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Barella v. Village of Freeport

United States District Court, E.D. New York

April 26, 2014

VILLAGE OF FREEPORT and ANDREW HARDWICK, as both Mayor and in his individual capacity, Defendants

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For the Plaintiff: Amanda M. Fugazy, Esq., Adam C. Weiss, Esq., Of Counsel, Fugazy & Rooney LLP, Glen Cove, NY.

For the Defendant Village of Freeport: Keith M. Corbett, Esq., Of Counsel, Harris Beach PLLC, The Omni, Uniondale, New York.

For the Defendant Andrew Hardwick: Kenneth A. Novikoff, Esq. Tamika N. Hardy, Esq., Of Counsel, Rivkin Radler, LLP, Uniondale, NY.

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ARTHUR D. SPATT, United States District Judge.

On January 25, 2012, the Plaintiff Christopher Barella (the " Plaintiff" ) commenced this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 2000e et seq., 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the New York State

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Human Rights Law, Executive Law § 290, et seq. (" NYSHR" ). The complaint alleges that the Village of Freeport (the " Village" ) and its former Mayor, Andrew Hardwick (" Hardwick" ), failed to promote the Plaintiff to the position of Chief of Police, or another position within the Village Police Department, on the basis of his race/color and national origin. The Plaintiff also asserts that, during Hardwick's four years as Mayor of the Village, he systematically hired and promoted less qualified and less experienced African-American and Hispanic employees over more qualified and more experienced Non-Hispanic White employees.

On November 5, 2012, the Plaintiff filed an amended complaint.

By letter dated December 24, 2013, the Plaintiff withdrew his Title VII claims against Hardwick.

On February 10, 2014, the Court marked this case ready for trial. Jury selection is scheduled for Wednesday, April 30, 2014 at 9:00 a.m.

On March 10, 2014, Hardwick moved pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 56(a) for summary judgment dismissing the amended complaint as against him in his individual capacity. That same day, the Village moved separately pursuant to Fed.R.Civ.P. 12(b)(1) dismissing the Plaintiff's state law claims against it for lack of subject matter jurisdiction and pursuant to Fed.R.Civ.P. 56(a) for summary judgment dismissing the amended complaint against it. Both motions are opposed.

For the reasons set forth herein, the motions for summary judgment are granted in part and denied in part.

Also pending before the Court are several recently-filed motions in limine and a motion to squash a subpoena by the parties. As these motions have not been fully briefed, the Court reserves decision as to them. To the extent the Court addresses issues raised in those motions in limine, it does so only for purposes of these summary judgment motions.


Unless stated otherwise, the following facts are drawn from the parties Rule 56.1 statements and construed in a light most favorable to the non-moving party, the Plaintiff. Triable issues of fact are noted.

The Plaintiff, a White Non-Hispanic male born in the United States, is currently employed by the Village of Freeport Police Department (the " VFPD" ) as a Lieutenant. The Plaintiff began his employment with the VFPD in October of 1990 as a Police Officer. During his career with the VFPD, the Plaintiff was promoted to the civil service ranks of Sergeant on August 30, 2002 and to Lieutenant on May 11, 2007.

The Plaintiff earned a bachelor's degree in 1990 and a Master's degree in Public Administration in 1993. In addition, the Plaintiff earned a law degree in 1999, and is admitted to the New York State bar.

The Village is a municipal corporation. Hardwick, an African-American, was the Mayor of the Village from April 2009 through April 2013.

The three highest-ranking positions in the VFPD, in ascending order, are Deputy Chief; Assistant Chief; and Chief of Police. These positions are collectively known as the " Command Staff."

The position of the Chief of Police is a civil service title and, therefore, eligibility for promotion to that position is governed by the New York State Civil Service Law. By contrast, the positions of Deputy Chief and Assistant Chief are non-civil service positions.

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There is no requirement that an individual attain the positions of Deputy Chief and/or Assistant Chief prior to becoming the Chief of Police. Nor is there a time in rank requirement for the positions of Deputy Chief and Assistant Chief. Similarly, there is no requirement that an officer have a college degree of any kind to be appointed to the positions of Deputy Chief; Assistant Chief; or Chief of Police of the VFPD.

According to the New York Civil Service Law, an individual is eligible for appointment to the position of the Chief of Police of the VFPD when he/she has: (1) served as Lieutenant for four years or a Captain for two years; (2) passed a promotional examination; and (3) attained one of the three highest scores on that examination. The three highest scoring candidates on the Chief of Police promotional exam are equally eligible to be promoted. There are no other requirements that an officer must satisfy to be eligible for promotion to the position of the Chief of Police.

In the Village, the Mayor is the appointing authority, although it appears that any appointments are subject to the approval by the non-party Village Board of Trustees.

When Hardwick took office in April 2009, Lieutenant Debbie Zagaja (" Zagaja" ) was the Deputy Chief; Lieutenant Al Gros (" Gros" ) was the Assistant Chief; and Michael Woodward (" Woodward" ) was the Chief of Police. All three individuals are Non-Hispanic Whites.

According to the Plaintiff, one of Hardwick's primary goal upon taking office was aimed at hiring and promoting African-Americans and Hispanics rather than Non-Hispanic Whites, regardless of merit. The Plaintiff asserts, to that end, the Hardwick systematically terminated and demoted qualified, experienced Non-Hispanic White employees, and replaced them with less qualified and less experienced Hispanic and African-American employees.

For example, Hardwick allegedly demoted Lou DiGrazia, a Non-Hispanic White Superintendent of the Village Department of Public Works, and replaced him with Scott Richardson, an African-American, who had less qualifications and experience. The Plaintiff also points to the hiring of Donovan Gordon, an African-American lobbyist, for a newly created position, although neither Gordon, nor his company, were licensed lobbyists in New York. Hardwick also allegedly replaced Ray Straub, the Non-Hispanic White Executive Director of Human Resources, with Daihana Torres, an " unqualified" Hispanic and then, Stafford Byers, an African-American " suspended" attorney. Hardwick also allegedly fired Bernadine Quinton, a Non-Hispanic White Tax Assessor, and replaced her with James Smith, an African-American with no training in that field.

Further, the Plaintiff cites Village statistics which show that from April 2009 to April 2013 -- Hardwick's tenure as mayor -- African-Americans and Hispanics constituted 96% (191 of 198) of seasonal hires and 96% (23 of 24) of those re-hired for positions in the Village. At the same time, more than 90% of the Department heads who retired, resigned, or were not reappointed were White persons.

The Plaintiff contends that these statistics take on added significance in light of the racial composition of the Village and its neighboring areas as well as applicable workforce figures. In particular, according to 2010 census data, White persons constituted 40.5% of the Village's population and 68.3% of the Town of Hempstead, in which the Village is situated. Of the eligible labor force in Nassau County,

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White persons constituted 66.1% of eligible workers, while African-Americans totaled 11% and Hispanics 14.5%.

As a general matter, the Defendants do not dispute these statistics, but rather contend that they are irrelevant to the issue in this case, namely whether Hardwick and the Village discriminated against the Plaintiff in failing to promote him to the Command Staff.

The Plaintiff contends that, in furtherance of Hardwick's race-based agenda, Hardwick set his sights on altering the racial makeup of the Command Staff. On the other hand, the Defendants contend that Hardwick desired to make changes to the Command Staff because the cost of the combined salaries and benefits of Zagaja, Gros, and Woodward -- approximately $1,000,000 annually -- was unsustainable for the Village. Hardwick also believed that the VFPD should become more community-oriented and that an effort should be made to improve the residents' opinions about the VFPD. Finally, Hardwick believed that certain problems needed to be addressed in order to accomplish these goals, including, but not limited to, resolving crime at the local train station and putting an end to loitering; littering; graffiti; and public urination.

At some point, Hardwick initiated discussions for a retirement package with Woodward, which he ultimately accepted. The Plaintiff contends that Woodward did so unwillingly.

Hardwick also decided not to renew the contracts of Gros and Zagaja when they expired. After the expiration of their respective contracts, Gros and Zagaja could each continue with the VFPD in their civil service title of Lieutenant if he or she chose. However, rather than continuing as a Lieutenant, Gros retired.

The Plaintiff asserts that, at some time in 2009, Hardwick approached Lieutenant Miguel Bermudez (" Bermudez" ) about a Command Staff position. Hardwick and Bermudez had known each other for approximately 25 to 30 years at the time Hardwick was elected mayor. They met through their membership in the Freeport Fire Department (" FFD" ) and were friends. Based on this history and relationship, Hardwick trusted Bermudez. On the other hand, before Hardwick was elected mayor, he and the Plaintiff did not know each other.

The Plaintiff describes Bermudez as a " Cuban-born, Hispanic" while the Defendants describe him as a " white latino male."

Bermudez, who does not have a college degree, joined the VFPD as a Police Officer in 1986, four years before the Plaintiff joined in 1990. Also, Bermudez was promoted to Sergeant in February 1993, approximately nine years before the Plaintiff was promoted to Sergeant in August 2002.

Bermudez served as an Administrative Sergeant under former Chief Woodward. In that capacity, he performed administrative duties for the Command Staff.

Beginning in or around October 2009, Hardwick referred to Bermudez as the " Chief" and granted him a department cell phone, a benefit typically reserved for Command Staff personnel. The Plaintiff also asserts that, prior to Bermudez's promotion to the Command Staff, Bermudez was included on Command Staff emails and other Command Staff activities.

On January 28, 2010, the Nassau County Civil Service Commission (" NCCSC" ) announced that a promotional examination for the position of Chief of Police of the VFPD would be held on March 6, 2010. To be eligible for the Chief of Police examination, Civil Service Law required a minimum

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of four years of experience in the prior rank (i.e. Lieutenant or higher) or two or more years as a Captain. At that time, in the VFPD, the only three individuals who satisfied that experience prerequisite were Non-Hispanic White individuals.

Indeed, as of March 2010, the Plaintiff was not eligible to sit for the Chief of Police examination or to be promoted to the position of the Chief of the Police because he had not been a Lieutenant for at least four years. For the same reason, as of March 2010, Lieutenant Ed Thompson (" Thompson" ) and Bermudez were ineligible to sit for the Chief of Police examination or to be promoted to that position.

In late February 2010, Hardwick supported a bill introduced before the New York State Assembly that would have given him wider hiring discretion and allowed him to bypass the stated requirements for the Chief of Police examination. While the bill was pending, Hardwick filed a lawsuit against the NCCSC in an attempt to prevent the Chief of Police examination from being administered and/or graded. Ultimately, on March 6, 2010, the Village participated in the Chief of Police examination, but permitted all Lieutenants to participate, regardless of their time in the rank. Utlimately, Zagaja, Paul Jurgens (" Jurgens" ), Wayne Giglio (" Giglio), Thompson, Bermudez, and the Plaintiff sat for the Chief of Police examination.

The Plaintiff received the highest score; Giglio, a Non-Hispanic White lieutenant received the second highest score; and Bermudez received the third highest score.

In or about April 2010, Hardwick recommended to the Board of Trustees of the Village that Bermudez be appointed the Deputy Chief. The Board unanimously ratified this appointment. The Plaintiff was not interviewed for this position.

On or about April 6, 2010, the Village and Bermudez entered into an employment contract which provided that Bermudez would serve as the Deputy Chief until Gros's retirement became effective on July 1, 2010, at which ...

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