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MCMENEMY v. CITY OF ROCHESTER

September 14, 1999

JOHN P. MCMENEMY, PLAINTIFF,
v.
CITY OF ROCHESTER, CITY OF ROCHESTER FIRE DEPARTMENT, CHARLES D. IPPOLITO, INDIVIDUALLY AND AS FORMER FIRE CHIEF OF THE CITY OF ROCHESTER FIRE DEPARTMENT, DAVID GRIFFITH, INDIVIDUALLY AND AS FIRE CHIEF OF THE CITY OF ROCHESTER, THOMAS P. RYAN, JR., INDIVIDUALLY AND AS FORMER MAYOR OF THE CITY OF ROCHESTER, LOUIS N. KASH, INDIVIDUALLY AND AS FORMER CORPORATION COUNSEL OF THE CITY OF ROCHESTER, WILLIAM A. JOHNSON, JR., INDIVIDUALLY AND AS MAYOR OF THE CITY OF ROCHESTER, MUNICIPAL CIVIL SERVICE COMMISSION, AND NANCY E. ABRAMS, DEFENDANTS.



The opinion of the court was delivered by: Siragusa, District Judge.

Decision and Order

Preliminary Statement

The plaintiff filed his initial complaint on June 14, 1994, an amended complaint on February 17, 1995, and a "Supplemented Amended Complaint" ("Supplemental Complaint") (document # 7) on September 11, 1998. It is that later complaint that is before the Court on his motion for partial summary judgment and the defendants' motions for judgment on the pleadings, or in the alternative, summary judgment. The First and Second causes of action in the plaintiff's Supplemental Complaint allege that the defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the New York Human Rights Law, N.Y. EXECUTIVE LAW Article 15, by retaliating against the plaintiff for his investigation of sexual assault allegations against a union president. His Third cause of action alleges that defendants violated the Civil Rights Act of 1871, 42 U.S.C. § 1983, by failing to promote him and by failing to provide a fair promotional examination. The plaintiff's Fourth cause of action alleges that the defendants violated the NEW YORK CIVIL SERVICE LAW and City of Rochester Civil Service regulations by promoting persons other than the plaintiff to the rank of Fire Captain. The plaintiff's Fifth cause of action alleges a state defamation claim.

In addressing the motions, the Court will refer to Defendant Abrams individually as Abrams, and to the remaining defendants as the City defendants. The pending motions are: (1) Document # 95, Abrams' motion to dismiss, or for summary judgment; (2) Document # 98, the City defendants' motion for summary judgment; and (3) Document # 103, the plaintiff's sealed motion for partial summary judgment on the third cause of action in the plaintiff's Supplemental Complaint. The Court has had the benefit of voluminous memoranda, affidavits and exhibits along with oral argument. After careful consideration of the issues, the Court grants the defendants' motions on the federal causes of action and on the New York State Human Right's Law claim and the Court declines to exercise jurisdiction on the remaining state-based claim involving the New York Civil Service Law.

Background

Rochester City Fire Lieutenant John P. McMenemy, the plaintiff, is a white male whom the City of Rochester Fire Department has employed since August 1984. Since that time, he has also been a member of the Rochester Firefighters Association, Inc., Local 1071 IAFF union. Defendant Nancy E. Abrams is a professional consultant in the field of personnel management, assessment and testing. The remaining defendants consist of the City of Rochester, its Fire Department, and current and former employees and public office holders of the City of Rochester, or departments of it.

In March of 1992, the plaintiff was elected Treasurer for the Local 1071 union. In his union position, the plaintiff was required, among other duties, to respond to the concerns or requests of union members. In December 1992, the plaintiff alleges*fn1 that defendant Ippolito, then the Chief of the Rochester Fire Department, called him into his office and told the plaintiff that he would promote him to Fire Captain in the Spring of 1993. The plaintiff further alleges that this promise became known among the officers of the Rochester Fire Department, who congratulated the plaintiff on his impending promotion. At oral argument, plaintiff's counsel conceded that at the time of Chief Ippolito's statement, no position was then open, however, it was anticipated that one would be available in the spring of 1994 when it was anticipated that a Fire Captain would be retiring.

  In January 1993, Wendy Kern, a secretary for Local 1071, spoke
with the plaintiff in his union capacity and complained that she
was sexually assaulted by Daniel Cavuto. Daniel Cavuto, who was
then the president of Local 1071, was employed as a fire fighter
in the City of Rochester Fire Department. Ms. Kern alleged that
union president Cavuto had sexually assaulted her on December 30,
1992 during her working hours, and that he had previously
sexually harassed her on the job. After receiving this
information from Ms. Kern, the plaintiff investigated her
complaint and had what he describes as "contacts" with the Equal
Employment Opportunity Commission and the New York State Division
of Human Rights. Ms. Kern's federal and state suits contain the
particulars of her complaints against union president Cavuto.

See, Order Dismissing Complaint, Kern v. City of Rochester,
No. 93-CV-6301 (W.D.N.Y., Oct. 5, 1995), aff'd, 93 F.3d 38
(1996), cert. den. 520 U.S. 1155, 117 S.Ct. 1335, 137 L.Ed.2d
494; Kern v. City of Rochester, 217 A.D.2d 918, 631 N.Y.S.2d 259
 (4th Dept. 1995).

On February 26, 1993, the plaintiff also informed Deputy Fire Chief Griffith of Ms. Kern's allegations, following the advice of Rochester City Police officers who were investigating Ms. Kern's criminal complaint against union president Cavuto. On the same day, Chief Ippolito told the plaintiff that he wished the police had come to him with Ms. Kern's complaints first. The plaintiff alleges that Chief Ippolito was a friend, ally and supporter of Cavuto's. The plaintiff further alleges that he was elected union treasurer based on his campaign against the manner in which Cavuto ran the union. Following his election as union treasurer, the plaintiff states that Chief Ippolito transferred him to a less desirable assignment.

On March 16, 1993, Chief Ippolito told the plaintiff that he should have reported Ms. Kern's complaints to him first, so the chief could have suspended Cavuto and investigated whether formal departmental charges should be placed against him. Three days later, the captain promotion list was posted and the plaintiff's name was not on it. At the time the list was posted, the plaintiff was one of three fire lieutenants eligible for promotion.

The plaintiff also alleges in his Supplemental Complaint that Chief Ippolito made false statements about the plaintiff and his work. The plaintiff brought this complaint to the mayor and corporation counsel, but nothing was done. Subsequently, however, the city removed Chief Ippolito, reportedly for inappropriate conduct, including the failure to take action against a Rochester fire fighter friend accused of sexual harassment of a Fire Department employee, and then promoting that friend to a training position where he was responsible for educating other fire fighters about the city's sexual harassment policies. In May 1994, Mayor Johnson named Deputy Chief Griffith as chief of the department. In 1994, the City administered another civil service Fire Captain examination. The plaintiff passed that test and was ranked ninth for promotion eligibility.

The plaintiff further alleges that, since he was first passed over for promotion in March of 1993, the City has promoted other officers to the rank of captain, including those who were lower on the civil service list than him. The plaintiff took another examination for Fire Captain in 1997 and was ranked fifteenth. The plaintiff alleges that the City did not properly grade these two civil service Fire Captain exams, and specifically with regard to the 1997 exam, the plaintiff claims that the defendants violated the Rochester Civil Service Commission rules, since there was no "key," only "guidelines" used by the graders.

Discussion

I. Summary Judgment Standard

The law on summary judgment is well settled. The Court may only grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the "evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once the moving party has met its initial obligation, the opposing party must produce evidentiary proof in admissible form sufficient to raise a material question of fact to defeat a motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. Duplantis v. Shell Offshore, Inc., 948 F.2d 187 (5th Cir. 1991); Fed.R.Civ.P. 56(f). Once the moving party has met its burden, mere conclusions or unsubstantiated allegations or assertions on the part of the opposing party are insufficient to defeat a motion for summary judgment. Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). The court, of course, must examine the facts in the light most favorable to the party opposing summary judgment, according the non-moving party every inference which may be drawn from the facts presented. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).

II. Judgment on the Pleadings Standard

In considering a motion for judgment on the pleadings or dismissal under Federal Rule of Civil Procedure 12, the defendants must show that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 249, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). The Court must view ...


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