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Buckner v. County of Sullivan

United States District Court, S.D. New York

February 3, 2015

DONALD H. BUCKNER, JR., Plaintiff,

Michael Sussman, Sussman & Watkins, Goshen, New York, Counsel for Plaintiff.

Cheryl A. McCausland, Senior Assistant County Attorney, County of Sullivan, Monticello, New York, Counsel for Defendant County of Sullivan.

Stephen G. DeNigris, Schenectady, New York, Counsel for Defendant Michael Schiff.


CATHY SEIBEL, District Judge.

Before the Court is the joint motion for summary judgment of Defendants Sullivan County (the "County") and Michael Schiff. (Doc. 58.) For the reasons stated below, the Motion is GRANTED.

I. Background

The following facts, which are based on the parties' Local Rule 56.1 statements and supporting materials, are undisputed unless noted.

Plaintiff Donald Buckner, an African-American, began working at the County Sheriff's Department in September 1989 as a patrol deputy. (Doc. 71 ¶ 1.) He was promoted to detective in March 2004. ( Id. ¶ 2.) The County Sheriff is (and was at all relevant times) Defendant Schiff.

On June 26, 2007, Plaintiff and thirty-three other officers were subjected to a surprise drug test by the County Sheriff's Department, which has a policy prohibiting drug use by officers. (Doc. 70 ¶ 9; Chaboty Decl.[1] ¶ 5; DeNigris Decl.[2] Exs. A, B, U.) Plaintiff and another African-American officer, Lillian Allen, tested positive on the drug test, for cocaine and marijuana, respectively.[3] (Doc. 70 ¶¶ 12, 45; Chaboty Decl. ¶ 6 & Ex. A at 1, 4.) (The parties dispute whether any of the other officers who were tested on that date tested positive, and the Court will address their evidence on this issue in detail below.)

The following month, Plaintiff's union, the Patrolman's Benevolent Association ("PBA"), filed a grievance against the County and Sheriff Schiff, asserting that the drug test had been performed pursuant to a policy and procedure that had not been negotiated with the PBA. (Doc. 70 ¶ 13.) The dispute centered over whether all officers in a randomly chosen shift could be tested, as occurred here, or whether individual officers had to be randomly selected from among all employees, as apparently had been done in the past. ( Id. ¶¶ 13, 18-19.) That grievance was arbitrated in May 2008, and in August 2008 the arbitrator issued an award sustaining the PBA's grievance and ordering the County to revert to the prior drug testing policy and to rescind any disciplinary actions taken against employees as a result of the "unilaterally changed" drug testing procedure. ( Id. ¶¶ 17, 22-23; DeNigris Decl. Ex. J.)

Shortly after the PBA filed its grievance, Sheriff Schiff filed a Notice of Discipline against Plaintiff, pursuant to Section 75 of the New York Civil Service Law, charging him with misconduct arising from the positive result on the June 26, 2007 drug test, and placed him on administrative leave. (Doc. 70 ¶ 14.) Plaintiff's Section 75 disciplinary hearing was adjourned for several years while the parties awaited the outcome of the PBA's grievance arbitration and while Plaintiff pursued an ultimately unsuccessful Article 78 action[4] against Sheriff Schiff and the County related to the appointment of the impartial hearing officer for Plaintiff's hearing. ( Id. ¶¶ 21, 25.) Plaintiff's disciplinary hearing finally took place on August 19, 2010. ( Id. ¶ 32.) On December 10, 2010, after the impartial hearing officer issued a report concluding that Plaintiff had violated the County's drug policy and recommending his termination, Sheriff Schiff terminated Plaintiff's employment. ( Id. ¶¶ 36-37.) Separately, Defendants also terminated Officer Allen. See Allen v. Schiff, 908 F.Supp.2d 451, 457 (S.D.N.Y. 2012), aff'd, 586 F.App'x 759 (2d Cir. 2014).

In the instant lawsuit, Plaintiff asserts that Defendants used the drug test results in a racially discriminatory manner because they terminated him and Officer Allen based on the results but did not terminate Caucasian employees who allegedly failed the same drug test, ( see First Amended Complaint ("FAC") (Doc. 16) ¶¶ 16-20), or who Defendants knew had used illegal drugs in violation of County Sheriff's Office policy, ( see P's Mem. 4-6, 15-17). Plaintiff also cites as evidence of discriminatory intent two instances in which Arthur Hawker, the County Sheriff's Office Chief of Patrol, made allegedly racially insensitive comments to him prior to his termination. (FAC ¶ 21.)

Plaintiff brings a claim against Schiff pursuant to 42 U.S.C. § 1983 for violation of his Fourteenth Amendment right to equal protection and a Monell claim against the County based on Schiff's status as the County's final decision-maker with respect to Plaintiff's termination. ( Id. ¶¶ 3, 26.) Defendants have moved for summary judgment, arguing that they are entitled to judgment as a matter of law because there is ...

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