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Mullahey v. Zurlo

United States District Court, N.D. New York

February 9, 2017

MICHAEL ZURLO, individually and as Sheriff of Saratoga County, SPENCER HELLWIG, III as County Administrator for the County of Saratoga, THE COUNTY OF SARATOGA, and JOHN DOES, Defendants.

          LUIBRAND LAW FIRM, PLLC KEVIN A. LUIBRAND, ESQ. Attorneys for Plaintiff

          LEMIRE, JOHNSON LAW FIRM GREG T. JOHNSON, ESQ. APRIL J. LAWS, ESQ. Attorneys for Defendants


          Mae A. D'Agostino, U.S. District Judge


         On April 7, 2016, Kevin Mullahey ("Plaintiff") commenced the present civil rights action pursuant to 42 U.S.C. §§ 1983 and 1985 against Michael Zurlo, Spencer Hellwig, III, the County of Saratoga, and John Does ("Defendants"). Plaintiff allege violations of his Due Process Rights, "Stigma-Plus" defamation, Conspiracy, and Municipal Liability. See Dkt. No. 1.

         Currently before the Court is Defendants' Motion to Dismiss pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. See Dkt. No. 27-5.

         II. BACKGROUND[1]

         Plaintiff was employed by Defendants for approximately thirty-six (36) years. See Dkt. No. 1 at ¶ 18. On January 1, 2014, Plaintiff was promoted from the position of Investigator to Undersheriff. See Id. at ¶ 19. Under Saratoga County and New York State Civil Service Law, the position of Undersheriff is an exempt and/or management position. See Id. at ¶ 20. As Undersheriff, Plaintiff was an at-will employee who could be discharged with or without reason. See Id. at ¶ 21.

         Plaintiff held the position of Undersheriff from January 1, 2014 through February 12, 2016. See id at ¶¶ 19, 36; Dkt. No. 27-5 at 7.[2] In January 2016, Defendant Zurlo implied to Plaintiff that Plaintiff had allegedly compromised an investigation. See Dkt. No. 1 at ¶ 24. Plaintiff responded that he did not act improperly in the course of his work and to prove this, Plaintiff requested to be interviewed by Defendants and offered to take a polygraph test. See Id. at ¶¶ 25-26. Defendants, however, refused to interview Plaintiff and did not have him submit to a polygraph test. See Id. at ¶ 27.

         On February 9, 2016, Plaintiff met with Defendants' agents who presented a document titled "Settlement Agreement." See Id. at ¶¶ 30-31. The "Settlement Agreement" was presigned by Defendants Hellwig and Zurlo and which, if signed by Plaintiff, would have, by its terms, stated that Plaintiff was resigning his employment and surrendering any rights to file claims against Defendants. See Id. at ¶ 31. Ultimately, Plaintiff did not sign the "Settlement Agreement." See id.

         During that same February 9, 2016 meeting, Defendants' representatives allegedly told Plaintiff that if he did not resign by February 12, 2016, he would be fired without a pre-termination hearing and would not be permitted to challenge the termination. See Id. at ¶ 32. If terminated, Plaintiff and his family would have lost their county-paid health insurance. See Id. at ¶ 33. On February 12, 2016, Plaintiff resigned in what he asserts was a coerced resignation or constructive discharge. See Id. at ¶¶ 34-35. That same day, Defendants accepted Plaintiff's resignation. See Id. at ¶ 36.

         On or after February 12, 2016, Plaintiff alleges that Defendants (and/or "JOHN DOES the Defendants knew") told the media in the County of Saratoga and the greater Capital Region that Plaintiff's resignation was due to his improper and/or illegal conduct as Undersheriff. See Id. at ¶¶ 38-39. In particular, the following statements were made:

(a) To the Albany Times Union newspaper on February 13, 2016:
(i) "The departure of Kevin P. Mullahey, who Sheriff Michael Zurlo elevated to undersheriff in 2014, came as questions surfaced about whether a person close to Mullahey may have intervened in a StatePolice undercover criminal investigation, "
(b) To the Albany Times Union newspaper on February 15, 2016:
(i) "The Saratoga County undersheriff was forced to retire from his job last week after the department accused him of interfering in a drug investigation in which the State Police said the identity of an undercover informant was compromised."
(c) To television station WNYT between February 12-14, 2016:
(i) "Undersheriff Mullahey interfered in a drug investigation to protect his son"
(d) To the Saratogian newspaper on February 16, 2016:
(i) "Published reports say he was accused of allegedly interfering with [sic] in a state police undercover investigation."
(e) To the Post Star newspaper on February 14, 2016:
(i) "From what we have heard from inside and outside the Sheriff's Office, allegations were raised about the leak of confidential ...

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