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April 16, 2004.


The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge


Before the Court are the motions of Defendants Thomas Gaynor ("Gaynor"), Dennis Hardy ("Hardy"), and The Village of Piermont, New York ("the Village" or "Piermont") for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Raymond Holmes, Jr. ("Plaintiff or "Holmes"), a former employee of the Village, asserts three causes of action pursuant to 42 U.S.C.A. § 1983, all stemming from alleged violations of his rights under the Fourteenth Amendment to the U.S. Constitution. Plaintiff alleges that: 1) all Defendants engaged in a selective prosecution of Plaintiff, relating to Plaintiffs suspected involvement in an illegal dumping scheme, in violation of Plaintiff's right to equal protection, 2) Defendants Hardy and the Village terminated Plaintiff's employment without a pre-deprivation hearing in violation of Plaintiff's right to due process, and 3) Defendants Gaynor and the Village defamed Plaintiff in connection with the termination, thus depriving Plaintiff of his liberty interest in his reputation. Plaintiff also seeks punitive damages against Defendants Gaynor and Hardy. Defendants move for judgment as a matter of law with respect to all of Plaintiff's claims.

  The Court has subject matter jurisdiction of Plaintiff's claims pursuant to 28 U.S.C.A. §§ 1331 and 1343 (West 1993).

  For the following reasons, Defendants' motions for summary judgment are granted.


  The following facts are undisputed except where characterized as allegations or contentions. Plaintiff Holmes spent the better part of three decades in the employ of the Village of Piermont. Plaintiff began working full-time for the Village Highway Department, also known as the Department of Public Works ("DPW"), in 1971, and became a motor equipment operator for the Village in 1974. (Tr. 6/6/2001 Holmes Dep. at 17, Exh. C to Miranda Decl.) Plaintiff also worked for the Village as a part-time police officer from 1971 until his retirement from that job in December 1992, and as a fire inspector from 1975 until 1976. (Tr. 6/6/2001 Holmes Dep. at 24, Exh. C to Miranda Decl.; Letter of Retirement dated 12/7/92, Exh. 1 to Nicaj Aff.) In 1992, Plaintiff became maintenance supervisor for the DPW, assuming responsibility for the work of the entire department. (Tr. 6/6/2001 Holmes Dep. at 19-21, Exh. C to Miranda Decl.)

  Defendant Gaynor has been a Piermont police officer since around 1978, and has served as Chief of Police for the Village since 1985. (Id. at 26; Tr. 6/11/2001 Gaynor Dep. at 5, 7, 9, Exh. 5 to Silverman Aff.) Defendant Hardy is a lifelong resident of the Village of Piermont. He served two terms as the Village's Mayor, holding the part-time paid position from March 1997 to March 2001. Prior to that, from 1991 through 1992, Hardy served as a member of Piermont's Board of Trustees. (Tr. 6/8/2001 Hardy Dep. at 4, 7, 12, Exh 4. to Silverman Aff.)

 Defendant Gaynor's Alleged Personal Animus Toward Plaintiff

  Plaintiff alleges generally that Gaynor developed animus toward Plaintiff many years ago because Gaynor became aware that Plaintiff had spoken to the then Village Board Members and Mayor about Gaynor. (Tr. 6/6/2001 Holmes Dep. at 41-43, Exh. C to Miranda Decl.) Plaintiff contends that Gaynor's animus manifested itself over the years in a variety of ways. Plaintiff alleges that, in or around 1985, Gaynor promised Plaintiff a pay raise upon Plaintiffs completion of Police Academy training, but that Gaynor failed to make good on his promise once Plaintiff actually completed the training. (Id. at 170.) Plaintiff also contends that Plaintiff's hours were reduced drastically once Gaynor became Police Chief. Plaintiff alleges that certain types of assignments he received prior to Gaynor's taking office were instead given to full-time officers, who were paid time-and-a-half, after Gaynor became Chief. (Id. at 172.) Plaintiff complained to the Village Board about the reductions, and, according to Plaintiff, his complaint was followed by a further hours reduction which resulted in Plaintiff working only about six days over the last six months of his employment with the Village Police Department. Plaintiff further contends that Gaynor imposed more stringent requirements relating to Plaintiff's completion and submission of paperwork in the wake of his complaint to the Board. (Id. 174-76.)

  In addition, after Plaintiff's retirement from the police force in December 1992, Gaynor refused, despite repeated requests from Plaintiff, to issue the retirement badge and identification that is customarily given as an honor to police department retirees. Gaynor contends that he denied Plaintiff's request both because he believed that Plaintiff was ineligible to retire at the time he stopped working for the department, and because of the circumstances surrounding Plaintiff's departure (Plaintiff refused to work a Christmas Eve shift he had been scheduled to work around the time that he stopped working for the Police Department). (Tr. 6/15/2001 Gaynor Dep. at 53-61, Exh. 5 to Silverman Aff.) Plaintiff alleges that Gaynor, in response to one of Plaintiff's requests about the badge and identification, asked to see a letter confirming that Plaintiff had retired and that, after Plaintiff produced such a letter, Gaynor responded with profanity directed at Plaintiff and said, "I wasn't giving you anything anyway." (Tr. 6/6/2001 Holmes Dep. at 183, Exh. C to Miranda Decl.) Plaintiff also approached Defendant Hardy about the issue during Hardy's first term as mayor, prompting Hardy to speak with Gaynor. Gaynor expressed to Hardy his belief that Plaintiff had been fired, rather than having retired, and therefore should not receive the badge and identification. (Tr. 6/8/2001 Hardy Dep. at 142, Exh. 4 to Silverman Aff.) Ultimately, the Village Board decided to award Plaintiff the identification, but declined to issue the badge in deference to Gaynor's wishes. (Id. at 145-147.)

  In addition, Plaintiff alleges that, in or about 1998, Gaynor conducted an investigation relating to garbage that was being picked up just outside the Village boundary at the residence of a former Village employee. (Id. at 33.) The DPW, which Plaintiff headed, was responsible for picking up garbage. Gaynor told the Village Board that he preferred that the issue be handled administratively rather than through the criminal justice process, and he recommended that the Board impose a fine equal to the amount a private contractor would have charged for garbage collection. Gaynor also stated in his deposition that he did not recommend that any action be taken against the employees who actually picked up the garbage. Plaintiff was ultimately fined $500 by the Board for permitting the illegal pickups. (Tr. 6/15/2001 Gaynor Dep. at 71-74, Exh. 5 to Silverman Aff.)

  Plaintiff also contends that, in 1998, Gaynor yelled at Plaintiff in the Village Hall because Plaintiff had failed to comply with Gaynor's request that Plaintiff paint Gaynor's office. Plaintiff further alleges that Gaynor also yelled at Plaintiff in the Village Hall in connection with Plaintiffs refusal to adhere to Gaynor's request that he close off a street. (Tr. 6/6/2001 Holmes Dep. at 189-98, Exh. C to Miranda Decl.)

  Gaynor sent a memo to the Mayor, Village Board and City Attorney, dated April 15, 1999, informing them of a report made to the police department that an illegal refuse pickup had occurred on a certain date, and that the DPW crew who made the pickup had been given money by the suspected dumper to purchase lunch that day. Gaynor wrote in the memo that he believed the allegations to be "very disturbing" given the recent problems the Village had had with Plaintiff concerning illegal pickups, and that, although Gaynor had not conducted a full investigation and was unable to offer an opinion as to the validity of the charges, he believed the Board should handle the matter administratively, taking strong action if the allegations were to be proven true because, if the police department went forward with an investigation, Plaintiff could potentially face arrest on felony charges. (Gaynor Mem. Re: Allegations Against D.P.W., dated April 15, 1999, Exh. 6 to Nicaj Aff.)

 The Dumping Investigation

  In 2000, Plaintiff became a target of an investigation, spearheaded initially by Defendant Gaynor, into alleged illegal dumping along the Village pier, which juts out into the Hudson River at the Village's southern end.

  The Village of Piermont maintained a landfill for household garbage near the pier along the Village's southern waterfront until the mid-1970's, when the landfill was closed and a Little League baseball field was built at the site. (Tr. 6/6/2001 Holmes Dep. at 44, Exh. C to Miranda Decl.) The landfill was closed at the behest of the New York State Department of Environmental Conservation ("DEC"). The area by the pier is considered to be New York State protected tidal wetlands. (Tr. 6/8/2001 Hardy Dep. at 20, 257, Exh. 4 to Silverman Aff; DEC Simplified Information, Exh. 14 to Silverman Aff.) After the construction of the Little League field, the area to the northeast of the field was used for the dumping of compost (also known as biodegradable materials) such as leaves, small branches and brush. (Tr. 6/6/2001 Holmes Dep. at 44, Exh. C to Miranda Decl.) The compost site was authorized by the Village. (Tr. 6/8/2001 Hardy Dep. 20, 148, Exh. 4 to Silverman Aff.) According to Defendants, dumping of other types of materials at the site was prohibited. (Id. at 45.)

  In May 1999, Fred Lowell, a Piermont resident who lives across from the Little League field, complained that he had witnessed impermissible dumping occurring in an area along the Village pier. Lowell expressed his concerns in a statement to Piermont's Board of Trustees, delivered during a May 4, 1999, Board Meeting. (Village Board Meeting Minutes, May 4, 1999, Exh. 17 to Silverman Aff). Prompted by Lowell's complaints, Mayor Hardy sent Plaintiff a one-sentence memo, dated May 6, 1999, stating that "[a]ny large tree stumps, etc., received by the Village will be taken to Clarkstown for their disposal." Hardy also spoke to Plaintiff personally, directing him not to allow dumping of anything other than leaves and light brush. (Hardy Memo dated May 6, 1999, Exh. 18 to Silverman Aff; Tr. 6/8/2001 Hardy Dep. 110-11, Exh. 4 to Silverman Aff.)

  Plaintiff alleges, however, that Hardy also informed Plaintiff in a conversation around the time of the May 6, 1999, memo that the DPW could continue dumping "roadside debris." (Tr. 6/6/2001 Holmes Dep. at 56, Exh. C to Miranda Aff.)

  In November 1999, Lowell again complained that he witnessed illegal dumping going on at the pier site. (Incident Report, dated 1/17/01, Exh. 8 to Nicaj Aff; Tr. 6/8/2001 Hardy Dep. 118, Exh. 4 to Silverman Aff.) According to Defendants, Lowell showed Hardy photographs of a truck with markings on it indicating that it belonged to a private construction company called Raines & Welsch, which primarily did work for the utility company United Water. (Tr. 6/8/2001 Hardy Dep. 119-120, Exh. 4 to Silverman Aff.) Defendant Hardy contends that the pictures show the Raines & Welsch truck dumping debris at the pier site, and the area then being covered over again by dirt from the same site. (Id.)

  On November 22, 1999, Mayor Hardy sent a letter to United Water Company advising it that the Village could "no longer" allow United Water to dispose of construction materials" at the pier site. (Hardy Letter to United Water, dated 11/22/99, Exh. 4 to Nicaj Aff. (emphasis in original).) Then, on December 29, 1999, Hardy sent another memo to Plaintiff, advising Plaintiff that the Village was aware that Plaintiff had permitted Raines & Welsch to dump concrete slabs and other materials at the pier site despite Hardy's prior order directing Plaintiff not to allow dumping at the site. Hardy warned "that any further acts on [Plaintiffs] part outside the scope of [his] authority and in disregard of [Hardy's] orders will undoubtedly trigger further disciplinary action." (Hardy Memo to Holmes, dated 12/29/99; Exh. 20 to Silverman Aff.)

  Also in December 1999, Village Trustee Veronica Hickey reported to Police Chief Gaynor that two DPW workers had informed her that Plaintiff was permitting illegal dumping to occur at the pier site as well as at another site nearby, and that the workers had implied that Plaintiff was receiving or had received some financial reward (referred to as "Christmas envelopes") in return for allowing dumping at the pier site. (Tr. 6/11/2001 Gaynor Dep. at 9, Exh. 5 to Silverman Aff; Tr. 7/17/2001 Hickey Dep. at 7, 10; Exh. 22 to Silverman Aff.) The two workers were Ed Miggins and Tom Temple. (Tr. 7/17/2001 Hickey Dep. at 8, Exh. 22 to Silverman Aff.)

  Upon returning from his vacation in January 2000, Chief Gaynor began an investigation relating to the allegations of illegal dumping at the two sites, and prepared an incident report. According to the incident report, Gaynor inspected both locations and "found that there was significant fill dumped at both locations containing dirt, concrete, blacktop and wood." (Incident Report, dated 1/17/01, Exh. 8 to Nicaj Aff.) As part of the investigation, Gaynor also interviewed a number of potential witnesses, including various DPW employees and adjacent property owners. (Id.; Tr. Gaynor Dep. 6/11/01 at 34, Exh. 5 to Silverman Aff.) In addition, according to the incident report, Rockland County BCI detective Brian Sherry photographed the locations. (Incident Report, dated 1/17/01, Exh. 8 to Nicaj Aff.) During their ...

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