Case 2:11-cv-00539-JFB-AKT Document 95 Filed 03/31/15 Page 1 of 25 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK _____________________ No 11-CV-539 (JFB) (AKT) _____________________ DENIS J. MONETTE, Plaintiff, VERSUS THE COUNTY OF NASSAU AND LAWRENCE MULVEY, Defendants. ___________________ MEMORANDUM AND ORDER March 31, 2015 ___________________ JOSEPH F. BIANCO, District Judge: In this lawsuit, plaintiff alleged that he Plaintiff Dennis Monette (“plaintiff”) was fired for several unlawful purposes, brought this employment discrimination including in retaliation for the exercise of action against the County of Nassau (“the his First Amendment right to support County”) and Lawrence Mulvey (“Mulvey”) Mangano instead of Suozzi. After a trial in (collectively “defendants”) after he was January 2014, a jury found for plaintiff on terminated as Assistant Commissioner of the his First Amendment claim against the Nassau County Police Department County,1 brought under 42 U.S.C. § 1983, (“NCPD”) on November 13, 2009. His and awarded plaintiff $150,000 in termination occurred ten days after the compensatory damages. The parties agreed election for Nassau County Executive, when that back pay, front pay, and reinstatement the result was still unknown and too close to were equitable remedies for the Court’s call. In that election, Ed Mangano determination, and they have submitted (“Mangano”) ultimately defeated Tom post-trial briefs on these issues, as well as on Suozzi (“Suozzi”), who had held the post-trial motions by the County for position since 2001. Plaintiff had been a fervent supporter of Suozzi until the 2009 election, when he switched his support to Mangano because plaintiff was frustrated 1 The only claim against Mulvey as an individual to with his treatment by his superior, NCPD go to the jury was for aiding and abetting disability discrimination under the NYHRL. (See Trial Commissioner Mulvey. Plaintiff frequently Transcript (“Tr.”) at 818.) With respect to the First complained to Suozzi about his treatment, Amendment claim under § 1983, the jury was and felt that Suozzi failed to address his instructed that both Mulvey and Suozzi were concerns. “policymakers” whose conduct could subject the County to liability. (See Jury Charge at 24.) Case 2:11-cv-00539-JFB-AKT Document 95 Filed 03/31/15 Page 2 of 25 PageID #: <pageID> judgment as a matter of law and a new trial Plaintiff’s post-trial brief seeks back pay on damages, or remittitur of the $150,000 and either reinstatement or front pay. The award. Court grants the request for back pay, but only for the period from plaintiff’s The three specific issues addressed by termination on November 13, 2009, until the County’s post-trial brief are as follows. December 31, 2009, because plaintiff would First, the County renews its motion under not foreseeably have continued his Federal Rule of Civil Procedure 50 based on employment after Mangano was sworn in as the “policymaker” defense, which was County Executive on January 1, 2010.2 In originally presented as a motion to amend particular, even assuming arguendo that the defendants’ answer to assert that defense. County has the burden of proving that the The defense was not in the answer, not in plaintiff’s employment would have the summary judgment motion (and was terminated on December 31, 2009 in the disavowed by the County at oral argument absence of the retaliatory termination on on the summary judgment motion), not in November 13, 2009, the Court concludes the pretrial order, and not raised until a few that the County has clearly met that burden. days before trial. The Court concludes that There was overwhelming (and the motion to amend on the eve of trial was uncontroverted) evidence in the record that properly denied because of the Police Commissioner Mulvey wanted to overwhelming prejudice to the plaintiff of terminate plaintiff for over two years (dating having to respond to such a defense with back to 2007) for reasons unrelated to such late notice. In the alternative, based plaintiff’s political affiliation, but that upon the evidence defendants presented at County Executive Suozzi prevented Mulvey trial, the Court concludes that the defense from doing so. Therefore, it was abundantly does not apply to plaintiff’s position (as re- clear from the trial that, had Suozzi not constituted) and, thus, fails on the merits. authorized the termination of plaintiff for Next, the County moves for a new trial retaliatory reasons in November 2009 after under Rule 59, arguing that the jury charge’s the election (as the jury found), Police definition of “motivating factor” as an Commissioner Mulvey (who continued as element of the § 1983 claim was improper. Police Commissioner under County This motion is denied because the Executive Mangano) would have terminated instruction correctly defined “motivating plaintiff for non-retaliatory reasons as soon factor” in accordance with prevailing as Suozzi left office. In other words, given Second Circuit precedent. Finally, the that Mulvey wanted to terminate plaintiff for County seeks a new trial on damages or over two years for reasons unrelated to remittitur of the jury’s award of $150,000 in political association, and was only prevented compensatory damages for emotional harm, from doing so by Suozzi, allowing plaintiff arguing that the award is unsupported by to recover back pay beyond Suozzi’s last plaintiff’s testimony alone, absent any day on December 31, 2009 would result in medical or psychological evidence. This an inequitable windfall to plaintiff that has motion is also denied, because this award for emotional damages, given the evidence at trial, does not shock the Court’s conscience, 2 Although the record does not reflect the exact date and is close in value to awards in other of Mangano’s inauguration, the Court takes judicial similar cases. notice of the fact that it occurred within the Court’s territorial jurisdiction on January 1, 2010. See Fed. R. Evid. 201(b)(1). 2 Case 2:11-cv-00539-JFB-AKT Document 95 Filed 03/31/15 Page 3 of 25 PageID #: <pageID> absolutely no basis in the evidence. For the sharing intelligence information and same reason, plaintiff’s motion is denied coordinating their response to the threat of with respect to reinstatement and front pay. terrorism. (Id. at 202.) However, when new Commissioner James Lawrence arrived a I. BACKGROUND few months later, plaintiff was assigned additional duties involving departmental A. Factual Background management, analysis, and planning. (Id. at 154.) Set forth below is a summary of the evidence that was adduced at trial. Suozzi was re-elected in 2005, and plaintiff supported and raised funds for him Plaintiff joined the NCPD in 1968 (Tr. at in that election as well. (Id. at 173-77.) 104), and served as a uniformed police After he was re-elected, Suozzi needed to officer until 1991, when he retired with a name a new Commissioner of Police, disability pension after sustaining knee and because Commissioner Lawrence back injuries at a crime scene (id. at 116- announced his retirement. (Id. at 180.) One 19). After he retired, plaintiff worked of the candidates was defendant Mulvey, periodically for his family’s restaurant, but and Suozzi told plaintiff that he was aware was not employed full time. (Id. at 124.) In of personal friction between Mulvey and 2000, plaintiff met Suozzi, who was plaintiff. (Id. at 181-82.) The friction preparing to run for Nassau County stemmed from two incidents when both Executive. (Id. at 125.) Plaintiff was Mulvey and plaintiff were still police introduced to Suozzi by an old friend, Louis officers; one incident involved a search Yevoli, and was impressed with Suozzi’s warrant, and the other involved the alleged credentials and vision for the county. (Id. at misappropriation of property in Mulvey’s 125-28.) Plaintiff became a friend and unit. (Id. at 182-93.) As a result of his past supporter of Suozzi’s, hosting fundraisers experiences with plaintiff, Mulvey told a for him and accompanying him on the commissioner-selection committee that he campaign trail. (Id. at 128-32.) Overall, would not work with plaintiff because he plaintiff estimated that he raised $210,000 questioned plaintiff’s integrity. (Id. at 518.) for Suozzi during the 2001 election. (Id. at 136.) Suozzi named Mulvey the NCPD Commissioner in mid-2007. (Id. at 194.) After Suozzi was elected, he named Before doing so, he assured Mulvey that plaintiff the Director of Public Safety, based plaintiff would not be part of his on plaintiff’s 22 years of experience in the administration in the NCPD. (Id. at 527.) police department and his ideas about Suozzi later proposed a compromise in streamlining public safety services. (Id. at which plaintiff would be moved to the 145-48.) After five or six months in that Office of Emergency Management (OEM), a position, Suozzi appointed plaintiff as an separate entity from the police department Assistant Commissioner of the NCPD. (Id. which was located in a separate facility. (Id. at 153.) Initially, plaintiff’s new position at 536.) Mulvey insisted that plaintiff not was dedicated solely to counter-terrorism, have authority to order around police and and he represented the NCPD as a member should not be considered critical staff, and of STARCOM, a regional collaboration of Suozzi agreed. (Id. at 537.) Instead, local and federal agencies dedicated to plaintiff would serve as a liaison between 3 Case 2:11-cv-00539-JFB-AKT Document 95 Filed 03/31/15 Page 4 of 25 PageID #: <pageID> the NCPD and OEM, and would continue to costs. Particularly after the financial crisis administer STARCOM. (Id.) Otherwise, in 2008, Suozzi was vigilant concerning Mulvey could assign plaintiff tasks at his each department’s spending, including the discretion.