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John Puglisi v. Town of Hempstead

September 17, 2012


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


Plaintiff John Puglisi ("Plaintiff") commenced this action on April 29, 2010 against the Town of Hempstead Department of Sanitation's Sanitary District No. 2 (the "District"), the Board of Commissioners of Sanitary District No. 2 (the "Board"), Gerard Brown, John Cools, Dennis J. Meekins, Brian F. O'Connor, LeRoy W. Roberts, Robert Noble, and Michael McDermott (collectively, "Defendants") asserting claims for retaliation under Title VII, under N.Y. EXEC. LAW § 296.1(e) (the

"New York State Human Rights Law" or "NYSHRL"), and under the First Amendment. Pending before the Court are the parties' cross-motions for summary judgment. For the following reasons, Plaintiff's motion is DENIED, and Defendants' motion is GRANTED.


Plaintiff commenced employment with the District in 1973. (Pl. 56.1 Stmt. ¶ 19; Defs. 56.1 Stmt. ¶ 11.) He is still employed by the District and currently holds the position of Sanitation Supervisor--a position that is approved and recognized by New York State Civil Service ("Civil Service"). (Defs. 56.1 Stmt. ¶¶ 11-12.) Plaintiff's duties as a Sanitation Supervisor include, but are not limited to, supervising specific routes that are assigned to him as well as all of the sanitation employees that work on those routes, ensuring that those routes are completed and all trucks are returned, addressing issues raised by his subordinates and by the community at large, and maintaining a daily log. (Pl. 56.1 Stmt. ¶ 25.)

v I. Plaintiff's Promotion

In or around June 2005, the District created a new in-

house position--Lead Supervisor Assistant to the General Supervisor ("Assistant to the General Supervisor"). (Defs. 56.1 Stmt. ¶ 19.) This was a confidential, non-unit position. (Pl. 56.1 Stmt. ¶ 23; Defs. 56.1 Stmt. ¶ 25.) The duties of the Assistant to the General Supervisor were similar to the duties of the General Supervisor and included assisting the General Supervisor in arranging daily work assignments, overseeing the daily operations of the Sanitation and Recycling Departments

(i.e., supervising sanitation and recycling supervisors, motor equipment operators, and other sanitation and recycling employees), reporting to the Board and attending meetings, participating in grievance procedures and contract negotiations, and assuming the responsibilities of the General Supervisor in his absence. (Pl. 56.1 Stmt. ¶ 22; Defs. 56.1 Stmt. ¶ 24.) At all relevant times, Defendant Michael McDermott ("McDermott") was the General Supervisor. (Pl. 56.1 Stmt. ¶ 14; Def. 56.1 Stmt. ¶ 10.) Unlike the Sanitation Supervisor position, the Assistant to the General Supervisor position, like all in-house positions, was not recognized or approved by Civil Service. (Defs. 56.1 Stmt. ¶¶ 21-22.)

The District started accepting applications for the Assistant to the General Supervisor position in or around spring 2005 (see Graff Aff. in Support Ex. J), and Plaintiff was appointed to the position on or about September 21, 2005 (Pl. 56.1 Stmt. ¶ 20; Defs. 56.1 Stmt. ¶ 29). With the position came an approximately $7,000 raise and lifetime health benefits. (Pl. 56.1 Stmt. 21; Defs. 56.1 Stmt. ¶ 30.) Because the Assistant to the General Supervisor Position was not recognized by Civil Service, Plaintiff retained the Civil Service title of Sanitation Supervisor and he continued to report to Civil Service as a Sanitation Supervisor. (Defs. 56.1 Stmt. ¶ 32.)

II. Plaintiff's Investigation of Some Racially Charged Incidents in the District

A. The Noose Incident

On or about April 19, 2007, a noose was found hanging in the District's garage. (Pl. 56.1 Stmt. ¶ 32; Defs. 56.1 Stmt. ¶ 34.) A group of employees, including Leo Smith, reported finding the noose to Plaintiff who in turn reported the incident to McDermott. (Pl. 56.1 Stmt. ¶¶ 33-34; Defs. 56.1 Stmt. ¶¶ 36-37.) Smith is African American. (Defs. 56.1 Stmt. ¶ 36.) Sometime thereafter, Smith and a few other District employees filed a complaint with the New York State Division of Human Rights ("NYSDHR") concerning the noose. (Defs. 56.1 Stmt. ¶ 38.)

In or around October 2007, Smith, who was a Motor Equipment Operator (or driver) for the District, missed a mandatory driver-safety meeting. (Defs. 56.1 Stmt. ¶¶ 39-40.) Due to his missing the meeting, McDermott removed him from the driver list for eight days. (Defs. 56.1 Stmt. ¶ 41.) Plaintiff objected to McDermott's suspension of Smith because, according to Plaintiff, white drivers who had missed driver meetings were not similarly disciplined. (Defs. 56.1 Stmt. ¶ 42; Graff Aff. in Support Ex. C, Pl. Dep. 104-05.)

Thereafter, Smith amended his NYSDHR complaint to include a charge of retaliation--namely that he was retaliated against by McDermott for filing his initial NYSDHR complaint about the noose. (Defs. 56.1 Stmt. ¶ 45.) In or around February 2008, NYSDHR held a fact-finding hearing where Plaintiff testified on Smith's behalf. (Defs. 56.1 Stmt. ¶¶ 46-48; Pl. 56.1 Stmt. ¶ 27.) Plaintiff asserts that upon returning home from the hearing, he was confronted by Defendant LeRoy Roberts ("Roberts"), an elected official on the Board, who approached Plaintiff outside of his home and accused him of throwing the District under the bus and providing NYSDHR with "more than [he] had to tell." (Pl. 56.1 Stmt. ¶¶ 75-77.) During their conversation, Roberts' allegedly got a call from Defendant Dennis Meekins ("Meekins"), another elected official on the Board. (Pl. 56.1 Stmt. ¶ 78.) Plaintiff asserts that he could hear Meekins through the phone telling Roberts that "he's gotta go." (Pl. 56.1 Stmt. ¶ 80.) Roberts and Meekins deny that these conversations took place. (Defs. 56.1 Counterstmt. ¶¶ 75-80.)

B. The Fire Truck Incident

On or about March 11, 2008, Defendant Gerard Brown ("Brown"), the Supervisor of the Baldwin Fire District and an elected official on the Board, reported to McDermott that one of the District's sanitation trucks had blocked a fire truck's right-of-way during an emergency call. (Pl. 56.1 Stmt. ¶ 38.) McDermott directed Plaintiff to investigate the incident. (Pl. 56.1 Stmt. ¶ 39.) Plaintiff did and learned that the sanitation truck was blocking the street because a school bus was stopped in front of it. (Pl. 56.1 Stmt. ¶ 40.) He also learned that a person on the fire truck yelled "move out of the way you fuckin mooley" at an African-American sanitation employee riding on the back of the sanitation truck. (Pl. 56.1 Stmt. ¶ 41; Defs. 56.1 Counterstmt. ¶ 41.) Plaintiff reported this to McDermott. (Pl. 56.1 Stmt. ¶ 42.)

McDermott, who was also an elected commissioner in the Baldwin Fire District, conducted an investigation in the Baldwin Fire Department regarding the use of the derogatory language. (Pl. 56.1 Stmt. ¶¶ 43-44.) As a result of the investigation, Brown wrote a letter to the Baldwin Fire Department. (Graff Aff. in Support Ex. R.) He denied hearing any derogatory remarks and stated that he believed that the accusation was made in an attempt to cover-up the sanitation truck's failure to yield to a fire truck's right-of-way. (Graff Aff. in Support Ex. R.) He asked that the "possibility of conspiracy and intentional defamation" be investigated by the Baldwin Fire Department and that legal charges be brought against all persons involved. (Graff Aff. in Support Ex. R.) It is unclear whether any further investigation was performed or if charges were ever brought.

C. The Use of a Racial Slur

On or about February 8, 2008, Robert Oliveri, a white driver of one of the District's sanitation trucks, complained to Defendant Robert Noble ("Noble"), the Secretary of the Board, that another white employee on his truck, Robert Hachemeister, had repeatedly used a racial slur. (Pl. 56.1 Stmt. ¶ 51.) A few days later, Mr. Oliveri also complained to Plaintiff. (Pl. 56.1 Stmt. ¶ 56.) Plaintiff investigated the incident,*fn2 found factual support for Mr. Oliveri's complaint, and reassigned Mr. Hachemeister to another truck. (Pl. 56.1 Stmt. ¶ 58.) Plaintiff reported his findings and his disciplinary action to McDermott and Noble. (Pl. 56.1 Stmt. ¶ 59.)

III. Plaintiff's NYSDHR Complaint

On or around March 5, 2008, a Board meeting was held where the issue of employees' use of District-owned vehicles was discussed. (Pl. 56.1 Stmt. ¶ 69; Defs. 56.1 Stmt. ¶ 60.) All Sanitation and Recycling Supervisors, the General Supervisor, the Assistant to the General Supervisor, and the Secretary to the Board have use of District vehicles. (Defs. 56.1 Stmt. ¶ 59.) The Board was concerned that employees may be overusing their District-owned vehicles, so they decided that the mileage of all Sanitation and Recycling Supervisors' vehicles would be monitored on a daily basis. (Pl. 56.1 Stmt. ¶ 69; Defs. 56.1 Stmt. ¶ 61.) Plaintiff's daily mileage was monitored, but McDermott's and Noble's mileage was not. (Pl. 56.1 Stmt. ¶¶ 71-74; Defs. 56.1 Stmt. ¶ 63.)

Then, on or about March 22, 2008, Plaintiff was chosen for a random drug test. (Defs. 56.1 Stmt. ¶ 52.) According to the District's policy regarding random drug testing, if an employee is randomly chosen, he is to be notified first thing in the morning and kept in a separate room until he is tested. (Defs. 56.1 Stmt. ¶ 51.) Plaintiff, however, was not notified that he had been selected when he arrived at work, and he was not segregated for testing until later that morning, purportedly in violation of the District's policy. (Defs. 56.1 Stmt. ¶ 54.)

On June 4, 2008, Plaintiff filed a complaint with NYSDHR alleging that he was retaliated against for testifying on behalf of Smith at his NYSDHR fact-finding hearing. (Pl. 56.1 Stmt. ΒΆ 61.) His complaint stated that the District retaliated against him by monitoring the mileage of his vehicle and failing to properly inform ...

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