Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bahnsen v. The Town of Brookhaven

United States District Court, E.D. New York

December 16, 2019

WILLIAM BAHNSEN, Plaintiff,
v.
THE TOWN OF BROOKHAVEN, Defendant.

          REPORT AND RECOMMENDATION

          ANNE Y. SHIELDS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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 “FLSA”).

         After 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.

         On 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 be granted.

         FACTUAL BACKGROUND

         I. Basis of Facts Recited Herein

         The 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.

         Defendant's 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.

         Plaintiff 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.

         The Court now turns to discuss the facts revealed by the documents described above. Unless otherwise indicated, the facts recited below are undisputed.

         II. Facts

         A. Plaintiff's Age and Employment

         Plaintiff was born on November 11, 1954. DE 49 at ¶ 1[1]. 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.

         As a 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.

         Plaintiff 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.[2]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.

         B. Conduct that Preceded Plaintiff's Resignation

         1. Allegations as to Misuse of Town Vehicle

         In 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.

         In 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 Plaintiff.

         2. The August 2016 Investigation

         The 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 ¶¶ 28-29.

         During 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.

         The 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. Id.

         3. The Follow-up Investigation

         The 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.[3]

         Gerhauser's 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.

         Despite 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.