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Thomas C. Wallace v. Suffolk County Police Department

August 15, 2011


The opinion of the court was delivered by: Mauskopf, United States District Judge.


Plaintiff Thomas C. Wallace seeks certain additional financial damages, to be determined by bench trial, following a jury's verdict finding defendants liable for First Amendment retaliation pursuant to 42 U.S.C. § 1983, and awarding emotional distress and punitive damages. After considering the record on the bench trial, and for the reasons set forth below, the Court finds that plaintiff is entitled to damages compensating him for the loss of one hundred and forty-four accrued sick days for which he would otherwise have been compensated upon his retirement, and that plaintiff is not entitled to the other additional financial damages he seeks.


Plaintiff brought this action under 42 U.S.C. § 1983 against the County of Suffolk ("County"), the Suffolk County Police Department ("SCPD"), former SCPD Commissioner John Gallagher, former Chief of Department Phillip Robilotto, and former SCPD Deputy Commissioner James Abbott (together, "defendants"), alleging violations of his First and Fourteenth Amendment rights. (See Compl. (Doc. No. 1).)

In July 2009, the Court held a jury trial on plaintiff's First Amendment claim. The jury found that the three individual defendants, Gallagher, Abbott, and Robilotto, had each taken various adverse actions against plaintiff in retaliation for the exercise of his First Amendment free speech rights. The jury did not find the County liable. (Jury Special Verdict Form (Doc. No. 64.))*fn1

Specifically, the jury found the individual defendants liable for the following adverse employment actions: (1) the premature submission of plaintiff's retirement papers (all individual defendants); (2) the omission of and/or failure to correct certain information in the retirement papers (Gallagher); (3) the failure to correct plaintiff's Injured Employee Report (Gallagher, Abbott); (4) the determination that plaintiff was fit for light duty (Robilotto); (5) the assignment of plaintiff to the First Precinct (Robilotto); (6) the failure to investigate plaintiff's complaints regarding training, equipment, staffing, supervision, morale, and/or other deficiencies in the Emergency Services Unit ("ESU") (all individual defendants); (7) the failure to prevent, stop, or redress the violation of plaintiff's First Amendment rights (Abbott); and (8) a pattern of harassment (Abbott). (Id.)

The jury awarded Plaintiff $200,000 in compensatory damages for emotional distress as to all defendants, and a total of $675,000 in punitive damages, or $225,000 each, against the three individual defendants. (Id.) On September 24, 2010, the Court denied defendants' post-trial motion for judgment as a matter of law, but found the punitive damages award excessive, ordering a new trial on damages unless plaintiff accepted a remittitur of the punitive damages award to $100,000 against each individual Defendant. (Doc. No. 83.) On October 13, 2010, plaintiff accepted the remittitur. (Doc. No. 84.)

Prior to trial, the parties stipulated that, once the issues of liability, emotional distress damages, and punitive damages were decided by the jury, the Court would determine in a bench trial plaintiff's entitlement to several additional categories of financial damages. (Trial Tr. ("Tr.") at 53--54.) By stipulation (see Minute Entry of July 7, 2011 (Doc. No. 116)), the parties agreed that no live testimony was required, and that the record for this bench trial consists of:

(1) the trial record, including all admissible testimony, exhibits and the jury's special verdict; (2) all papers and exhibits submitted in connection with Plaintiff's Application for Financial Damages ("Application") (Doc. Nos. 89, 91 and 92); and (3) supplemental letters and all exhibits attached thereto further amplifying the evidence and arguments made in connection with plaintiff's Application (Doc. Nos. 101, 102 and 110). At multiple status conferences, held in person and by phone, all parties were given opportunities to orally address the issues raised by the Application (see Minute Entries of May 19, 2011 (Doc. No. 100), June 9, 2011 (Doc. No. 107), and July 7, 2011 (Doc. No. 116).) It is these additional damages, on the record outlined above, that the Court herein decides.


Plaintiff began working for the Suffolk County Police Department ("SCPD") as a police officer in July 1986, and was transferred to the ESU in June 1997. (Tr. at 32, 35.) On March 11, 1998, plaintiff responded to an emergency involving a person who had barricaded himself on a boat carrying propane gas tanks. (Tr. at 38.) After plaintiff boarded the boat, it exploded and he sustained severe injuries. (Tr. at 39--40.) Plaintiff was hospitalized and underwent numerous surgeries to treat his injuries. (Tr. at 40--42, 44.) As of the date of the accident, plaintiff was placed on what is known in the SCPD as "401 injury leave status," during which plaintiff performed no police duties while continuing to receive his full salary and benefits, pursuant to Municipal Law 207-c. (Tr. at 135--36, 325.)

Between the summer of 1999 and early 2004, plaintiff spoke out on issues of public concern relating to the accident through a series of correspondence, conversations, and meetings with high-ranking members of the SCPD. For example, in the summer of 1999, plaintiff met with then Deputy Commissioner Abbott and raised issues regarding training, supervision, equipment, morale, staffing, failure to adhere to rules and regulations, and other deficiencies that affected the performance and safety of the ESU. (Tr. at 56--60.) Plaintiff also discussed personal issues, such as difficulties he faced in attempting to correct his Injured Employee Report. (Tr. at 56--57.) The Injured Employee Report, filed by the SCPD after the boat explosion, did not contain some of the injuries plaintiff received during the explosion. (Tr. at 44--45.) When Abbott advised that there would be no investigation into any of plaintiff's allegations, adding that "nothing is going to be done to make the police department look bad," plaintiff told Abbott that the only recourse he would have was to go public and to Newsday. (Tr. at 61.) Abbott further advised "[t]here's people in this police department will not take kindly to any kind of effrontery," adding, "[y]ou'll do something now and you will lament it for a lifetime." (Id.) Plaintiff testified that during this meeting, Abbott promised, instead, to keep him on 401 injury leave until he was 62 years old, at which time he would retire. (Id.)

About a year later, plaintiff communicated again with Abbott and raised many of the same concerns he had raised in the summer 1999 meeting. (Tr. at 65--66, 210--11.) Plaintiff also reiterated his demand for an investigation into the failings of the ESU. (Tr. at 65--66.) On August 20, 2001, plaintiff sent a letter to Gallagher, then Commissioner of the SCPD, in which he voiced these same concerns and expressed his frustration that no investigation had yet been conducted. (Tr. at 69--71; Pl.'s Tr. Ex. 26.)

In October 2001, plaintiff met with Robilotto, then SCPD Chief of Department, to discuss the contents of plaintiff's August 20, 2001 letter to Commissioner Gallagher. (Tr. at 71--72, 172, 321--23, 344--49.) Plaintiff testified that Robilotto threatened him, insinuating that he should refrain from voicing his concerns, and offered to make him a detective -- an offer that plaintiff rejected. (Tr. at 72--74.) At the meeting, plaintiff requested an official letter that "spelled out all of [his] injuries and that [he was] injured as a result of an attempted murder of a police officer, an assault" because the Injured Employee Report failed to specify that plaintiff's injuries were the result of an "assault" or "federal crime." (Tr. at 172--73; Pl.'s Tr. Ex. 13.) This omission, plaintiff testified, precluded him from eligibility for a federal award given to officers seriously injured in the line of duty. (Tr. at 172--73, 374.)*fn3

On April 9, 2002, plaintiff sent a letter to Deputy Commissioner Abbot reiterating his complaints and concerns. (Tr. at 76--77; Pl.'s Tr. Ex. 27.) On March 11, 2003, plaintiff filed a complaint with the Public Integrity Bureau of the Suffolk County District Attorney's Office. (Tr. at 79--80.) In April 2003, plaintiff made a complaint to the SCPD Internal Affairs Bureau and demanded an investigation into the problems he identified with the ESU and the handling of the boat explosion. (Id.)

On December 4, 2002, the SCPD filed for plaintiff's retirement. (Tr. at 77--78, 154; Pl.'s Tr. Ex. 42.) Before December 2002, the SCPD instituted a policy that permitted a supervisor to involuntarily retire any police officer who had been on 401 injury leave for longer than a year.

(Tr. at 277--80.)*fn4 Gallagher and Robilotto drafted eligibility criteria and selected forty-six officers, including plaintiff, for involuntary retirement. (Tr. at 280--82, 293--96, 356--57.) According to Robilotto, a chief criterion was the unlikelihood that the officer on 401 injury leave would return to work. (Tr. at 357.) Another factor considered was whether the ...

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