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Croft v. Village of Newark

United States District Court, W.D. New York

August 5, 2014


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[Copyrighted Material Omitted]

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For William Croft, Plaintiff: Jon P. Getz, LEAD ATTORNEY, Muldoon and Getz, Rochester, NY.

For Village of Newark, Chief of Police David Christler, Individual Capacity, Defendants: Michael P. McClaren, LEAD ATTORNEY, Kevin T. O'Brien, Webster Szanyi, LLP, Buffalo, NY.

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ELIZABETH A. WOLFORD, United States District Judge.


Plaintiff William Croft (" Officer Croft" or " Plaintiff" ), a patrolman with defendant the Village of Newark Police Department (the " NPD" ), sued Defendants alleging that he was denied promotions and other employment-related benefits as a result of his service in the National Guard, and retaliated against for asserting his legal rights, all in violation of the Uniformed Services Employment and Reemployment Rights Act (" USERRA" ), 38 U.S.C. § § 4301 et seq.

Defendants have filed a motion seeking summary judgment pursuant to Fed.R.Civ.P. 56 on the following grounds: (1) the NPD is an administrative arm of a municipality and is not subject to suit; (2) neither defendant Chief of Police David Christler (" Chief Christler" ) nor the NPD are employers under USERRA; (3) the claims against Chief Christler in his official capacity are redundant and an inefficient use of judicial resources; (4) Officer Croft cannot prove a USERRA violation by a preponderance of the evidence; and (5) Defendants can affirmatively establish that they would have made the same decisions regardless of Officer Croft's military status. (Dkt. 42-13). Officer Croft concedes that the NPD should be dismissed from the action but otherwise opposes the motion. (Dkt. 45-1). For the reasons set forth below, Defendants' motion is granted in part and denied in part.


Officer Croft was hired by defendant the Village of Newark to work as a patrol officer in July 2006. (Dkt. 42-14 at ¶ 13; Dkt. 45-2 at ¶ 2). His start date was August 8, 2006. (Dkt. 45-2 at ¶ 2). He was laterally transferred from the Lyons Police Department, having served as a police officer since 1994. ( Id. at ¶ 3).

Officer Croft also holds the rank of Major in the United States Armed Forces as a member of the National Guard. ( Id. at ¶ 8). He previously served in the United States Army from November 1990 until February 1993. ( Id. at ¶ 9). He was commissioned as an officer in 1998. ( Id. at ¶ 9). His deployments include Operation Iraqi Freedom from February 2003 until May 2004, and Afghanistan from January 2010 until December 2010. ( Id. at ¶ 11). Officer Croft submits that as a commissioned officer, he is under an obligation to obey all lawful orders of the National Guard, including any and all deployment orders. ( Id. at ¶ 13).

At the time Officer Croft was hired, Richard Bogan was chief of the NPD. (Dkt. 42-9 at 7:2-8). Officer Croft claims that Chief Bogan was aware of Officer Croft's military obligations. (Dkt. 45-2 at ¶ 14). Officer Croft further alleges that he was asked " several questions" about his military service during his initial job interview, including the timing of any potential deployments. ( Id. at ¶ 15).

In approximately May 2006, shortly before Officer Croft was hired by the NPD, the Village of Newark Board of Trustees (the " Village Board" ) decided to expand the number of sergeants in the NPD from four to five. (Dkt. 42-9 at 10:22-11:12). Chief Bogan did not support this action and wanted to maintain the number of sergeants at four. ( Id. at 11:13-24). Despite Chief Bogan's recommendation, the Village Board provisionally appointed

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James Thompson and Jay Warren as sergeants. ( Id. at 10:12-12:9).

Officer Croft took a civil service exam in June 2007 for the open sergeant positions to which James Thompson and Jay Warren had been provisionally appointed. (Dkt. 42-8 at 31:3-5; Dkt. 42-9 at ¶ 15). Officer Croft scored an 81 on the exam and was first on the list of individuals who were eligible for the positions (i.e., the " Certificate of Eligibles" ). (Dkt. 42-8 at 33:13-20). James Thompson and Jay Warren, who had been provisionally appointed as sergeants before Officer Croft became employed by the NPD, ranked number two and three on the Certificate of Eligibles with scores of 76 and 74, respectively. (Dkt. 42-10 at 9; Dkt. 45-2 at ¶ 28). The sergeant exam results were released in August 2007. (Dkt. 42-10 at 9; Dkt. 45-2 at ¶ 21). At or about the same time, Officer Croft was out of the region for two weeks attending a mandatory military school. (Dkt. 42-10 at 27; Dkt. 45-2 at ¶ 23).

Officer Croft believes that he was the most qualified for the open sergeant positions based on his score on the civil service exam and the combination of his training, experience, and education. (Dkt. 45-2 at ¶ 25). Despite this, he was not interviewed for the open positions. ( Id. at ¶ 36). Instead, the Village Board permanently appointed James Thompson and Jay Warren as sergeants in August 2007. (Dkt. 42-14 at ¶ 19; Dkt. 45-2 at ¶ 28). Chief Bogan testified that he felt that individuals who were provisionally appointed to a position and who were reachable on the " Certificate of Eligibles" should be permanently appointed to the positions in order to prevent the NPD from looking indecisive. (Dkt. 42-9 at 13:24-14:18, 15:9-19).

Also in August 2007, an investigator position opened up at the NPD. (Dkt. 42-14 at ¶ 20; Dkt. 45-2 at ¶ 22). Jay Warren was provisionally promoted to investigator. (Dkt. 42-14 at ¶ 20; Dkt. 45-2 at ¶ 29). Chief Bogan testified that he recommended Sergeant Warren for the provisional appointment because Sergeant Warren was " exceptionally qualified for the position." (Dkt. 42-9 at 23:9-24:17).

From January 2008 until March 2008, Officer Croft was ordered to service as an instructor at the Officer Candidate School at Fort McClellan, Alabama, and as a result, he was away from the NPD during this time period. (Dkt. 42-10 at 29; Dkt. 45-2 at ¶ 32). After his return, Officer Croft took a civil service examination for the open investigator position in June 2008. (Dkt. 42-14 at ¶ 30; Dkt. 45-2 at ¶ 32). He again placed first on the Certificate of Eligibles. (Dkt. 42-10 at 11; Dkt. 45-2 at ¶ 32). Nevertheless, he was not interviewed for the investigator position. (Dkt. 45-2 at ¶ 34). Instead, Jay Warren was permanently promoted to the position of investigator in August 2008. (Dkt. 42-14 at ¶ 32; Dkt. 45-2 at ¶ 34). This allegedly occurred despite the fact that Officer Croft had more time working as a police officer, greater seniority in law enforcement, and more experience outside of law enforcement. (Dkt. 45-2 at ¶ 34).

In August 2008, after the provisional appointment of Jay Warren as investigator but before he was permanently appointed, Chief Christler became chief of the NPD. (Dkt. 42-9 at 24:18-24; Dkt 42-11 at ¶ 1). Chief Christler formerly served in the United States Army, reaching the rank of sergeant. (Dkt. 42-7 at 27:6-11).

Officer Croft claims he was ordered to serve active military duty as an instructor at Officer Candidate School from June

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2008 until September 28, 2008.[1] (Dkt. 45-2 at ¶ 35). Beginning October 1, 2008, he served a tour of duty at the Syracuse Military Entrance Processing Point. (Dkt. 42-10 at 41; Dkt. 45-2 at ¶ 36).

In August 2008,[2] Officer Croft spoke to Chief Christler and asked him when his interview for the open investigator position would be scheduled. (Dkt. 45-2 at ¶ 27). Chief Christler claims that during this conversation, Officer Croft told him that he " wouldn't go on military leave" if Chief Christler would make him an investigator. (Dkt. 42-7 at 29:8-12). Officer Croft disputes this as " nonsense," stating that he is a commissioned officer who is obligated to follow the orders he is given, that his deployments have all been at great personal and professional cost, and that he does not control his orders from the National Guard. (Dkt. 45-2 at ¶ 95). Officer Croft further alleges that Chief Christler told him during the August 2008 conversation that " in 32 years with the [s]tate [p]olice, [Chief Christler] never knew anyone who had ranked in the Guard and Reserve and in the [p]olice [d]epartment." ( Id. at ¶ 37). Officer Croft understood this statement to mean that Chief Christler believed that Officer Croft could not be a good leader in the NPD because he was a commissioned officer in the National Guard. ( Id. at ¶ 38).

Chief Christler created a memo to file dated August 15, 2008, purportedly memorializing his conversation with Officer Croft. (Dkt. 42-11 at 12). The memo indicated that Officer Croft, who at that time was on active duty with the National Guard, had expressed an interest in serving either as a sergeant or an investigator and had further stated that he would " come back to work" at the NPD if he was promoted to sergeant or investigator, but that he would otherwise concentrate his efforts on the National Guard. ( Id. ). Chief Christler's memo stated that he explained to Officer Croft that it was " difficult to excel in two very demanding jobs," and that most troopers Chief Christler had known who advanced in rank in the National Guard had not excelled in the state police. ( Id. ). At his deposition, Chief Christler reiterated his belief that " those that excelled very high in the military and Reserves and Guard" were " unable to do that and policing" because " policing is very demanding." (Dkt. 42-7 at 29:2-7).

While deployed in late September or early October 2008, Officer Croft alleges he spoke to his union president, Aaron Dean, to discuss his willingness to work shifts for the NPD when available because the NPD was low on manpower. (Dkt. 45-2 at ¶ 39). Mr. Dean purportedly told Officer Croft that he should not bother making this offer because " the Mayor had said 'the Village didn't want anything to do with anything with [Officer Croft's] name on it.'" (Dkt. 45-2 at ¶ 40).

Chief Christler further allegedly told Officer Croft during a conversation in October 2008, that he " wasn't the Board's favorite child right now." ( Id. at ¶ 42). Chief Christler made a memo to file regarding this conversation in which he claimed that Officer Croft had complained

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about not being promoted to investigator and had tried to " intimidate" Chief Christler by stating that if the Village of Newark was found to have not promoted him due to his service in the National Guard, it could be fined up to $250,000. (Dkt. 42-11 at 45).

In November 2008, Officer Croft was served with a grand jury subpoena related to a case he had worked on at the NPD. (Dkt. 42-11 at ¶ 12; Dkt. 45-2 at ¶ 48). He asked to be compensated for this time and Chief Christler initially refused his request. He was later paid after enlisting support from his union. (Dkt. 42-14 at ¶ 37; Dkt. 45-2 at ¶ 48).

In December 2008, Officer Croft requested, pursuant to his union contract, that the Village pay for him to attend Penn State World Campus to obtain a bachelor's degree in criminal justice. (Dkt. 45-2 at ¶ ¶ 49-50). Officer Croft submits that Chief Christler denied this request and claimed that he had never received it. ( Id. at ¶ 51). Officer Croft further contends that his request was denied in part because he was on military leave at the time. ( Id. at ¶ 52). Officer Croft again had his union intervene. The Village of Newark eventually agreed to pay the tuition (Dkt. 42-11 at ¶ 17), but by that time Officer Croft claims that his personal and professional circumstances had changed and he was no longer in a position to attend. (Dkt. 45-2 at ¶ 53). It is undisputed that NPD Officer Kenneth Davis, who has no military experience, submitted a request for tuition reimbursement to seek his Master's degree at Keuka College at or about the same time Officer Croft submitted his request. (Dkt. 42-11 at ¶ 14; Dkt. 45-3 at 60:10-18). The Village Board denied Officer Davis's request, and Officer Croft and Officer Davis grieved the denial of their requests together. (Dkt. 42-11 at ¶ ¶ 14, 17; Dkt. 45-3 at 59:6-11, 60:10-61:7).

In March 2009, the Village of Newark posted a vacancy for a school resource officer (" SRO" ) position. (Dkt. 42-14 at ¶ 39; Dkt. 45-2 at ¶ 54). Officer Croft was purportedly the only applicant for the position. (Dkt. 45-2 at ¶ 56). Chief Christler allegedly went to at least two other officers in the department and specifically asked them to apply for this position. ( Id. at ¶ 57). Chief Christler also allegedly told Investigator Gary Verstreet that he had decided to repost the position because he questioned Officer Croft's commitment due to his military obligations. ( Id. at ¶ 63; Dkt. 45-3 at 83:2-9). Chief Christler states that the position was reposted because the initial posting did not contain information regarding the schedule for the SRO position. (Dkt. 42-11 at ¶ 21). Chief Christler reposted the SRO position on May 21, 2009. ( Id. ). Officer Croft claims that Chief Christler again tried to recruit other officers to apply for the SRO position. (Dkt. 45-2 at ¶ 67). Officer Croft reapplied for the SRO position and no other officers applied. ( Id. at ¶ 68). Officer Croft was ultimately appointed as the SRO. (Dkt. 42-11 at ¶ 22; Dkt. 45-2 at ¶ 68).

Also in 2009, two sergeant positions opened up at the NPD. (Dkt. 42-11 at ¶ 23; Dkt. 45-2 at ¶ 73). Officer Croft took a civil service exam and was third on the Certificate of Eligibles. (Dkt. 45-2 at ¶ ¶ 71-72). He was interviewed for a sergeant position but was not offered the promotion. Instead, Officers Kenneth Davis and Michael Patton were made sergeants in November and December 2009, respectively. (Dkt. 42-10 at ¶ 11). Officer Croft claims that Chief Christler told him that he was not promoted because he " [hadn't] really been [there]" and " [wasn't] around enough" and that " [t]he only place [Officer Croft] had been was military duty." ( Id. at ¶ 75; Dkt 45-3 at 73:3-11).

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Defendants claim that Officer Croft was not promoted because he was third on the Certificate of Eligibles. (Dkt. 42-14 at ¶ 46).

At some point in late 2010 (while Officer Croft was on military leave and deployed in Afghanistan), the SRO position was eliminated. (Dkt. 42-8 at 45:5-18). Defendants claim this was due to budgetary reasons (Dkt. 42-14 at ¶ 58), while Officer Croft contends that the position was mostly funded by other entities. (Dkt. 45-2 at ¶ ¶ 93-94).

Plaintiff commenced this lawsuit on November 10, 2009. (Dkt. 1). Defendants answered the complaint on January 8, 2010. (Dkt. 2). As of September 13, 2013, the parties had completed all discovery except expert discovery related to economic loss. (Dkt. 38). Defendants filed the instant motion for summary judgment on December 13, 2013. (Dkt. 42). This case was transferred to the undersigned on January 6, 2014. Plaintiff filed his opposition to the summary judgment motion on February 3, 2014, and Defendants filed their reply papers on February 25, 2014. (Dkt. 45, 48). Oral argument was held on April 15, 2014. (Dkt. 50).


I. Legal Framework for Summary Judgment on USERRA Claims

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes " that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ( Rule 56 " mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." ). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Once the moving party has met its burden, the opposing party '" must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. '" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec., 475 U.S. at 586-87). " [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

On a motion for summary judgment on a USERRA claim, the standard used is the two-part burden of proof allocation set forth by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), for actions under the National Labor Relations Act. See Gummo v. Vill. of Depew, N.Y., 75 F.3d 98, 106 (2d Cir. 1996). Under this standard, the plaintiff " carries his burden of proving a [ prima facie ] case of discrimination by showing, by a preponderance of the evidence, that ...

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