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PURDY v. TOWN OF GREENBURGH
September 26, 2001
RALPH M. PURDY, PLAINTIFF,
TOWN OF GREENBURGH, PAUL J. FEINER, INDIVIDUALLY AND AS SUPERVISOR OF THE TOWN OF GREENBURGH, AND JOHN KAPICA, INDIVIDUALLY AND AS CHIEF OF POLICE OF THE TOWN OF GREENBURGH POLICE DEPARTMENT, DEFENDANTS.
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."
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
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.)
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
[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
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.
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,
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 ...