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Benedict Rotundo, Jr. and Kelly v. Village of Yorkville

March 4, 2011

BENEDICT ROTUNDO, JR. AND KELLY ROTUNDO, PLAINTIFFS,
v.
VILLAGE OF YORKVILLE;
MAYOR BRUNO A. PETRUCCIONE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DEPUTY MAYOR THOMAS J. THOMAS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY;
TRUSTEE ANTHONY C. LEONE, JR., IN HIS INDIVIDUAL AND OFFICIAL CAPACITY;
TRUSTEE MICHAEL A. MAHONEY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY;
TRUSTEE STANLEY G. BABIARZ, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY;
OFFICER IN CHARGE MICHAEL MAXAM, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY;
AND JOHN DOES(S) AND/OR JANE DOE(S), IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES. DEFENDANTS.



MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiffs Benedict Rotundo, Jr.*fn1 and Kelly Rotundo (collectively "plaintiffs") bring this action against defendants Village of Yorkville ("Village"); Bruno A. Petruccione, Village Mayor ("Mayor"); Thomas J. Thomas, Village Deputy Mayor; Village Trustees Anthony C. Leone, Jr.,*fn2 Michael A. Mahoney, and Stanley G. Babiarz; and Michael Maxam, Officer in Charge ("OIC") of the Village Police Department (collectively "defendants"), under Title 42, United States Code, section 1983 and New York State ("NYS") law.*fn3

Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiffs oppose. Oral argument was heard on February 11, 2011, in Utica, New York. Decision was reserved.

II. BACKGROUND

Unless otherwise noted, the following facts are viewed in the light most favorable to plaintiffs, the non-movants, as must be done on a summary judgment motion.

The Village hired Rotundo as a part-time police officer on June 9, 2005. The Police Benevolent Association ("PBA") Agreement between the Village and the PBA did not cover the terms of plaintiff's employment because he was a part-time officer. Nor did he have an employment contract with the Village. During the time in question, Rotundo was also employed full-time as a New York State corrections officer. Because of his full-time work schedule, he was permitted to work a modified shift from 10:00 p.m. to 6:00 a.m. instead of 11:00 p.m. to 7:00 a.m.*fn4 He worked this modified shift for approximately the first three years he was employed by the Village.

While employed by the Village, several local organizations recognized plaintiff for his outstanding enforcement of the Driving While Intoxicated ("DWI") law. On December 27, 2006, Rotundo arrested a friend of the Mayor for DWI. Plaintiff was then removed from the work schedule at the direction of the Mayor in response to the DWI arrest and was only offered occasional shifts until August 2007. In August 2007 plaintiff learned that he had been returned to the work schedule. The Mayor later admonished him on January 29, 2008, for making the December 2006 DWI arrest. The Mayor advised him that the motorist was his friend and that Rotundo had ruined the motorist's life. The Mayor informed Rotundo that he should not make DWI arrests of Village residents and directed plaintiff to drive intoxicated residents home and not charge them criminally.

In February 2008 the Mayor told plaintiff "you will never learn" after observing him complete a DWI arrest report. Rotundo Aff., Dkt. No. 50, ¶ 15. In February 2009 Rotundo made another DWI arrest. The motorist involved informed Rotundo that she was a friend of the Mayor and also served the Mayor alcohol on various occasions while she worked as a bartender. Plaintiff advised the Mayor of the motorist's claim by memorandum, to which the Mayor became upset and once again stated "you will never learn." Id. ¶ 16.

Plaintiff's hours were once again reduced following the February 2009 incident. On May 26, 2009, the officer in charge of scheduling informed Rotundo that he was no longer allowed to work the modified 10:00 p.m. to 6:00 a.m. shift. Defendants contend the modified shift was permitted without the Board's approval and was against the policy set forth by the Mayor in a March 2004 memorandum. The March 2004 memorandum advised, inter alia, that officers must be dressed and ready to go on patrol at the start of their scheduled shift. See Davignon Aff., Ex. U, Dkt. No 45-44. Defendants assert that when the Mayor learned that two officers -- plaintiff and Officer Wrobel*fn5 -- were working modified shifts on a regular basis, he directed OIC Maxam to end the practice. The change was part of an effort to ensure 24 hour a day police coverage in the Village.

The June 2009 schedule did not provide any shifts for plaintiff. He then served a Notice of Claim on defendants on June 11, 2009. See Bosman Affirm., Ex. B, Dkt. No. 49-1. He alleges he was then retaliated against for filing the Notice of Claim. On June 12, the following day, OIC Maxam left Rotundo a voicemail message stating that the Mayor received a "letter from your attorney or something" and instructed plaintiff to turn in his gun, key, and any other Village property "ASAP." See Rotundo Aff., ¶ 20; Bosman Ltr. with audio CD, Dkt. No. 66. After plaintiff's attorney contacted the defendants, the June 12 voicemail message request was rescinded.

Sometime between June 18 and 23, 2009, OIC Maxam drafted a memorandum to all part-time officers regarding work availability. The memorandum reiterated the four set shifts at the Village Police Department and advised officers to submit their availability for the following month, one week prior to the first of each month. The memorandum provided that if an officer's availability was not received, that officer would not be placed on the schedule for the following month. See Davignon Aff., Ex. U. Officer Collea, a full-time officer, testified that at some point prior to OIC Maxam issuing the memorandum, he observed the Mayor and Leone looking at the schedule and attempting to schedule plaintiff for fewer shifts. See Davignon Aff., Ex. H, Dkt. No. 45-21, 27:21-23, 28:1-4. Officer Collea suggested "well, if you want him off the schedule just tell him that his 10 to 6 isn't a shift, that he has to work 11 to 7." Id. 27:12-20.

OIC Maxam asked plaintiff to work shifts on June 26, 27, and 28, 2009. Heinformed Rotundo that he could no longer make shift adjustments or let plaintiff work 10:00 p.m. to 6:00 a.m. Rotundo was unable to work the requested shifts because he could not work until 7:00 a.m. due to his full-time job. On July 11, 2009, the Utica Observer Dispatch printed an article, titled "Claim: DWI enforcement led to officer's lack of shifts," regarding plaintiff's service of the Notice of Claim upon the Village. See Bosman Affirm., Ex. C, Dkt. No. 49-1. Plaintiff continued to work the shifts for which he was available, mostly weekends, in July and August 2009. On July 23, 2009, plaintiff met another officer, Officer Lanahan, at a local Dunkin' Donuts. Officer Lanahan said that OIC Maxam told him the following: OIC Maxam put plaintiff's check in his mailbox and plaintiff's "days in Yorkville are numbered and not to associate with him." Rotundo Aff., ¶ 27. Rotundo alleges that from July through September 2009 defendants withheld his paycheck, put a disciplinary memorandum in his personnel file, and the Mayor tampered with his mail at the Village Police Department.

On September 6, 2009, at 5:19 a.m., the Village Police Department's surveillance system recorded plaintiff "entering the police headquarters office at the Village Municipal Building in the dark" with his sight "assisted by the use of a flashlight to rummage through a locked cabinet in the back office." See Davignon Aff., Ex. D, Dkt. 45-7. OIC Maxam observed this activity during a routine review of surveillance footage and contacted Leone and the Mayor to report what he observed. OIC Maxam prepared a memorandum, dated September 22, 2009,*fn6 asking plaintiff to explain his actions on September 6 including why he turned the lights out, what he was doing on the computer in the back office, why he removed weekly timely sheets, and how he was able to access a locked cabinet. Id. The memorandum directed Rotundo to provide a written explanation of these activities to OIC Maxam within five days. Id. It was sent to plaintiff's home address on September 22 by certified mail, return receipt. The letter was returned to defendants unclaimed and undelivered on October 10.

Plaintiff disputes defendants' characterization of this incident. First, he was on duty at the time and thus there was nothing peculiar about him entering the Village Police Department at that time of the morning. He testified that he often worked in the office with the lights off to avoid or relieve headaches because the fluorescent lights triggered and exacerbated his headaches. He contends that a review of video footage of him working in the office at night would reveal that this is common practice for him. Rotundo also claims that he often works with the overhead lights off, and parks his patrol vehicle out of sight, so that Village residents do not know whether he is working the road or in the office. He also contends that the memorandum from OIC Maxam was never delivered to his home and he never received notification of attempted deliveries.*fn7

On October 6, 2009, the Board held its regularly scheduled monthly meeting. At the end of the meeting, the Board entered into an executive session to discuss Rotundo's employment with the Village. There is conflicting testimony regarding whether the Board was advised that plaintiff did not pick up the September 22 memorandum and that the letter was returned, or whether a response had not yet been received from Rotundo. The Board then unanimously voted to terminate him. Defendants contend the Board terminated plaintiff because of his suspicious activity on September 6, 2009, and his failure to respond to OIC Maxam's memorandum requesting an explanation of that activity.

As noted, the September 22, 2009, memorandum, sent certified mail, was returned undelivered by the United States Postal Service on October 10, 2009. On that date Rotundo received a termination letter, dated October 8, 2009, signed by the Mayor. Plaintiffs commenced the instant lawsuit on October 26, 2009, and defendants removed the case to federal court on November 11, 2009. Plaintiffs filed a second Notice of Claim on January 8, 2010, naming additional defendants and including allegations regarding his October 10, 2009, termination. On June 20, 2010, the Utica Observer Dispatch printed another article regarding plaintiff's lawsuit, titled "Officers: DWI cases obsess mayor." See Bosman Affirm., Ex. F, Dkt. No. 49-1.

Specifically, plaintiff brings twelve causes of action: 1) § 1983 First Amendment retaliation; 2) § 1983 Fourteenth Amendment procedural due process; 3) § 1983 Fourteenth Amendment substantive due process; 4) § 1983 Fourteenth Amendment Equal Protection; 5) Deprivation of free speech under the NYS Constitution; 6) Procedural due process under the NYS Constitution; 7) Substantive due process under the NYS Constitution; 8) Equal Protection under the NYS Constitution; 9) Breach of contract between the Village and the PBA; 10) Tortious interference with the PBA Agreement; 11) Prima facie tort; and 12) Loss of consortium, Kelly Rotundo's sole cause of action.

III. DISCUSSION

Defendants move for summary judgment dismissing the complaint on the grounds that plaintiff was not entitled to a hearing prior to termination; he did not engage in protected speech; there was no causal connection between the Notice of Claim and defendant Trustees Mahoney and Babiarz's decision ...


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