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Robert Giacopelli v. the Incorporated Village of Malverne

December 12, 2011


The opinion of the court was delivered by: Spatt, District Judge


On February 27, 2009, Robert Giacopelli (the "Plaintiff"), a retired member of the Malverne Police Department, commenced this lawsuit against the Incorporated Village of Malverne (the "Defendant"), alleging discrimination due to his disability and retaliation in response to his union membership and political activities. The Defendant has now moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) ("Fed. R. Civ. P. 56(c)") on the grounds that the Plaintiff's 42 U.S.C. § 1983 claim is untimely and that all of the claims are without merit. For the reasons that follow, the Court grants the motion in part and denies it in part.


A. Facts Relating to the Alleged Failure to Promote Giacopelli to Lieutenant

On October 4, 1989, the Plaintiff Giacopelli was hired by the Malverne Police Department (the "Department"). At that time, he also became a member of the local police union, the Malverne Police Benevolent Association ("PBA"). In 1990, Giacopelli joined the PBA Executive Board, and served as the Secretary and Vice President until 1999. However, in or about February 1999, the Plaintiff alleges that Glen Jacobsen, the Defendant's eventual Chief of Police, told him that he would have to resign as a member of the PBA in order to be promoted to Sergeant of the Department. According to the Plaintiff, once he resigned from his PBA position, he was then promoted to Sergeant in June 1999.

On September 20, 2003, Giacopelli took the Nassau County Civil Service Exam to be eligible for a Lieutenant position. He was notified by then Chief of Police Jacobsen and Village Trustee William Malone that he was ranked number one on the civil service list as a result of his score on the examination. The Plaintiff claims he was told by these two individuals that he would be promoted to Lieutenant when the position became available. In addition, Giacopelli alleges that the Mayor of Malverne, Anthony Panzarella, also told him that the "next Lieutenant position is going to be yours." (Complt. at ¶ 13.) However, the Plaintiff also acknowledges that the Defendant "has the option once the list comes out to promote any one of the top three scorers on a test." (Giacopelli Dep. at 13:14--18).

In or around January 2005, Andrew Chernoff announced his candidacy for Malverne Village Trustee. He challenged incumbents Joseph Hennessy and Patricia McDonald. The Plaintiff became openly and actively involved in Chernoff's campaign along with many members of the PBA by placing signs on his property, distributing literature, and placing phone calls to residents. On Election Day, the Plaintiff transported voters in Chernoff's truck. Ultimately, Chernoff lost the election to the incumbent Hennessy in March 2005. The Plaintiff alleges that in the weeks following Hennessy's victory, he approached Hennessy several times to congratulate him. Plaintiff alleges that Hennessy simply ignored him at first, but eventually verbally attacked and threatened him for his support of Chernoff.

On April 15, 2005, the Plaintiff suffered a broken leg on a Malverne police motorcycle while stopping a traffic violator and took a temporary leave of absence. Shortly thereafter, a Lieutenant position became available and Chief of Police Jacobsen again told the Plaintiff that he would receive the promotion. However, on May 19, 2005, the Village Trustees promoted John Aresta to the position. Aresta was ranked only third on the eligible list but he did not participate in the PBA's campaign activities on behalf of Chernoff. This promotion decision was within the authority of the Board of Trustees. (Giacopelli Dep. at 32:15-16.)

The Plaintiff asserts that the reason he was not promoted to Lieutenant was because of his longstanding PBA membership; his campaign activities in favor of Chernoff; and his injury. In support of this reasoning, the Plaintiff cites to another promotion that took place on the same day when a police officer who was a Chernoff supporter was passed over for a promotion in favor of a non-supporter.

As a result of this alleged discrimination and retaliation, the Plaintiff filed a complaint with the New York State Division of Human Rights on August 3, 2005. In the complaint, the Plaintiff alleged that he was passed for a promotion because of his injury. (Giacopelli Dep. at 39:14-17.) The Plaintiff later withdrew this complaint.

B. Facts Relating to the Plaintiff's Retirement and Retirement Benefits

Between January 2006 and May 2006, the Plaintiff claims he had ongoing discussions with Chief Jacobesen and Trustee Malone about the possibility of coming back to work in a desk position. The Plaintiff contends that he urged the Department not to file his disability retirement papers with the State of New York, which they were entitled to do on April 25, 2006, after the Plaintiff had been out on disability for one year.

Nevertheless, in or about May -- June 2006, the Defendant unilaterally filed his retirement papers. According to the Plaintiff, they did so "for the purpose of removing Plaintiff from the Department so it could promote other, non-active Union members to higher-ranking positions and for the purpose of punishing Plaintiff for his exercise of his constitutional rights." (Complt. at ¶ 34.) Subsequently, in July 2006, the Plaintiff submitted his own request for retirement "as a result of being passed over for promotion and feeling as if his career was coming to an end." (Complt. at ¶ 35.) He did not do so "under protest." (Giacopelli Dep. at 56.)

The Plaintiff claims that the discrimination and retaliation continued in that the Defendant interfered with his retirement benefits as punishment for his union and political activities. For example, on July 24, 2007, the Defendant unilaterally set the Plaintiff's date of retirement as August 3, 2007. By doing so, the Plaintiff asserts that he did not have the ability to provide the requisite 30 days advance notice of retirement pursuant to his union contract in order to receive Terminal Leave Pay as a lump sum. Instead, the Plaintiff was forced to accept the sum as being paid out over the course of a two-year period. (Complt. at ¶ 40.) As a second example, upon retirement, the Defendant initially issued a memorandum on August 1, 2007, which included calculations of the Plaintiff's benefits for Accumulated Sick Leave, Terminal Leave, Vacation Days, and Compensatory Time at $193,188.97. However, as another alleged act of retaliation, the Defendant recalculated the Plaintiff's benefits and reduced them to $138,224.92. (Complt. at ¶ 44.)

The Plaintiff further claims that Sergeant Stanley Kidd told him that he would receive full benefits and hence the money he was entitled to if he denounced the PBA. (Complt. at ¶ 44.) However, the Plaintiff refused. The Village Board ultimately voted to pay $138,224.92 in retirement benefits in accordance with the second memorandum, but the Plaintiff alleges that he was given approximately $5,000 less than that amount.

C. The Plaintiff's Claims

The Plaintiff asserts claims for discrimination and retaliation on a number of grounds. First, he asserts that he was passed over for the Lieutenant promotion in May 2005 because he supported the losing candidate in the Village Trustee election and because he was disabled after an accident in the line of duty. The Plaintiff further alleges that the Village unilaterally forced him to retire and manipulated his retirement benefits as punishment for his activities in the union.

Also, the Plaintiff states a claim pursuant to 42 U.S.C. § 1983, alleging that the Defendant retaliated against him for exercising his free speech rights. In addition, the Plaintiff asserts a claim pursuant to New York Civil Service Law § 209-a for interference with his participation in the PBA and a claim pursuant to New York Labor Law § 201-d(2)(d) with regard to his alleged constructive discharge. Finally, the Plaintiff asserts a claim under the New York Human Rights Law, codified in Executive Law § 296, for discrimination based upon the Plaintiff's disability.

D. The Present Motion

The Defendant moved for summary judgment on March 14, 2011 on a number of different grounds.

First, the Defendant contends that the federal 42 U.S.C. § 1983 claim was not timely asserted. The acts which instigated the alleged retaliation, such as the Chernoff campaign and the Plaintiff's injury while on duty, as well as the act of retaliation when the Defendant failed to promote the Plaintiff to Lieutenent, all took place prior to May 20, 2005. Because this action was commenced on February 27, 2009, the Defendant claims that the Plaintiff's cause of action was not asserted within the relevant three year statute of limitations. In addition, the Defendant claims that any state law claims are barred pursuant to New York General Municipal Law 50(i) ("NY Gen. Mun. Law.").

The Defendant also contends that the Plaintiff cannot establish a causal connection between any alleged acts of retaliation and his union or political activities because the Defendant always acted reasonably and within its lawful discretion. For example, the Defendant claims that there was no manipulation of Giacopelli's retirement benefits, but rather, the benefits were recalculated once it was realized that the Plaintiff could not accumulate sick pay, vacation time, and holiday pay during his leave of absence from April 2005 through August 2007.


A. Legal Standard for Summary Judgment

It is well-settled that summary judgment under Fed. R. Civ. P. 56(c) is proper only "if 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. P. 56(c). A fact is "material" within the meaning of Fed. R. Civ. P. 56 when its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether an issue is genuine, "[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)).

Once the moving party has met its burden, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quoting Fed. R. Civ. P. 56(e)). However, the nonmoving party cannot survive summary judgment by casting mere "metaphysical doubt" upon the evidence produced by the moving party. Matsushita, 475 U.S. at 586, 106 S. Ct. 1348. Summary judgment is appropriate when the moving party can show that "little or no evidence may be found in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted).

"The court's responsibility in assessing the merits of a summary judgment motion is not to try issues of fact, but rather to 'determine whether there are issues of fact to be tried.' " Giannattasia v. City of New York, No. 09 Civ. 0062, 2011 U.S. Dist. LEXIS 113636, at *7 (E.D.N.Y. Sept. 30, 2011) (citing Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995)).

B. Whether the Plaintiff's 42 U.S.C. § 1983 Claim Is Timely

As stated above, the Plaintiff asserts a claim pursuant to Section 1983, alleging that the Defendant retaliated against him for exercising his right to freely associate with the Malverne PBA and his right to engage in political speech. The Defendant moves for summary judgment on the ground that this claim is time barred because the promotional decisions relied upon by the Plaintiff as adverse actions are barred by the statute of limitations. The Plaintiff concedes that any claims based on the Defendant's actions which occurred prior to February 27, 2006 would be untimely. However, the Plaintiff argues that discriminatory events occurring before this time may be considered in support of the Plaintiff's timely claims. For example, although the failure to promote Giacopelli to Lieutenant occurred prior to February 27, 2006, the Plaintiff argues that this event is nevertheless relevant to the subsequent and timely adverse actions.

There is no dispute that the statute of limitations for a Section 1983 claim arising in New York is three years. Rivera v. Governor of New York, 92 Fed. App'x 25, 26 (2d Cir. 2004). "While state law supplies the statute of limitations for claims under § 1983, federal law determines when a federal claim accrues. The claim accrues when the plaintiff knows or has reason to know of the harm." Van Wormer v. City of Rensselaer, 293 Fed. App'x 783, 783 (2d Cir. 2008) (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994)).

Except for the claims relating to Giacopelli's retirement and related benefits, the other alleged discrete acts of discrimination accrued more than three years prior to his filing this action. Thus, any claims based on instances of retaliation that occurred before the limitations period are time-barred. See Barorr v. New York City Dep't of Educ., 362 Fed. Appx. 157, 160 (2d Cir. 2010). Accordingly, the Plaintiff cannot assert a Section 1983 cause of action with regard to the Defendant's failure to promote him to Lieutenant. Although the Plaintiff may argue that the failure to promote is part of a continuing pattern of retaliation, the continuing violation doctrine does not apply to a police officer's claims of retaliation in violation of his free speech rights, so as to make a Section 1983 action timely. See Crossland v. Safir, 54 Fed. App'x 504, 504 (2d Cir. 2002).

However, to the extent that the Plaintiff argues that the retaliatory act that forms the basis of his Section 1983 action is his forced retirement, then the Court finds that Section 1983 claim is timely. The retirement claim accrued in June 2006 when the Plaintiff learned that the Defendant filed his retirement papers. See DeVito v. Inc. Village of Valley Stream, 991 F. Supp. 137, 140 (E.D.N.Y.1998) (finding that plaintiff's claim that he was forced to resign from his employment position with defendant village in violation of his civil rights under § 1983 accrued when the plaintiff was offered retirement in September 1991, rather than on the last day of plaintiff's employment on November 29, 1991); see also Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999) (holding that a claim accrues when the plaintiff knows "or had reason to know of the injury serving as the basis for his claim"). In addition, the dispute regarding retirement benefits accrued in August 2007, when the Village Trustees passed a resolution authorizing payment of retirement benefits to the Plaintiff. In both situations, the Plaintiff's action was filed within the three-year Section 1983 statute of limitations period.

Therefore, the Defendant's motion for summary judgment is denied on this ground that the Plaintiff's Section 1983 claim is untimely. Insofar as the Plaintiff's claim is based on the forced retirement and wrongful manipulation of his ...

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