Croft v. Vill. of Newark

35 F.Supp.3d 359

William CROFT, Plaintiff

v.VILLAGE OF NEWARK, Village of Newark Police Department, and Chief of Police David Christler in his Official and Individual Capacity, Defendants.

No. 09–CV–6567 EAW.

United States District Court, W.D. New York.

Signed Aug. 5, 2014.

Jon P. Getz, Muldoon and Getz, Rochester, NY, for Plaintiff.

Michael P. McClaren, Kevin T. O'Brien, Webster Szanyi, LLP, Buffalo, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

INTRODUCTION

Plaintiff William Croft (“Officer Croft” or “Plaintiff”), a patrolman with defendant the Village of Newark Police Department (the “NPD”), sued Defendants alleging that he was denied promotions and other employment-related benefits as a result of his service in the National Guard, and retaliated against for asserting his legal rights, all in violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301 et seq.

Defendants have filed a motion seeking summary judgment pursuant to Fed.R.Civ.P. 56 on the following grounds: (1) the NPD is an administrative arm of a municipality and is not subject to suit; (2) neither defendant Chief of Police David Christler (“Chief Christler”) nor the NPD are employers under USERRA; (3) the claims against Chief Christler in his official capacity are redundant and an inefficient use of judicial resources; (4) Officer Croft cannot prove a USERRA violation by a preponderance of the evidence; and (5) Defendants can affirmatively establish that they would have made the same decisions regardless of Officer Croft's military status. (Dkt. 42–13). Officer Croft concedes that the NPD should be dismissed from the action but otherwise opposes the motion. (Dkt. 45–1). For the reasons set forth below, Defendants' motion is granted in part and denied in part.

BACKGROUND

Officer Croft was hired by defendant the Village of Newark to work as a patrol officer in July 2006. (Dkt. 42–14 at ¶ 13; Dkt. 45–2 at ¶ 2). His start date was August 8, 2006. (Dkt. 45–2 at ¶ 2). He was laterally transferred from the Lyons Police Department, having served as a police officer since 1994. (Id. at ¶ 3).

Officer Croft also holds the rank of Major in the United States Armed Forces as a member of the National Guard. (Id. at ¶ 8). He previously served in the United States Army from November 1990 until February 1993. (Id. at ¶ 9). He was commissioned as an officer in 1998. (Id. at ¶ 9). His deployments include Operation Iraqi Freedom from February 2003 until May 2004, and Afghanistan from January 2010 until December 2010. (Id. at ¶ 11). Officer Croft submits that as a commissioned officer, he is under an obligation to obey all lawful orders of the National Guard, including any and all deployment orders. (Id. at ¶ 13).

At the time Officer Croft was hired, Richard Bogan was chief of the NPD. (Dkt. 42–9 at 7:2–8). Officer Croft claims that Chief Bogan was aware of Officer Croft's military obligations. (Dkt. 45–2 at ¶ 14). Officer Croft further alleges that he was asked “several questions” about his military service during his initial job interview, including the timing of any potential deployments. (Id. at ¶ 15).

In approximately May 2006, shortly before Officer Croft was hired by the NPD, the Village of Newark Board of Trustees (the “Village Board”) decided to expand the number of sergeants in the NPD from four to five. (Dkt. 42–9 at 10:22–11:12). Chief Bogan did not support this action and wanted to maintain the number of sergeants at four. (Id. at 11:13–24). Despite Chief Bogan's recommendation, the Village Board provisionally appointed James Thompson and Jay Warren as sergeants. (Id. at 10:12–12:9).

Officer Croft took a civil service exam in June 2007 for the open sergeant positions to which James Thompson and Jay Warren had been provisionally appointed. (Dkt. 42–8 at 31:3–5; Dkt. 42–9 at ¶ 15). Officer Croft scored an 81 on the exam and was first on the list of individuals who were eligible for the positions (i.e., the “Certificate of Eligibles”). (Dkt. 42–8 at 33:13–20). James Thompson and Jay Warren, who had been provisionally appointed as sergeants before Officer Croft became employed by the NPD, ranked number two and three on the Certificate of Eligibles with scores of 76 and 74, respectively. (Dkt. 42–10 at 9; Dkt. 45–2 at ¶ 28). The sergeant exam results were released in August 2007. (Dkt. 42–10 at 9; Dkt. 45–2 at ¶ 21). At or about the same time, Officer Croft was out of the region for two weeks attending a mandatory military school. (Dkt. 42–10 at 27; Dkt. 45–2 at ¶ 23).

Officer Croft believes that he was the most qualified for the open sergeant positions based on his score on the civil service exam and the combination of his training, experience, and education. (Dkt. 45–2 at ¶ 25). Despite this, he was not interviewed for the open positions. (Id. at ¶ 36). Instead, the Village Board permanently appointed James Thompson and Jay Warren as sergeants in August 2007. (Dkt. 42–14 at ¶ 19; Dkt. 45–2 at ¶ 28). Chief Bogan testified that he felt that individuals who were provisionally appointed to a position and who were reachable on the “Certificate of Eligibles” should be permanently appointed to the positions in order to prevent the NPD from looking indecisive. (Dkt. 42–9 at 13:24–14:18, 15:9–19).

Also in August 2007, an investigator position opened up at the NPD. (Dkt. 42–14 at ¶ 20; Dkt. 45–2 at ¶ 22). Jay Warren was provisionally promoted to investigator. (Dkt. 42–14 at ¶ 20; Dkt. 45–2 at ¶ 29). Chief Bogan testified that he recommended Sergeant Warren for the provisional appointment because Sergeant Warren was “exceptionally qualified for the position.” (Dkt. 42–9 at 23:9–24:17).

From January 2008 until March 2008, Officer Croft was ordered to service as an instructor at the Officer Candidate School at Fort McClellan, Alabama, and as a result, he was away from the NPD during this time period. (Dkt. 42–10 at 29; Dkt. 45–2 at ¶ 32). After his return, Officer Croft took a civil service examination for the open investigator position in June 2008. (Dkt. 42–14 at ¶ 30; Dkt. 45–2 at ¶ 32). He again placed first on the Certificate of Eligibles. (Dkt. 42–10 at 11; Dkt. 45–2 at ¶ 32). Nevertheless, he was not interviewed for the investigator position. (Dkt. 45–2 at ¶ 34). Instead, Jay Warren was permanently promoted to the position of investigator in August 2008. (Dkt. 42–14 at ¶ 32; Dkt. 45–2 at ¶ 34). This allegedly occurred despite the fact that Officer Croft had more time working as a police officer, greater seniority in law enforcement, and more experience outside of law enforcement. (Dkt. 45–2 at ¶ 34).

In August 2008, after the provisional appointment of Jay Warren as investigator but before he was permanently appointed, Chief Christler became chief of the NPD. (Dkt. 42–9 at 24:18–24; Dkt. 42–11 at ¶ 1). Chief Christler formerly served in the United States Army, reaching the rank of sergeant. (Dkt. 42–7 at 27:6–11).

Officer Croft claims he was ordered to serve active military duty as an instructor at Officer Candidate School from June 2008 until September 28, 2008.¹ (Dkt. 45–2 at ¶ 35). Beginning October 1, 2008, he served a tour of duty at the Syracuse Military Entrance Processing Point. (Dkt. 42–10 at 41; Dkt. 45–2 at ¶ 36).

In August 2008,² Officer Croft spoke to Chief Christler and asked him when his interview for the open investigator position would be scheduled. (Dkt. 45–2 at ¶ 27). Chief Christler claims that during this conversation, Officer Croft told him that he “wouldn't go on military leave” if Chief Christler would make him an investigator. (Dkt. 42–7 at 29:8–12). Officer Croft disputes this as “nonsense,” stating that he is a commissioned officer who is obligated to follow the orders he is given, that his deployments have all been at great personal and professional cost, and that he does not control his orders from the National Guard. (Dkt. 45–2 at ¶ 95). Officer Croft further alleges that Chief Christler told him during the August 2008 conversation that “in 32 years with the [s]tate [p]olice, [Chief Christler] never knew anyone who had ranked in the Guard and Reserve and in the [p]olice [d]epartment.” (Id. at ¶ 37). Officer Croft understood this statement to mean that Chief Christler believed that Officer Croft could not be a good leader in the NPD because he was a commissioned officer in the National Guard. (Id. at ¶ 38).

Chief Christler created a memo to file dated August 15, 2008, purportedly memorializing his conversation with Officer Croft. (Dkt. 42–11 at 12). The memo indicated that Officer Croft, who at that time was on active duty with the National Guard, had expressed an interest in serving either as a sergeant or an investigator and had further stated that he would “come back to work” at the NPD if he was promoted to sergeant or investigator, but that he would otherwise concentrate his efforts on the National Guard. (Id. ). Chief Christler's memo stated that he explained to Officer Croft that it was “difficult to excel in two very demanding jobs,” and that most troopers Chief Christler had known who advanced in rank in the National Guard had not excelled in the state police. (Id. ). At his deposition, Chief Christler reiterated his belief that “those that excelled very high in the military and Reserves and Guard” were “unable to do that and policing” because “policing is very demanding.” (Dkt. 42–7 at 29:2–7).

While deployed in late September or early October 2008, Officer Croft alleges he spoke to his union president, Aaron Dean, to discuss his willingness to work shifts for the NPD when available because the NPD was low on manpower. (Dkt. 45–2 at ¶ 39). Mr. Dean purportedly told Officer Croft that he should not bother making this offer because “the Mayor had said ‘the Village didn't want anything to do with anything with [Officer Croft's] name on it.’ ” (Dkt. 45–2 at ¶ 40).

Chief Christler further allegedly told Officer Croft during a conversation in October 2008, that he “wasn't...