United States District Court, N.D. New York
MICHAEL DAVIDOFF, ESQ., DREW, DAVIDOFF & EDWARDS LAW OFFICES, LLP., Monticello, New York, Attorneys for Plaintiff.
ROBERT N. ISSEKS, ESQ., ROBERT N. ISSEKS, OFFICE OF LAW, Middletown, New York, Attorney for Plaintiff.
ADAM L. RODD, ESQ., STEPHEN J. GABA, ESQ., DRAKE, LOEB, HELLER, KENNEDY. GOGERTY, GABA & RODD, PLLC, New Windsor, New York, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
On February 8, 2012, Plaintiff commenced this suit pursuant to 42 U.S.C. § 1983 alleging that Defendants retaliated against him in violation of his "First Amendment rights to free political speech and association." Dkt. No. 1 at ¶ 28. Currently before the Court is Defendants' motion for summary judgment. See Dkt. No. 29.
The Town of Denning is a municipality located in the County of Ulster, in the State of New York. See Dkt. No. 31 at ¶ 1. Plaintiff Albert Mues served as the Recycling Manager (Solid Waste Attendant) for the Town from 2004 to January 3, 2012. See id. at ¶ 2. Plaintiff's position of Recycling Manager was a part-time position, requiring Plaintiff to work twelve (12) hours per week during the fall, spring and winter seasons, and fourteen (14) hours per week during the summer season. See id. at ¶ 3.
The Town of Denning Town Board consists of one (1) supervisor and four (4) councilmen. See id. at ¶ 4. All actions of the Town Board required (and still require) the affirmative vote of a majority of all the members of the Town Board pursuant to Town Law § 63. See id. at ¶ 5. During the relevant 2011 to 2012 time period, the four Town Councilmen were Defendants Andrew Dean, David Brooks, Paul Schoonmaker and Kevin Smith. See id. at ¶ 6. Defendant Robert Bruning served as a Town Councilman from 2002 to 2004, and then as the Town Supervisor from 2004 to the present. See id. at ¶ 7. During the eight (8) year period of time that he served as Recycling Manager, Plaintiff, a Democrat, and Defendant Bruning, a Republican, would regularly converse about politics, and would frequently engage in heated discussions about political issues. See id. at ¶¶ 8-9. Defendants Dean, Brooks, Schoonmaker and Smith are all Republicans. See id. at ¶¶ 10-17.
Defendants contend that, during the time that Plaintiff served as Recycling Manager, the position of Recycling Manager was the only non-appointed position in the Town paid for out of the Town's General Fund. See Dkt. No. 29-12 at ¶ 18. Moreover, Defendants claim that on August 22, 2011, Defendant Bruning called the New York Association of Towns for guidance as to whether it was appropriate to maintain the Recycling Manager's position as the only non-appointed position paid for out of the Town's General Fund. See id. at ¶ 21. Defendants claim that a representative from the New York Association of Towns advised Defendant Bruning that the position should be changed to an appointed position. See id. at ¶ 22. On November 9, 2011, the Town Board enacted Resolution No. 43 of 2011 to redefine the position of Town Recycling Manager as an appointed position. See Dkt. No. 31 at ¶ 23.
On August 25, 2011, in anticipation of the then upcoming local elections, Plaintiff sent an email to about thirty-two (32) recipients, copied to Defendant Bruning, regarding the upcoming caucus. The email read as follows:
Fellow Democrats and perhaps a few not,
The election for Town Supervisor is rapidly approaching (Nov. 8, 2011). It appears that the Democratic party in the Town of Denning has no candidate for Town Supervisor.
There must be someone who can run for the position for the simple reason that if the current supervisor, Bill Bruning, runs unopposed, then the Town of Denning appears to all to be deeply flawed. No matter what the office, no one should run unopposed. It is un-American and unhealthy for the collective psyche of our town. It doesn't matter that Bill gets elected. He is a very good fiscal manager, and over all, a good Town Supervisor. If someone runs against him, then and only then, will we have autonomy. You don't have to want to be town supervisor to run. Just to be part of a fair playing field. Please consider throwing your hat in the ring. See the announcement attached, FYI. Pass it on to other Dems you know. peace and light, ed mues
Dkt. No. 1-3 at 1-2. Attached to this August 25, 2011 email were copies of announcements that had been published in the local press alerting the public to the upcoming Town of Denning Democratic Caucus and calling for all prospective candidates seeking the nomination of the local Democratic Party to contact the Party Chairman. See id. at 3. On August 31, 2011, Defendant Bruning spoke to Plaintiff to express that he had taken offense to Plaintiff's email. See Dkt. No. 31 at ¶ 25.
On September 12, 2011, the Town of Denning Democratic Caucus was held and attended by Defendant Bruning and Plaintiff. See id. at ¶¶ 27-29. At the caucus, Defendant Bruning was nominated by the Democratic Chairman to run for Town Supervisor under the Democratic line. See id. at ¶ 29.
In the Fall of 2011, Defendant Bruning advised Plaintiff that there was a problem with garbage being thrown into the dumpsters at the Recycling Facility. See id. at ¶ 40. In response to Defendant Bruning's complaint, Plaintiff advised Defendant Bruning that he could not watch everyone because "it's a big facility." Id. at ¶ 41. Plaintiff admitted that one of his job responsibilities as Recycling Manager was to make sure that only appropriate material is placed into the dumpsters at the Recycling Facility. See id. at ¶ 42. Defendants also claim that, in the Fall of 2011, Defendant Dean smelled alcohol on Plaintiff's breath when he visited Plaintiff during the early morning hours at the Recycling Facility. See Dkt. No. 29-12 at ¶ 46. Further, Defendant Bruning claims that a town resident, Gordon Eck, advised him that he also smelled alcohol on Plaintiff's breath while Plaintiff was working at the Recycling Facility. See id. at ¶ 47. The possession or use of alcohol on Town property is a violation of Town policy as set forth in the Town's Employee Handbook. See Dkt. No. 31 at ¶ 48.
In December of 2010, Plaintiff injured his back while moving portable stairs at the Recycling Facility. See id. at ¶ 49. On January 3, 2011, Plaintiff was cleared to return to work by his treating provider, at "full duty without restrictions." Id. at ¶ 50. Defendants claim that, "[a]lthough cleared to return to work at full duty without restrictions, ' Supervisor Bruning observed that the plaintiff would not move the portable stairs accessing the recycling dumpsters for use by Town residents - as he was required to do for his job." Dkt. No. 29-12 at ¶ 51. Plaintiff complained many times to the Town Board members about how difficult it was to move the stairs to the recycling bins, which was one of his job responsibilities. See Dkt. No. 31 at ¶ 52. Plaintiff also complained to Defendant Bruning that his inability to move the steps interfered with his ability to clean the area in between the recycling dumpsters. See id. at ¶ 53. Due to Plaintiff's inability to move the stairs at the Recycling Facility, Defendant Bruning had to assist Plaintiff with this task. See id. at ¶ 55. Defendants also claim that Plaintiff's injury prevented him from shoveling snow at the Recycling Facility. See id. at ¶ 57.
Also, in either May or June of 2011, Defendant Bruning asked Plaintiff to scrape and paint the bottom of the garage doors at the Recycling Facility. See id. at ¶ 60. Since there were only four (4) garage doors at the Recycling Facility, Defendant Bruning believed that the task to scrape and paint the garage doors should have taken only a few days to complete. See Dkt. No. 29-12 at ¶ 61; Dkt. No. 31 at ¶ 61. Defendants contend that, as of July and August 2011, Plaintiff had not completed scraping and painting the garage doors and Plaintiff admits that it took him "several months" to complete this task. See id. at ¶¶ 62-63. Defendant Bruning reprimanded Plaintiff "for his poor job performance in taking too long to complete the painting of the garage doors at the Recycling Facility." Dkt. No. 31 at ¶ 64. Plaintiff took offense to the reprimand and believed that Defendant Bruning unfairly assessed his job performance. See id. at ¶ 65.
Additionally, Plaintiff admitted to removing materials dropped off at the Recycling Facility to his house, and then selling the materials on E-Bay for his own personal profit. See id. at ¶ 67. Plaintiff believed that it was proper to keep the money he received from this activity. See id. at ¶ 68. Defendant Bruning reprimanded Plaintiff for this conduct. See id. at ¶ 70.
During his deposition, Plaintiff also admitted that, during the hours he was supposed to be working, he campaigned for others who were running for office. See id. at ¶ 81. Plaintiff was warned by Defendant Bruning that he should not participate in political campaigning during the hours he was supposed to be working. See id.
On January 3, 2012, during an organization meeting, the Town Board was presented with a motion to vote on Resolution No. 18 of 2012. Resolution No. 18 was to appoint Plaintiff to the position of Recycling Manager. Defendant Bruning, however, made a request to table the vote on Resolution No. 18, and it was never adopted or voted upon by the Town Board. Later at the meeting, Defendant Bruning introduced before the Town Board Resolution No. 23 of 2012 to appoint Scott Mickelson to the position of Recycling Manager, which was passed unanimously. See Dkt. No. 31 at ¶¶ 86, 88.
Defendants contend that Scott Mickelson was selected instead of Plaintiff "based upon their knowledge of the plaintiff's job deficiencies, and their belief that the Town would be better served by having the Town's Recycling Facility staffed by Mr. Mickelson." Dkt. No. 29-12 at ¶ 88. Plaintiff, however, contends that Defendants' actions were in response to his political activities. In support of his claim, Plaintiff provided a transcript of a recording, as well as the recording itself, from a February 2012 Town Board meeting, at which a petition was read into the record asking that the Town rehire Plaintiff. See Dkt. No. 32-1. After the petition was read into the record, the following discussion took place:
ROBERT BRUNING: Okay. I do have a few things to say and this is probably the first opportunity that I have had to tell my side of the story. I have heard all kinds of stories around town, all kinds of things that are not true, that didn't happen. I am going all the way back to September. I got an email forwarded to me from a person in town, an email that Ed Mues had mailed out to a very large distribution soliciting candidates to run against me for Town Supervisor. I think what bothers me most in the email and I'll quote the email "even if you don't want the job, throw your hat in the ring." Now to me that just makes is sound like the Town Supervisor's job is a big joke. Throw your hat in the ring. Even if you don't want to do it, throw your hat in the ring. I'll tell you, I was mad when I read that email. I wouldn't have gotten that email except that he didn't realize that some of the people he had on the distribution were Republicans.
I got the email and I was mad. I went up and I met with Ed. I told him "I thought you were not only an employee, I thought you were a friend. Why are you doing this?" He said "Well, I think everybody should have a choice." "Okay, fine Ed" I said, "but why would you want people or encourage people who don't even want the job to throw their hat in the ring." That is insulting to me and I took as an insult, an absolutely personal insult. I always thought of Ed as a friend. I've bent over backwards for Ed Mues to make his job easier. I personally bought his TV for his shed. I went up there early mornings to fix his electric because it wasn't working. I've bent over backwards for Ed Mues and I thought he was a friend and as far as I'm concerned friends don't do that kind of stuff to friends.
In the interest of him being a Democrat and me being a Republic, that's what this is all about. Okay, fine. I told him at that point, I said "Ed, why don't you do yourself a favor and just stay out of politics. Stay here, do your job. You do a good job here, just do your job and stay out of politics. Okay? Because you're gonna get yourself in trouble." And he said, well I forget what he said. I said "you have to understand, Ed. You know who appointed you to this job?" No, I take that back. I said "Do you know who you work for?" and he said "I work for the people." I said "you know who appoints you to work for the people" and he said "you do." "You know who can unappoint you. So by attacking me in your emails, that was a personal attack as far as I'm concerned. Don't be attacking me in your emails." I told him "Ed, stay out of politics. This is not a job who should be involved in politics so just stay out of it. Okay?"
So things were going fine and then suddenly I start getting this, this, this junk in the mail. All of which is either untrue, misleading, false. Every bit of this stuff. I know that Ed Mues was part of the group that created this stuff, that published it, sent it to every taxpayer. Ed Mues is part of this group. Now, so here you have a man that this is what he thinks of the Town Board, that the Town Board is basically not doing the job. You can say all you want, what he said, he can say what he wants, but then when you send it out to every taxpayer in the town that says that the Town Board is not doing its job - because that's what this says - the Town Board is not doing the job, and he was part of it. He was one of the primary people who created the group that created this stuff, and I know that. So I said this is my opinion. The Town Board will give out her opinion when I'm done.
Nothing seemed to... for the purposes of campaigning for his candidates, because he nominated these candidates, these were his candidates, it just doesn't seem to me that as a Town employee working at a job for the Town appointed by the Town in a position where he has a captive audience. He has total access to the entire town population. If this the way he feels about the Town Board and he is going to publish this about the Town Board, why in the world would the Town Board then say "Oh, yeah, we love you there Ed. We'll appoint you for another year." So he continued to spread this stuff. No, I don't work that way. You know the old expression "you don't bite the hand that feeds you." And that's what he's done. It wasn't only the Town Board that was mad about this stuff, there were a lot of people in town who were mad about it because they knew it was crap.
SPEAKER 1: This is not connected directly to Ed - you can't say these fliers are connected to Ed Mues.
BRUNING: Oh, yes I can.
SPEAKER 1: How can you say that? How can you prove that? I know for a fact that Ed didn't write those ...