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September 26, 2001


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


Plaintiff Ralph M. Purdy brings the instant action against defendants Town of Greenburgh ("the Town"), Paul J. Feiner, individually and as supervisor of the Town and John A. Kapica, individually and as Chief of Police of the Town, pursuant to 42 U.S.C. § 1981, 1983 and the New York State Human Rights Law, Exec.Law § 296 et seq. ("NYHRL"). Plaintiff alleges that as a result of age discrimination he was denied employment with the Greenburgh Police Department ("GPD"). Defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56(b). Plaintiff cross-moves for leave to amend the Complaint to allege a violation of the First and Fourteenth Amendments of the United States Constitution for unlawful retaliation and of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). For the reasons that follow, plaintiffs motion is granted in part and denied in part and defendants' motion is granted in part and denied in part.


Plaintiff was born on November 10, 1936. (Purdy Aff. ¶ 18.) On April 25, 1960 he was hired by the GPD and served as a police officer for approximately sixteen years. (Pl.Dep. at 24.) On February 20, 1976, plaintiff was terminated for knowingly violating Chapter 9.5.14 of the GPD Rules and Regulations after an evidentiary hearing was held before the Town Board (the "Board").*fn1 (Defs.Ex.G.) During the hearing, the Board considered charges arising out of a letter written in October 1975 on Police Association letterhead, signed by plaintiff as President of the Greenburgh Police Association and distributed to members of the GPD. The letter solicited contributions for the upcoming general election to oppose the re-election of then Town Supervisor Anthony Veteran. (Defs.Ex.G.) Plaintiff mailed a similar letter to Greenburgh residents. The Board rejected plaintiffs First Amendment defense and found that he used his official power as a police officer in an impermissibly political manner, thereby demonstrating conduct that "seriously affect[s] his general character, fitness and efficiency as a police officer." (Defs.Ex.G.)

Following the Board's decision, plaintiff initiated a proceeding under N.Y.C.P.L.R. § 7801 ("Article 78 proceeding") challenging the Board's decisions and findings. In Purdy v. Kreisberg, 59 A.D.2d 939, 399 N.Y.S.2d 458 (2d Dept. 1977) ("Purdy I"), the Appellate Division, Second Department, reversed the Board's determination. On appeal, the New York Court of Appeals reversed the Second Department and reinstated the Board's determination. Purdy v. Kreisberg, 47 N.Y.2d 354, 418 N.Y.S.2d 329, 391 N.E.2d 1307 (1979) ("Purdy II"). The court of appeals found that there was substantial evidence supporting the Board's decision and that the penalty imposed was not unduly harsh. See Purdy II, 418 N.Y.S.2d at 333, 391 N.E.2d 1307. In reaching the decision, the court held chapter 9.5.14 of the GPD Rules and Regulations constitutional under the First Amendment as a legitimate means of maintaining the integrity and effectiveness of the police department. See id. at 333-34, 391 N.E.2d 1307.

Plaintiff has not been employed as a police officer since 1976. He has, however, served as president of various interrelated police and security organizations*fn2 that negotiate labor contracts and provide benefits, legal services, labor relations and lobbying services to its members. (Pl. Dep. at 8-15.) In December 1988, the New York Attorney General's Office (the "AGO") brought suit against three of the organizations, New York State Federation of Police, Inc., United Federation of Police Officers, Inc. and Tri-County Police Federation, Inc. for fraudulent telephone solicitation. See People v. New York State Fed'n of Police, Inc., 188 A.D.2d 689, 590 N.Y.S.2d 573 (3d Dept. 1992). The New York Supreme Court granted a preliminary injunction against the organizations, barring them from soliciting funds from the public absent a script approved by the AGO. See id. at 574.

After finding that the organizations solicited funds without using the script, the court in March 1990 modified the injunction by prohibiting the organizations from any solicitation of contributions. The court also enjoined plaintiff from personally soliciting funds from the public through any corporation or entity. See id. at 574-75. The decision was later affirmed by the Third Department, finding that plaintiff "potentially abused his control of [the organizations] by engaging in activity in violation of [the] Supreme Court's preliminary injunction." See id. at 575. The case was ultimately settled by a Stipulation and Entry of a Consent Judgment on November 7, 1995 in which the defendants, constituting the organizations and plaintiff individually, although not admitting wrongdoing, agreed to a permanent injunction prohibiting them from engaging in telephone solicitation without a script approved by the Attorney General. (Defs. Ex. J.)

The events leading to the instant action began in March 1995 when plaintiff sent Greenburgh Town Supervisor Paul Feiner a letter expressing his interest in applying for a position as police officer. Feiner referred plaintiff to Police Chief Kapica. As Chief, Kapica has authority to make final recommendations to appoint applicants to the position of police officer. Actual appointments are made by vote of the Board. (Kapica Aff. ¶ 3.) On April 2, 1996, plaintiff submitted a completed application for employment with the GPD. (DeCarlo Aff. ¶ 4, Ex. A.) Plaintiff revealed in the application the prior termination by the GPD and all subsequent published court decisions as well as the investigation by the AGO. (Id.) The application was then brought to Kapica's attention. Although the reasons for the determination are in dispute, Kapica decided that plaintiff was not qualified and that he would not recommend him for appointment as a police officer.

In or about June 1996, plaintiff had a conversation with then Lieutenant Joseph J. DeCarlo during which plaintiff was advised that he was not being considered for appointment. (Pl.Dep. at 104.) Plaintiff has subsequently submitted several additional employment applications in response to letters received from Greenburgh's Office of the Comptroller inquiring as to plaintiffs interest in a position. (Purdy Aff., Ex. B.) The most recent such application was submitted in response to an inquiry letter dated June 12, 2000. (Id.) Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on February 28, 2000, alleging age discrimination. (Castellitto Decl., Ex. K.) On March 13, 2000, the EEOC determined that it did not have jurisdiction over the claim. (Castellitto Decl., Ex. L.) On June 13, 2000, plaintiff filed the instant Complaint alleging age discrimination under §§ 1981, 1983 and the NYHRL. On July 10, 2000, the EEOC decided to reinstate its investigation and on September 12, 2000 sent a Notice of Right to Sue letter with respect to his ADEA claims. (Id.)


I. Leave to Amend

FED.R.Civ.P. 15(a) allows a party to amend its pleading more than twenty days after being served, or after a responsive pleading has been served, only with the court's permission. The rule instructs that "leave shall be freely given when justice so requires." The Supreme Court has held that:

[i]n the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should . . . be freely given.

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Rachman Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234-35 (2d Cir. 1995).

The Second Circuit instructs lower courts to allow amendment, even in the face of substantial delay, unless the movant has acted in bad faith, the amendment will prejudice the non-movant or the amendment is futile. See Richardson Greenshields Secs., Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir. 1987) (stating that "[m]ere delay, . . . absent a showing of bad faith or undue prejudice, does not provide a basis for the district court to deny the right to amend") (citations omitted); McCoy v. Goldberg, 845 F. Supp. 155, 157 (S.D.N.Y. 1994) (Conner, J.). Because a responsive pleading has already been served, leave to amend must be obtained from the district court. FED.R.Civ.P. 15(a). The grant or denial of leave to amend is squarely within the discretion of the trial court. See Foman, 371 U.S. at 182, 83 S.Ct. 227.

A. Proposed ADEA Claim

Defendants object to the amendment on the grounds of prejudice and undue delay. Defendants contend that plaintiff unduly delayed raising an age discrimination claim under the ADEA. Specifically, they argue that because plaintiff did not move to amend until after discovery was closed and then only in response to defendants' motion for summary judgment, and because plaintiff was aware of the facts on which the proposed amendment is based at the time he filed the original Complaint, we should deny plaintiffs motion. We disagree. Although plaintiff could have, and perhaps should have, asserted his ADEA claim earlier, mere delay absent aggravating circumstances is insufficient cause to deny leave to amend. See McCoy, 845 F. Supp. at 158 ("delay alone is [not] sufficient grounds for denying leave to amend. . . . [S]uch delay must be accompanied by either bad faith, prejudice, or futility to warrant [denial]"). No such aggravating circumstances are present here.

Defendants also argue that they will be prejudiced by the addition of a claim after discovery was completed and a motion for summary judgment has been served. However, the claim plaintiff seeks to add arises from the same set of facts as the claims asserted in the original Complaint and is based upon the same theory of liability. See Hanlin v. Mitchelson, 794 F.2d 834, 841 (2d Cir. 1986) (granting leave to amend after discovery had been completed and a motion for summary judgment filed because "the new claims [were] merely variations on the original theme of malpractice, arising from the same set of operative facts as the original complaint"). Because plaintiffs original claim clearly asserts a claim premised on age discrimination under § 1983, defendants will not be unfairly prejudiced by the addition of an ADEA claim.

The cases on which defendants rely do not support denial of leave to amend. In Schnepf v. Siegel, No. 98 Civ. 1255, 1998 WL 474132 (S.D.N.Y. July 11, 1998), the court noted that "[d]elay . . . is generally not, in and of itself, a reason to deny a motion to amend," but nonetheless found sufficient prejudice to deny amendment because the "new claim would require new discovery, including the retention of additional and different expert witnesses by defendant." Id. at *4. No similar prejudice is alleged here. Likewise, in Cahill v. O'Donnell, 75 F. Supp.2d 264, 279 (S.D.N.Y. 1999), the court relied on Ansam Assoc., Inc. v. Cola Petroleum Ltd., 760 F.2d 442 (2d Cir. 1985) in denying leave to amend. This case is factually distinguishable in that the party in Ansam sought to assert new claims regarding a different time period and concerning an entirely new set of facts then the original complaint. See id. at 446. Finally, in Sowemimo v. D.A.O.R Sec., Inc., 43 F. Supp.2d 477, 483 (S.D.N.Y. 1999), the court in its discretion denied leave to amend, finding prejudice to the plaintiff. This Court does not so find. Accordingly, plaintiffs motion to amend the complaint to add a claim under the ADEA is granted.

B. Proposed First Amendment Retaliation Claim

Plaintiff moves this Court to amend the Complaint and assert a First Amendment retaliation claim. He alleges that defendants' failure to hire him as a police officer was in retaliation for the two letters opposing Veteran's candidacy in 1975. Defendants object because such an amendment would be futile.

When a cross-motion for leave to amend is made in response to a FED. R.Civ.P. 56 motion for summary judgment,

even if the amended complaint would state a valid claim on its face, the court may deny the amendment as futile when the evidence in support of plaintiffs proposed new claim creates no triable issue of fact and the defendant would be entitled to judgment as a matter of law under Fed.R.Civ.P. 56(c).

Milanese v. Rust-Olemn Corp., 244 F.3d 104, 110 (2d Cir. 2001). To establish a prima facie § 1983 freedom of speech claim, plaintiff must demonstrate by a preponderance of the evidence that: 1) the speech at issue is protected; 2) he suffered an adverse employment action; and 3) there was a causal connection between the protected speech and the adverse employment action. Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994); Kane v. Krebser, 44 F. Supp.2d 542, 545 (S.D.N.Y. 1999) (Conner, J.).

To establish a constitutional violation, the speech must be of a type protected by the First Amendment. Because a court of competent jurisdiction has already determined that plaintiffs speech was not constitutionally protected, this Court need not decide the issue. In Purdy II, plaintiff argued that Chapter 9.5.14 infringed his First Amendment rights. The New York Court of Appeals held that "[t]he rule, the clear import of which proscribes the use of police authority in the political spectrum, certainly a legitimate and worthwhile objective, must be sustained as constitutional." Purdy II, 418 N.Y.S.2d at 333-34, 391 N.E.2d 1307. Contrary to plaintiffs assertions, this determination has not been overruled.

Plaintiff relies on Lecci v. Cahn, 360 F. Supp. 759 (E.D.N.Y. 1973). There, though the district court held a similar provision of the Election Law unconstitutional, the decision was vacated on appeal. The Second Circuit held that the district court lacked jurisdiction to review the state court's determination that the law was constitutional. See Lecci v. Cahn, 493 F.2d 826, 829 (2d Cir. 1974). Plaintiff also cites the Opinion of the New York State Board of Elections (the "Opinion"). (Pl. Mem.Supp.Mot.Amend., Ex. A.) The Opinion, which states that a police officer as a private citizen may endorse a ...

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