Posted by: Patricia Salkin | April 13, 2016

Fed. Dist. Court in NY Dismisses Retaliation Claims Against Town

As a result of the Court’s prior decisions, Plaintiff William Pflaum’s remaining claim in this action was his First Amendment retaliation claim, in which he alleged three separate ways he was retaliated against for publicly criticizing Town officials. First, Plaintiff alleged that, in retaliation for filing charges of ethical violations against Defendant Bertram, she “collaborated with and supported” the Town’s Fire Chief to deny and/or threaten to deny fire protection to Plaintiff, (b) “supported and encouraged” various Town employees to “illegally revoke …Plaintiff’s permit to operate his business,” and (c) “supported and encouraged” the Town Assessor’s “campaign to intimidate Plaintiff by linking his political speech with his real estate assessment.” Second, Plaintiff alleged that, in retaliation for writing columns on his Internet blog regarding corruption among the Town’s public officials, the Town filed false criminal charges against him. Lastly, Plaintiff alleged that, in retaliation for criticizing Bertram, the Town Assessor, and the Town, the Town Assessor used his authority to raise taxes in order to intimidate Plaintiff into silence.

Plaintiff argued that he engaged in protected speech by creating an Internet blog on which he publicly criticized Town officials and exposed their illegal activities, which led to the Town’s retaliatory actions. Defendants argued that, because Plaintiff has not complied with Local Rule 7.1(a)(3) in his response to their statement of material facts, their statement of material facts should be deemed admitted. Specifically, Plaintiff failed to admit and/or deny each of Defendants’ factual assertions in matching numbered paragraphs. Furthermore, Defendants argued that Plaintiff could not demonstrate that any adverse action was taken because he was never actually deprived of fire protection services and his subjective belief that the fire department may not respond to a fire at his residence was insufficient to create a genuine dispute of fact.

At the outset, the court noted that in the Plaintiff’s deposition testimony that there was no actual chilling of his protected speech as a result of Defendants’ actions, as Plaintiff admitted that he increased his political activities and continued to publicize his opinions against the Town in the face of its alleged efforts to silence him. Moreover, the Plaintiff admitted that no one had told him that the fire department would not respond if there was a fire at his house, and a different fire chief than the one who allegedly authored the online post was responsible for responding to fire calls in the location of Plaintiff’s residence. The court therefore declined to find an adverse action with regard to the fire chief’s post. With respect to the revocation of his business permit, the undisputed facts established that the Town received complaints regarding the noise emanating from Plaintiff’s property, and it was therefore probable that the revocation would have occurred regardless of any improper motive.

Next, while Plaintiff’s allegations could plausibly suggest that an improper motive played a role in the charges brought against him, Defendants submitted admissible record evidence that established otherwise. Specifically, an affidavit filed by Wes Powell, the Town’s Dog Control Officer, stated that he received repeated complaints from Mr. Platt throughout 2010, culminating in the noise complaint that served as the basis for the criminal charge. Finally, Plaintiff failed to submit enough evidence with respect to his tax assessment that his taxes were improperly raised or that Mr. Gleason acted with a retaliatory animus. Likewise, no evidence had been submitted to substantiate Plaintiff’s claim that Bertram encouraged Mr. Gleason to use his authority as Town Assessor to intimidate Plaintiff. Accordingly, the court held that the Plaintiff failed to create a genuine dispute of material fact with respect to his First Amendment claim. 

Pflaum v Town of Stuyvesant, 2016 WL 865296 (NDNY 3/2/2016)


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