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Robert D. Fitzgerald and the Troy Police Benevolent and Protective Association, Inc v. City of Troy

November 28, 2012

ROBERT D. FITZGERALD AND THE TROY POLICE BENEVOLENT AND PROTECTIVE ASSOCIATION, INC., PLAINTIFFS,
v.
CITY OF TROY, NEW YORK;
HARRY J. TUTUNJIAN, IN BOTH HIS INDIVIDUAL CAPACITY AND HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF TROY;
JOHN TEDESCO, INDIVIDUALLY AND AS AN ASSISTANT CHIEF OF POLICE FOR THE CITY OF TROY;
DAVID MITCHELL, INDIVIDUALLY;
JANE ROE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS A REPRESENTATIVE OF THE CITY OF TROY; AND
JOHN DOE, INDIVIDUALLY AND IN IS OFFICIAL CAPACITY AS A REPRESENTATIVE OF THE CITY OF TROY, DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On April 15, 2010, Plaintiffs commenced this action alleging that Defendants, among other things, violated their rights under the First, Second, Fourth, and Fourteenth Amendments to the United States Constitution. See Dkt. No. 1. Plaintiffs also alleged several state-law claims and a violation of the Fair Labor Standards Act ("FLSA"). See id. On December 30, 2010, Plaintiffs amended their complaint. See Dkt. No. 39.

Currently before the Court is Defendants' motion for summary judgment. See Dkt. Nos. 89-94, 100-101.

II. BACKGROUND*fn1

Plaintiff Robert Fitzgerald has been a police officer employed by the City of Troy since 1990. See Dkt. No. 39 at ¶ 8. Plaintiff Fitzgerald has been a member of Plaintiff Troy Police Benevolent and Protective Association, Inc. ("PBA" or the "Union") since 1990 and has been its duly elected President since 2004. See id.

Plaintiff Fitzgerald was a vocal critic of the City's administration on a number of issues, which on occasion caused Defendant Tutunjian to be "upset" with Plaintiff Fitzgerald. Defendant Tutunjian believed that Plaintiff Fitzgerald should "not speak to the media as much as he did." See Dkt. No. 90 at 24.*fn2 In fact, on June 3, 2007, Defendant Tutunjian wrote a letter to the "Pulse of the People" section of the Troy Record, in which he was publically critical of Plaintiff Fitzgerald's statement that the Troy Police Department was in a "state of crisis" and accused him of "shopping around his story to various media outlets." See Dkt. No. 107 at 27.

In the fall of 2006 and into early 2007, an issue arose concerning public disciplinary proceedings against three members of the Troy Police Department for allegedly ignoring a criminal defendant's request for a lawyer and thereby violating his Miranda rights. See id. at 29-30. In response to the ongoing proceedings, Troy Police Chief Kaiser issued an order prohibiting "all sworn and non-sworn personnel . . . from speaking to the public, public officials, or media representatives regarding the recent internal investigation." See id. at 37. In his deposition testimony, Defendant Mitchell testified that he informed Plaintiff Fitzgerald's counsel about this order so that when he spoke to the press about these issues, he would be sure to identify himself as the PBA President "so that he wasn't violating this order[.]" See Dkt. No. 93-2 at 128-130. In an article in the Troy Record dated January 31, 2007, Plaintiff Fitzgerald, who was identified as the Troy PBA President, made comments critical of Defendants Tedesco and Mitchell, and the way in which the investigation and disciplinary proceeding was being handled. See Dkt. No. 107 at pg. 30.

In December of 1995, the Troy City Council adopted a resolution requiring police officers hired after December 22, 1995 to reside within the City of Troy. See Dkt. No. 101 at ¶ 1 (citation omitted); see also Troy Police Benevolent & Protective Ass'n, Inc. v. City of Troy, 299 A.D.2d 710, 711 (3d Dep't 2002). In early 2007, enforcement of the residency ordinance was advocated by certain members of the Troy City Council to disqualify several police officers on a list making them eligible for promotion to Sergeant. See Dkt. No. 101 at ¶ 2. It was rumored within the Police Department that Officer Steven Seney, who was on the Sergeants List, had written an anonymous letter to the Troy Civil Service Commission identifying several officers on the list who did not reside within the City of Troy. See id. at ¶ 3. Through 2007, the residency ordinance had not typically been enforced and it became "a bone of contention that someone was anonymously encouraging that it be enforced with respect to the Sergeant's List." See id. at ¶ 4.

The Civil Service Commission published a notice of three public meetings concerning the residency requirement. See Dkt. No. 107 at pg. 52-65. A proposed resolution by Councilwoman Carolin Collier that would have imposed termination from City employment for a continued violation of the residency requirement was debated at public meetings of the City Council and in the news media. See id. at pg. 50. The Civil Service Commission originally scheduled a public hearing on the issue for February 21, 2007, but the formal discussion of the issue was tabled until the next meeting on March 21, 2007. Plaintiff Fitzgerald was a vocal opponent of the enforcement of the law at these meetings, and his criticisms of City officials were quoted in various media outlets. See id. at pg. 39-51.

On March 21, 2007, the Civil Service Commission began the series of public meetings at which the question of whether the residency requirement would be applied was discussed. Plaintiff Fitzgerald attended these meetings, along with members of the public and other police personnel. A Civil Service eligible list for promotions to the position of police sergeant based on competitive examination results had been created, and it included the names of both resident and non-resident police officers. The Civil Service Commission had put forth a proposal to send out notices disqualifying eligible members on the list who were not residents of the City of Troy. See id. at pg. 60. Police Chief Nicholas Kaiser raised concern that the enforcement of the residency requirement would hurt his department because he may be forced to promote those who are less qualified if the most qualified candidates were disqualified because they resided outside of the City. See id. at pg. 59. Plaintiff Fitzgerald echoed Chief Kaiser's remarks and directed the Commission's attention to its own rule which provided that the residency requirement may be suspended by the Commission in cases where difficulty of recruitment makes such a requirement against the public interest. See id.

The Civil Service Commission eventually voted to send out notices of potential disqualification to the non-resident officers and set a hearing date for May 3, 2007. See id. at pg. 60. On April 2, 2007, the Troy Record published a story discussing the pros and cons of residency requirements and quoted both Plaintiff Fitzgerald and Police Chief Kaiser. See id. at pg. 41.

During his deposition, Deputy Chief McAvoy testified that, during this time, Defendant Tutunjian would discuss Plaintiff Fitzgerald during their regular meetings and the comments he would make to the public. See Dkt. No. 92-5 at 40-41. Deputy Chief McAvoy believed that Defendant Tutunjian was inquiring to see if Plaintiff Fitzgerald was violating any rules or regulations by providing statements to the media and, if so, what could be done about it. See id.

In April of 2007, the residency ordinance and the decision whether to enforce it regarding the Sergeants List became a heated issue within the department and even made the front page of the local newspaper. See Dkt. No. 101 at ¶ 5; Dkt. No. 109-2 at ¶ 5. On April 9, 2007, at a regularly scheduled Troy PBA meeting, there was a discussion of the Sergeants List issue. See id. at ¶ 6. Several officers were upset about potentially losing their spot on the Sergeants List because of the residency requirement. See id. at ¶ 7. At some point, an officer mentioned that someone might go to Officer Seney's wife and inform her about an alleged extramarital affair because several officers believed that Officer Seney was to blame for creating the residency issue. See id. at ¶ 8; Dkt. No. 109-2 at ¶ 8.

On Wednesday, April 11, 2007, the Troy Civil Service Commission sent letters to certain individuals on the Sergeants List advising them that they would be disqualified from consideration because they were in violation of the residency requirement. See id. at ¶ 9. The letter advised these officers that they could submit to the Commission, either in writing prior to the next Commission meeting or in person at the next meeting, any reasons they had in opposition to this proposed action. See Dkt. No. 109-2 at ¶ 9; see also Dkt. No. 107-1 at 75 (citation omitted).

Thereafter, on April 13, 2007, the Police Department's Emergency Response Team ("ERT") conducted a training session at the Lansingburgh High School. See Dkt. No. 101 at ¶ 10. Plaintiff Fitzgerald was a member of the ERT and was present at the training session. See id. at ¶ 11. The Sergeants List and residency ordinance were the subject of a boisterous discussion during the lunch break that day. See id. at ¶ 12. During the discussion, anger was expressed at Officer Seney, with one officer complaining that Officer Seney did not back up his people and that he was always the last one to respond to a call. See id. at ¶ 13. The threat to inform Officer Seney's wife about his alleged extramarital affairs was also discussed. See id. at ¶ 14.

Due to the heated nature of the conversation, Plaintiff Fitzgerald was concerned about Officer Seney's physical safety. See id. at ¶¶ 15-16; Dkt. No. 109-2 at ¶¶ 15-16. Plaintiff Fitzgerald felt that there was a reasonable potential for some type of violence, which is why he went to Defendant Tedesco, Assistant Chief of Police for the City of Troy, to report the problem. See Dkt. No. 101 at ¶ 17. After leaving the ERT training session, Plaintiff Fitzgerald advised Defendant Tedesco that officers were upset with Officer Seney and that it would not surprise him if someone "decided to invite Seney out in the garage for a fist fight." See id. at ¶ 18. Plaintiff Fitzgerald told Defendant Tedesco that officers were blaming Officer Seney for writing an anonymous letter to the Civil Service Commission regarding the Sergeants List. See id. at ¶ 19. In response, Defendant Tedesco told Plaintiff Fitzgerald that he would discipline the responsible individuals if violence did occur. See id. at ¶ 21; Dkt. No. 109-2 at ¶ 21.

After Plaintiff Fitzgerald left Defendant Tedesco's office, Defendant Tedesco called Captain Anthony Magnetto, the patrol captain of the afternoon shift. See Dkt. No. 101 at ¶ 23; but see Dkt. No. 109-2 at ¶ 23 (admitting the allegation in part, but arguing that Defendant Tedesco's first call after Plaintiff Fitzgerald left the office was to Councilwoman Carolin Collier). During the conversation, Captain Magnetto informed Defendant Tedesco that he was aware of the controversy over the Sergeants List and that he had scheduled a meeting with Officers Kittle and Seney to discuss the matter "because it was getting increasingly hostile." See Dkt. No. 101 at ¶ 24.

Later that day, Plaintiff Fitzgerald spoke with Officer Seney outside of one of the Public Safety buildings. During the conversation, Officer Seney felt that Plaintiff Fitzgerald seemed "agitated and aggressive." See Dkt. No. 89-11 at 47. Plaintiff Fitzgerald informed Officer Seney that he was the "topic of discussion" during the ERT training session earlier that day and that "the entire team was extremely angry with [him], and that the members were 'spuing venom' and that [his] personal safety was in jeopardy." See id. During the conversation, Plaintiff Fitzgerald called Sergeant Joe Centanni, who was at the training session, and he confirmed to Officer Seney that "people are enraged with [him] and that he wouldn't be surprised if things did become physical." See id. Plaintiff Fitzgerald then informed Officer Seney about several specific threats that were made, including that his personal vehicle may be vandalized, that other officers may not back him up on the job, that he may be physically assaulted, that someone may inform his wife about an alleged affair, and that his home may be "'sprayed with an MP5.'" See id. Further, Plaintiff Fitzgerald told him that he is referred to as "'Tedesco's blow job'" and stated that Officer Seney tells Councilwoman Collier everything. See id.

After the conversation with Plaintiff Fitzgerald ended, Officer Seney went home and called Officer Chris McDonald. See id. at 48. Officer McDonald confirmed the "anger and rage" felt toward him by some of the members of ERT. See id. Further, Officer McDonald agreed "that it is not out of the question that someone may become physical with" Officer Seney. See id. Officer Seney then proceeded to speak with Captain Magnetto about the situation, who offered any assistance that Officer Seney would need. Finally, after speaking with Captain Magnetto, another officer, Sean Kittle, called and expressed that he was extremely angry with Officer Seney, but that he would never fail to back him up at work. See id.

On Saturday morning, April 14, 2007, Defendant Tedesco and Officer Seney attended a karate class. See Dkt. No. 101 at ¶ 25. During the karate class, Officer Seney and Defendant Tedesco discussed the conversation Officer Seney had with Plaintiff Fitzgerald the day before outside the police station. See id. at ¶ 26. Officer Seney again discussed the threats made by members of the ERT that had been relayed by Plaintiff Fitzgerald. See id. at ¶ 27.

At some point after the karate class, Defendant Tedesco called Chief of Police Kaiser to discuss the conversation he had with Officer Seney. See id. at ¶ 28. Chief Kaiser advised Defendant Tedesco to prepare a written report for submission to him on Monday, April 16, 2007. See id. at ¶ 29. During the afternoon of April 14, 2007, Defendant Tedesco received a telephone call from Officer Seney who reported writing on a grease board in the substation stating that Officer Seney was a "rat." See id. at ¶ 30.*fn3

Pursuant to Chief Kaiser's instructions, Officer Seney prepared a written report dated April 16, 2007, which he delivered to Defendant Tedesco. See id. at ¶¶ 31-32. Later on April 16, Chief Kaiser convened a meeting with Defendant Tedesco, Assistant Chief McAvoy, Captain Sprague and Captain Paurowski, Head of the Internal Affairs Bureau. See id. at ¶ 33. At the meeting, Captain Sprague told the others present that he was "unaware of any physical threats made against Officer Seney." See Dkt. No. 109-2 at ¶ 34; Dkt. No. 101 at ¶ 34. During the meeting, Chief Kaiser directed Captain Paurowski to immediately begin an internal affairs investigation into the matter. See Dkt. No. 101 at ¶ 35.

In a subsequent meeting, Chief Kaiser, Defendant Tedesco, Assistant Chief McAvoy and Captain Magnetto again interviewed Officer Seney regarding the alleged threats made against him. See id. at ¶ 36; see also Dkt. No. 91-12 at pg. 23-25. During this meeting, Officer Seney was visibly upset and on the verge of tears when speaking with Chief Kaiser and Assistant Chief McAvoy. See id. at ¶ 37.

In the early evening of April 16, 2007, Defendant Tutunjian met with Officer Seney at Councilwoman Carolin Collier's house and was given a copy of Officer Seney's April 15, 2007 typewritten statement. See id. at ¶ 39.*fn4 After returning home, Defendant Tutunjian attempted to call Bryan Goldberger, the City's labor attorney, but was unable to reach him. See id. at ¶ 41.

Mr. Goldberger returned Defendant Tutunjian's call early the next morning and they discussed the situation with Officer Seney. See id. at ¶ 42. During the conversation, Defendant Tutunjian "referred to the contents" of Officer Seney's report. See id. at ¶ 44; Dkt. No. 109-2 at ¶ 44. The two also discussed whether what Plaintiff Fitzgerald said was illegal. See id. at ¶ 45. Further, based on their discussion, Mr. Goldberger informed Defendant Tutunjian that it was within his authority to place Plaintiff Fitzgerald on administrative leave, if he felt it appropriate. See id. at ¶ 46.*fn5 Moreover, Mr. Goldberger told Defendant Tutunjian that, with respect to any alleged criminal conduct, the matter should be discussed with Chief Kaiser and his assistant chiefs. See id. at ¶ 47.

On April 17, 2007, Defendant Tutunjian met with Defendant Tedesco and Assistant Chief McAvoy at a regularly scheduled weekly meeting. See id. at ¶ 48. At the meeting, Defendant Tutunjian informed those present that he had met with Officer Seney (omitting the fact that the meeting was at Carolin Collier's house the previous evening), and that he had a copy of Officer Seney's typewritten statement with him. See id. at ¶ 49; see also Dkt. No. 109-2 at ¶ 49 (citations omitted). At the meeting, Defendant Tutunjian brought up the possible arrest of Plaintiff Fitzgerald based on the allegations in Officer Seney's typewritten statement. See Dkt. No. 101 at ¶ 50. When Chief Kaiser and Assistant Chief McAvoy advised Defendant Tutunjian that there was not enough for an arrest or for departmental charges based on the evidence that they had, Defendant Tutunjian became "agitated" with them and raised his voice. See id. at ¶ 51; see also Dkt. No. 109-2 at ¶ 51; Dkt. No. 91-10 at 12.

Later during this meeting, the option of placing Plaintiff Fitzgerald on administrative leave was discussed. See Dkt. No. 101 at ¶ 54. Chief Kaiser and Assistant Chief McAvoy were of the opinion that they did not yet have enough proof to justify placing Plaintiff Fitzgerald on administrative leave. See Dkt. No. 91-12 at 42-44. Chief Kaiser, at this point, was of the opinion that Plaintiff Fitzgerald was simply "a witness and trying to report a problem within the department[.]" See Dkt. No. 91-9 at 46-47. Although Chief Kaiser was not in favor of disciplinary action or administrative leave at this time, administrative leave with pay was a more palatable option because it is not considered a disciplinary action and Plaintiff Fitzgerald would not be impacted financially. See Dkt. No. 101 at ¶ 57; see also Dkt. No. 109-2 at ¶ 57 (citations omitted).

According to Chief Kaiser and Assistant Chief McAvoy, Defendant Mitchell was invited to come into the meeting at some point and advised Defendant Tutunjian what steps he could take with respect to Plaintiff Fitzgerald. See Dkt. No. 91-10 at 5-8; Dkt. No. 92-6 at 17-20. When Assistant Chief McAvoy expressed his opinion that they did not have sufficient evidence to arrest Plaintiff Fitzgerald, Defendant Mitchell told him that he was wrong in light of the sworn deposition provided by Officer Seney. See Dkt. No. 92-6 at 18-19. Thereafter, they again discussed the possibility of administrative leave, which would entail relieving Plaintiff Fitzgerald of duty for a period of time, relinquishing his gun, and that they could require him to submit to a psychological exam if they felt it necessary. See id. at 21-22.

On the morning of April 17, 2007, Plaintiff Fitzgerald was interviewed by Captain Paurowski as part of the internal affairs investigation. See Dkt. No. 101 at ¶ 70. Prior to the interview, Captain Paurowski advised Plaintiff Fitzgerald that he was conducting an investigation into an April 15, 2007 report filed by Officer Seney, in which he recounted the conversation in which Plaintiff Fitzgerald informed him that several members of the ERT made threats against him in response to the controversy over the residency requirement. See id. at ¶ 71. At the end of the interview, Captain Paurowski asked Plaintiff Fitzgerald if there was anything about the investigation that he felt had not been covered and informed him that he had an opportunity to make a statement at that time. See id. at ¶ 72. At no point prior to or during the meeting did Plaintiff Fitzgerald see Officer Seney's April 15, 2007 statement regarding the encounter and alleged threats. See Dkt. No. 107 at ¶ 49.

After Plaintiff Fitzgerald's interview was completed, he proceeded to work as usual. See id. at ¶ 52. At approximately 2:10 p.m., Plaintiff Fitzgerald was told to appear at the Chief's office later that afternoon. See id. At approximately 2:45 p.m., Plaintiff Fitzgerald met with Chief Kaiser and Defendant Tedesco and was told that he was being placed on administrative leave and was required to turn in his police identification, weapons, and keys to the building. See id. at ¶ 53; see also Dkt. No. 107-1 at 53, 60-61.*fn6 Plaintiff Fitzgerald was not provided reasons for this decision, other than that it was "'the Mayor's'" decision. See id. at ¶ 55;Dkt. No. 107-1 at 61. Moreover, Plaintiff Fitzgerald was told that he was going to be required to see a psychiatrist at a time and date to be determined. See id. at ¶ 54; Dkt. No. 107-1 at 61. Defendants did not tell Plaintiff Fitzgerald how long the suspension would last. See id. at ¶ 57; see also Dkt. No. 107-1 at 60. Plaintiff Fitzgerald was given a "very public police escort home" and, once there, he was asked to turn in his non-duty weapons, which he did. See id. at ¶ 58.

After being informed of the administrative leave, Plaintiff Fitzgerald asked a PBA attorney to determine the reason for Defendants' actions and to obtain tapes of all internal affairs interviews to date. See id. at ¶ 60. Moreover, as a result of being placed on administrative leave, Plaintiff Fitzgerald was not permitted to enter the building where the PBA office is located; and, therefore, he was unable to conduct his usual PBA activities. See id. at ¶ 62. Plaintiff Fitzgerald claims that his inability to effectively work on behalf of the PBA and its members caused the PBA harm, including the fact that they had to cancel an arbitration scheduled for April 26, 2007, which cost the PBA more than $2,500. See id. at ¶ 63.

Moreover, on April 20, 2007, Plaintiff PBA filed a labor contract grievance in order to allow Plaintiff Fitzgerald to function as the PBA president. See id. at ¶ 65. The grievance sought to provide Plaintiff Fitzgerald with "access to the PBA office and necessary facilities for his continued investigation and adjustment of grievances and disputes with the City." See Dkt. No. 107-1 at 53-56.

Six days after Plaintiff Fitzgerald was placed on "administrative leave," a City police officer delivered to him a notice to appear before a psychologist on May 1, 2007. See Dkt. No. 107 at ¶ 67. Upon receiving the notice, Plaintiff PBA commenced an Article 78 proceeding in New York State Supreme Court seeking a temporary restraining order prohibiting the City from compelling Plaintiff Fitzgerald to submit to a medical examination until after written notice of the facts that form the basis for any claim that he is not fit for duty is served in accordance with section 72 of New York Civil Service Law and ordering that, pending a hearing and determination on the application for a preliminary injunction, Plaintiff Fitzgerald be permitted to access the City of Troy Police Station and Public Safety buildings as was permitted prior to his placement on administrative leave. See id. at ¶ 69; see also Dkt. No. 107-1 at 58-59. The state court granted the temporary restraining order on April 24, 2007 and scheduled a hearing for April 27, 2007. See Dkt. No. 107 at ¶ 71. On April 25, 2007, the City withdrew its demand that Plaintiff Fitzgerald see a psychologist and the order banning him from the Public Safety buildings. See id. at ¶ 72.

According to Plaintiffs, after Plaintiff Fitzgerald was permitted to re-enter the Public Safety buildings, he was advised that when he wished to enter, he would have to use the public access door and wait for a management-designated police officer to escort him at all times while in the building. See id. at ¶ 73. While he was in the PBA office, the police escort was stationed in a chair placed immediately outside the door to the office. See id. at ¶ 74.

On April 27, 2007, as part of the internal affairs investigation, an unnamed officer was ordered to report for an interview as a witness in the investigation. See Dkt. No. 107-1 at 89. The order stated that the investigation was being made "into a report filed by Officer [Seney] where he states that Officer Robert Fitzgerald informed him that several members of the Emergency Response Team made threats against Officer [Seney's] safety and that these threats stemmed from an ongoing dispute over an alleged letter sent to the Troy City Counsel involving members currently on the promotional list for sergeant." See id.

On May 1, 2007, Mr. Goldberger, the City's labor attorney, met with Captain Paurowski who advised him that the internal affairs investigation was wrapping up and that the case was "unfounded." See Dkt. No. 109-2 at ¶ 75; Dkt. No. 91-4 at 3-4.

On May 4, 2007, Defendant Tutunjian released the following official statement reinstating Plaintiff Fitzgerald and explaining the reasons he was placed on administrative leave:

On Monday, April 16th I was approached by a Troy Police Officer who was concerned for his safety and the safety of his family. This officer indicated he had a discussion with Officer Robert Fitzgerald, at which time the officer believed that the PBA President was threatening him. The officer signed an official complaint against Officer Fitzgerald. Included in the allegations, the Officer said he was told that he could be assaulted at work, that his home could be shot at, personal property destroyed, and phone calls made to his wife about alleged extra-marital affairs.

Based on the preliminary findings of the IA investigation, and upon the advice of the Corporation Counsel's Office, there is insufficient evidence to sustain the allegations in the complaint. Therefore, Officer Fitzgerald has been placed back on duty, and the Chief of Police has been ordered to closely monitor the situation to ensure the safety of each person involved and the community at large.

See Dkt. No. 107-1 at 95.*fn7

On May 1, 2007, Mr. Goldberger advised Defendant Tutunjian of his conversation with Captain Paurowski. See Dkt. No. 101 at ¶ 76. On May 4, 2007, Defendant Tutunjian instructed Chief Kaiser to return Plaintiff Fitzgerald to active duty effective Monday, May 7, 2007. See id. at ¶ 77. According to Plaintiffs, Defendant Tutunjian waited until the day after the Civil Service Commission held its May 3, 2007 public meeting and made its final ruling regarding the residency requirement's application to the Sergeants List before he released the press release concerning the results of the internal affairs investigation or notified Chief Kaiser to return Plaintiff Fitzgerald to active duty. See Dkt. No. 109-2 at ¶ 76.

Further, Plaintiff Fitzgerald claims that the City did not deliver to him his paychecks during the period of his "administrative leave" and, since he was ordered to stay out of the building where he usually retrieved his paychecks, he was not paid for the work he performed earlier in the week of April 16 or while he was on leave with pay. See Dkt. No. 107 at ¶ 68. As such, Plaintiff Fitzgerald claims that he was, "in effect, suspended without pay." See id.*fn8

On April 15, 2010, Plaintiffs commenced the present action. See generally Dkt. No. 1. In their amended complaint, Plaintiffs set forth eleven causes of action alleging First Amendment retaliation, deprivation of a constitutionally protected property interest without due process of law, deprivation of a constitutionally protected liberty interest without due process of law, conspiracy, violation of privacy rights, violations of the Fair Labor Standards Act, and violations of New York Labor Law. See generally Dkt. No. 100.

III. DISCUSSION

A. Summary judgment standard

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding ...


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