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Kempkes v. Marvin

December 19, 2008

THOMAS KEMPKES, PLAINTIFF,
v.
MARY C. MARVIN, INDIVIDUALLY, GLENN D. BELLITO, INDIVIDUALLY, ROBERT J. UNDERHILL, INDIVIDUALLY, ANNE W. POORMAN, INDIVIDUALLY, WILLIAM H. BARTON, INDIVIDUALLY, AND THE VILLAGE OF BRONXVILLE, N.Y., DEFENDANTS.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION AND ORDER

Plaintiff Thomas Kempkes ("Plaintiff") brought this action pursuant to 42 U.S.C. § 1983, alleging that the Village of Bronxville ("Bronxville") and the five individuals comprising Bronxville's Board of Trustees ("Board Members") (collectively, "Defendants") violated his First Amendment rights by terminating his employment as a police officer in retaliation for his filing of a previous lawsuit against Defendants and the Bronxville police chief. Defendants move to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated herein, Defendants' motion is granted.

I. Background

For purposes of this Motion, the Court accepts as true all facts alleged by Plaintiff in his First Amended Complaint ("March 2008 Amended Complaint"), including those alleged in pleadings that Plaintiff filed in a prior action, Kempkes v. Downey, No. 07-CV-1298 ("First Action"), and annexed to his pleadings in the instant case ("Second Action").

A. Disciplinary Proceedings Against Plaintiff

According to Plaintiff's Complaint in the First Action ("February 2007 Complaint"), Plaintiff was an officer in the Bronxville Police Department ("Department"). (Feb. 2007 Compl. ¶ 3.) Beginning on or about September 6, 2002, due to a job-related injury, Plaintiff received benefits pursuant to New York General Municipal Law § 207-c ("Section 207-c"). (Id.) On July 7, 2006, Bronxville and its police chief revoked Plaintiff's Section 207-c status and terminated his Section 207-c benefits by written notice that Plaintiff was "'suspended without pay pending the investigation into potential disciplinary charges being pursued against [him] . . . related to [his] failure to remain at home, while injured, on Thursday July 6, 2006.'" (Id. ¶ 6 (alterations in Feb. 2007 Compl.).) On or about August 21, 2006, the police chief preferred disciplinary charges against Plaintiff. (Id. ¶ 7.)

On December 13, 2006, the Board of Trustees ("Board") convened disciplinary proceedings against Plaintiff pursuant to New York Unconsolidated Law § 5711-q. (Reply Aff. of Howard M. Miller in Supp. of Mot. to Dismiss, Ex. 1 (Disciplinary Hr'g Tr. ("Tr.") 4).)*fn1 Each of the Board Members was present. (Id.) The Department's attorney, during his opening statement, stated that Plaintiff (1) "failed to give notice to the Department of the need to leave his home during a time when he was sick or injured and during his regular tour," (2) gave "false and misleading information to a detective who had gone there to investigate his whereabouts," and (3) was guilty of "insubordination." (Id. 9.) The Department's attorney requested that Plaintiff "be discharged for these offenses." (Id. 11.)

During his opening statement, Plaintiff's counsel stated that he believed that charges had been brought against Plaintiff in part because "he has repeatedly expressed his concern . . . that the police department is systematically discriminating based on gender" and "has a racial bias." (Id. 15.)*fn2 Plaintiff's counsel asserted that the Department never hired a female or Hispanic officer, and employed only one or two African-American officers. (Id.) He also asserted that Plaintiff had "expressed concern" about disparate treatment of Hispanic and African-American motorists by the Department. (Id. 16-17.) Plaintiff's counsel further asserted that Plaintiff had "expressed concern" with respect to other actions taken by members of the Department, which he said Plaintiff claimed put "public health and safety at risk," put "other officers at risk," and "endangered the welfare of a minor." (Id. 15-16.)

On December 21, 2006, Plaintiff wrote a letter to the Board Members. (Feb. 2007 Compl. ¶ 9; Tr. 115.) The letter stated: "'I am writing to you exclusively in my capacity as a concerned and knowledgeable citizen.'" (Feb. 2007 Compl. ¶ 9.) The letter asserted that "'there has never been a female Police Officer and/or an Hispanic Police Officer employed by the Village,'" that "'there are but two African-American officers,'" and that "'our limited police resources are used to detain/prosecute Hispanic[] and African-American[]'" motorists in a manner different from "'Caucasian motorists.'" (Id.) The letter added: "'I propose that the Village . . . begin providing Equal Protection to all persons regardless of gender, ethnicity, national origin and/or skin color.'" (Id.) Plaintiff's letter concluded with a request that the letter be included as "'part of the Village Board's official record at its upcoming public meeting.'" (Id.)

Plaintiff's disciplinary hearing was reconvened on January 4, 2007 (Tr. 113), at which time Plaintiff's December 21, 2006 letter was marked for identification (id. 117, 345). The hearing continued for a third and final day, January 10, 2007. (Id. 364, 434.)

B. Plaintiff's First Action

With respect to the pay period ending February 2, 2007, Bronxville and the Board Members "reduced Plaintiff's net bi-weekly salary by approximately $570." (Feb. 2007 Compl. ¶ 10.)

On February 21, 2007, Plaintiff commenced the First Action, alleging that Bronxville and its police chief violated Plaintiff's due process rights by terminating his Section 207-c benefits and reducing his salary (id. ¶¶ 13, 15), retaliated against Plaintiff in violation of the First Amendment by reducing his salary (id. ¶ 17) "[a]s a proximate result of Plaintiff's expression of concerns" about the Department (id. ¶ 10), and subjected Plaintiff to selective prosecution in violation of the Equal Protection Clause by pursuing disciplinary charges against him (id. ¶ 19). Plaintiff alleged that defendants' conduct "caused Plaintiff to suffer: pecuniary losses; a loss of Section 207-c benefits; public humiliation; public embarrassment; emotional upset; anxiety; punishment for the exercise of his rights to free speech and to petition government for the redress of grievances; multiple property deprivations without benefit of a mandatory pre-deprivation hearing; and [that Plaintiff] has otherwise been rendered sick and sore." (Id. ¶ 11.) Plaintiff sought compensatory and punitive damages. (Id. ¶ 1.)

On March 27, 2007, Plaintiff filed a First Amended Complaint in the First Action ("March 2007 Amended Complaint"), which added the Board Members as defendants, omitted Plaintiff's due process claims, and added three additional claims of retaliation in violation of the First Amendment, alleging that the defendants retaliated against Plaintiff by pursuing disciplinary proceedings against him (Mar. 2007 Am. Compl. ("Mar. 2007 AC") ¶ 19), by depriving him of Section 207-c benefits (id. ¶ 21), and by denying health insurance coverage to his wife (id. ¶ 23). Plaintiff alleged that the "revocation of the 207-c benefits and preferral of the disciplinary charges . . . were motivated at least in substantial respect by reason of Plaintiff's pre-revocation and pre-hearing expression of . . . concerns" about the Department (id. ¶ 8), and that the denial of health benefits to Plaintiff's wife was "a proximate result of Plaintiff's reiteration of his said concerns both at the commencement of the disciplinary hearing and thereafter" (id. ¶ 10). The March 2007 Amended ...


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