
his protected speech. Further, Chief Pavone's assertion that he
had control of whether officers received § 207-c benefits does
not create a genuine issue of fact considering his own statement
that documentation would be submitted to Wood and Cestaro, and
the absence of any admissible evidence of any irregularities in
the manner in which Oracle has administered compensation claims.
Drawing all inferences in favor of Kalb, I find that no
reasonable juror could conclude that there is a causal connection
between the denial of § 207-c benefits and Kalb's protected
speech. Consequently, Kalb has failed to prove his First
Amendment retaliation claim.
Moreover, assuming arguendo that Kalb had established a
prima facie case of First Amendment retaliation, I find the
defendants have demonstrated that, regardless of the plaintiff's
purportedly protected speech, they would have taken the same
action regarding § 207-c benefits. Psychological treatment is
covered by § 207-c if it is "necessitated by reason of an injury
incurred in the performance of a police officer's duties."
Miller v. City of Poughkeepsie, 185 A.D.2d 594, 586 N.Y.S.2d 396,
398 (N.Y.Sup.Ct. 1992). Section 207-c, however, does not
provide for automatic entitlement. A municipality is authorized
under § 207-c to determine whether the injury or illness is
related to work performance, and to require the applicant to
submit to an independent medical examination. DePoalo v. County
of Schenectady, 85 N.Y.2d 527, 532-533, 626 N.Y.S.2d 737,
650 N.E.2d 395 (1995). Accordingly, the defendants were entitled —
and indeed obligated — to evaluate whether Kalb's injury was
related to work performance, and to require him to be
The record demonstrates that the Town had a procedure in place
for granting § 207-c benefits since 1991. Thus, Wood's request
that Kalb put his request in writing was not ad hoc,
retaliatory, or otherwise improper. Further, the record
demonstrates that Kalb had filled out forms on two prior
occasions for § 207-c benefits. Oracle had sufficient reason,
given the vagueness of Kalb's submitted documentation of
depression, to request an independent evaluation of Kalb.
Additionally, the text of § 207-c supports Oracle's denial of
benefits. Oracle was justified in concluding that Kalb's
depression stemming from an overwhelming fear of job loss was not
an injury under § 207-c. Section 207-c explicitly limits benefits
to a 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." Section 207-c(1).
The fact that Kalb now produces additional evidence of his
depression is irrelevant as to whether Oracle's evaluation of
Kalb's claim was performed in accordance with standard procedures
and whether its ultimate conclusion was reasonable given the
documentation timely presented to it. In sum, in light of
Oracle's role as claims evaluator since 1991, Kalb's filling out
of forms in the past, the content of the two notes submitted by
Kalb (only one of which spoke to the causation of the
depression), and the content of Oracle's independent evaluation,
the procedures and its ultimate denial of Kalb's § 207-c benefits
was a reasonable decision.
Thus, assuming arguendo that Kalb had established a prima
facie case of First Amendment retaliation, the defendants have
demonstrated that they would have taken the same action against
Kalb with respect to his claim for § 207-c benefits.
Thus, the defendants' motion for summary judgment on plaintiff's
First Amendment free speech and right to petition government
claims is granted.
3. Section 1985 Claim
Kalb's complaint mentions, but does not state a claim under
42 U.S.C. § 1985. Kalb generally alleges a § 1985 violation, but
does not indicate which subsection he believes applies. Section
1985(1) and the first clause of § 1985(2) address conspiracies to
prevent federal officers from discharging their duties and
conspiracies to interfere with proceedings in federal courts,
respectively. Since no federal officer is named in the complaint,
Kalb states no claim under these provisions. In order to proceed
under § 1985(2), a plaintiff must allege a deprivation of rights
on account of his membership in a protected class. Further, §
1985(3) prohibits conspiracies to deprive "either directly or
indirectly, any person . . . of the equal protection of the laws,
or of equal privileges and immunities under the laws."
42 U.S.C. § 1985(3). Under § 1985(3) a "plaintiff must allege `some racial,
or perhaps otherwise class-based, invidiously discriminatory
animus behind the conspirators' action.'" Gagliardi v. Village
of Pawling, 18 F.3d 188, 194 (2d Cir. 1994) (quoting Griffin v.
Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338
(1971)); see also Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.
1999). Kalb has not asserted any membership in a protected class.
Since Kalb has not alleged any specific facts in his complaint to
support his conspiracy claim pursuant to any subsection of
42 U.S.C. § 1985, I grant the defendants' motion for summary
judgment on the § 1985 claims.
4. State Law Claim
In view of the dismissal of plaintiff's federal claims pursuant
to 42 U.S.C. § 1983 and 1985, I decline to entertain his pendent
state claim under New York Executive Law § 296. See, e.g., Salim
v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996); Lennon v. Miller,
66 F.3d 416, 426 (2d Cir. 1995).
For the reasons stated above, the defendants' motion for
summary judgment is granted. The Clerk of the Court is directed
to enter judgment for the defendants.