United States District Court, N.D. New York
TIMOTHY J. O'BRIEN, Petitioner,
STEVEN YUGARTIS, as Mayor of the Village of Potsdam, New York, STEVEN WARR, ELEANOR HOPKE and RONALD TISCHLER, as Trustees of the Village of Potsdam, THE VILLAGE OF POTSDAM NEW YORK and THE VILLAGE BOARD OF THE VILLAGE OF POTSDAM, NEW YORK, Respondents
For Petitioner: David M. Lenney, Esq., of counsel, Office of David M. Lenney, Clifton Park, New York.
April J. Laws, Esq., of counsel, Gregg T. Johnson, Esq., of counsel, Timothy J. Higgins, Esq., of counsel, Lemire, Johnson & Higgins, LLC, Malta, New York.
MEMORANDUM-DECISION AND ORDER
Norman A. Mordue, Senior United States District Judge.
In this action under 42 U.S.C. § 1983 and New York State law, plaintiff claims he was wrongfully discharged from his employment as Code Enforcement Officer of the Village of Potsdam, New York (" Village" ). After plaintiff commenced the action in New York State Supreme Court, St. Lawrence County, defendants removed it to this Court on the ground of federal question jurisdiction. See 28 U.S.C. § 1441(a) (" [A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court[.]" ). Presently before the Court are defendants' motion (Dkt. No. 31) for summary judgment and plaintiff's cross motion (Dkt. No. 37) for partial summary judgment awarding him reinstatement, back pay, and benefits. The Court grants defendants' motion insofar as it seeks summary judgment on the federal claims, denies plaintiff's cross motion, and remands the remaining claims to state court.
The " Amended Petition and Complaint" (Dkt. No. 12) alleges:
5. On May 20, 2011, the Village of Potsdam Board of Trustees resolved to engage and appoint Petitioner as the Village of Potsdam's Code Enforcement Officer " effective May 30, 2011 at a salary of $44,904, to increase to $45,904 upon the successful completion of his probationary period."
6. On May 30, 2011, Petitioner commenced employment as the probationary Village of Potsdam Code Enforcement Officer.
7. At the latest, on May 29, 2012, Petitioner completed his probationary period.
8. On May 30, 2012, Petitioner appeared for work and did commence perform[ing] his duties and was paid to perform his duties as the non-probationary full time Village of Potsdam Code Enforcement Officer.
9. Upon information and belief, as of May 30, 2012, Petitioner held a position by permanent appointment in the competitive class of the classified civil services.
10. On May 30, 2012, the Village of Potsdam Administrator advised Petitioner that Respondents had purported to
terminate Petitioner as the Village of Potsdam Code Enforcement Officer.
11. Upon information and belief, Petitioner was and remains entitled to all of the protections afforded full time Village employees under and pursuant to New York Civil Service Law Section 75, the Village of Potsdam Employee Handbook and the Saint Lawrence County Civil Service Manual.
12. Upon information and belief, Petitioner was a public employee as of May 30, 2012.
13. Upon information and belief, Respondent was and remains a public employer.
14. Upon information and belief, Petitioner was and remains entitled to all of the protections afforded full time Village employees under and pursuant to New York Civil Service Law Section 75-b.
19. In connection with the performance of his duties, Petitioner did inspect, report and record the required information, and required those engaged in the use, construction, alteration and repair of buildings to comply with the Laws, Rules and Regulations of the State of New York prior to issuing building permits, certificates of occupancy and other official forms and permits.
20. Prior to his appointment as a full time Code Enforcement Officer for the Village, and for a period of approximately eighteen months, Petitioner concurrently held two part time Code Enforcement Officer jobs for the Village.
21. Upon information and belief, Respondents never received or acted upon any formal written or other complaint about Petitioner's job performance ...