United States District Court, N.D. New York
September 23, 2004.
JOHN M. ZDZIEBLOSKI, JR., Plaintiff,
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
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.
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 the material facts as to which there is no genuine issue that
are necessary to support its motion for summary judgment, and in
the format required by Rule 7.1(a)(3).
The decision by this Court in Jackson v. Broome County Corr.
Facility, 194 F.R.D. 439, 437 (N.D.N.Y. 2000) (Kahn, J.) is
similarly unhelpful to Zdziebloski's position. The statement of
material facts in that case consisted of less than two pages of
facts that were not in numbered paragraphs and had no citations to the record. Further, this
Court found that the defect and the resultant prejudice to the
non-moving party was in the form, not the substance, of the
statement. The statement violated Rule 7.1(a)(3) "by failing to
present each purported material fact in the proper form in a
separate, numbered paragraph and by failing to provide a
specific citation to the record to establish each fact."
Jackson, 194 F.R.D. at 436. There is no such objection here to
the form of the Defendants' Statement of Material Facts.
As Defendants' Statement of Material Facts complies with Rule
7.1(a)(3), summary judgment will not be denied on that ground.
b. Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary
judgment is proper when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed.R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In applying this standard,
courts must "`resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party
opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246,
251 (2d Cir. 2001) (quoting Cifra v. Gen. Elec. Co.,
252 F.3d 205, 216 (2d Cir. 2001)).
Once the moving party meets its initial burden by demonstrating
that no material fact exists for trial, the nonmovant "must do
more than simply show that there is some metaphysical doubt as to
the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (citations omitted). The
nonmovant "must come forth with evidence sufficient to allow a
reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation
omitted). Bald assertions or conjecture unsupported by evidence
are insufficient to overcome a motion for summary judgment.
Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western
World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.
c. Section 1983 Claims
I. Personal Involvement Requirement
To sustain a § 1983 claim, the plaintiff must show that there
was sufficient personal involvement in the alleged constitutional
deprivations on the part of the defendants. Moffitt v. Town of
Brookfield, 950 F.2d 880, 886 (2d Cir. 1991); Schallop v. New
York State Dept. of Law, 20 F. Supp. 2d 384, 392 (N.Y.N.D.
1998). Unless the defendant is a supervisor,*fn3 he or she
must have directly participated in the alleged constitutional
deprivation to be liable under § 1983. Schallop,
20 F. Supp. 2d at 392.
According to Zdziebloski, Town Attorney Maney served as an
advisor to the Board Members, drafted the release for Zdziebloski
to sign to get his compensation, and investigated the allegations
regarding the firewood. Plaintiff's Memorandum at 24-25. However,
each of the decisions about which Zdziebloski complains are
decisions made by a vote of the Board. As Maney was not a voting
member of the Board, none of his participation was sufficiently
direct to create liability for § 1983 purposes. His position as a
legal advisor to the Board is insufficient. Involvement in discussions that lead to a decision is not
personal involvement under § 1983. Schallop,
20 F. Supp. 2d at 392. Further, Maney did not have
the authority to require a release of all claims, nor to rehire
Zdziebloski. Maney drafted the release after the decision had
already been made by the Board to make the receipt of
compensation by Zdziebloski dependent upon his signing a
release of all claims against the Town. Moreover, Zdziebloski
is not seeking relief for the investigation into the firewood
incidents; he is seeking relief for the failure to rehire. That
the results of Maney's investigation were given by the Board
Members as the reason for their failure to rehire Zdziebloski
is not direct involvement on the part of Maney in the decision
not to rehire.
Similarly, Angelini was not personally involved in the
decisions from which Zdziebloski is seeking relief. With regards
to the termination of Zdziebloski's position, Angelini, like
Maney, had no authority to terminate the position, as this was
vested in the Board. At most, Angelini was involved with
discussions prior to the termination, which is insufficient.
Schallop, 20 F. Supp. 2d at 392. Zdziebloski also asserts that
Angelini should be held liable because he did not rehire or
consider rehiring him, but instead submitted Servidone's name to
the Board. However, Angelini did not have any authority over the
rehiring process; it was done by vote of the Board. Merely
submitting a name for a decision is not the type of direct
personal involvement in a constitutional violation required under
§ 1983; § 1983 has a higher threshold. Angelini's authority, at
most, was only to recommend someone for the position, not to make
any actual decision, and there is no indication that the Board
did not have the authority to disregard Angelini's
recommendation. Angelini's involvement is analogous to
involvement in discussions leading to the decision about whom to
rehire, not participating in the decision itself. Therefore,
Angelini was not personally involved in any alleged
constitutional violation. Because neither Maney nor Angelini had sufficient direct
personal involvement as required to sustain a § 1983 claim,
summary judgment as to all claims against them is granted.
ii. Legislative Immunity
The individual Defendants contend that they are entitled to the
absolute protection of legislative immunity with regard to the
termination of Zdziebloski's position because their relevant
actions, voting as members of the Board, were legislative in
nature. For the reasons that follow, summary judgment is granted
with respect to that portion of Plaintiff's first claim against
Defendants Van Voris, Hart, Malone, and O'Brien.
Legislative immunity shields legislators from personal civil
liability for their legislative activities. Tenney v.
Brandhove, 341 U.S. 367 (1951); Harhay v. Town of Ellington Bd.
of Educ., 323 F.3d 206, 210 (2d Cir. 2003). For § 1983 actions,
this immunity has been extended to local legislators. Bogan v.
Scott-Harris, 523 U.S. 44, 49 (1998); Carlos v. Santos,
123 F.3d 61, 66 (2d Cir. 1997).
The determination of whether an act is sufficiently legislative
"`turns upon the nature of the act, rather than on the motive or
intent of the official performing it.'" Harhay, 323 F.3d at 210
(quoting Bogan, 523 U.S. at 54). Further, the entitlement to
immunity depends not upon the identity of the actor, but rather
on the nature of the act itself. Harhay, 323 F.3d at 210.
Therefore, to determine whether Defendants are entitled to
legislative immunity, it must first be determined whether each
Defendant's actions taken regarding each of the Plaintiff's
claims were legislative in function. (1) Board Members
The Members of the Board (Van Voris, Hart, Malone, and O'Brien)
all claim an entitlement to the protection of legislative
immunity for actions taken in their personal capacities*fn4
in voting for the reorganization that eliminated Zdziebloski's
This Circuit has recognized that "[t]he act of voting is
`quintessentially legislative.'" Morris v. Lindau,
196 F.3d 102, 111 (2d Cir. 1999) (quoting Bogan, 523 U.S. at 55). When a
vote reflects a "discretionary, policymaking decision implicating
the budgetary priorities of the city," it clearly represents a
legislative activity. Bogan 523 U.S. at 55-56. The actions of
the Board Members in enacting a Resolution that eliminated
Zdziebloski's position satisfies this standard. Each of the
defendant Board Members voted for the Resolution that terminated
certain positions and reorganized the Building Department, which
is precisely the type of policymaking decision with budgetary
impact that the Supreme Court deemed a legislative activity in
Bogan. 523 U.S. at 56. Therefore, as Zdziebloski concedes in
his Memorandum (Plaintiff's Memorandum at 19, 21), Van Voris,
Hart, Malone, and O'Brien, as members of the Board voting on the
Resolution, are entitled to absolute immunity with respect to
their votes in favor of the reorganization that led to the
elimination of Zdziebloski's position.
However, the failure to rehire Zdziebloski and the requirement
that a release be signed prior to disbursing accrued benefits is
not protected by legislative immunity because those are not
legislative activities, even when such actions are taken by a
vote of legislators. Unlike terminating a position, hiring or firing a particular employee does not have
effects that reach beyond that particular employee. Bogan,
523 U.S. at 56. Not rehiring a particular employee is an
administrative personnel matter that involves no policy
formulation. Visser v. Magnarelli, 542 F. Supp. 1331, 1333-34
(N.D.N.Y. 1982). Therefore, the individual Defendants are not
shielded by legislative immunity for that portion of
Zdziebloski's first claim that concerns the failure to rehire
him. Similarly, the requirement that Zdziebloski sign a release
as a prerequisite to receiving accrued vacation, personal, and
sick time (and withholding such pay without the signed release)
is an administrative personnel matter that is not protected by
(2) Town of East Greenbush
Legislative immunity does not extend to municipalities in §
1983 actions. Carlos, 123 F.3d at 67. Therefore, the Town is
not protected by absolute immunity and could be held liable under
(iii) First Amendment Claims
The remaining claims are those against the individual Board
Members for which immunity does not apply, and those claims
against the Town. As noted above, the Town is not protected by
legislative or qualified immunity. Owen v. City of
Independence, 445 U.S. 622, 637 (1980). However, the liability
of a municipality cannot be based upon respondeat superior.
Morris, 196 F.3d at 111. A municipality can only be held liable
if "the alleged unconstitutional action implements an official
`policy or custom [of the municipality], whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy.'" Id. (quoting Monell v. Dept. of
Soc. Servs., 436 U.S. 658, 694 (1978)). Because the Board
Members (the only personally involved individual defendants) are lawmakers for the Town, their
acts can constitute a basis for municipal liability.
For a plaintiff to prevail on a § 1983 claim based upon
retaliatory employment action in violation of First Amendment
speech and associational rights, a plaintiff must establish that
"`(1) his speech addressed a matter of public concern, (2) he
suffered an adverse employment action, and (3) a causal
connection existed between the speech and the adverse employment
action, so that it can be said that his speech was a motivating
factor in the determination.'" Cobb v. Pozzi, 363 F.3d 89, 102
(2d Cir. 2004) (quoting Mandell v. County of Suffolk,
316 F.3d 368, 382 (2d Cir. 2003)). This Circuit does not allow a plaintiff
to rely upon "conclusory assertions of retaliatory motive to
satisfy the causal link." Cobb, 363 F.3d at 108. There must be
"`some tangible proof to demonstrate that [plaintiff's] version
of what occurred was not imaginary.'" Id. (quoting Morris,
196 F.3d at 111).
Zdziebloski has failed to satisfy the causal requirement to
sustain his § 1983 claims against any Board Member Defendant, and
thus, has failed against the Town as well. His assertions that he
was fired, not rehired, and denied compensation because of his
political affiliation and activities are conclusory statements
that are not supported by any evidence, which is insufficient to
defeat a motion for summary judgment. Carey, 923 F.2d at 21.
In support of his claim that his First Amendment rights were
violated, Zdziebloski describes his active participation in
Republican Party activities in anticipation of the 1995 Board
election. Plaintiff's Amended Complaint at ¶ 29. Zdziebloski
contends that all of the Defendants knew about his political
activities, but he only provides evidence supporting this
assertion against Van Voris. Id. at ¶¶ 30-31. The only evidence
that Zdziebloski provides as to the knowledge of the other Defendants is that Hart assumed that Zdziebloski was a
Republican, but was unaware of any political activities in which
Zdziebloski engaged. Hart Deposition at 47-48, 50; Plaintiff's
Memorandum at 12. Malone presumed that Zdziebloski was Republican
or Conservative, but had no knowledge of any of his political
activities. Malone Deposition at 18-19; Plaintiff's Memorandum at
12. Zdziebloski presents no evidence whatsoever as to the
knowledge of O'Brien. Therefore, although Zdziebloski contends
that his political affiliation and activities were known among
all Board Members, it was really only Van Voris that appeared
certain of Zdziebloski's affiliation and political activities.
Irrespective of whether Hart, Malone, or O'Brien knew of
Zdziebloski's Republican affiliation, he offers no more than
conclusory allegations that any such knowledge affected their
decisions in any way. There is no evidence that his affiliation
or activities was a factor at all, let alone a motivating factor.
Significantly, three of the seven people laid off by the Town's
December Resolution were non-Democrats. Plaintiff's Amended
Complaint at ¶ 35.
Moreover, there is no evidence that supports Zdziebloski's
allegations that the reasons given for the decisions were mere
pretext. The Defendant Members of the Board assert that the
reason for Zdziebloski's termination was that the Building
Department needed to be reorganized because of Town development
had decreased. Zdziebloski contends that this reasoning is simply
a cover for unconstitutional motives, but again provides no
evidence that the reorganization had an improper basis other than
this conclusory allegation of pretext. He offers the opinions of
his experts that the former Building Department was understaffed,
but provides no evidence that the new Department of Building and
Development created by the Board continued or worsened the
staffing issues. Zdziebloski merely contends that there were
staffing problems with the Department that the Board abolished.
Similarly, Zdziebloski has offered insufficient evidence to
allow a reasonable jury to conclude that the failure to rehire
was because of his political affiliation or activities. The
knowledge of the Board Members as to any of Zdziebloski's
political activities at the time that Servidone was originally
rehired was the same as it was when Zdziebloski was terminated.
Zdziebloski offers no additional evidence regarding failure to
rehire that would indicate a political motive on the part of
Hart, Malone, or O'Brien. As with the allegations about the
termination of his position, his allegations that Board Members
Hart, Malone, and O'Brien failed to rehire him because of his
political affiliation or activities are similarly without merit.
Further, Defendants claim that the reason for their failure to
consider Zdziebloski for the position was his acceptance of free
truckloads of firewood from local developers and contractors for
his personal use. Defendants' Memorandum at 18-20. As was the
case with the termination, Zdziebloski offers no evidence
indicating that this is mere pretext. It is undisputed that
Zdziebloski received truckloads of firewood from at least three
local contractors or developers on several occasions.*fn5
Although Zdziebloski contends that no one ever told him that he
was not permitted to receive free firewood from local developers
(Plaintiff's Memorandum at 14), the Town had a Code of Ethics in
effect at the time that he received this firewood, which states,
in pertinent part:
No town employee shall have any interest, financial
or otherwise, direct or indirect, or engage in any
business or transaction . . . which is in substantial
conflict with the proper discharge of his duties in
the public interest. Town of East Greenbush, N.Y., Code of Ethics, Local
Law No. 1 of 1974 § 15.2B. The Code of Ethics also
states that "no town employee shall use or attempt to
use his official position to secure unwarranted
privileges or exemptions for himself or others."
Id. at § 15.2C(3). Further, the Code prohibits
employees from engaging "in any transaction as
representative or agent of the town with any business
entity in which he has a direct or indirect financial
interest that might reasonably tend to conflict with
the proper discharge of his official duties." Id.
at § 15.2C(4). Also, "[a] town employee shall not by
his conduct give reasonable basis for the impression
that any person can improperly influence him or
unduly enjoy his favor in the performance of official
duties. . . ." Id. at § 15.2C(5).
The Board Members were aware of the incidents of Zdziebloski
getting free firewood from local contractors and developers when
it was time to hire a new interim Assistant Building Inspector.
In late 1995, there were rumors that Zdziebloski was accepting
free wood from local developers and contractors, and Maney
conducted an investigation. Plaintiff's Memorandum at 25. The
Defendant Board Members assert that they became aware of this in
late December or early January. Defendants' Memorandum at 17.
Maney himself reported this to at least one Board Member in late
December of 1995. Defendants' Statement of Material Facts at ¶
27; Plaintiff's Statement of Material Facts at ¶ 27. Zdziebloski
presents no evidence that the Board Members knew about the
receipt of firewood before the Resolution to terminate
Zdziebloski's position was passed. It is clear that the receipt
of free wood from local contractors by an Assistant Building
Inspector runs afoul of the Code of Ethics, and is sufficient
reason for refusing to rehire him when a vacancy became open.
Although Van Voris made several statements that create a
factual issue as to his personal motivation in voting for termination of Zdziebloski's position
and subsequently rehiring Servidone, that does not preclude
granting summary judgment against Zdziebloski for all of the
Defendants (including Van Voris himself). "Even if some
defendants based their decision solely on impermissible grounds,
a finding that a majority of defendants acted adversely to the
plaintiff on legitimate grounds is sufficient for all to escape
liability." Coogan v. Smyers, 134 F.3d 479, 485-86 (2d Cir.
1998). If a majority, acting without unconstitutional motives,
voted for the employment action, that is a "`superseding cause
breaking the causal chain between the tainted motives . . . and
the decision. . . .'" Coogan, 134 F.3d at 486 (quoting
Jeffries v. Harleston, 52 F.3d 9, 14 (2d Cir. 1995)); see
also Gupta v. Town of Brighton, 182 F.3d 899 (2d Cir. 1999).
Zdziebloski has failed to establish any unconstitutional motive
for the actions of Malone, Hart, or O'Brien. As there was a
majority (four-to-one) vote for each Resolution, the termination
of Zdziebloski's position and the hiring of Servidone (rather
than Zdziebloski) would have occurred regardless of Van Voris'
vote. Therefore, neither Van Voris nor the Town can be held
liable for any impermissible motive that Van Voris may have had
in voting for either Resolution.
Finally, Zdziebloski contends that his First Amendment rights
of speech and association were violated by the requirement that
he sign a release in order to get compensated for his accrued
vacation, personal, and sick time.*fn6 However, again, he
offers no evidence indicating that his Party affiliation or activities were a factor at all for any of the
Defendants, let alone a substantial or motivating factor.
Zdziebloski acknowledges that requiring such a release is the
general policy of the Town for non-union, non-retiring employees
like himself. Defendants' Statement of Material Facts at ¶ 36;
Plaintiff's Statement of Material Facts at ¶ 36. Moreover,
Zdziebloski claims that he was the only one that had to sign the
release. This indicates that none of the other terminated
employees were required to sign a release, including the two
other Republicans. Therefore, the decision to have Zdziebloski
sign a release was not motivated by political affiliation.
Further, the decision to require the release was unanimous; a
Republican Board Member (Michael Poorman) also voted in favor of
Zdziebloski signing the release. Defendants' Statement of
Material Facts at ¶ 40; Plaintiff's Statement of Material Facts
at ¶ 40.
d. New York State Law Claims
Because summary judgment is granted as to all federal law
claims, the Court will not exercise supplemental jurisdiction
over the state law claims. United Mine Workers of America v.
Gibbs, 383 U.S. 715, 726 (1966). Therefore, Zdziebloski's state
law claims are dismissed.
Accordingly, it is hereby
ORDERED, that Defendants' motion for summary judgment is
GRANTED; and it is further
ORDERED, that Plaintiff's state law claims are DISMISSED; and
it is further
ORDERED, that the Clerk serve a copy of this order on all
IT IS SO ORDERED.