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ZDZIEBLOSKI v. TOWN OF EAST GREENBUSH

September 23, 2004.

JOHN M. ZDZIEBLOSKI, JR., Plaintiff,
v.
THE TOWN OF EAST GREENBUSH, NEW YORK; MICHAEL VAN VORIS, SUPERVISOR, TOWN OF EAST GREENBUSH; BRIAN HART, COUNCILMAN, TOWN OF EAST GREENBUSH; JOAN MALONE, COUNCILWOMAN, TOWN OF EAST GREENBUSH; VIRGINIA O'BRIEN, COUNCILWOMAN, TOWN OF EAST GREENBUSH; THE TOWN BOARD, TOWN OF EAST GREENBUSH; PATRICK T. MANEY, TOWN ATTORNEY, TOWN OF EAST GREENBUSH; AND ROBERT ANGELINI TOWN ENGINEER AND DIRECTOR OF THE DEPARTMENT OF BUILDING AND DEVELOPMENT OF THE TOWN OF EAST GREENBUSH; EACH INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, Defendants.



The opinion of the court was delivered by: LAWRENCE KAHN, District Judge

MEMORANDUM-DECISION AND ORDER*fn1

I. Background

Plaintiff John M. Zdziebloski, Jr. ("Zdziebloski" or "Plaintiff") commenced this action against the individual and municipal Defendants pursuant to 42 U.S.C. §§ 1983 and 1988, asserting that his First Amendment rights of speech and association were violated by Defendants. Zdziebloski also alleges violations of New York Labor Law § 201(d) and New York Civil Service Law § 107(1), as well as breach of contract or quasi-contract claims. These claims arise out of the actions of the Town Board ("Board") terminating Zdziebloski's employment position as Assistant Building Inspector, failing to hire him subsequently as Building Inspector, and withholding pay for accrued vacation, personal, and sick time because of Zdziebloski's refusal to sign a release of all claims against the Town of East Greenbush ("Town"). Presently before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.

  II. Facts

  Zdziebloski was employed by the Town of East Greenbush beginning in 1985, and was appointed to the full-time position of Assistant Building Inspector for the Town in January, 1994. Plaintiff's Amended Complaint at ¶ 23. At all times pertinent to his claims, Zdziebloski was an active member of the Republican Party who participated in Party activities. Id. at ¶ 24. Defendants Van Voris, Malone, O'Brien, Maney, and Angelini are registered Democrats, and Hart is a member of the Conservative Party (which cross-endorses the Democratic Party). Id. at ¶ 25.

  From 1985-93, the Board was controlled by a Republican majority, but since 1993 there has been a four-to-one Democratic/Conservative majority (three Democrats, one Conservative, and one Republican). Id. at ¶ 28. During the 1995 Board election campaigns, Zdziebloski was an active campaigner for Republican candidates. Id. at ¶ 29 He contributed money and attended fund-raising events. Id. After that year's election, however, there remained a four-to-one Democratic/Conservative majority. Id. at ¶ 31.

  On December 13, 1995, the Board passed a Resolution that laid off seven employees in various departments of the Town, including Zdziebloski. Id. at ¶ 32. Three of the seven employees laid off were non-Democrats. Id. at ¶ 35. The Resolution states that the reason for the layoffs was a need for a reduction in force. Id. at ¶ 32. Defendant Angelini asserts that he reviewed the Building Department and found a decrease in development, and recommended reorganization to the Board. Plaintiff's Amended Complaint at ¶ 37; Angelini Affidavit at ¶¶ 2-4. Defendants Hart, Malone, and O'Brien all claim to have voted in favor of the reorganization that included the termination of Zdziebloski's position because of decreased development in the Town. Hart Affidavit at ¶ 5; Malone Affidavit at ¶ 10; O'Brien Affidavit at ¶¶ 3-4. However, Zdziebloski asserts that this was mere pretext, and that the true reason for his position being terminated was that he was affiliated with the Republican Party, he actively campaigned for Republican candidates, and he exercised his First Amendment right to engage in protected speech. Plaintiff's Amended Complaint at ¶¶ 22, 32-33. Indeed, Van Voris made several statements that indicated that his votes in favor of the layoffs and reorganization were politically motivated.*fn2 Id. at ¶ 38. Zdziebloski contends that no studies were done by Angelini, and further claims that the Building Department was understaffed at the time the reorganization took place. Plaintiff's Statement of Material Facts at ¶ 11.

  Defendant Town Attorney Maney wrote a letter to Zdziebloski on December 18, 1995, notifying him that his position of Assistant Building Inspector would be terminated as of December 29, 1995 due to the reorganization and consolidation of the Building Department. Plaintiff's Amended Complaint at ¶ 33. Zdziebloski again contends that this reason was a pretext. Id. On February 14, 1996, the Board passed Local Law No. 1 of 1996, which abolished the former Building Department and created the new Department of Building and Development. Id. at ¶ 36. After Zdziebloski's position was terminated, he demanded that he receive pay for his accrued, unused vacation, personal, and sick time. Id. at ¶ 49. The Assistant Building Inspector position was a non-union position. Defendants Statement of Material Facts at ¶ 4; Plaintiff's Statement of Facts at ¶ 4. Under Local Law No. 2 of 1989, non-union employees who retire are entitled to compensation for unused vacation and personal time. Defendants' Statement of Material Facts at ¶ 33; Plaintiff's Statement of Material Facts at ¶ 33. Section 2(5) of that same law states that "non-union employees not covered by this Local Law may be compensated in accordance with provisions number 1, 2, 3 of said Local Law at the sole discretion of the Town Board." Defendants' Statement of Material Facts at ¶ 35; Plaintiff's Statement of Material Facts at ¶ 35 (emphasis in original). Zdziebloski claims that he was told that non-union employees like himself would be accorded the same benefits as union employees. Plaintiff's Amended Complaint at ¶ 50. However, Zdziebloski also understood that it was the policy of the Town to require a general release of all claims against it from non-retiring, non-union employees like himself in exchange for this compensation. Defendants' Statement of Material Facts at ¶ 36; Plaintiff's Statement of Material Facts at ¶ 36.

  On January 4, 1996, the Board unanimously passed a Resolution authorizing Van Voris to settle the claims under the criteria in Local Law No. 2 of 1989 for retirees. Defendants' Statement of Material Facts at ¶ 40; Plaintiff's Statement of Material Facts at ¶ 40. The Resolution also required a general release from Zdziebloski, releasing all claims against the Town, in exchange for the payment. Id. Pursuant to the instructions of Van Voris and then-Town Clerk Verna McFarland, Zdziebloski submitted a form to claim his compensation. Plaintiff's Amended Complaint at ¶ 51. Van Voris required Zdziebloski to sign the release, but Zdziebloski refused to sign it. Id. at ¶ 54. Therefore, he did not receive that pay. Zdziebloski claims that no other employees that were laid off were required to sign a release. Id. at ¶ 55. He contends that he was required to sign the release because of his campaign activities and affiliation with the Republican Party. Id.

  While on duty as Assistant Building Inspector, Zdziebloski regularly solicited wood from local builders, contractors, and developers. Defendants' Statement of Material Facts at ¶ 17; Plaintiff's Statement of Facts at ¶ 17. While employed by the Town as Assistant Building Inspector, he received at least three truck loads of free wood from Marini Builders, four truck loads of free wood from Ed Brzozowski, and two to three truck loads of free wood from Traditional Builders. Defendants' Statement of Material Facts at ¶¶ 19-21; Plaintiff's Statement of Material Facts at ¶¶ 19-21. Each was a local developer, builder, or contractor. Id. This was known to the Board Members prior to the decision to hire Donald Servidone ("Servidone") in January. Plaintiff's Statement of Facts at ¶ 17.

  In January of 1996, Servidone, a member of the Conservative Party, was rehired on an interim basis, and was rehired by Resolution of the Board on March 13, 1996 as an interim, full-time Assistant Building Inspector. Plaintiff's Amended Complaint at ¶ 39. Both Servidone and Zdziebloski had completed the required civil service exam with equal scores, and were two of the three names placed on the Certificate of Eligibles provided by the Rensselaer County Civil Service Commission. Id.; Defendants' Statement of Facts at ¶ 15. Servidone was appointed permanently as Building Inspector by the Board on November 13, 1996. Plaintiff's Amended Complaint at ¶ 39. Zdziebloski has not been rehired by the Town. Id. at ¶ 40. Zdziebloski contends that it is due to his political affiliation, campaign activities, exercise of protected speech, and filing a notice of claim (on March 7, 1996) and lawsuit (on June 25, 1996) against the Town. Id. at ¶ 39. III. Discussion

  a. Rule 7.1(a)(3)

  Zdziebloski asserts that Defendants' motion should be dismissed pursuant to Local Rule 7.1(a)(3). Local Rule 7.1(a)(3) sets forth specific requirements for the Statement of Material Facts for a summary judgment motion:
Any motion for summary judgment shall contain a Statement of Material Facts. The Statement of Material Facts shall set forth, in numbered paragraphs, each material fact about which the moving party contends there is no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established. . . . Failure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion.
N.Y.N.D.L.R. 7.1(a)(3) (emphasis in original).

  Zdziebloski contends that Defendants' Statement of Material Facts is insufficient under Rule 7.1(a)(3) for not being "accurate and complete" by failing to set forth all of the material facts that the Defendants deem undisputed. Plaintiff's Memorandum at 1. While it is correct that a failure to comply with Rule 7.1(a)(3) is grounds for denying the motion for summary judgment, there is no such failure here. Defendants set forth all of the facts that are material to their motion and about which they believe there is no genuine dispute. Each fact is presented in a numbered paragraph with a citation to the record, as required by Rule 7.1(a)(3). In addition to responding directly to Defendants' Statement of Material Facts, Zdziebloski includes in his Memorandum one page of facts that were not discussed in Defendants' Statement of Material Facts. Id. at 1-3. However, the facts that Zdziebloski includes in his Memorandum are not material to Defendants' motion for summary judgment. A fact is material if it "`might affect the outcome of the suit under the governing law.'" Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Some of the "facts" that Zdziebloski claims that Defendants did not include are actually legal conclusions (for example, "that the plaintiff's alleged conduct regarding the firewood did or did not actually violate any provision of the Code of Ethics"). Plaintiff's Memorandum at 2. Other facts are not material to the motion for summary judgment (i.e. they do not affect the outcome), and were therefore unnecessary in Defendants' Statement of Material Facts. Zdziebloski contends that he is prejudiced by the Statement submitted by the Defendants, but there is no support for that contention. His assertion that there is "nothing for plaintiff to respond to" is obviously incorrect. Defendants' Statement of Material Facts contains sufficient facts to which Zdziebloski has in fact responded in his Memorandum.

  Zdziebloski cites two cases, including one by this Court, in which motions were denied based upon a violation of Rule 7.1(a)(3). However, those decisions are inapposite to the present motion. The order in Lee v. Glessing, dismissing a motion for summary judgment, describes the offending statement of material facts as "four short paragraphs" which contained legal arguments and did not specifically cite to the record. No. 99-872, slip op. at 2 (N.D.N.Y. January 17, 2001) (Munson, J.). This certainly does not describe the Statement of Material Facts provided by Defendants. Defendants' Statement of Material Facts contains all of ...


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