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Michael Pisano v. Alex Mancone

March 18, 2011


The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.:


Plaintiff Michael Pisano ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1983 ("Section 1983") against Defendants Alex Mancone, individually and in his capacity as Chief of Police of the Village of Brewster, New York ("Chief Mancone"), John Degnan ("Mayor Degnan"), individually, William Banks ("Trustee Banks"), individually, and the Village of Brewster, New York (the "Village") (collectively, the "Defendants"). Plaintiff alleges that Defendants collectively retaliated against him by terminating his employment with the Village of Brewster Police Department ("VBPD"), in violation of Plaintiff's rights under the First Amendment to the United States Constitution.

Defendants move, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"), for summary judgment dismissing the complaint. For the reasons stated below, Defendants' motion is DENIED in part, and GRANTED in part, as to the Village, Chief Mancone and Mayor Degnan, and is GRANTED as to Trustee Banks.


A. Factual Background

Unless otherwise noted, the following facts are undisputed and are derived from the parties' Local Rule 56.1 statements, affidavits, and other submissions. The Court construes all evidence in the light most favorable to the non-moving party and draws all inferences in the non-moving party's favor.

Plaintiff is a former part-time Patrol Sergeant in the VBPD. The Village is a municipal corporate subdivision of the State of New York. Mayor Degnan was, at all times relevant to this action, the elected Mayor of the Village. Trustee Banks was, at all times relevant to this action, an elected Trustee of the Village. Chief Mancone served, at all times relevant to this action, as the Chief of Police of the VBPD. Mayor Degnan and Trustee Banks were also Commissioners of the VBPD during this time.

Plaintiff was hired by the VBPD on December 6, 2006 as a Patrol Sergeant.*fn1 On December 21, 2006, Chief Mancone issued a memorandum with the subject line "Chain of Command," stating that "All Departmental issues are to be handled through the chain of command with the mayor being the commissioner." Defs. 56.1 Stmt. ¶ 9. Plaintiff claims that he was neither shown this document nor specifically informed of this policy, but that he was generally aware of chain-of-command policies in police departments based upon his prior experience as a police officer. Plaintiff's Response to Defendant's Joint Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 (hereinafter "Pl. 56.1 Resp.") ¶ 9.

During his first several months working at the VBPD, Plaintiff raised certain complaints to Chief Mancone. Affidavit of Mark K. Anesh in Support of Defendants' Joint Motion for Summary Judgment (hereinafter "Anesh Aff.") Ex. C, Affidavit of Alex Mancone (hereinafter "Mancone Aff.") ¶¶ 4-7. The record is not clear with respect to the substance of all of the complaints that Plaintiff raised with Chief Mancone, or precisely when these conversations took place. The parties agree that Plaintiff raised at least two specific complaints with Chief Mancone:

(1) that Chief Mancone had ordered officers to check the drivers' licenses of taxi drivers in the Village, and confiscate those licenses from out of state, which Plaintiff believed to be an unlawful order, Anesh Aff. Ex. C, Mancone Aff. ¶ 6; Anesh Aff. Ex. B, Transcript of Deposition of Michael Pisano (hereinafter "Pisano Dep.") at 81-82; and

(2) that VBPD Officer Wayne Peiffer ("Officer Peiffer") had not completed the requisite police academy training needed to become a certified police officer. Anesh Aff. Ex. C, Mancone Aff. ¶ 4; Pl. 56.1 Resp. ¶ 15.

On March 15, 2007, Plaintiff approached Mayor Degnan at Mayor Degnan's home to express various concerns regarding Chief Mancone and the VBPD. Mayor Degnan then invited Trustee Banks, who was at that time his neighbor, to join the meeting. Affidavit of Jane Bilus Gould in Opposition to Defendants' Motion for Summary Judgment (hereinafter "Gould Aff.") Ex. 1, Pisano Dep. at 91. At the meeting, Plaintiff alleged the following:

(1) The VBPD did not have any departmental rules or policies in place. Defs. 56.1 Stmt. ¶ 16.*fn2

(2) Chief Mancone had issued certain orders that Plaintiff believed to be unlawful. In particular, Plaintiff took issue with Chief Mancone's orders to shut down unlicensed barber shops and arrest the employees. Defs. 56.1 Stmt. ¶ 13.

(3) Officer Peiffer had not completed the requisite police academy training, but was nevertheless wearing the uniform of a fully certified police officer and carrying a gun on patrol. Plaintiff expressed his view that this was unsafe to the public, and that other officers had expressed to him that they did not feel safe working with Officer Peiffer. Defs. 56.1 Stmt. ¶ 15; Gould Aff. Ex. 1, Pisano Dep. at 82-83, 91-92.

(4) Chief Mancone directed the alteration of VBPD payroll records in order to allow some part-time officers to work in excess of the weekly twenty-hour work limit for part-time officers. Gould Aff. Ex. 1, Pisano Dep. at 83, 93.*fn3

(5) Chief Mancone was not legally appointed as chief of the VBPD because he had not taken a competitive civil service exam and was therefore not appointed from a certified civil service eligible list, as required by the laws of the State of New York. Defs. 56.1 Stmt. ¶ 14; Pl. 56.1 Resp. ¶ 5.*fn4

It is not clear from the record how Mayor Degnan responded to each of these issues. At his deposition, he acknowledged that the issue regarding Officer Peiffer carrying a gun was "of most concern" to him at the time. Gould Aff. Ex. 2, Transcript of Deposition of John Degnan (hereinafter "Degnan Dep.") at 37.

On April 17, 2007, approximately one month after Plaintiff's meeting with the Mayor, Plaintiff's job was terminated by a letter signed by Chief Mancone. Defs. 56.1 Stmt. ¶ 20. The letter stated, in relevant part, "By authority of the Village Board of Trustees of the Village of Brewster, New York under color of my authority as Chief of Police of the Village of Brewster Police Department ('VBPD'), your position as probationary police officer is hereby terminated, effective immediately." Anesh Aff. Ex. J. The letter indicates that copies were sent to the Board of Trustees of the Village, and to Gary T. Kropkowski, Esq., Village Attorney. Chief Mancone testified that he made the decision to terminate Plaintiff after speaking to Mayor Degnan and Mr. Kropkowski. Anesh Aff. Ex. C, Mancone Aff. ¶ 8.

The parties disagree as to the reason Plaintiff was terminated. Defendants state that Plaintiff was terminated because his speaking to the Mayor about department issues was "in direct conflict with the VBPD's written policies and procedures, in failing to follow the chain of command." Defs. 56.1 Stmt. ¶ 20. Chief Mancone also testified that complaints that Plaintiff made to him affected morale within the VBPD, caused "animosity [to] spread throughout the Department," and "caused significant friction within the Department." Anesh Aff. Ex. C, Mancone Aff. ¶¶ 4, 7. A form sent from the Village to the New York State Department of Labor ("DOL") regarding Plaintiff's unemployment benefits stated that Plaintiff was fired for "insubordination." Anesh Aff. Ex. K. The form also noted that Plaintiff would have known his actions would cause his discharge because he committed an "[a]ction against written chain of command policy." Id.

On June 8, 2007, the DOL sent Plaintiff a letter stating that unemployment benefits would not be paid because Plaintiff was "discharged for misconduct in connection with [his] employment." Gould Aff. Ex. 9. In the section entitled "Reason," the DOL letter stated as follows:

You were discharged from employment at Brewster Police Department due to insubordination. It has been confirmed that you have presented negative information to the Mayor about the police department and you did not properly use the written chain of command. As a result of this you were dismissed for insubordination by the Chief of Police.


Some time after April 17, 2007, but before June 2007, Plaintiff met with Mayor Degnan. Defs. 56.1 Stmt. ¶ 22. The parties dispute what was said at this meeting. Mayor Degnan claims that Plaintiff told him that if he was terminated for insubordination "[he would] never be able to work again as a police officer." Defs. 56.1 Stmt. ¶ 22. Plaintiff claims that he simply said that he did not understand why he was terminated and that he would like to return to work. Pl. 56.1 Resp. ¶ 22; Gould Aff. Ex. 1, Pisano Dep. at 100. Plaintiff claims that Mayor Degnan responded, "there are heavy weights and there are light weights. You are a heavy weight so I'm going to intervene, and I'm going to try to get you back." Id. Mayor Degnan testified that he decided to help Plaintiff, in part because of his recollection of Plaintiff "walking the beat in the middle of a snowstorm," and that Plaintiff "struck [Mayor Degnan] as someone who . . . wanted to see the community represented in a professional manner." Gould Aff. Ex. 2, Degnan Dep. at 53-54. The Mayor then met with Chief Mancone and other VBPD officials and requested that Plaintiff be reinstated. Defs. 56.1 Stmt. ¶ 22-23; Gould Aff. Ex. 2, Degnan Dep. at 53-54; Anesh Aff. Ex. C, Mancone Aff. ¶ 10.

Thereafter, in June of 2007, Plaintiff was re-hired by the VBPD, and was soon promoted to the rank of "Detective." Defs. 56.1 Stmt. ¶ 24; Anesh Aff. Ex. C, Mancone Aff. ¶¶ 11-12.

On July 12, 2007, Plaintiff's job was terminated a second time. Defs. 56.1 Stmt. ¶ 25. The termination letter states:

The Village of Brewster Police Department is exceeding current budgetary constraints and forcing us to take action to prevent overruns from occurring. It is therefore necessary to terminate your employment immediately, effective July 12, 2007. We regret this action is necessary and wish you well in all your future endeavors.

Sincerely, Alex Mancone Chief of Police

Anesh Aff. Ex. L. Chief Mancone did not sign the letter, although his name is typed as the signatory. The letter shows that a copy was sent to Mayor Degnan.*fn5

The parties dispute the reasons for, and the circumstances of, Plaintiff's second termination. Defendants state that the VBPD required additional funds to purchase needed materials, including a particular SUV truck, and that Plaintiff was terminated for budgetary reasons. Defs. 56.1 Stmt. ¶¶ 25-27. Plaintiff contends that this dismissal was part of the same retaliation for his protected speech as his first dismissal. Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment (hereinafter "Pl. Opp.") at 7. It is undisputed that Plaintiff was the only employee of the VBPD who was terminated in July 2007. Gould Aff. Ex. 3, Transcript of Deposition of Alex Mancone (hereinafter "Mancone Dep.") at 146. It is also undisputed that within several months after Plaintiff was terminated, and during the same budgetary cycle, the VBPD hired additional police officers. Pl. 56.1 Resp. ¶ 25; Gould Aff. Ex. 3, Mancone Dep. at 146-48.

B. Procedural History

The procedural history of this case is further detailed in Judge Chin's prior opinion, familiarity with which is assumed. See Pisano v. Mancone, et al, No. 08 Civ. 1045, 2009 WL 2337131 (S.D.N.Y. July 30, 2009) (Dckt. No. 34).

Plaintiff initiated this Section 1983 action for compensatory and punitive damages in February 2008. The Complaint alleges that the Defendants colluded in terminating Plaintiff's job as Patrol Sergeant of the VBPD in retaliation for Plaintiff's criticizing Chief Mancone and the VBPD to Mayor Degnan and Trustee Banks. Plaintiff alleges that his criticism was protected by the First Amendment.*fn6

All of the Defendants except Chief Mancone filed a motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The Defendants' Motion contended that

(1) Plaintiff's speech was not protected under the First Amendment because it related to his official duties as an employee; (2) Plaintiff failed to plead any facts required to hold a municipality liable for the acts of its officials; and (3) Degnan and Banks were entitled to qualified immunity.

Judge Chin denied the motion to dismiss in an order entered on July 30, 2009. He ruled that Plaintiff adequately stated a claim that he suffered retaliation for engaging in protected speech. Judge Chin also found that the municipality could be found liable because "it is plausible that [Chief Mancone] had final policymaking authority over employee discharge decisions." Pisano,2009 WL 2337131, at *5. Finally, Judge Chin found that Plaintiff's allegations that Mancone, Degnan and Banks colluded to deprive Plaintiff of his First Amendment rights, if established, would deprive Defendants of qualified immunity.

The parties subsequently engaged in discovery, and in October 2009, Defendants filed an Answer ...

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