Harmon v. Bogart

500 F.Supp.3d 8

James E. HARMON, Plaintiff,

v.Marni BOGART, the County of Erie, Defendants.

17-CV-284S

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

Signed November 9, 2020

David E. Gutowski, Gerald T. Walsh, Zdarsky, Sawicki & Agostinelli LLP, Buffalo, NY, for Plaintiff.

Ann E. Evanko, Amber E. Storr, Hurwitz & Fine, P.C., Buffalo, NY, for Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, United States District Judge

I. Introduction

Plaintiff, an attorney with the Defendant Erie County's Department of Social Services, alleges civil rights violations, defamation, and other common law torts against his employers, Erie County Social Services Department director of legal affairs Marni Bogart and Erie County, following his public removal from his office.

Before this Court is Defendants’ joint Motion for Summary Judgment¹ (Docket No. 18) to dismiss this action. Defendants here contend that all of Plaintiff's claims arise from three incidents of February 25, 2016: Plaintiff's escorted removal from his Rath Building office in front of coworkers and colleagues; Bogart's informing Erie County Family Judge Margaret Szczur that Plaintiff would not return to work for the foreseeable future; and Bogart telling Family Court security officers to bar Plaintiff's entry into the courthouse because he was dangerous (Docket No. 18, Defs. Memo. at 12-13).

For the reasons stated herein, Defendants’ Motion for Summary Judgment (Docket No. 18) is granted as to the First Cause of Action only and the remaining claims are remanded to New York Supreme Court for further proceedings.

II. Background

A. Facts

This is a removed federal civil rights action under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Plaintiff also alleges state common law defamation and intentional infliction of emotional distress claims.

The parties dispute whether the facts asserted by Defendants in this motion are undisputed or material (compare Docket No. 18, Defs. Statement with Docket No. 29, Pl. Response to Defs. Statement and Statement of Additional Facts (Corrected) with Docket No. 30, Defs. Response to Pl.’s Local Rule 56(a) Statement of Additional Facts). Often in his response, Plaintiff challenges the admissibility of the asserted facts (see generally Docket No. 29, Pl. Response). Plaintiff provides detailed objections and his own submitted set of facts (id. ) which Defendants respond thereto (Docket No. 30, Defs. Response to Pl.’s Statement). This Court will refer to Defendants’ version of events and note, where pertinent, Plaintiff's objections.

1. Events Leading to Plaintiff's Removal

From 2015, Plaintiff was accused by his colleagues of making menacing statements and gestures threatening gun violence. Employees alleged that Plaintiff said in anger, after a search of his office, "words to the effect of ‘one Glock, one minute’ " (Docket No. 18, Defs. Statement ¶¶ 12, 13-20, 22, 24). Plaintiff denies making that statement (Docket No. 29, Pl. Response ¶ 24). Prior to an active shooter training conducted by Defendant, Plaintiff reportedly said the training consisted of "first you run, then hide, then fight. If that fails, convince them to shoot your boss" (Docket No. 18, Defs. Statement ¶¶ 35, 36, citing id., Caelie Couell Aff. ¶¶ 8, 9). Plaintiff vehemently denies this statement on several grounds (Docket No. 29, Pl. Response ¶¶ 35, 36). Coworker Caelie Couell claims she heard this statement and became sufficiently concerned to report it to Bogart (Docket No. 18, Defs. Statement ¶ 38).

After the December 2015 county worker shooting in San Bernardino, Ms. Couell's concern for her safety grew (Docket No. 18, Defs. Statement ¶¶ 50-51). Ms. Couell learned that Plaintiff allegedly made a pistol gesture with his hand and said "Pop, pop, pop" when asked what he would do if he won a lottery (id. ¶¶ 52-54); Plaintiff vehemently denies this (Docket No. 29, Pl. Response ¶¶ 52-54).

2. Plaintiff's Removal, February 25, 2016

Ms. Couell remained concerned about Plaintiff's purported statements and gestures, to the point of telling her father, Christopher Couell, who worked in the Erie County Homeland Security Department (Docket No. 18, Defs. Statement ¶¶ 55-57, 60-63). These actions and comments also disturbed Christopher Couell and he called a Sheriff's Department sergeant about them and his daughter's concerns (Docket No. 18, Defs. Statement ¶¶ 64-65). The Sheriff's office then contacted the Social Services Legal Affairs office and investigated these activities (id. ¶ 66).

On February 25, 2016, the Sheriff's investigation led the Department of Social Services’ management to discuss the matter (id. ¶¶ 67-71). Defendants concluded that "there was probable cause to believe that Harmon's continued presence on the job represented a potential danger or would severely interfere with operations, and it was decided to place Harmon on an immediate involuntary paid leave while these threatening shooting comments were investigated and Mr. Harmon's fitness to return to work could be assessed," (id. ¶ 72). Those in that meeting instructed Bogart to make photocopies of Plaintiff's identification and give it to Sheriff's deputies at the entrances to the Rath Building and the Family Court to advise them that Plaintiff was not permitted to be in either building (id. ¶ 74). They also told Bogart to alert Judge Szczur that Plaintiff would not be returning to her courtroom (id. ).

Meanwhile, Plaintiff was on trial before Judge Szczur that morning. Defendants asked Plaintiff to return to the office during the noon break in the trial. (Id. ¶¶ 75-76.) When he returned to the Rath Building, Plaintiff met with Department and County representatives, Sheriff's officers, and a union representative. Defendants then placed Plaintiff on leave. (Id. ¶¶ 77-78.)

Sheriff's deputies then escorted Plaintiff from the Rath Building. He was not handcuffed or shackled and was not touched or held by the deputies. (Id. ¶¶ 81-84, 122.) The record does not indicate whether the press was informed of Plaintiff's removal (see Docket No. 18, Defs. Statement ¶ 85); Plaintiff says he did not know whether there were any media reports of the incident (Docket No. 29, Pl. Response ¶ 85). Finally, Plaintiff was not arrested (Docket No. 18, Defs. Statement ¶ 87).

Bogart later copied Plaintiff's identification and left copies with security at the Rath Building and Family Court (id. ¶¶ 92, 96-97). She later met with Judge Szczur about Plaintiff's departure but did not disclose specifics why Plaintiff would not appear that afternoon or later (id. ¶¶ 103-06).

Defendants restored Plaintiff to work on August 22, 2016, and received his full salary and benefits during his leave (id. ¶¶ 117-18).

B. Procedural History

1. Complaint

Plaintiff complains that, on February 25, 2016, he was escorted out of his office by deputies in front of colleagues and co-workers, with this alleged "perp walk" being conducted at Defendants’ direction (Docket No. 1, Notice of Removal, Compl. ¶ 6). Later that day, Bogart told Judge Szczur that Plaintiff was going to be out of the office for the foreseeable future. Bogart also told the judge that she would not get into Plaintiff's personal problems, but Plaintiff alleges that Bogart spread "innuendo to imply, falsely, that there might be something embarrassing regarding" him. (Id. ¶ 7.)

Plaintiff asserts in his first cause of action infringement of his civil rights (id. ¶¶ 13-17). Plaintiff alleged in his second cause of action common law defamation from Bogart's statement to Judge Szczur that Bogart meant that Plaintiff was unfit or in trouble when Defendants removed him from work (id. ¶¶ 19-23). In the third cause of action, Plaintiff claims that he endured mental suffering from Bogart's statements (id. ¶¶ 25-27).

2. Proceedings

Defendants answered in state court (Docket No. 1, Notice of Removal, Ex. C) on March 29, 2017. They then filed their Notice of Removal to this Court on March 31, 2017 (Docket No. 1). Following discovery, Defendants moved for summary judgment (Docket No. 18).

Responses to Defendants’ motion initially were due on November 30, 2018 (Docket No. 20), but this was extended (see Docket No. 21) to December 5, 2018, and replies were due by December 21, 2018 (Docket No. 22). Following timely submissions by the parties, the motion was deemed submitted without oral argument.

III. Discussion

A. Applicable Standards

1. Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," Fed. R. Civ. P. 56(a). A fact is "material" only if it "might affect the outcome of the suit under governing law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine" dispute, in turn, exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party," id. In determining whether a genuine dispute regarding a material fact exists, the evidence and the inferences drawn from the evidence "must be viewed in the light most favorable to the party opposing the motion," Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (internal quotations and citations omitted).

"Only when reasonable minds could not differ as to the import of evidence is summary judgment proper," Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citation omitted). Indeed "[i]f, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper," Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82, 83 (2d Cir. 2004) (citation omitted). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine...