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Constitutional Torts: Rotundo v. Village of Yorkville

By: Daily Record Staff//March 9, 2011

Constitutional Torts: Rotundo v. Village of Yorkville

By: Daily Record Staff//March 9, 2011//

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U.S. District Court, Northern District of New York

Constitutional Torts

Public Employment — First Amendment Retaliation

Rotundo v. Village of Yorkville
Judge Hurd

Background: Plaintiffs Benedict Rotundo Jr. and Kelly Rotundo bring this action against defendants Village of Yorkville, Bruno A. Petruccione as village mayor, Thomas J. Thomas, village deputy mayor, Village Trustees Anthony C. Leone Jr., Michael A. Mahoney and Stanley G. Babiarz, and Michael Maxam, officer in charge of the Village Police Department, under Title 42, United States Code, section 1983 and state law. The defendants move for summary judgment.
The village hired Rotundo as a part-time police officer on June 9, 2005. The Police Benevolent Association Agreement between the village and the PBA did not cover the terms of the plaintiff’s employment because he was a part-time officer. Nor did he have an employment contract with the village. During the time in question, Rotundo was also employed full-time as a New York state corrections officer. Because of his full-time work schedule, he was permitted to work a modified shift from 10 p.m. to 6 a.m. instead of 11 p.m. to 7 a.m. He worked this modified shift for approximately the first three years he was employed by the village. While employed by the village, several local organizations recognized the plaintiff for his outstanding enforcement of the Driving While Intoxicated law. On Dec. 27, 2006, Rotundo arrested a friend of the mayor for DWI.
The plaintiff was then removed from the work schedule at the direction of the mayor in response to the DWI arrest and was only offered occasional shifts until August 2007. In August 2007, the plaintiff learned that he had been returned to the work schedule. The mayor later admonished him on Jan. 29, 2008, for making the December 2006 DWI arrest. The mayor advised him that the driver was his friend and that Rotundo had ruined the driver’s life. The mayor informed Rotundo that he should not make DWI arrests of village residents and directed the plaintiff to drive intoxicated residents home and not charge them criminally.
In February 2008, the mayor told the plaintiff “you will never learn” after observing him complete a DWI arrest report. In February 2009, Rotundo made another DWI arrest. The driver involved informed Rotundo that she was a friend of the mayor and also served the mayor alcohol on various occasions while she worked as a bartender. The plaintiff advised the mayor of the driver’s claim by memorandum, to which the mayor became upset and once again stated “you will never learn.” The plaintiff’s hours were once again reduced after the 2009 incident.
On May 26, 2009, the officer in charge of scheduling informed Rotundo that he was no longer allowed to work the modified 10 p.m. to 6 a.m. shift. On July 23, 2009, the plaintiff met another officer, Officer Lanahan, at a local Dunkin’ Donuts. Officer Lanahan said that OIC Maxam told him the following: OIC Maxam put the plaintiff’s check in his mailbox and plaintiff’s “days in Yorkville are numbered and not to associate with him.” Rotundo alleges that the mayor tampered with his mail at the Village Police Department.
On Sept. 6, 2009, at 5:19 a.m., the Village Police Department’s surveillance system recorded the plaintiff “entering the police headquarters office at the Village Municipal Building in the dark” with his sight “assisted by the use of a flashlight to rummage through a locked cabinet in the back office.” The plaintiff claimed that he was on duty at the time and that there was nothing out of the ordinary about this since the bright, flouresent lights often caused him to develop a headache. The Village Board unanimously voted to terminate him. The defendants contend the board terminated the plaintiff because of his suspicious activity on Sept. 6, 2009, and his failure to respond to OIC Maxam’s memorandum requesting an explanation of that activity. On June 20, 2010, the Utica Observer Dispatch printed an article regarding the plaintiff’s lawsuit, titled “Officers: DWI cases obsess mayor.”

Ruling: The defendants moved for summary judgment dismissing the complaint on the grounds that the plaintiff was not entitled to a hearing prior to termination; he did not engage in protected speech; there was no causal connection between the Notice of Claim and defendant Trustees Mahoney and Babiarz’s decision to termination him; and that the plaintiff is not a member of a protected class.
The defendants contend the plaintiff did not engage in protected speech because he did not speak on a matter of public concern. They argue that his notice of claim sought redress for personal grievances in the workplace, specifically the failure to assign him hours and the mayor’s admonishment of his DWI enforcement. The plaintiff claims he was speaking as a private citizen, not in the scope of his professional duties, and that he was addressing a matter of public concern because his claim involved potentially illegal conduct by the mayor.
The court concludes that the defendants’ motion for summary judgment to dismiss the First Amendment retaliation claim and the New York Constitution free speech causes of action will be denied because the plaintiff’s June 11, 2009, notice of claim addressed a matter of public concern. Therefore, the First Amendment retaliation, New York free speech, prima facie tort, and loss of consortium causes of action remain for trial. The remaining causes of action are dismissed.

AJ Bosman for the plaintiffs; Luke C. Davignon for the defendants

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