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GRECO v. COUNTY OF NASSAU

May 29, 2001

JAMES GRECO, PLAINTIFF,
V.
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.

      MEMORANDUM AND ORDER

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 defamation claim.

Plaintiff, James Greco, ("Plaintiff" or "Greco") a Corrections Officer with the Nassau County Sheriffs Department. He contends that he was discriminated against in the terms and conditions of his employment on account of an alleged perceived disability in violation of the ADA and Rehabilitation Act. Greco also claims retaliation for exercising his rights pursuant to these statutes. The facts alleged in support of these federal claims are also urged in support of Plaintiffs state law employ, ment discrimination claim. Plaintiffs Section 1983 claims are premised upon alleged violations of his First and Fourteenth Amendment rights. Finally, Plaintiffs slander claim is premised upon an incident during which he was accused of violating the law by being outside and working when he was on disability leave.

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.

BACKGROUND

I. Factual Background

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 "SERT" Team

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.

The County points to entries in Plaintiffs diary as evidence that the leave time used by Plaintiff was not for legitimate purposes. To illustrate, Greco's personal diary contains entries such as "fishing tournament" or "dog show," and refers to hunting sitings on days also noting "sick day" or "OJI" (on the job injury) days. Greco does not dispute the County's record-keeping.*fn1 Instead, he alleges an entitlement to all days utilized, argues that he was truly sick and sees nothing wrong with using all benefits available. Greco explains the diary entries as scheduled activities that he did not attend due to illness. He explains the hunting sitings as information related to him by friends who were not too sick to go hunting.

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 handled.

D. Greco's Subpoena To Testify Before The Nassau County Legislature

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 subpoenaed.

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 that ...


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