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December 7, 1999


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


Plaintiffs Michael Cahill, Richard Morse, Jr. and Salvatore Valvo commenced this action pursuant to 42 U.S.C. § 1983 against defendants James O'Donnell, James McCormack, James McMahon and James Fitzgerald, individually, alleging retaliation as a consequence of their exercising First Amendment rights. Valvo also alleges Fourteenth Amendment due process violations and that he was constructively discharged from his employment. The defendants move for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons stated below, the motion is granted.*fn1

During the events giving rise to this action, the plaintiffs worked in the Internal Affairs Division of the New York State Police ("Internal Affairs"), which is charged with investigating corruption and misconduct within the force. The gravamen of the plaintiffs' claim is that, because of their participation in two investigations, they were stripped of responsibilities, punitively denied transfers and falsely accused of gender discrimination. The relevant facts, construed in the light most favorable to the plaintiffs are as follows.

At the relevant times, James McMahon was the Superintendent and James O'Donnell was a Lieutenant Colonel on the force. James McCormack was a sergeant and served as the President of the Police Benevolent Association of the New York State Troopers, Inc. ("PBA"). Since April 1996, James Fitzgerald has been Chief Inspector in charge of the Internal Affairs Division.

In September 1994, Superintendent McMahon received an anonymous tip that certain troopers assigned to Troop K had attempted to cover-up an incident in Peekskill in which the brother of a trooper had been involved in a hit-and-run accident (the "Peekskill Incident"). Members of Internal Affairs, including Cahill, Valvo and Morse, began investigating, and by December 1994, had identified three members of the State Police likely to have committed misconduct: Sergeant Robert Welsh, Sergeant Thomas Cerrone and Trooper Robert Gregory.

On January 19, 1995, members of Internal Affairs stopped Sergeant Cerrone while he was driving home and directed him to accompany them to a nearby hotel where he was questioned extensively about the case. The details of this stop and his subsequent interview became matters of controversy within the State Police. Shortly after the stop, officers and delegates of the PBA, including its president, McCormack, went to McMahon's office to announce their intention to file a lawsuit against seven members of Internal Affairs, including each of the plaintiffs, for violating Cerrone's constitutional rights in stopping and interrogating him without probable cause.

In April 1995, Sergeant Welsh, Trooper Gregory and Rory Knapp were indicted for crimes related to the Peekskill Incident. Welsh pleaded guilty to official misconduct and agreed to resign. Gregory pleaded guilty to administrative charges and was suspended and Knapp pleaded guilty to criminal charges. No criminal charges were filed against Cerrone. McMahon, however, authorized administrative charges against Cerrone for conduct related to the Peekskill Incident and for driving an unregistered vehicle.

The plaintiffs contend McMahon's decision to delay the start of the administrative proceeding against Cerrone adversely affected the criminal prosecutions. Three commissioned officers were designated to serve on the Hearing Board.*fn2 After hearing 26 witness over a 12 day period, the Hearing Board found Cerrone not guilty of the charges, except those relating to the unregistered vehicle. The Board recommended that Cerrone be censured, placed on probation for 90 days and lose 5 vacation days. McMahon concurred in the recommendations, but declined to impose the loss of vacation days.

In January 1995, local supervisors transferred Senior Investigator Gregory Harlin from the Peekskill to the Fishkill barracks. Valvo contends that he personally advised McMahon that he believed the transfer to be punitive because of Harlin's cooperation with Internal Affairs regarding its investigation into a suicide. After McMahon was advised that the transfer may have been linked to Harlin's cooperation with Internal Affairs, McMahon requested a review, and subsequently, on February 7, 1995, directed that the transfer be rescinded. Valvo, at the request of Chief Inspector Francis DeFrancesco conducted an inquiry and wrote a memorandum addressing Harlin's transfer. The plaintiffs essentially claim that, although McMahon could have immediately suspended the transfer order, he did not, and instead ordered an investigation. The plaintiffs claim that Harlin's belated reassignment by McMahon was intended as a signal to other members of the force not to cooperate with Internal Affairs.

In February 1997, the PBA issued a newsletter that, inter alia, demanded an investigation into whether members of Internal Affairs perjured themselves at the Cerrone hearing. McMahon decided not to initiate such an investigation. McMahon told Valvo, however, after receiving an advance copy of the newsletter, that he should sue the PBA for libel. The PBA had previously published newsletters in 1995 and 1996 which the plaintiffs believed to have been unfairly derogative. Valvo spoke to McMahon and requested, as a sign of support, a response or statement from him regarding the published allegations. Valvo contends that McMahon's failure to conduct an investigation after this complaint had a chilling effect on his investigation and impaired his credibility. Cahill sent a memo to Major William J. DeBlock requesting to meet with the Superintendent regarding the 1997 PBA newsletter and stating that he was in favor of a full investigation into the allegations. Morse also contends he spoke to Fitzgerald about the perceived lack of support for Internal Affairs within the force's high echelon leadership.

Before May 1995, Cahill had made known his interest in being transferred back to a field position nearer to his home. When a captain's position opened, Cahill was offered the position and accepted it willingly. The position carried with it a pay loss of approximately $12,000. Cahill is quoted in a May 1996 Times Herald Record article stating, "Yes, it is a pretty good pay cut, and yes, a lot of people think I'm on the crazy side. As you get older, those trips to Albany get longer and longer." Cahill now claims, however, that because McMahon and Fitzgerald refused to support the members of Internal Affairs who had been strongly criticized by the PBA in its publication, he felt he had no choice but to leave Internal Affairs. Cahill claims that his positive statement to the newspaper was an attempt to avoid public embarrassment over his "forced" transfer.

On January 7, 1997, Cahill visited the Highland Station which he supervised. During the course of his visit, Cahill removed materials from the bulletin boards and other locations in the station, and then stacked them on Sergeant Nancy Poulin's desk. Cahill then handwrote a note essentially telling her to clean up the mess. This incident caused Sergeant Poulin to feel "embarrassed and humiliated." She concluded that Cahill's actions were inappropriate and directed to her because of her gender.

On February 11, 1997, Sergeant Poulin received a telephone call from Lieutenant Donald DePass, who was assigned to the department's Equal Employment Opportunity ("EEO") office. In response to questioning, Poulin confirmed the incident. Poulin, after meeting with Cahill, met with Investigator Jimenez of the Division's Human Resources department. Poulin described the incident and others to Jimenez, reiterating her belief that they were discriminatory. After DePass spoke to Poulin, Lieutenant Colonel Deborah Campbell, Director of Human Resources of the New York State Police, assigned Captain Jeff Culkin, who was an EEO counselor to mediate the issue. When Culkin informed Cahill that the Division EEO had received a complaint of gender discrimination from Poulin and that the matter would be handled through the informal procedures, Cahill stated that he would not participate in an informal procedure and demanded a formal investigation. As a result, Lieutenant Colonel James O'Donnell was assigned to conduct the formal investigation. On March 19, 1997, O'Donnell received the assignment from Chief Inspector Fitzgerald and fulfilled it.

The investigation report comprised 49 pages and concluded that the investigation failed to substantiate the allegations that Poulin was treated inappropriately by Cahill because of her gender. Cahill claims that the gender discrimination charges were proffered against him because of his activities in Internal Affairs. He also claims he found out that the charges were determined to be unfounded many weeks after Poulin.

On May 18, 1997, there was a confrontation at the Onondaga Nation Reservation between members of the State Police and demonstrators protesting tax matters affecting the Reservation. Violence ensued and a number of protesters and troopers sustained injuries. Superintendent McMahon directed Internal Affairs investigate the incident. Fitzgerald placed Valvo in charge of the investigation. During a briefing on May 21, 1997, Fitzgerald emphasized that he was interested in avoiding an adversarial relationship with the troopers allegedly involved, but nonetheless wanted a full review of the facts. On May 22, 1997, O'Donnell received a phone call informing him that Valvo had been interrogating a participant for over 3 ½ hours and that the interrogation was continuing. Concerned that the interrogation was not being conducted in the manner directed by Fitzgerald, O'Donnell informed Fitzgerald of the information he had received. On May 27, Fitzgerald removed Valvo as head of the investigation. Valvo claims he was not told that a cooperative atmosphere was sought and that his removal was in retaliation for his investigation of the 1994 Peekskill Incident.

In mid-June 1997, Valvo, Cahill and Morse filed this lawsuit against their supervisors alleging conspiracy and retaliation because of their conduct in the Peekskill investigation. During the pendency of the lawsuit, Valvo was continuing to work at Internal Affairs under the supervision of the individuals he was suing and whose integrity he had publically questioned in the litigation. After complaints from Fitzgerald that Valvo's presence was compromising Internal Affairs, McMahon requested advice from counsel as to whether he could reassign Valvo. He was advised he could do so legally, so effective July 1, 1997, McMahon reassigned Valvo to a newly created position of Staff Inspector Central Records Administration. This position entailed the same salary and benefits. On the first day of his reassignment Valvo wrote McMahon stating that he was retiring effective September 11, 1997. Valvo believed this new position was a demotion and that he was subjected to unsuitable office conditions. This transfer forms the basis of Valvo's retaliation claim as well as his claim of constructive discharge.

Morse claims he was not provided job performance evaluations and was thus precluded from seeking promotion to the position of lieutenant. He also claims that after his testimony in 1998, he suffered a punitive transfer. Morse has adduced no admissible evidence detailing how this new position was inferior.

In a supplemental affidavit requested by this Court, the plaintiffs were asked to detail their allegedly protected speech. This affidavit, although unwieldy, seems to claim the following as protected speech: (1) statements made by Valvo, Morse and Cahill to Cerrone during the disputed stop and interrogation, (2) Valvo's request that Harlin meet with him regarding the investigation into the death by State Police of a man named "Signet", (3) questions asked by Valvo during his interrogation of a Major Parmley and a Captain Beach during his investigation of the Onondaga incident, (4) Valvo's statement to McMahon that Harlin's transfer was retaliatory, (5) Valvo's operational plan that he prepared before starting his investigation of the Onondaga incident, (6) Cahill's discussion with two other members of the State Police that McMahon could have been involved with the Cerrone lawsuit, (7) Cahill's statement to McMahon regarding Harlin's transfer, (8) Cahill telling McMahon of possible subjects who could be interviewed regarding the Peekskill Incident and his decision to interview Cerrone, (9) Cahill's memo to the Chief Inspector detailing findings regarding Ketcham's meeting with various officers, (10) Cahill's statement to McMahon that his subordinates were questioning his conduct because of McMahon's lack of support, (11) Cahill and Valvo speaking to McMahon about his lack of support for the inspection unit and the "message" it sent, (12) Cahill and Valvo telling McMahon the circumstances of Major ...

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