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GRECO v. COUNTY OF NASSAU
May 29, 2001
JAMES GRECO, PLAINTIFF,
COUNTY OF NASSAU, JOSEPH T. JABLONSKI, SHERIFF OF THE COUNTY OF NASSAU, IN HIS INDIVIDUAL AND PROFESSIONAL CAPACITY, PAUL SCHOENBERGER, DEPUTY UNDERSHERIFF OF THE COUNTY OF NASSAU, IN HIS INDIVIDUAL AND PROFESSIONAL CAPACITY, DEFENDANTS.
The opinion of the court was delivered by: Wexler, District Judge.
This is an employment discrimination case alleging violations
of: (1) the Americans With Disabilities Act, 42 U.S.C. § 12102
(the "ADA"); (2) the Rehabilitation Act, 29 U.S.C. § 794(a); (3)
42 U.S.C. § 1983 ("Section 1983"); and (4) the New York State
Human Rights Law. Additionally, Plaintiff asserts a state law
Named as defendants are the County of Nassau (Plaintiffs
employer), Joseph T. Jablonsky, the Nassau County Sheriff at all
relevant times ("Jablonsky" or the "Sheriff"), and Paul
Schoenberger, a Deputy Undersheriff for Nassau County
("Schoenberger") (collectively "Defendants").
Presently before the court is the motion of Defendants for
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. For the reasons that follow, the court
dismisses all of Plaintiffs federal claims and declines to
exercise jurisdiction over the pendent state law claims.
The complaint, deposition testimony and other documents
submitted in support of and in opposition to the motion reveal
the facts set forth below. Except where noted, the facts are
undisputed. Where facts are in dispute, they are related in the
light most favorable to Plaintiff, the non-moving party.
A. Plaintiff's Employment With the Sheriff's Department
1. Plaintiff's Assigned Posts
Plaintiff has been employed as a Corrections Officer with the
Nassau County Sheriffs Department since February of 1990.
Plaintiff also runs a private business known as the Long Island
Canine Service. In this business, Plaintiff sells puppies and is
involved in obedience training of dogs.
For the first two years of his employment as a Corrections
Officer, Plaintiff worked as a "floater," i.e., he was not
assigned to a particular post. Thereafter, Plaintiff was
assigned to work in the "J" and "K" dormitories until he secured
a position at the "3500" control desk. After this position,
Plaintiff was assigned to work at the "4500" control desk.
From May of 1995 until June of 1996, Plaintiff took an
extended leave of absence, pursuant to General Municipal Law §
207-c, due to a work-related injury. Upon his return to work,
Plaintiff was not assigned to the same position he left (the
4500 control desk), but was assigned to the "832 delivery gate."
This position is considered to be a "light duty" post because it
does not involve inmate contact. Light duty posts are available
to Corrections Officers who are unable to perform full duty or
for the protection of officers who might re-injure themselves if
exposed to physical confrontation with an inmate.
Although the precise date is unclear, it appears that while
Plaintiff was assigned to the 832 delivery gate, he was also
designated as an "alternate" at the 3500 control desk. As an
alternate, Greco would be assigned to the 3500 control desk only
if another officer was unable to man the post.
On January 9, 2000, Plaintiff was removed from his position at
the 832 delivery gate and from his designation as a 3500 control
desk alternate. At that time, he was designated a floater, where
his position could change depending upon the needs of the
facility. Plaintiff alleges that he was deprived of significant
overtime opportunities by being placed at the 832 delivery gate
and/or the floater position.
2. Requests for Assignment to the K-9 Unit
Defendant Schoenberger was aware of Plaintiffs letter
requesting appointment to the K-9 Unit and wrote to the Sheriff
in connection with the request. Specifically, in a letter to
Jablonsky, Schoenberger noted that Greco was currently suing the
County for employment discrimination. Schoenberger attached a
sample rejection letter to this correspondence for the Sheriffs
signature and offered to send the letter directly to Greco. The
letter suggested by Schoenberger informed Greco that there were
no current openings in the K-9 Unit and asked that proper
application procedures be followed in the future. Ultimately,
Greco was again rejected for assignment to the K-9 Unit.
3. Plaintiffs Assignment, Removal and Re-Assignment to the
In 1994, upon the recommendation of Schoenberger, Plaintiff
was assigned to the Sheriffs Emergency Response Team (the "SERT"
team). The SERT team is an on-call unit that handles emergency
matters involving the extraction of recalcitrant or violent
inmates from their cells. Members of this team carry beepers to
be able to respond immediately to emergency situations. They
must be physically fit to handle their duties and physically
available to respond. SERT team members are not entitled to any
additional pay or benefits other than possible overtime if
called into service. Assignment to the SERT team is not
considered to be a promotion and membership on the team is a
privilege and not a right.
In June of 1997, Plaintiff was removed from his assignment to
the SERT team. In 1998, he was returned to the SERT team. At the
same time, Plaintiffs request for assignment to a section of the
jail where he could work with minors was granted. Plaintiff
remains a member of the SERT team.
B. Plaintiff's Attendance Record
Plaintiffs full attendance record and his personal diary are
contained in the County's Rule 56.1 statement and are properly
before the court. The County relies upon these documents to
portray Plaintiff as an "abject abuser" of the generous number
of sick days, personal leave and vacation time benefits provided
to Corrections Officers. The record reveals that Plaintiff has
taken every sick, personal and vacation day granted to
Corrections Officers and that he presently has no such days
accrued or unused.
In 1997, Plaintiff received a "Notice of Personnel Action,"
noting Plaintiffs absences from work and referring to Plaintiffs
attendance as revealing a "chronic and patterned abuse of
leave." Plaintiffs performance evaluation indicated that his
"time utilization" was "unsatisfactory." Although Plaintiffs
attendance record improved somewhat in 1998, the County alleges
that in 1999, Plaintiff returned to his pattern of abusing sick
and leave time.
On August 18, 2000, Plaintiff alleges that he sustained an on
the job injury when he intervened in a violent inmate
confrontation. Plaintiff states that as a result of this
altercation he suffered injuries to his knees, legs and head.
Greco claims that he was absent from work on thirty days as a
result of this injury. The County disputes the extent of
Plaintiffs injuries and the legitimacy of the sick leave that
followed the August 18th incident.
C. The Incident Involving the Germnan Shepard Photograph
In February of 1999, Plaintiff noticed a photocopy of a
photograph of a German Shepard taped to the inside window of the
3500 control desk. The dog in the photograph was wearing a
collar upon which the name "Greco" was written. Plaintiff
complained to the bias unit of the Sheriffs department about the
photograph. Affirmative Action Interim Officer Stephen Brown
removed the photograph and investigated the incident. The person
who posted the photograph was never identified but a notice of
personnel action was issued to the Lieutenant in charge of
supervising the 3500 control desk, reprimanding him for failing
to take immediate action. The County asserts, and Plaintiff
agrees, that the photograph was posted in blatant violation of
County policy. Although Greco was disappointed with the level of
punishment meted out in connection with this incident, he was
otherwise pleased with the way in which his complaint was
D. Greco's Subpoena To Testify Before The Nassau County
In January 2000, Greco was subpoenaed to testify before the
Nassau County Legislature. The subpoena requested that Greco
give testimony pertaining to a report dated December 15, 1998,
concerning overtime at the Nassau County Correctional Center.
Greco states that after he appeared to give testimony, he was
asked by a Sheriffs Department employee why he was subpoenaed.
He also asserts that Sergeant Rogers of the Sheriffs Department
approached him at work and inquired as to why Greco was
E. The Observation of Plaintiff While on Leave
On September 23, 2000, after the filing of this lawsuit,
Plaintiff was once again on disability leave. While he was out
of work, Plaintiff was observed by Sheriffs Department employee
Michael Golio, who noticed Plaintiff in a park training a dog,
accompanied by the dog's owner. Golio was off duty when he
observed Greco and was not acting on official Sheriff Department
business. Instead, Golio saw Greco by chance. Upon observing
Greco, Golio called John Covais, a Lieutenant with the Central
Investigation Unit at the Sheriffs Department to determine
whether Greco was on disability leave at the time. It was
Golio's understanding that Greco was violating the terms of his
disability leave by engaging in dog training while on leave.
After speaking to Golio on the telephone, Covais went to the
park to observe Greco. According to Plaintiff, Covais approached
Plaintiff and the dog owner and informed the owner that
Plaintiff was violating County and State policy and regulations
by being outside when he was supposed to have been confined to
his home because of his medical condition.
Plaintiff states that he was violating no policy or regulation
by being outdoors and that he was followed by Golio in
retaliation for the filing of this lawsuit. He further argues