United States District Court, Southern District of New York
December 29, 2000
DARRELL BENEDICT, PLAINTIFF,
TOWN OF NEWBURGH, TOWN OF NEWBURGH TOWN BOARD, GEORGE BUCCI, JR., SUPERVISOR, TOWN OF NEWBURGH, NANCY W. LACOLLA, ROBERT PETRILLO, AND SALVATORE DECROSTA, SUED IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS.
The opinion of the court was delivered by: Brieant, District Judge.
MEMORANDUM & ORDER
By motion filed November 8, 2000, heard and fully submitted
December 15, 2000, Defendants in this § 1983 civil rights action
move for summary judgment dismissing the Complaint in its
entirety. In the alternative, Defendants move for summary
judgment as to Defendants George P. Bucci, Jr., Nancy Wassi
LaColla, Robert Petrillo and Salvatore DeCrosta (since deceased),
sued individually, on the ground that they enjoy qualified
immunity from Plaintiff's claim. Plaintiffs filed Opposition on
December 1, 2000. Defendants filed a Reply on December 12, 2000.
On January 19, 2000, Plaintiff filed his Complaint seeking to
recover damages for lost income, emotional distress, punitive
damages and reinstatement to his position as Superintendent of
Highways of the Town of Newburgh, from which he claims he was
removed wrongfully, in violation of his Constitutional rights, as
well as in violation of state law.
On February 29, 2000, Defendants moved to dismiss the Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim, or, alternatively, to dismiss the
Complaint against the individual Defendants, on the ground of
qualified immunity. On April 11, 2000, this Court filed a
Memorandum and Order denying Defendants' motion to dismiss, with
leave to apply for an interlocutory appeal, which Defendants
declined to do. Familiarity of the reader with that decision,
Benedict v. Town of Newburgh, 95 F. Supp.2d 136 (S.D.N.Y. 2000)
Plaintiff Mr. Benedict is a former town official
(Superintendent of Highways) of the Town of Newburgh, and is a
current resident of the Town.
Defendant Town of Newburgh ("the Town") is a municipality of
the State of New York and is governed by Defendant Town Board.
Defendant George Bucci, Jr., sued individually, is the elected
Supervisor of the Town and as such a member and the presiding
officer of the Town Board. Defendants Nancy Wassi LaColla, Robert
Petrillo and Salvatore DeCrosta, since deceased,*fn1 sued
individually, are Town Councilmen and members of the Town Board.
The fourth Town Councilman, Robert A. Kunkel, who did not join in
the conduct complained of, was not sued.
For purposes of this motion, the following facts are assumed to
be true. For more than twenty-two years Plaintiff Benedict worked
for the Highway Department of the Town of Newburgh. Between 1992
and December 31, 1999, Mr. Benedict was appointed four times by
the Town Board for two year terms to serve as the Superintendent
of Highways, a town office. His last appointed term would have
expired December 31, 1999.
In June, 1999, Mr. Benedict was subpoenaed to testify as a
non-party witness in a civil rights lawsuit in this Court
initiated by Gerald Williams, one of Mr. Benedict's subordinates
at the Highway Department. Williams v. Town of Newburgh, 97
Civ. 4893(CLB)(GAY). In that lawsuit, Mr.
Williams claimed that he was denied an expected promotion within
the Highway Department because his wife's First Amendment
protected speech had offended the Town Supervisor, Defendant
Bucci. On June 3, 1999, Mr. Benedict testified to various
relevant matters as a non-party witness, including the fact that
Mr. Bucci directed that a person other than Mr. Williams be
promoted. Following this testimony, the case was settled by
payment to Mr. Williams. Thereafter, Mr. Benedict says he learned
that members of the Town Board were "furious at him" for having
testified against the Town, and were "embarrassed." Complaint at
On December 2, 1999, Mr. Benedict, while on duty, saw a large
deer standing on an embankment at the Town Highway Department
property. Mr. Benedict took out a rifle from his town-owned truck
and with a single shot killed "Bambi." Mr. Benedict's
subordinates cleaned the deer within the next ten minutes and
placed it in the town-owned truck. On December 3, 1999, the day
after Bambi's adverse encounter with Mr. Benedict, Mr. Bucci
informed Mr. Benedict that Mr. Benedict would be suspended
without pay. Mr. Benedict's suspension without pay was not
authorized by the Town Board at a properly called meeting. No
written charges were filed on the occasion of the suspension.
Mr. Benedict retained an attorney and protested his suspension
without pay. By letter dated December 17, 1999, the Town Board
for the first time set forth written charges against Mr. Benedict
and provided him with an opportunity to respond in writing to
those charges. By letter dated December 27, 1999, Mr. Benedict
responded to the Board's charges through counsel, claiming that
the charges were pretextual, and that the proposed termination of
his employment was excessive in light of the offense charged and
the punishments meted out to others by the Town for more serious
delicts. On December 29, 1999, the Town Board terminated Mr.
Benedict's employment two days short of the expiration of his
term of office, and then did not renew his term as Highway
Superintendent for the years 2000-2001.
Mr. Benedict claims that Defendants unlawfully terminated his
employment as Highway Superintendent of the Town of Newburgh in
retaliation for Mr. Benedict's exercise of his constitutionally
protected right to give truthful testimony adverse to the Town of
Newburgh at a jury trial before a Magistrate Judge of this Court
in June, 1999. Defendants maintain that the Town lawfully
terminated Mr. Benedict after a hearing for cause as a result of
Mr. Benedict's actions on December 2, 1999. As this Court pointed
out in its prior decision, the civil right to give truthful
testimony in court is protected by the Constitution, but not by
the First Amendment. The same analysis should apply as is used in
cases under § 1983 seeking damages for retaliation by reason of
First Amended protected speech. Plaintiff must establish that:
(1) his speech was constitutionally protected, (2) he
suffered an adverse employment decision, and (3) a
causal connection exists between his speech and the
adverse employment determination against him, so that
it can be said that his speech was a motivating
factor in the determination.
Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). Although
Defendants' brief presents a number of arguments, the principal
thrust of the motion is that as a matter of law a reasonable jury
may not be permitted, on the evidence presented, to find a causal
connection between the anger generated by the testimony in June,
and the rather severe response to the killing of the deer on
December 2, 1999.*fn2
The Court may grant summary judgment only if the pleadings,
affidavits and certain other supporting papers 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.
Constitutionally Protected Speech
Defendants agree for purposes of the motion only, that Mr.
Benedict's truthful testimony in the case of Williams v. Town of
Newburgh, 97 Civ. 4893(CLB)(GAY), on June 3, 1999 before this
Court is constitutionally protected speech. On April 11, 2000
deciding the prior motion to dismiss this case, this Court
followed the logic of Kaluczky v. City of White Plains,
57 F.3d 202 (2d Cir. 1995), and concluded that:
"While there is no Second Circuit authority directly
on point, except for [United States v.] Pacelli,
[491 F.2d 1108, 1113-15 (2d Cir. 1974)] decided in a
criminal context, faced with this case as one of
first impression our Court of Appeals would follow
the Third and Fifth Circuit, holding on utilitarian
grounds that testifying truthfully is
constitutionally protected from retaliation, and that
it is a right existing wholly apart from the First
Amendment protection of speech generally, and without
the need to show that the testimony relates to a
matter of public concern." Benedict v. Town of
Newburgh, 95 F. Supp.2d 136, 143 (S.D.N.Y. 2000).
Testimony differs from mere speech. However, even under
traditional First Amendment analysis, Mr. Benedict is
constitutionally protected from retaliation for his June 3, 1999
testimony because speech relevant to the issues in a judicial
proceeding always involves a matter of public concern or it would
not be in Court, and the lawfulness of the hiring practices of a
municipality is also a matter of public concern. Under
traditional First Amendment analysis, a public employee does not
relinquish his First Amendment rights to comment on matters of
public concern by virtue of government employment. Pickering v.
Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811
Defendants agree that Mr. Benedict suffered an adverse
employment action, his termination two days prior to the
expiration of his term. They contend that there is insufficient
evidence to permit a reasonable jury at trial to find that his
discharge was motivated in part by animus arising out of the
protected testimony and argue that in any event he would have
been terminated for his misconduct on December 2, 1999.
Essentially, Defendants argue that this Court should find as a
matter of law that so much time expired (six months) between the
giving of the testimony and the arguably excessive or selective
punishment visited upon Plaintiff, that no reasonable jury could
find causation. While some appellate decisions have noted that
the time elapsed between events is relevant, we know of no case
in which the life expectancy of a political grudge has been
established as a matter of law with such finite precision as
Defendants suggest.*fn3 McCullough v. Wyandanch Union Free
School District, 187 F.3d 272, 280 (2d Cir. 1999) relied on by
Defendants treats the elapsed time as a relevant fact: "[o]n the
record presented no reasonable juror could infer from the timing
of the evaluation that the termination resulted from a
retaliatory motive . . ." The panel opinion notes, p. 280, that
no affirmative evidence of retaliation had been supplied by the
plaintiff. Similarly Conner v. Schnuck Markets, Inc.,
121 F.3d 1390, 1395 (10th Cir. 1997) cited with approval by our Court of
Appeals in Morris v. Lindau, 196 F.3d
102, 113 (2d Cir. 1999) treats temporal proximity as an issue of
"Unless the termination is very closely connected in
time to the protected conduct, the plaintiff will
need to rely on additional evidence beyond mere
temporal proximity to establish causation."
Additional evidence beyond "post hoc propter hoc" has been
presented in this case.
The issue of whether the Town's termination of Mr. Benedict's
employment was causally connected to Mr. Benedict's
constitutionally protected testimony, so that it can be said that
it was a motivating factor in the termination, is a question of
fact that cannot be resolved in favor of the Defendants on
summary judgment on the record before this Court. A jury could
reasonably infer that the Defendants were biding their time to
latch onto an event which could serve as a pretext for firing Mr.
Benedict. The reasonableness of such an inference is supported by
evidence that other Highway Department employees have engaged in
similar or more egregious misconduct, including accidents with
town vehicles after working hours, and taking town equipment out
of town for personal use, without any punishment. Sussman
Affidavit, Exh. 5 at 49-50 (Benedict Deposition); Sussman
Affidavit; Exh. 6 at 70-74 (Bucci Deposition).
The Court observes that in 1992 the Town's attorney advised
Town officials that the Highway Superintendent may be removed
only pursuant to Public Officers Law § 36*fn4 or Highway Law §
160,*fn5 neither of which contemplates termination in the manner
in which Mr. Benedict was fired. Hasty unlawful action in the
manner of discharging Plaintiff may evidence no more than
maladroit efforts on the part of the officials, or that they
received poor legal advice. It can also be evidence of an illegal
motive. Motive and intent generally are issues for the trial
The Court views with interest the "questionnaire" prepared by
the Town's labor counsel for the December 29, 1999 executive
Board meeting at which Mr. Benedict's case was deliberated. The
second question of this surprising document reads:
"To what extent, if any, does your decision on the
appropriate action to take with respect to Mr.
Benedict's conduct on December 2, 1999, constitute a
response or is based on Mr. Benedict's participation
in the federal district court action between Gerald
Williams and the Town of Newburgh? If so, please
explain." Sussman Affidavit, Exh. 6 at 59.
As might be expected, all Defendants answered this question in
the negative. The trier of fact may, but need not, infer that
their answers were self-serving and the very fact that counsel
asked this question was sufficient, by the way the question was
phrased, to put the board members on notice that it would be
improper to punish Benedict for testifying, if they did not
already know this.
Defendants argue that this is a garden-variety employment
termination case. Defendants maintain that Mr. Benedict's
employment was lawfully terminated in order
to punish Mr. Benedict for having shot a deer on posted
town-owned property in a residential area while on duty on
December 2, 1999, and that there is no connection between the
termination of his employment and his testimony against the Town
before this Court on June 3, 1999.
If Mr. Benedict is able to show that the Town terminated his
employment substantially due to official anger evoked by his
testimony in the Williams case, the Town would then have the
opportunity to prove that it would have terminated Mr. Benedict's
employment for legitimate reasons, even if the improper motive
had not existed. Mt. Healthy City School District Board of
Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d
471 (1977); Jund v. Town of Hempstead, 941 F.2d 1271, 1289
(2d.Cir. 1991). Mr. Benedict may then argue that the Town is
making this argument as a pretext for unconstitutional
retaliation. Howard v. Senkowski, 986 F.2d 24, 26 n. 2 (2d Cir.
1993) ("Though pretext analysis was developed in Title VII cases
. . . it is fully applicable to constitutional claims where the
issue is whether an improper motive existed.").
Disputed issues of material fact are involved that are not
appropriate to resolve on summary judgment on the record before
this Court. The record permits, at a minimum, but does not
require, the inference that Mr. Benedict was punished more
severely by being fired, in retaliation for his constitutionally
protected testimony during the Williams case before this Court.
The doctrine of qualified immunity protects government
officials from lawsuits for money damages in cases where "their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982); Warren v. Keane, 196 F.3d 330, 332
(2d Cir. 1999). Defendants are entitled to qualified immunity if
either (1) their actions did not violate clearly established law,
or (2) it was objectively reasonable for them to believe that
their actions did not violate such law. Warren, 196 F.3d at
As the Supreme Court explained in Anderson v. Creighton,
483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987),
"The contours of the right must be sufficiently clear
that a reasonable official would understand that what
he is doing violates that right. This is not to say
that an official action is protected by qualified
immunity unless the very action in question has
previously been held unlawful, but it is to say that
in the light of pre-existing law the unlawfulness
must be apparent." Anderson v. Creighton,
483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); see
also Lauro v. Charles, 219 F.3d 202, 214 (2d Cir.
This Court decided on April 11, 2000 in a matter of first
impression in this Circuit that "testifying truthfully is
constitutionally protected from retaliation, and that it is a
right existing wholly apart from the First Amendment protection
of speech generally, and without the need to show that the
testimony relates to a matter of public concern." Benedict v.
Town of Newburgh, 95 F. Supp.2d 136, 143 (S.D.N.Y. 2000).
Although the decision of this Court was a matter of first
impression in this Circuit, the contours of the right were
sufficiently clear that a reasonable official would understand
that firing a government employee in retaliation for his
testimony violates that person's rights. By reason of dicta in
Kaluczky, supra, decided in 1995, and the decision in Pacelli
as well as Pickering in 1968, this Court concludes that the
constitutional right infringed upon was well established in this
Circuit in December 2000 when Defendants acted. See Anderson,
483 U.S. at 640, 107 S.Ct. 3034. Accordingly, Defendants'
argument that the four Individual Defendants are entitled to
qualified immunity on the ground that the unlawfulness
of alleged violation was not "clearly established" at the time of
the action is unavailing.
Because a trier of fact could find causation and conclude that
the Town officials are not entitled to qualified immunity from
the claim against them because it would not have been objectively
reasonable for them to believe that their actions were in
compliance with clearly established law, Defendants' motion for
summary judgment is denied in all respects.
Counsel are directed to appear on January 2, 2001 at 9:15 a.m.
to select a jury to try this case.