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Petrillo v. Town of Tonawanda

March 30, 2008

THOMAS PETRILLO, PLAINTIFF,
v.
TOWN OF TONAWANDA, NEW YORK, BRAD ROWLES, INDIVIDUALLY AND AS SUPERINTENDENT OF THE TOWN OF TONAWANDA HIGHWAY DEPARTMENT, LOUIS J. KRESGE, INDIVIDUALLY AND AS DEPUTY SUPERINTENDENT OF THE TOWN OF TONAWANDA HIGHWAY DEPARTMENT, DAVID KROTZ, INDIVIDUALLY AND AS A SUPERVISOR OF THE TOWN OF TONAWANDA HIGHWAY DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Plaintiff is a former employee of the Town of Tonawanda Highway Department ("Town") who was discharged on July 14, 2005. Plaintiff has filed a claim against Defendants alleging that they retaliated against him for political activities and prior litigation, denied him equal protection, and deprived him of due process. (Amended Complaint, Docket No. 2). Defendants have filed a counterclaim alleging that Plaintiff breached the confidentiality provisions of a prior settlement agreement with the Town. (Docket No. 25).

Defendants have filed an Amended Motion for Summary Judgment. (Docket No. 60).*fn1 Plaintiff has filed a Motion for Partial Summary Judgment on Liability. (Docket No. 61).*fn2 For the following reasons, Defendants' Amended Motion for Summary Judgment is granted in part and denied in part, Plaintiff's Motion for Partial Summary Judgment on Liability is denied, and Plaintiff's Amended Complaint is dismissed. II. BACKGROUND

A. Facts

1. Plaintiff's Employment History

Plaintiff started working for the Town Highway Department on a full time basis in August of 1991. (Town's Rule 56.1 Statement, ¶ 6). While employed by the Town, Plaintiff was the subject of disciplinary actions, including verbal warnings, written warnings, and suspensions. (Town's Rule 56.1 Statement, ¶ 6; Plaintiff's Affidavit, Docket No. 70, ¶ 6). A number of these disciplinary actions are summarized as follows:

* July 22, 1993: Plaintiff was suspended for one day for using profane and abusive language toward a town resident. Plaintiff admits saying "fu** you" to a female resident. (Town's Rule 56.1 Statement, ¶ 8; Plaintiff's Affidavit, Docket No. 70, ¶ 8).

* June 19, 1997: Plaintiff was suspended for two days following an incident when he called a town resident a "fu**ing moron." (Town's Rule 56.1 Statement, ¶ 9). Plaintiff later attempted to drive to the resident's house to "discuss his complaint with him," but he was unable to find the house. (Town's Rule 56.1 Statement, ¶ 9). Plaintiff acknowledges the complaint, and admits trying to drive to the resident's house, but contends that the complaint was unfounded. (Plaintiff's Affidavit, Docket No. 70, ¶ 9; Plaintiff's Deposition, Docket No. 54, p. 43).

* June 2000: A police officer with the Town of Tonawanda Police Department submitted a written complaint that Plaintiff had yelled at him and spoken to him in an unprofessional manner. (Plaintiff's Affidavit, Docket No. 70, ¶ 10; Plaintiff's Affidavit, Docket No. 70, ¶ 10; Plaintiff's Deposition, Docket No. 54, pp. 46-47).

* March 23, 2004 & July 16, 2004: Plaintiff was issued a written warning and was later suspended for using foul language in referring to a supervisor, and for being confrontational with the same supervisor. (Town's Rule 56.1 Statement, ¶ 11). Plaintiff contends that the supervisor "provoked" him by "requiring an unnecessary run to a recycling station that would unnecessarily add hours to [his] shift." (Plaintiff's Affidavit, Docket No. 70, ¶ 11).

* May 26, 2005: a Town resident complained that Plaintiff had turned a sanitation truck in front of her vehicle at a high rate of speed and yelled obscenities at her as he passed. (Town's Rule 56.1 Statement, ¶ 19). Plaintiff contends that this complaint was unfounded. (Plaintiff's Affidavit, Docket No. 70, ¶ 19). Plaintiff admits shaving his goatee on the advice of his Union attorney*fn3 so that this Town resident could not identify him at a line-up during the post-termination arbitration session. (Plaintiff's Deposition, Docket No. 54, p. 45; Plaintiff's Affidavit, Docket No. 70, ¶ 20).

* June 24, 2005: a Town resident complained that Plaintiff yelled at her to slow down, and then drove up behind her, honked his horn, and yelled "you're going too slow you fu**ing idiot." (Town's Rule 56.1 Statement, ¶ 13). Plaintiff told the woman to call "John Hedges," a former Highway Department Superintendent who had committed suicide in 2003. (Town's Rule 56.1 Statement, ¶ 13; Plaintiff's Deposition, Docket No. 54, p. 9). Plaintiff contends that the resident's complaint was unfounded, and that the resident confronted him. (Plaintiff's Affidavit, Docket No. 70, ¶ 13).

2. Plaintiff's Termination

Following the June 24, 2005 incident, Plaintiff submitted a written statement to the Town at the request of his direct supervisor. (Town's Rule 56.1 Statement, ¶ 14; Plaintiff's Affidavit, Docket No. 70, ¶ 14). Plaintiff then met with another supervisor, David Krotz, and explained what had happened. (Town's Rule 56.1 Statement, ¶ 16; Plaintiff's Affidavit, Docket No. 70, ¶ 16). Plaintiff eventually met with Louis Kresge, Deputy Superintendent of the Town Highway Department, and "told him the exact story of what happened." (Plaintiff's Deposition, Docket No. 54, p. 15). Plaintiff lastly met with Susan Jividen, the Town's Personnel Supervisor, and spoke to her about the incident. (Town's Rule 56.1 Statement, ¶ 18; Plaintiff's Affidavit, Docket No. 70, ¶ 18).

On July 14, 2005, the Town discharged Plaintiff. (Discharge Letter, Exhibit G to Kresge Declaration, Docket No. 56, p. 18). The Town informed Plaintiff that this was due to the June 24, 2005 incident with a Town resident. (Discharge Letter, Exhibit G to Kresge Declaration, Docket No. 56, p. 18). The Town indicated that it had also taken into account Plaintiff's long disciplinary record. (Discharge Letter, Exhibit G to Kresge Declaration, Docket No. 56, p. 18).

3. Plaintiff's Grievance

Following his termination, Plaintiff and his Union filed a grievance with the Town under the collective bargaining agreement ("CBA"). (Town's Rule 56.1 Statement, ¶ 23; Plaintiff's Affidavit, Docket No. 70, ¶ 23). The mutually-selected arbitrator issued a decision upholding the discharge, and remarking that Plaintiff had a "terrible work record" and that a decision not to terminate him would have "been a betrayal of the public trust." (Arbitrator's Decision, Exhibit I to Kresge Declaration, Docket No. 56, p. 32).

4. Plaintiff's Complaint

On March 6, 2006, Plaintiff filed an Amended Complaint against Defendants alleging that Defendants had (1) retaliated against him for his political activities; (2) retaliated against him for bringing a prior lawsuit against the Town; (3) denied him equal protection; and (4) deprived him of due process. (Amended Complaint, Docket No. 2).

Plaintiff states that in the 2001 Highway Superintendent election, he actively supported the candidacy of Roger Murphy, who was running against the former Highway Superintendent John Hedges. (Amended Complaint, Docket No. 2, ¶¶ 15-16). Plaintiff further states that he suffers from a back condition that limits his ability to lift objects over 20 pounds. (Amended Complaint, Docket No. 2, ¶ 20). Former Highway Superintendent Hedges allegedly refused to accommodate Plaintiff's condition, and Plaintiff filed a lawsuit in 2003 alleging that the Town had deprived him of due process and retaliated against him for political activities. (Amended Complaint, Docket No. 2, ¶¶ 26-29). This lawsuit was eventually settled. (Amended Complaint, Docket No. 2, ¶ 30).

5. Defendants' Counterclaim

On September 13, 2006, Defendants filed an Amended Counterclaim against Plaintiff. (Docket No. 25). Defendants allege that the settlement agreement resolving the 2003 lawsuit included a confidentiality provision. (Defendants' Counterclaim, Docket No. 25, ¶¶ 41-43). Defendants allege that this confidentiality provision precluded Plaintiff from disseminating the existence or contents of the agreement, or the substance of his allegations. (Defendants' Counterclaim, Docket No. 25, ¶¶ 41-43). Defendants claim that Plaintiff violated the terms of the settlement agreement by ...


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