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Thomas Graziani v. County of Erie

September 2, 2011


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court



In this civil rights action brought under 42 U.S.C. § 1983, pro se Plaintiff Thomas Graziani alleges that Defendants terminated his employment in violation of the First and Fourteenth Amendments. Presently before this Court is Defendants' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Also before this Court is Plaintiff's Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Before this Court as well is Plaintiff's Motion to Change Venue and Disqualify Counsel. For the reasons discussed below, Plaintiff's motions are denied and Defendants' motion is granted in its entirety.*fn1


A. Facts

Plaintiff is a former employee of the Erie County Sheriff's Department. The County of Erie, named as a defendant, is a municipal corporation organized under New York law. (See Defendants' Statement of Facts with Appendix (Defs.' Statement), Docket Nos. 70, 71, ¶ 2.) The Erie County Sheriff's Department, also named as defendant, is an administrative unit of the Erie County Government. (Id. at ¶ 3.) Defendant Patrick Gallivan was the county's elected sheriff during the relevant periods of this dispute. (Id. at ¶ 4.) Finally, Defendant Timothy Howard was the county's appointed undersheriff. (Id. at ¶ 5.)

Plaintiff began his employment with the Erie County Sheriff's Department on March 5, 1975. (See id. at ¶ 1.) Plaintiff was elected as vice president of the Erie County Sheriff's Police Benevolent Association in 1999, and, shortly thereafter, became president of the union after his predecessor's resignation. (Id. at ¶ 9.) Following his election, Plaintiff requested leave to attend union-related activities on several occasions. (Id. at ¶ 12.) Following an incident in which Plaintiff was granted leave, but failed to report to work when the union-related activity was canceled, the Erie County Sheriff's Department instituted a policy requiring all requests for union-related leave to be accompanied by details of the specific union event to be attended, as well as its location, date, and time. (Id. at ¶ 14.)

Subsequently, Plaintiff continued requesting leave to attend union-related activities, but failed to provide the additional information required by the Sheriff's Department. (See id. at ¶¶ 15, 23, 24.) Defendants allege that Plaintiff was properly informed on each occasion that his request was denied for lack of the requisite information. (See id. at ¶¶ 18, 22.) Plaintiff does not deny being absent on the days for which he requested leave, but alleges that Defendants had authorized his leave or otherwise failed to warn Plaintiff that his leave was unauthorized. (See Plaintiff's Material Facts for Determination by a Jury ("Pl.'s Statement"), Docket No. 80, 16.)

Shortly after the policy was instituted, Plaintiff failed to report for duty on May 12, 1999 after being denied leave for lack of the requisite information. (Defs.' Statement ¶¶ 15-21.) As a result, Plaintiff was placed on a ten day unpaid suspension. (Id. at ¶ 21.) Following further instances of Plaintiff's alleged failure to report for duty on May 18 and May 31, 2000, the Sheriff's Department conducted an investigation into Plaintiff's infractions. (Id. at ¶ 26.) Undersheriff Howard conducted the investigation and interviewed Plaintiff. (Id.) Following the conclusion of this investigation, Plaintiff was suspended without pay for thirty days as a result of his unexcused absence on May 18, 2000, and discharged for insubordination and unbecoming conduct as a result of his unexcused absence on May 31, 2000. (Id. at ¶¶ 27-28.)

B. Procedural History

Plaintiff commenced this action on June 6, 2003, pursuant to 42 U.S.C. § 1983, alleging his constitutional rights were violated when his employment was terminated. A series of discovery scheduling orders culminated in Plaintiff filing a motion to amend his Complaint on September 5, 2008. (Docket No. 47.) The motion was granted in part and denied in part. Plaintiff filed his Amended Complaint on January 12, 2009. (Docket No. 53.) The Amended Complaint listed five causes of actions based on violations of the Defendant's right to free speech, freedom of association, and due process. (Id.)

On June 30, 2010 Defendants filed a motion for summary judgment to dismiss Plaintiff's claims in their entirety. (Docket No. 68.) Plaintiff missed a series of deadlines in filing his response, but ultimately filed a cross motion for judgment on the pleadings. (Docket No. 80.) More recently, Plaintiff filed a Motion for a Change of Venue and Disqualification of Certain Legal Counsel. (Docket No. 83.)


A. Legal Standards

1. Summary Judgment Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id.

In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct.1598, 1609, 26 L.Ed.2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

2. Judgment on the Pleadings

Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The standard by which to decide a 12(c) motion is the same as for a 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (citing Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). The court will accept as true all factual allegations in the non-moving party's pleadings ...

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