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Baker v. Gerould

February 4, 2009


The opinion of the court was delivered by: David G. Larimer United States District Judge


Plaintiff David Baker ("Baker"), an employee of the New York State Department of Environmental Conservation ("DEC"), commenced the instant action against eight of his present and former chain-of-command supervisors, Steven Gerould, David Egelston, Charles Johncox, James Tuffey, Donald Snell, Walter Heinrich, Erin Crotty and Lawrence Johnson. Baker, who was initially employed by the DEC as a Supervising Environmental Conservation Officer, alleges that the defendants retaliated against him on the basis of his engagement in constitutionally-protected speech, in violation of 42 U.S.C. §1983, 42 U.S.C. §1985, and the First Amendment to the United States Constitution, U.S. CONST. Amend. I, Title VII of the Civil Rights Act of 1964.

Defendants now move for summary judgment dismissing Baker's claims pursuant to Fed. R. Civ. Proc. 56 (Dkt. #103). For the following reasons, defendants' motion is granted in part.


Plaintiff was initially hired by the DEC in April 1983, as an Environmental Conservation Officer ("ECO"). In 1987, Baker was promoted to the position of Supervising ECO with the rank of Lieutenant. As a Supervising ECO, Baker's duties included the supervision and evaluation of subordinate officers, including the review of paperwork such as accident reports, the investigation of accident scenes to determine whether the accidents were preventable, attendance at meetings with prosecutors to discuss cases, and meetings with the Regional Captain to discuss the activities of subordinate ECOs.

On or about March 6, 2002, while Baker was employed as a Supervising ECO, one of Baker's subordinate officers, ECO Bruce Bullock, crashed his snowmobile into a ditch. Bullock was a member of the marine and Off Road Enforcement team, whose activities were directed from Albany by defendant Johncox.

Bullock contacted Baker and advised him that he'd been in a minor accident. After consulting with defendant Snell, the Regional Captain, Baker advised Bullock to transport the snowmobile back to the regional office in Avon, New York. After inspecting the damage, which was more severe than the officers had believed, Snell asked Baker to conduct an on-site investigation of the accident scene. Because Baker was unable to do so at that time, Snell directed defendant Gerould to conduct the on-site investigation instead.

Later in the afternoon on March 6, 2002, Gerould went to the scene and prepared a memorandum describing his observations, which he submitted to Baker, Snell and Johncox. Gerould's memorandum noted: "[t]he photos indicate that from a distance the ditch was not visible. It became evident to me at approximately 100 feet. Although it may have been very different when the entire area was covered with snow [earlier in the morning]."

As Bullock's direct supervisor, it was Baker's job to investigate further and ultimately assist in the determination of whether the accident had been preventable. Baker reviewed Gerould's report, investigated the accident scene, and then filed a preliminary "investigative package" and "summary memorandum" with his own direct superior, Captain Snell. The summary memorandum commented that, "Lt. Gerould states in his memo that the ditch was not observable beyond 100 feet. Given these factors ECO Bullock would have had about 1.94 seconds to reacts upon observing the ditch."

On or about March 7, 2002, defendant Major Johncox, allegedly at the direction of defendant Colonel Egelston (the Assistant Director of Law Enforcement), ordered Gerould to remove the investigatory observations concerning the visibility of the ditch from Gerould's memo, advising that it would be "cleaner at arbitration" if the observations were left out. Gerould deleted the subject sentences and submitted a revised report to Baker via e-mail, with copies to defendants Egelston, Johncox and Snell. Gerould asked Baker to destroy his initial memo, containing the observations about the visibility of the ditch.

After reviewing Gerould's revised memo and instructions, Baker sent a reply e-mail to all recipients of Gerould's revised memo, asking Gerould why portions of the initial memo had been deleted, and explaining that because Baker had relied upon the initial memo in preparing his own investigatory report, Baker wanted to be sure that it was accurate. Immediately afterwards, Snell called Baker and, allegedly at the behest of Johncox, instructed Baker to delete those portions of his own report that referred to Gerould's. Baker objected to the order as unethical and potentially criminal, on the grounds that he was being asked to remove material information from an official report. When Baker inquired why Snell wanted the report redacted to remove exculpatory information, Snell replied that Albany "was out to hang Bullock," which Baker interpreted to mean that the DEC intended to fire Bullock, and was seeking to trump up grounds to do so based upon the accident. Snell denies having made such a statement, testifying that although he had been aware that Bullock was "a person of concern" for officers in Albany, he had not shared that information with Baker. (Dkt. #141, Att. 8 at 68).

Baker objected to the order to both Snell and Johncox. Johncox accused Baker of near insubordination and ordered Baker to prepare a memorandum explaining why he had objected to the order. Baker did so, and stated that he felt he had been ordered to remove material exculpatory facts from an official report, and thus to submit a false report, to the DEC. Baker testified that he had nonetheless complied with the order rather than risk losing his job.

Baker thereafter complained to Gerould and Bullock about the redaction order, and offered to testify at the arbitration on Bullock's behalf. Baker also communicated with his union representatives concerning the order, and reported his concerns to New York State Senator Jim Alesi.

Defendants Assistant Commissioner Tuffey, and Environmental Conservation Investigator Major Heinrich, were also made aware of Baker's allegations.

At the time of Bullock's accident, Baker was at the top of the civil service list for promotion to Captain. Several days later, Snell informed Baker that his chances for advancement were now "zero" because of Baker's objections to, and complaints about, the redaction order. Approximately two weeks later, Snell retired, and upon the recommendations of Snell and Johncox, Gerould was made "acting captain" of the region. Individuals involved in effecting Gerould's promotion included defendants Egelston and Lawrence Johnson, a Director of Law Enforcement.

In August 2002, the DEC sought applications to fill Snell's position permanently. On October 9, 2002, Baker, Gerould and others were interviewed for the Captain position by a panel which included defendants Egelston, Johncox and Heinrich. Although not the DEC's normal policy, the interviewing committee permitted candidates to submit credentials only for the preceding five years, thus excluding from their consideration the majority of Baker's experience. Although Baker was first on the civil service list, had more seniority and had higher educational credentials than Gerould, Gerould was ...

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