Kimball v. Vill. of Painted Post, 12-CV-6275-CJS-MWP

CODY A. KIMBALL, Plaintiff, v. VILLAGE OF PAINTED POST, DONALD YOST, ROBERT HALM in his Individual andOfficial Capacity as Chief of Police, MAYOR FRANKLIN, OFFICERTODD KIMMEY, and JOHN & JANE DOES, Defendants.

12-CV-6275-CJS-MWP

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

August 19, 2016

DECISION AND ORDER

APPEARANCES

For Plaintiff:

A.J. Bosman, Esq.

Bosman Law Firm, LLC

6599 Martin Street

Rome, NY 13440

(315) 336-9130

For Village of Painted Post, Robert

Halm, Mayor Franklin, Officer Todd

Kimmey, and John & Jane Does:

Jeremy J. Hourihan, Esq.

Pamela Doyle Gee, Esq.

Hiscock & Barclay LLP

243 Lake Street

Elmira, NY 14901

(607) 398-3707

For Donald Yost:

James Scott Wolford, Esq.

Sarah Snyder Merkel, Esq.

The Wolford Law Firm LLP

16 East Main Street

600 Reynolds Arcade Building

Rochester, NY 14614

585-325-8015

INTRODUCTION

Siragusa, J. This employment discrimination case is before the Court on motions by Defendants seeking summary judgment. Motion for summary judgment by Donald Yost, March 2, 2015, ECF No. 32 ("Yost motion"); motion for summary judgment by Robert Halm, Mayor Franklin, Officer Todd Kimmey, Village of Painted Post, Mar. 2, 2015, ECF No. 33 ("Village motion"). For the reasons stated below, both applications are granted.

BACKGROUND

The facts for the purpose of these motions is taken from the parties' statements filed pursuant to Loc. R. Civ. P. 56. Disputes are indicated below.

Plaintiff Attends the Police Academy and Works Part-Time for the Village of Painted Post Police Department

Plaintiff Cody A. Kimball ("Plaintiff)¹ began working part-time for the Village of Painted Post Police Department ("Police Department") in 1995. The parties dispute when she left the department's employment, with Plaintiff asserting it was in 1998, and Defendants contending she resigned on February 12, 1997.² Plaintiff was an intern with the Police Department in 1994 in connection with work she was required to do for her training in the police academy. Plaintiff completed her training in 1994 and the following year began working part-time at the Cortland County Sheriff's Department as an undercover narcotics officer, and also worked part-time as an officer with the Police Department. She left her employment with the Police Department in 1998 due to illness. Plaintiff adds that she worked shift coverage for two officers beginning in 2002, and although she did not receive benefits, she did receive overtime pay when she exceeded forty hours.

Plaintiff Works Full Time for the Police Department

On May 12, 2005, Plaintiff made a lateral transfer from the Steuben County Sheriff's Department to the Painted Post Police department. Prior to May 12, 2005, Plaintiff had no issues working with Donald Yost ("Yost"), then chief of the department, who had been appointed in June 1976.

Plaintiff's Complaints Against the Police Department

In October 2006, Plaintiff complained to Union President Todd Kimmey ("Kimmey") and other Village officials that Yost used disparaging language. In her response to Defendants' statements of fact, Plaintiff added that Yost also choked her, shoved her up against a cabinet, and pushed his knee into her crotch. Plaintiff complained to the New York Union of Police Associates, Inc., to Kimmey, and to Barbara Clark, the town clerk, who advised her to contact Mayor Franklin, which Plaintiff did. Within ten days of receiving notice of Plaintiff's complaint, the Village trustees called a special meeting to discuss an appropriate course of action. Plaintiff asserts that she was not invited to participate in that meeting.

Yost Retires and Is Made a Consultant

The Village attorney, Ronald Yorio, advised the trustees that he had spoken with Plaintiff, the union attorney, Marilyn Berson, and Yost, and that if Yost retired, that would resolve the issue. Subsequently, on December 31, 2006, Yost did in fact retire. Defendants state that Yost agreed to make himself available as a consultant on an as needed basis for the Village Board for a period of three years, and in return, received a monthly stipend of $1,400.00. Mayor Franklin stated that "consultant as needed" meant that if the new police chief needed information from previous years, he could contact Yost for that information. Yost's buyout provided him with additional income since hewas retiring early at age 62, and would not be eligible for Medicare or Social Security benefits until he reached age 65.

Plaintiff disputes that Yost actually retired, and asserts instead that Yost was continually employed by the Village as a paid consultant. Plaintiff further states she was unaware that the Village trustees had offered Yost the consulting position and further states that Yost had daily access to the police department building until the locks were changed in March 2007. Additionally, Plaintiff asserts that Yost was permitted to use "the police scanner, and other privileges which allowed Yost to continue his harassment of Plaitniff [sic]." Pl.'s Statement ¶ 7.

Plaintiff contends that Yost's consulting services utilized by the police department and that Yost's buyout agreement was actually an employment agreement. However, Yost testified at a pretrial deposition that following his retirement on December 31, 2006, neither the Village Board, nor the Police Department, made any requests for his consulting services. Yost Dep. 16:16-23, Apr. 27, 2015, ECF No. 41. Plaintiff admits that after Spring of 2007, Yost and she did not have any verbal interaction; however, she maintains that "Yost continued to interact with Plaintiff in a fashion intended to intimidate and retaliate against Plaintiff for reporting his unlawful treatment of her." Pl.'s Statement ¶ 16. After his retirement, Yost did not set Plaintiff's pay, have input into her evaluations, or exercise any supervisory role over her. However, Plaintiff asserts in her response that Yost continued to harass her. Robert Halm ("Halm") became the Chief of the Village of Painted Post Police Department on January 1, 2007.

Plaintiff's Counseling

On September 9, 2007, Plaintiff was absent from work without leave and was issued a counseling memorandum as a result. On December 21, 2007, Plaintiff receiveda written reprimand as a result of a one-car accident in a patrol car, which occurred on December 1, 2007. She received no further discipline for the accident. Plaintiff adds that at the time she asked her passenger, Kimmey, if she was clear to back up, and he gave her an affirmative response, for which he was not reprimanded. Plaintiff also received a counseling memorandum for leaving a fork in a patrol car, and, according to Plaintiff, she was docked one vacation day. The parties dispute whether Patrolman Dean Swan ("Swan") received a counseling memorandum on May 30, 2008, for leaving a folding knife in a patrol car. The parties agree that Swan also received a written reprimand on February 4, 2009, regarding an accident involving a patrol vehicle. Plaintiff further adds that the counseling memorandum of March 30, 2008, was not issued until seven months after she departed from the police department, and that its issuance took place five months after she filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC").

Pornography Viewing

In 2007, and in 2008, Plaintiff stated to Halm that she believed pornography was being viewed on the Police Department computers. Defendants' statement of facts lists only two times that Plaintiff complained; however, Plaintiff responds that she made many more complaints to Yost, Kimmey, the district attorney, and others. Halm issued in interoffice memorandum regarding computer usage and subsequently limited access to the computers by instituting passwords, which were supplied to the officers upon request. Plaintiff adds that Defendants delayed in issuing her a password, but not to her male coworkers, and that her male coworkers continued to visit pornography sites using their newly issued passwords. Plaintiff further alleges that she was required to write a memorandum explaining why she went outside the chain of command to the district at-torney when complaining about the viewing of pornographic material on the department's computers.

Plaintiff's Pay Issues and General Release

Plaintiff also complained to the Village Clerk and Halm about her pay. Defendants assert that they continuously attempted to remedy the issue. Plaintiff retorts that she complained to others as well, including the Village attorney and the union attorney, and that Kimmey told her to "shut up and take your pay." Id. ¶ 18. Plaintiff also asserts that she complained that the "Village of Painted Post" was not properly reporting her hours worked to the New York State Retirement System, and the Municipal Police Training Counsel. Kimball Dep. 84:6-9; Cook Aff. ¶ 13, Apr. 27, 2015, ECF No. 37. On or about May 12, 2008, Plaintiff signed a general release and accepted $1,250.00 in exchange for releasing the Village of Painted Post for any liability related to past claims for wages and benefits as a Village employee. Plaintiff asserts that she was presented with the general release following her discharge from the hospital and while still under the influence of her prescription. She further contends that she does not even remember signing the general release, that she was not represented by counsel at that time, and that the only people present in addition to her were Village Attorney Ron Yorio, and Plaintiff's mother. Plaintiff asserts that she revoked the agreement once she was no longer on medication and was able to speak with her attorney. However, she admits she never returned it to the Village of Painted Post and instead kept the $1,250.00 in a separate, interest-bearing account which she HAS not accessed. The parties also dispute when Plaintiff was released from Inova Alexandria Hospital. Defendants contended the hospital release date was May 8, 2008, and Plaintiff states it was May 9, 2008.

Plaintiff Ends Her Employment...