United States District Court, E.D. New York
REPORT AND RECOMMENDATION
Y. SHIELDS UNITED STATES MAGISTRATE JUDGE.
William Bahnsen (“Plaintiff” or
“Bahnsen”) commenced this action alleging claims
of employment discrimination and failure to pay overtime
wages against Defendant Town of Brookhaven
(“Defendant” or the “Town”). Docket
Entry herein (“DE”) 1. His employment
discrimination claims were based upon the Age Discrimination
in Employment Act of 1967, 29 U.S.C. § 621 (the
“ADEA”) and 42 U.S.C. §1983 (“Section
1983”). Plaintiff's wage claims were based upon the
Fair Labor Standards Act, 29 U.S.C. § 216 (the
conferences and proceedings before this Court, Plaintiff
filed an amended complaint. DE 20. Thereafter, Defendant
moved to dismiss. That motion was referred to this Court by
the Honorable Sandra J. Feuerstein, for Report and
Recommendation. On March 6, 2018, this Court entered an order
recommending that Plaintiff's FLSA claims be dismissed
without prejudice (the “2018 R&R”). In
addition to the recommendation regarding Plaintiff's FLSA
claims, the 2018 R&R recommended that dismissal be denied
as to Plaintiff's ADEA and Section 1983 employment
discrimination claims. The District Court adopted the 2018
R&R, adding that unless Plaintiff filed an amended
complaint re-pleading his FLSA claims, all such claims would
be dismissed in their entirety with prejudice. No such
pleading was ever filed. This left only Plaintiff's
employment discrimination claims to proceed.
October 25, 2019, Defendant moved for summary judgment. DE
44. That motion is presently before this Court, upon referral
by the District Court. For the reasons set forth below, it is
respectfully recommended that the motion for summary judgment
Basis of Facts Recited Herein
facts set forth below are drawn from the parties'
statements of facts submitted pursuant to Rule 56.1 of the
Local Rules of the United States District Courts for the
Southern and Eastern Districts of New York (the “Rule
56.1 Statements”). DE 48-49.
motion contains its Rule 56.1 Statement. DE 48. That
statement references the factual affidavit of the transcript
of a sworn interview conducted of Plaintiff on September 8,
2016. It also references the factual affidavit of Emily
Pines, the Defendant Town's Chief of Staff (the
“Pines Affidavit”). DE 45. Annexed to the Pines
Affidavit is the transcript of the September hearing. Also
submitted by Defendant is an affidavit of counsel. Annexed to
that affidavit is the deposition testimony of Plaintiff
(including copies of exhibits marked during the deposition),
as well as the transcript of the deposition of
Plaintiff's supervisor, Arthur Gerhauser
(“Gerhauser”). DE 46.
submits his own Rule 56.1 Statement. DE 49. As required, that
statement indicates facts about which there is no dispute, as
well as those denied by Plaintiff. Plaintiff's Rule 56.1
Statement also includes statements as to his view of the
facts. Additionally, Plaintiff submits his personal
affidavit. DE 50. Plaintiff states that the information
contained in his affidavit is offered to clarify certain
points raised in Defendant's motion, and to respond to
Defendant's Rule 56.1 Statement. DE 50 ¶ 2. The
Court notes that any opposition to facts set forth in
Defendant's Rule 56.1 Statement should be properly set
forth only in Plaintiff's responsive Rule 56.1 Statement.
Indeed, Plaintiff has availed himself of the opportunity to
contradict Defendant's facts in his responsive statement.
With respect to Plaintiff's submission of a personal
affidavit in addition to his Rule 56.1 Statement, the Court
is guided by the law that a party may not “create an
issue of fact by submitting an affidavit in opposition to a
summary judgment motion that, by omission or addition,
contradicts the affiant's previous deposition
testimony.” Patacca v. CSC Holdings, LLC.,
2019 WL 1676001, at *6 (E.D.N.Y. April 17, 2019). Moreover,
“[w]here inconsistencies exist between a
non-movant's affidavit and corresponding deposition
testimony, which inconsistencies the non-movant party makes
no effort to reconcile or otherwise explain, a court may
disregard those statements.” Id.
Court now turns to discuss the facts revealed by the
documents described above. Unless otherwise indicated, the
facts recited below are undisputed.
Plaintiff's Age and Employment
was born on November 11, 1954. DE 49 at ¶
He was first employed by the Town as a Building Inspector,
within the Town's Building Department, beginning on or
about April 9, 2001. DE 49 at ¶ 5. Thus, when he began
his employment with the Town, Plaintiff was 47 years old. DE
49 at ¶ 6. Plaintiff was continually employed by the
Town until his resignation which was submitted to the Town on
September 27, 2016. That resignation became effective on
October 2, 2016. DE 49 at ¶ 8. At the time of his
resignation, Plaintiff was 62 years old.
Town Building Inspector (Plaintiff's initial job title),
Plaintiff's job consisted of performing building
inspections and related paperwork. DE 49 at ¶ 7. On or
about December 10, 2007 (at the age of 53), Plaintiff was
promoted to a provisional appointment as a Senior Building
and Zoning Inspector. DE 49 at ¶ 9-10. He retained this
provisional title and appointment until approximately
December 22, 2008, when he failed a required Civil Service
examination. DE 49 at ¶¶ 11-12. He was then
reinstated to his prior position of Building Inspector. DE 49
at ¶ 13-14. Plaintiff remained in this job title until
June 13, 2016, when he was promoted to the position of Senior
Building Inspector. DE 49 at ¶ 15-16. At the time of
this promotion, Plaintiff was 62 years old. DE 49 ¶ 17.
To retain the 2016 appointment, Plaintiff was required to
complete a twelve-week probationary period. DE 49 at ¶
18-19. On August 29, 2016, because Plaintiff failed his
probationary period, he was removed from the title of Senior
Building Inspector. He was then returned to his prior
position of Building Inspector. DE 49 at ¶ 21.
continued as a Building Inspector until his resignation. DE
49 at ¶ 22. He found new employment after his retirement
from the Town. Plaintiff receives a Town pension, reflecting
his eighteen years of service, and his health insurance is
paid by the Town. Bahnsen Deposition annexed to Affidavit of
Jessica Moller, Esq. (“Bahnsen Dep.”) DE 46 at
180.Plaintiff claims that if he had not retired
early, he would have received a larger pension, reflecting
twenty-five, instead of eighteen years of service.
Id. at 197.
Conduct that Preceded Plaintiff's Resignation
Allegations as to Misuse of Town Vehicle
August of 2015, eleven days prior to the expiration of
Plaintiff's 2016 probationary period, allegations of
Plaintiff's misconduct came to the attention of the Town.
DE 49 at ¶ 20. That misconduct involved allegations that
Plaintiff used a Town vehicle for non-Town business. DE 49 at
¶ 25. It is the Town's position that Town vehicles
are to be used only for Town business. DE 49 at ¶ 23.
Plaintiff denies this statement. It is his position that he
sought and received approval from Gerhauser to use a Town
vehicle to get to his part-time job at the Village of Mastic
Beach (a village outside of the Town). DE 49 at ¶ 23.
Thus, it is Plaintiff's position that the Town, through
Gerhauser, was aware of and approved his use of a Town
vehicle. DE 49 ¶ 25.
addition to the alleged unauthorized use of a Town vehicle,
it also came to the attention of the Town that the vehicle
Plaintiff used for work did not have the required Town seals
affixed to it, and that those seals may have been removed by
Plaintiff. DE 49 ¶ 26. This fact is not disputed by
The August 2016 Investigation
2016 allegations regarding misuse of a Town vehicle led to
the commencement of an investigation against Plaintiff. DE 49
at ¶ 27. Plaintiff believes that the reason the Town
began any investigation of his conduct was because another
employee was in trouble, and that employee
“ratted” Plaintiff out to Emily Pines. DE 49 at
¶ 64. In any event, in or about August 2016, an
investigation of Plaintiff's conduct as a Town employee
was undertaken. DE 49 at ¶¶ 25-27. As part of that
investigation Plaintiff was given a written directive to
participate in an interview where he was expected to respond
truthfully to all questions posed. DE 49 at ¶ 28. That
interview took place (under oath) on September 8, 2016, and a
transcript thereof is properly before the Court. The Town
states that its investigators interviewed Plaintiff. DE 49
¶ 29. Plaintiff disputes having been interviewed by any
“investigators” or by Pines, but states that he
participated in an interview by attorneys, and answered all
questions to the best of his recollection. DE 49 at
Plaintiff's interview, issues were discussed regarding
the use of a Town vehicle while Plaintiff was working at his
second job at Mastic Beach, and the removal of Town seals
from its vehicles. DE 49 at ¶ 30. It is the Town's
position that Plaintiff was using the Town vehicle to commute
to his job at Mastic Beach, that he used the vehicle to
perform work at Mastic Beach, and that Plaintiff was working
at Mastic Beach during time that he would normally have been
working for the Town. Id.
parties do not dispute that Plaintiff worked at Mastic Beach.
Nor is there any dispute that Plaintiff's work at Mastic
Beach had “nothing to do with” Plaintiff's
work for the Town. DE 49 ¶ 35. Additionally, Plaintiff
does not dispute the use of a Town vehicle while working at
Mastic Beach. He states, however, as noted above and
discussed in further detail below, that his work and the use
of the Town vehicle was expressly approved by Gerhauser.
The Follow-up Investigation
Town states that because of admissions made by Plaintiff
during his September 8, 2016 interview, it expanded its
investigation to consider whether there were prior periods of
time when Plaintiff engaged in similar behavior. As part of
that investigation, copies of Plaintiff's time records
were obtained from Mastic Beach. Those records were reviewed,
and compared with timesheets that Plaintiff submitted to the
Town. DE 49 ¶ 32. As a result of that comparison, the
Town became aware that there were “a number of
instances” where Plaintiff's Town timesheets
reported work for the Town while, at the same time, his
Mastic Beach timesheets showed that he was working there. DE
49 ¶ 33. The Town supports this statement of fact by
reference to original documents showing ten separate
instances of overlapping time reflected in the timesheets of
the Town and those of Mastic Beach. DE 49 ¶ 34.
Plaintiff responds to these facts by characterizing the
Mastic timesheets as inaccurate, and by adding that his Town
timesheets were always reviewed, and approved by his
supervisor, Gerhauser. DE 49 ¶ 33-34. He states that he
never “double-dipped, ” and that he worked for
Mastic Beach during times when he was using vacation time
earned from the Town. DE 50 ¶ 12.
deposition is properly before this Court. While Gerhauser
testified that he allowed Plaintiff to park his Town vehicle
at the Mastic Beach Village Hall, he stated that he never
authorized the use of a Town vehicle for Mastic Beach duties.
Deposition of Arthur Gerhauser, annexed as Exhibit F to the
Affidavit of Jessica Moller (“Gerhauser Dep.”) DE
46 at 266-67. In particular, Gerhauser stated that it would
be beyond any authorization granted for Plaintiff to take the
Town vehicle out on inspections conducted for the Village of
Mastic Beach. Id. Gerhauser also testified that
Plaintiff admitted to such use of a Town vehicle.
Id. at 267-68. He further testified that it was his
understanding that Plaintiff resigned to avoid disciplinary
action. Id. at 293.
stating that he did nothing wrong, Plaintiff testified at his
deposition that looking back, he considers what he did with
his Mastic Beach time sheets to have been wrong. Bahnsen Dep.
at 172; 173-74. He adhered to the position, however, that ...