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Fotopolous v. Bd. of Fire Comm'rs of the Hicksville Fire Dist.

United States District Court, E.D. New York

March 31, 2014


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For Christopher Fotopolous, Plaintiff: Louis D. Stober, Jr., LEAD ATTORNEY, Law Offices of Louis D. Stober, Jr., LLC, Garden City, NY.

For The Board of Fire Commissioners of the Hicksville Fire District, The Hicksville Fire District, The Hicksville Fire Department, Defendants: Jeffrey B. Siler, Siler & Ingber, LLP, Garden City, NY.

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MARGO K. BRODIE, United States District Judge.

Plaintiff Christopher Fotopolous commenced this action against the Board of

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Fire Commissioners of the Hicksville Fire District (the " Board" ), the Hicksville Fire District (the " District" ) and the Hicksville Fire Department (the " Department" ), alleging (1) hostile work environment, coerced resignation, deprivation of his property right and deprivation of his constitutional rights of freedom of speech and association, pursuant to 42 U.S.C. § 1983; (2) municipal violations pursuant to 42 U.S.C. § 1983; (3) conspiracy in violation of 42 U.S.C. § 1985; (4) conspiracy in violation of 42 U.S.C. § 1986; (5) violation of the First and Fourteenth Amendments; (6) violation of the New York Civil Service Law; and (7) intentional and negligent infliction of emotional distress. Defendants moved for summary judgment on all of Plaintiff's claims. At oral argument on January 30, 2014, Plaintiff clarified his claims as: (1) First Amendment retaliation; (2) conspiracy in violation of 42 U.S.C. § 1985; (3) conspiracy in violation of 42 U.S.C. § 1986; (4) violation of procedural due process; (5) municipal liability; (6) violation of the New York Civil Service Law § 75; and (7) intentional and negligent infliction of emotional distress. The Court dismissed Plaintiff's procedural due process claim at oral argument. By letter dated January 31, 2014, Plaintiff withdrew his intentional and negligent infliction of emotional distress claims. (Docket Entry No. 17.) For the reasons discussed below, Defendants' motion for summary judgment is granted as to all of Plaintiff's federal law claims. The Court declines to exercise jurisdiction over Plaintiff's remaining state law claim for violation of the New York Civil Service Law § 75 and dismisses that claim without prejudice.

I. Background

Plaintiff was employed as a dispatcher for the District, a municipal fire district organized under the laws of the State of New York, (Def. 56.1 ¶ ¶ 3-4; Pl. 56.1 ¶ ¶ 3-4), for approximately 4 1/2 years, ( see Fotopolous Aff. ¶ 1; Aff. of Maria Massucci (" Def. Aff." ) 2). Plaintiff also served as a volunteer firefighter with the Department from 2001 until January 2011. (Fotopolous Aff. ¶ 3; Def. Aff. 3). The District had either two or three companies. (Oral Arg. Tr. 47:23-48:6.) Plaintiff was a Lieutenant, and later Captain, of Floodlight Heavy Rescue Company 8 (" Company 8" ). (Fotopolous Aff. ¶ ¶ 8, 13.)

a. 2009 incident involving Anthony Lentini

According to Plaintiff, in August of 2009, Anthony Lentini, one of the members of Company 8, was assaulted and knocked unconscious in the Chief's office, which resulted in Plaintiff being called to the fire station. ( Id. ¶ ¶ 5-6.) Plaintiff was told that there had been underage drinking in the Chief's room and a fight broke out, causing Lentini to be knocked unconscious. ( Id. ¶ 6.) Plaintiff took Lentini to Nassau County Medical Center. ( Id.) The next day, " the [C]hiefs," i.e., Commissioner Robert Lang, then Chief of the Department, and Chief Edward Korona, then First Assistant Chief, questioned members who were present at the time of the incident, including Plaintiff. ( Id.)

Lentini filed assault charges with the police against Daniel Wicks and Brian Hirtzel who were members of a different company. ( Id. ¶ 7.) According to Plaintiff, Wicks and Hirtzel were " very close" with Lang and Korona and were " part of their faction within the Fire District." ( Id.) Wicks was a " good friend" of Lang's and Hirtzel is Korona's brother-in-law. ( Id. ¶ 9.) When Lang and Korona found out that Lentini reported the fight incident to the police, " they became outraged and suspended every Company 8 member that was present in the room when Lentini was assaulted." ( Id. ¶ 8.) The only individuals

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suspended were Company 8 members. ( Id.) Members of the other companies who were associated with Lang and present for the incident were not suspended. ( Id.) Plaintiff was not suspended at that time. ( Id. ¶ 22.)

After this incident, Plaintiff was " very persistent with the Chiefs[,] demanding that [his] members be reinstated as firefighters and also demanding Wicks and Hirtzel be expelled from the Fire Department." ( Id. ¶ 10.) Lang refused to answer Plaintiff's letters regarding Company 8 members being reinstated to duty. ( Id.) Lang and Korona " suddenly began denying training classes and other requests" from Plaintiff. ( Id.) They also " made up their own rules about how the hearing process would work[,] disregarding all District and Department by[-]laws." ( Id.)

b. December 2009 fire commissioner election and subsequent changes

In December 2009, Lang was a candidate in the election for fire commissioner to commence at the conclusion of his term as Chief of the Department.[1] ( Id. ¶ 11; Docket Entry No. 20.) According to Plaintiff, Elizabeth Flahavan, a member of Company 8 who was also " part of [Lang's] faction," was a " key campaign person" for Lang. (Fotopolous Aff. ¶ 12.) Plaintiff did not support Lang for fire commissioner and " it was made clear to [Plaintiff] that it would cost [him] [his] career with the District." ( Id. ¶ 12.) Plaintiff instead supported Harry J. Single, Jr., Lang's opponent. ( Id. ¶ 14.) On December 8, 2009, Lang was elected Fire Commissioner, Korona was elected Chief of the Department, Plaintiff was elected Captain of Company 8 and Flahavan was elected First Lieutenant of Company 8. ( Id. ¶ 13; Docket Entry No. 20.) Lang became one of Plaintiff's direct supervisors in his role as Commissioner. (Fotopolous Aff. ¶ 15.)

According to Plaintiff, Lang " used his political influence and power within the Fire District to punish [Plaintiff] and anyone in [Plaintiff's] company who did not support [Lang], his faction or his actions." ( Id.) Throughout 2010, Lang and Korona " took numerous actions against" Plaintiff in his employment as a dispatcher and his role as a volunteer firefighter, including " isolating [Plaintiff] from the other Companies and Volunteer Firefighters by enforcing new policies that no Volunteer firefighters were to enter [Plaintiff's] work station during [his] shifts as a dispatcher." ( Id. ¶ 16.) For example, prior to December 2009, during Plaintiff's work hours from 7:00 p.m. to 7:00 a.m. on Tuesday nights, members of Company 8 would conduct trainings or familiarize themselves with the equipment, and would have dinner with Plaintiff at the firehouse. ( Id. ¶ 17.) After Lang became the Commissioner, he prohibited them from doing so. ( Id.) Plaintiff claims that the door to the dispatcher's office had always been kept open, but Lang and Korona required that Plaintiff keep the door closed at all times and not allow visitors into the office. ( Id.)

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Plaintiff contends that his " every move was watched by the Department, including where [he] parked." ( Id. ¶ 18.) After parking in the same spot throughout his tenure at the District, Plaintiff, in 2010, received a letter stating that he must park in certain designated spots. ( Id.) The letter also stated that Plaintiff had been warned on numerous prior occasions in this regard, but Plaintiff contends that he never received such prior warnings or discipline. ( Id.)

In his volunteer firefighter capacity, Plaintiff received letters stating that he could " no longer open the bay doors unless there was an alarm." ( Id. ¶ 19.) In addition, members were not allowed to eat meals on the truck room floor, and the work bench where Company 8 worked on their tools and equipment had to be moved to a different, inconvenient location in the firehouse. ( Id.) Company 8 was told that they could no longer " go on mutual aid calls to neighboring departments when called for." ( Id.) Plaintiff claims that the policies only applied to members of Company 8, i.e., " those not associated with [Lang] and [Korona]." ( Id.) He asserts that " [a]ll things that Company 8 [had] been doing for years now were being taken away or changed to spite Plaintiff and those who did not support Korona and Commissioner Lang," and " none of these changes were implemented in other companies who were associated with and supported Chief Korona's and Commissioner Lang's faction." ( Id.) Plaintiff questioned Lang and Korona's actions during meetings and was told that " they were in charge and they had a right to unilaterally make any changes they wanted." ( Id.)

c. December 2010 elections and Plaintiff's suspension

In December 2010, elections were held for Company 8 Officers. ( Id. ¶ 20.) According to Plaintiff, a week before the election, Company 8 received a letter from Korona stating that four members of Company 8 could not vote in the upcoming election because they were on " percentage probation." ( Id. ¶ 21; Fotopolous Ex. B.) These individuals were either present or witnessed the 2009 incident involving the assault of Lentini. (Fotopolous Aff. ¶ 21.) Plaintiff and Company 8 members reviewed the by-laws and concluded that their exclusion from voting violated the by-laws. ( Id.) Company 8 members voted overwhelmingly in favor of disregarding Korona's letter and following the by-laws. ( Id.) In the election, Flahavan was challenged for her First Lieutenant position by William Tolley, and Tolley won the First Lieutenant election with a majority of the votes. ( Id.)

Plaintiff claims that on January 3, 2011, he was called into a meeting in Korona's office with Korona, Flahavan, First Assistant Chief Christopher Moskos, Second Assistant Chief Frank McGeough and Third Assistant Chief Richard Diaz. ( Id. ¶ 22.) Plaintiff was told that he " would be terminated if [he] refused to hold another Company election." ( Id.) Plaintiff " did not hold another election and . . . stood by the results of the elections which were dutifully held." ( Id.) Plaintiff was then " suspended for allegedly refusing to follow . . . direct orders and hold another election." ( Id.) A January 3, 2011 letter from Moskos to Plaintiff, titled " Re: Disciplinary Action and Charges," informed Plaintiff that as of January 3, 2011, he was relieved of his duties as a volunteer firefighter for violation of Department by-laws. (Fotopolous Ex. C.) The letter advises that a hearing date would be scheduled and formal charges delivered by mail. ( Id.) The letter makes no reference to Plaintiff's paid position as a dispatcher for the District. ( Id.)

According to Plaintiff, on January 4, 2011, " the Chiefs" called a " special By-Law

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Committee meeting" to address whether it was a violation of the by-laws to allow members who were on " percentage probation" to vote in the elections. (Fotopolous Aff. ¶ 23.) The by-law committee held that it would be a violation of the by-laws to exclude a member from voting. ( Id.) However, a January 15, 2011 letter from Chief Korona to Company 8 informed Company 8 that after an inquiry, the Chiefs' office determined " through advi[c]e of the bylaw committee" that the members on percentage probation should not have had the right to vote. (Fotopolous Ex. E.) Korona's statement is contradicted by an affidavit submitted by Plaintiff of a former Department captain, Roger Koopmann, who attended the meeting and states that the committee did not find that Plaintiff violated the by-laws by allowing members who were on " percentage probation" to vote. (Pl. Ex. D (" Koopmann Aff." ).)

d. Plaintiff's resignation

Plaintiff claims that, on January 12, 2011 at 7:00 a.m., after working a night shift, he was called to a meeting in the board room with District Superintendent Thomas Sullivan. (Fotopolous Aff. ¶ 24.) Sullivan informed Plaintiff that the Board wanted him to resign from his paid dispatcher position and his volunteer firefighter position because he was " signing [his] friends in for fire calls." [2] ( Id. ¶ 25.) Plaintiff " was shocked and confused and did not understand why this was problematic" and then was " informed that [he] would be arrested, [] would never work again and would be prosecuted for allegedly signing in [his] friends for calls." ( Id.) Sullivan told him " that the only option [Plaintiff] had was either to sign the resignation letters or lose everything, including any of [his] benefits and . . . [his] ability to ever get another job again." ( Id.) When Plaintiff asked Sullivan for proof and for an explanation as to why this was happening, Sullivan told him that the documents were at Lang's house, and said, " [u]nfortunately people have it out for [you]." ( Id. ¶ 26.) Plaintiff protested that dispatchers' duties included signing " members in for Fire/EMS calls," but Sullivan told Plaintiff that " if [Plaintiff] did not sign the papers that [he] would be arrested, they would ruin [his] life and [he] would never get another job again." ( Id.) Plaintiff asked for time to think it over, but Sullivan told him that he could not leave until the paperwork was signed. ( Id.) Plaintiff " kept thinking of [his] children and how [he] was going to support them," and " felt threatened, coerced and . . . left with no other option but to sign the resignations." ( Id. ¶ 27.) Plaintiff was never told that he should resign because he was signing himself in for volunteer calls while on duty as a dispatcher. ( Id. ¶ 30.) Plaintiff denies ever signing himself in for volunteer calls while on duty as a dispatcher. ( Id.)

e. Attempts to rescind resignation

An hour after Plaintiff signed the resignation letters he returned to the firehouse " because [he] realized how preposterous it sounded that [he] would be arrested for performing [his] duties." ( Id. ¶ 28.) Plaintiff told Sullivan that he wished to

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withdraw his resignation letters, but Sullivan told Plaintiff that " the Commissioners already accepted [his] letter of resignation, even though no Board meeting [had been] held." ( Id.) Plaintiff " felt harassed" and that " irrespective of what [he] did, the Chief's Group [was] looking to terminate [his] employment." ( Id. ¶ 31.) Later that day he sent a registered letter to the Board stating that he wished to withdraw his " apparent resignation." ( Id. ¶ 29.) On January 14, 2011, unsure of whether he should report to work for his Sunday shift, Plaintiff sent another registered letter requesting a meeting. ( Id.) Plaintiff never received an answer to either letter. ( Id.) Plaintiff called the Chairman of the Board and " asked him what was going on," but was told that the Chairman did not know of Plaintiff's resignation and was unaware of the situation. ( Id.)

f. Time logs and LOSAP

According to Defendants, Plaintiff resigned his position when he was confronted with evidence of misconduct. (Def. Mem. 8.) As an employee of the District, Plaintiff signed weekly time sheets or logs recording the hours he worked as a dispatcher and was paid for the hours represented on the time sheets. (Def. Aff. 2 (citing Def. Ex. D (" Time Logs" )).) As a volunteer firefighter, Plaintiff was qualified to potentially receive Length of Service Award Programs (" LOSAP" ) benefits upon earning the required points. ( Id. at 3; note 2 supra.) Defendants claim that Plaintiff entered himself as a volunteer responder on several emergency calls at the same time that he was working as a dispatcher for the District. (Def. Aff. 3 (citing Time Logs and Emergency Call Sheets).) By doing so, Plaintiff violated General Municipal Law § 217(f) and § 219-s, and his actions are punishable under the Penal Code § 175.05 or § 175.10 for falsifying business records, § 175.20 or § 175.25 for tampering with public records, and § 176.05 for insurance fraud. ( Id. at 3-4.) According to Defendants, when Plaintiff was confronted with the findings of his employment hours and call response times, he resigned from his paid position with the District as a dispatcher and from his position as a volunteer member of the Department. ( Id. at 4-5 (citing Def. Exs. G (" District Resignation Letter" ) and H (" Department Resignation Letter" )).)

Plaintiff disputes that he engaged in misconduct or that he needed LOSAP points. Plaintiff asserts that when the Department receives a call for any type of emergency, the dispatcher on duty is responsible for signing in members who respond to the emergency. (Fotopolous Aff. ¶ 32.) In addition, to fulfill the LOSAP obligations, a volunteer firefighter only needs 25 points each year, which are accumulated through a variety of activities.[3] ( Id. ¶ 35.) Plaintiff claims that he met his LOSAP requirements just from attending trainings, meetings, events and his positions as Captain and Secretary. ( Id. ¶ 37.) According to Plaintiff, even without the twenty calls that Defendants accuse him of improperly signing in for, he had in excess of the 25 points he needed for LOSAP. ( Id. ¶ 38.) He had no motive to fraudulently sign himself in for calls, and denies doing so. ( Id. ¶ ¶ 30, 38.) Plaintiff also argues that " manual sign in can be performed

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by anyone who has access to the software program on any computer in any of the four Fire Stations." ( Id. ¶ 33.) The disputed calls that he allegedly signed himself in for were manually inputted, and could have been orchestrated by Korona and Lang in order to get rid of Plaintiff because he did not support their " political endeavors." ( Id. ¶ 39.)

Following Plaintiff's resignation, Flahavan took over Plaintiff's position as Captain of Company 8, and Wicks and Hirtzel, the individuals accused in the 2009 assault of Lentini, were reassigned to the ...

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