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Anemone v. Metropolitan Transportation Authority

May 2, 2008

LOUIS R. ANEMONE, PLAINTIFF,
v.
METROPOLITAN TRANSPORTATION AUTHORITY, PETER S. KALIKOW, KATHERINE N. LAPP, GARY J. DELLAVERSON AND MATTHEW D. SANSVERIE, DEFENDANTS.



The opinion of the court was delivered by: Loretta A. Preska, U.S.D.J.

OPINION

Plaintiff Louis R. Anemone brings this action against the Metropolitan Transit Authority ("MTA") and individual Defendants Peter S. Kalikow, Katherine N. Lapp, Gary J. Dellaverson, and Matthew D. Sansverie in their individual and official capacities for violations of his rights under the U.S. and New York State Constitutions.*fn1 All Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56(c). For the reasons set forth below, Defendants' motions are GRANTED.

BACKGROUND*fn2

Anemone is Hired by the MTA as its First Director of Security and Deputy Director of the MTA Louis Anemone served as the Chief of Department, the highest ranking uniformed position in the New York City Police Department from 1995 until his retirement in 1999, having worked in the department for thirty-five years. Shortly after the attacks of September 11, 2001, Governor George Pataki hired Anemone to be the Deputy Director of the Governor's Office of Public Security, and on December 8, 2001, the MTA hired Anemone, on an at-will basis, to be its first Director of Security and Deputy Executive Director of the MTA.*fn3 The MTA vested Anemone's position with responsibility for all aspects of security throughout the operating systems of the MTA and its agencies and for assuring a safe and secure transportation system for the riding public. (Compl. ¶¶ 12, 18-20.) Anemone's day-to-day responsibilities included: (i) supervising the operations of the MTA police, (ii) coordinating with the National Guard and the MTA personnel at bridges and tunnels in the metropolitan area, (iii) coordinating the security provided by the NYPD's transportation bureau, (iv) overseeing the security departments of Metro North, the Long Island Railroad, and New York City Transit, and (v) overseeing and directing the security projects acceptable to the Federal Emergency Management Agency. (See MTA Defs.' 56.1 ¶ 11; Compl. ¶ 20.)*fn4 Given the nature of his position, Anemone was expected to cooperate with and maintain working relationships with outside investigatory agencies, including the MTA's Office of Inspector General ("MTA OIG" or "OIG") and the Manhattan and Queens District Attorneys' Offices. (See MTA Defs.' 56.1 ¶ 13.)

The extent to which Plaintiff's responsibilities included interacting with the press is somewhat hazy based on the summary judgment record. The MTA Defendants state simply that "Anemone interacted with the media as part of his regular duties." (MTA Defs.' 56.1 ¶ 15.) In response to questioning at his deposition, however, Plaintiff indicated that he (i) did not recall being the "designated spokesperson" for the MTA on security-related issues, (ii) would interact with the press only occasionally and only after direction from his superiors, and (iii) did not recall ever issuing press releases or holding any press conferences. (Anemone Tr. 16-18.)*fn5

The JITF and the Geller Alarms / I-Lite Investigation

Early in his tenure as Deputy Executive Director of Security, Anemone began investigating "inflated and unreasonable bills" from various contractors working on MTA projects.*fn6 Anemone conducted these investigations in part through the newly created entity called the "Joint Infrastructure Task Force" ("JITF"). According to an internal MTA document entitled "State of Command -- 2002," the JITF was created "to spearhead the [MTA's] counter terrorism [sic] efforts in the aftermath of the September 11th attack on New York City." (Abramson Decl., Ex. 10.) The JITF purports to be the "guardian of the Authority's counter terrorism plan" and lists as its first "mission" to "[d]eter and counter the Authority's vulnerability to terrorism and weapons of mass destruction." (Id.)

Nicholas Casale, Anemone's "deputy," created the JITF and oversaw its activities. (Sansverie 56.1 ¶ 36.)*fn7 One of JITF's earliest investigations was into two MTA contractors, Geller Alarms and I-Lite Electric. After a hunch by Casale that there was a corrupt relationship between one Ronald Allan, an MTA employee, and these two companies, Casale and Anemone conferred with Gary Dellaverson, the Director of Labor Relations and one of the MTA's Deputy Executive Directors, and commenced an investigation into potential fraud. Though Dellaverson approved of the investigation at the beginning, he soon "had the feeling . . . of [the investigation] being a little bit like a treasure hunt and [Anemone and Casale] weren't hunting for the treasure that I was hunting for." (Dellaverson Tr. at 173.)*fn8 Nevertheless, Dellaverson testified that Anemone and Casale "subsequently convinced me and I concurred in them [sic] starting a much larger investigation." (Id. at 174.) The investigation eventually implicated both Ronald Allan and Howard Weissman, the Director of Facilities Management. After Anemone conferred with his supervisor, Katherine N. Lapp, the Executive Director and Chief Operating Officer of the MTA, Anemone and Lapp briefed the Manhattan District Attorney and his staff on the results of the investigation. As a result, the Manhattan District Attorney's office opened its own investigation and began coordinating further investigative work with Anemone's JITF. Allan and Weissman both pleaded guilty to State criminal charges, and I-Lite was required to pay $2 million in restitution to the MTA.

A similar investigation into Figliolia Plumbing and its principals also resulted in guilty pleas, as well as an agreement with the District Attorney to forfeit $6 million.

The Beginning of the Wood Investigation

As evidence of corruption at the MTA began to pile up, Lapp asked Anemone to "take a quiet look" at John Wood, an attorney who had provided legal services associated with MTA's location at 2 Broadway. That property's developer had been indicted in a fraud and money-laundering scheme involving $10 million, and Lapp had a "feeling" that Wood received a substantial amount of money from billing. Dellaverson had similar suspicions.

Anemone asked Casale to investigate Wood, beginning with his billing records. Casale obtained the records from the MTA's General Counsel, Mary Mahon. But in January 2003, Lapp learned of the request for the bills and asked Anemone to come to her office. On or about January 16, 2003, Lapp met with Anemone and complained that she was not being kept adequately informed regarding the investigatory activities of the JITF. (MTA Defs.' 56.1 ¶ 30.) She told Anemone that all avenues of investigation would need to be determined and approved by her and that "drastic action" would follow if her directive was disobeyed. (Id.)

Anemone was "insulted and concerned" by Lapp's instructions. (Pl.'s 56.1 ¶ 30.) He decided to draft his letter of resignation, which read:

It is with extreme regret that I announce my resignation from the position of Director of Security, M.T.A. After careful consideration of the comments and decisions you made at that meeting, I believe that I have no choice but to resign. To recap:

1. You indicated that the MTA would not cooperate with requests for information or documents requested by the MTA police investigators assigned to an active criminal corruption case;

2. You indicated that you and not I would determine which avenues of investigation would be pursued by the personnel working under my direction on this case;

3. You indicated that any future requests for MTA documents that were made without your knowledge and permission would result in "drastic action."

I believe that the conclusions to be drawn from these decisions are clear:

1. You are improperly attempting to control and influence the direction of a sensitive criminal corruption case; Your direct involvement in investigative decision making [sic] is unprecedented and improper.

Your order to withhold pertinent documents form an outright lack of cooperation with the police investigators assigned to this case and use of threats is unprofessional, misguided and questionable at the very least.

I served honorably with the NYPD for over 34 years and am proud of my reputation for honesty and high ethical standards.

I feel that my continued association with the MTA under the conditions enumerated above cannot but cause me irreparable personal damage, and allow for continued criminal activity at the MTA.

Truly,

(Abramson Decl., Ex. 11) (transcribed by the Court). Anemone was working on a second draft of the letter when Dellaverson convinced him that he would "be doing a disservice to the MTA by leaving." (Pl.'s 56.1 ¶ 31.)

The Beginning of the Bauer/Plasser Investigation

After conversing with Dellaverson, Anemone decided to remain in his position. Dellaverson then communicated to Anemone and Casale that he knew Ken Bauer, the President of the Long Island Railroad, from the period when Bauer worked at MTA headquarters and that Bauer was a "bad guy." (Anemone Tr. at 103.) In the same conversation, Dellaverson began discussing a company called Plasser American Corp. and its business of providing special track maintenance railroad cars.

Though Dellaverson did not say that there was any connection between Bauer and Plasser, Anemone interpreted Dellaverson's remarks as an oblique request to begin an investigation. (Anemone Tr. at 145.) Anemone directed Casale to "nose around" about Bauer and Plasser. (Anemone Tr. at 149.)

And nose around Casale did. He searched publicly available documents and discovered that Plasser had previously been convicted of wrongdoing in connection with a contract between Plasser and Amtrak. (MTA Defs.' 56.1 ¶ 36.) Casale also discovered that one of the detectives "under his command at the JITF, Joseph Trimarchi, had been Bauer's driver." (Pl.'s 56.1 ¶ 37.) Trimarchi told Casale that Bauer "had been wined and dined by Plasser" and that he had dropped Bauer off at the airport for a flight to Austria "on Plasser's dime." (Id.) Based on this information, Casale formally commenced an investigation into potential misconduct, an investigation that Casale dubbed "Operation Campfire." (MTA Defs.' 56.1 ¶ 37.)

On February 26, 2003, Anemone briefed Lapp on the existence of the Bauer/Plasser investigation. He also discovered that a contract between the MTA and Plasser was on the agenda for a vote at the MTA Board meeting the next day, Thursday, February 27. According to Anemone, he suggested to Lapp that they not raise the issue in order to protect the secrecy of the investigation. Lapp rejected the suggestion and decided to recommend to Peter Kalikow, MTA's Chairman, to pull the contract from consideration altogether. She also said that she was inclined to refer the matter to the MTA Inspector General, Matthew Sansverie, whose office was independent and had broad statutory powers to investigate any alleged misconduct within the MTA. (MTA Defs.' 56.1 ¶ 6.) Anemone was displeased, as he "had very little faith in the IG, very little trust in the IG's ability." (Anemone Tr. at 162-63.)

At the scheduled board meeting on February 27, 2003, Plasser's contract was removed from the Board's agenda. Kalikow announced that there had been "an impropriety alleged against the president of the Long Island Rail Road for receiving gifts from the Plasser Corp." (Pl.'s 56.1 ¶ 46.) The disclosure was reported in the press the following day.

Lapp Refers the Investigation to Sanversie; Anemone Refuses to Disclose the "Confidential Informant"

Unbeknownst to Lapp, Anemone had already directed Casale to contact the Queens District Attorney about the case before the Lapp-Anemone February 27 meeting. After the February 27 meeting, and much to Anemone's chagrin, Lapp referred the Bauer/Plasser investigation to the Inspector General's Office for investigation. Anemone felt slighted: "there's that pride of ownership when you are the people working the case from the -- from day one, to have it pulled away from you, it's somewhat of an insult." (Anemone Tr. at 162.) Nevertheless, "Casale, with Mr. Anemone's approval," went to the Queens District Attorney on February 28 to pitch the investigation. (Pl.'s 56.1 ¶ 57.) Casale did not disclose that the case was referred to the MTA OIG. He informed representatives of the Queens District Attorney that he had a "high level MTA official" as an informant, one who told him that Bauer took gifts in return for helping Plasser secure a contract with the Long Island Railroad. (MTA Defs.' 56.1 ¶ 66.)

OIG Begins its Investigation

Maura Daly, the MTA OIG's Senior Investigator, had contacted Anemone on February 27, 2003 in an effort to commence that office's investigation into the Bauer/Plasser matter. (MTA Defs.' 56.1 ¶ 59.) However, Anemone would not disclose the source of the allegation of an improper Bauer-Plasser relationship; he simply said that he had received the information from a "confidential informant." (Anemone Mar. 27 hr'g Tr. at 31.)*fn9 The "confidential informant" was actually Gary Dellaverson, the man whose "hunch" about Bauer was confirmed by Bauer's driver and served as the impetus for the investigation. Anemone would later describe ...


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