BaRoss v. Greenlawn Volunteer Fire Department, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOAN BAROSS, as Executor of the

Estate of, and on behalf of, John

F. BaRoss, Sr.,

Plaintiff,

MEMORANDUM & ORDER

-against- 16-CV-4805(JS)(SIL)

GREENLAWN VOLUNTEER FIRE DEPARTMENT,

INC., KURT ALLEN, STAN SADOWSKI,

SCOTT WARYOLD, and LEE JOSEPH,

Defendants.

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APPEARANCES

For Plaintiff: Scott Michael Mishkin, Esq.

Paul Carruthers, Esq.

Scott Michael Miskin, P.C.

One Suffolk Square, Suite 240

Islandia, New York 11749

For Defendants: Gregory Bertram Reilly, Esq.

Aisling Margaret McAllister, Esq.

Bond, Schoeneck & King

600 Third Avenue, 22nd Floor

New York, New York 10016

SEYBERT, District Judge:

Plaintiff Joan BaRoss, as Executor of the Estate and on

behalf of John BaRoss, Sr. (“Plaintiff”),1 initiated this action

against the Greenlawn Volunteer Fire Department, Inc. (“GVFD”),

Kurt Allen (“Allen”), Stan Sadowski (“Sadowski”), Scott Waryold

(“Waryold”), and Lee Joseph (“Joseph,” together with Allen,

Sadowski, and Waryold, the “Individual Defendants,” and with GVFD

1 Consistent with the parties’ briefing, the Court refers to John

BaRoss, Sr. as the Plaintiff.

“Defendants”) asserting violations of Title II of the Americans

with Disabilities Act (“ADA”) and 42 U.S.C. § 1983 (“Section 1983”)

arising out of his two-year suspension from GVFD. Currently before

the Court is Defendants’ motion for summary judgment. (Defs. Mot.,

ECF No. 83; Defs. Br., ECF No. 83-1; Pl. Opp., ECF No. 85; Defs.

Reply, ECF No. 86; Pl. Supp. Br., ECF No. 89; Defs. Supp. Br., ECF

No. 90; Pl. Supp. Reply, ECF No. 91; Defs. Supp. Reply, ECF No.

92.) For the following reasons, Defendants’ motion is GRANTED.

FACTUAL BACKGROUND2

I. The Parties

GVFD owns the property and equipment of the Greenlawn

Volunteer Fire Department (the “Department”) and engages in

fundraising activities to support the Department. (56.1 Stmt.,

ECF No. 83-2, ¶ 4.) During the relevant period, Defendant Joseph

served as GVFD’s President; Defendant Waryold served as the

Department’s Chief; Defendant Allen served as Department’s

Assistant Chief; and Defendant Sadowski served as a member of the

GVFD Board of Directors (the “Board”). (Id. ¶¶ 5-8.)

2 The facts are drawn from the parties’ submissions and Defendants’

Rule 56.1 Statement and Plaintiff’s Proposed Amended

Counterstatement (“56.1 Stmt.”). For the Rule 56.1 Statement and

Counterstatement, the Court cites to ECF No. 83-2 which contains

Defendants’ Rule 56.1 Statement as well as Plaintiff’s responses

and Proposed Amended Counterstatement. The Court notes any genuine

disputes of fact in this section.

Plaintiff served as a volunteer firefighter with GVFD

for over fifty years. (Id. ¶ 9.) Sometime in 2008, Plaintiff was

diagnosed with Alzheimer’s disease, and around that time he became

an inactive member of GVFD. (Id. ¶ 10.) As an inactive member,

Plaintiff was entitled to participate in social events sponsored

by GVFD, although he was required to pay for tickets to these

events. (Id. ¶ 10; Bylaws, Joseph Decl., Ex. D, ECF No. 83-3, ECF

pp. 22, 40, § 7.2.9.3) Moreover, unlike active members, as an

inactive member Plaintiff was not entitled to vote in GVFD

elections, hold GVFD office, or respond to alarms. (Bylaws §

7.3.2.) Nevertheless, Plaintiff continued to participate in GVFD

social events, including the annual Fireman’s Fair. (56.1 Stmt.

¶ 10.) As detailed herein, the incident giving rise to this action

occurred at the 2013 Fireman’s Fair.

II. The 2013 Fireman’s Fair

Plaintiff volunteered to sell pizza at the 2013

Fireman’s Fair, which was held on the last weekend of August. (Id.

¶ 12.) At some point on the night of the 30th, it came to the

Individual Defendants’ attention that Plaintiff was pocketing

proceeds from the pizza booth. (Id. ¶¶ 14-15.) The following

evening, Defendant Joseph, co-chair of the 2013 Fireman’s Fair,

3 All exhibits to the Joseph Declaration were filed at ECF No. 83-

3. The Court includes the ECF page for each exhibit for ease of

reference.

and other GVFD members confronted Plaintiff about his conduct and

escorted him off the premises after discovering marked bills in

Plaintiff’s pockets. (Id. ¶ 16.)

On September 18, 2013, GVFD sent a letter to Plaintiff

that advised him that GVFD had commenced a “disciplinary

investigation” pursuant to GVFD Bylaws in response to the Fireman’s

Fair incident. (Sept. 18 Letter, Joseph Decl., Ex. B, ECF p. 13.)

The September 18 Letter also requested that Plaintiff contact GVFD

by September 30, 2013 with any response to the allegations, which

would be addressed at a “special meeting” on October 3, 2013. (Id.

at ECF p. 14; 56.1 Stmt. ¶ 18.) In connection with its disciplinary

investigation, GVFD collected witness statements. (Witness

Statements, Joseph Decl., Ex. A, ECF p. 6.)

III. Plaintiff’s Son Meets with GVFD Leadership

On September 22, 2013, Plaintiff’s son, John BaRoss, Jr.

(“BaRoss Junior”), met with the Individual Defendants. (56.1 Stmt.

¶ 20.) At the meeting, BaRoss Junior informed the Individual

Defendants that his father suffered from Alzheimer’s disease,

which he believed explained Plaintiff’s conduct at the Fireman’s

Fair. (Id. ¶ 22.) The parties dispute whether, at that meeting,

BaRoss Junior stated that Plaintiff was amendable to GVFD

suspending Plaintiff from participating in GVFD activities for two

years. (See 56.1 Stmt. ¶¶ 25, 38.)

The parties also dispute whether BaRoss Junior

communicated to Waryold that Plaintiff accepted the two-year

suspension in a follow-up letter he sent on September 27, 2013.

(See 56.1 Stmt. ¶¶ 30, 32; see also Sept. 27 Letter, Joseph Decl.,

Ex. C, ECF p. 16.) In the September 27 Letter, BaRoss Junior

enclosed a letter from Plaintiff’s doctor, Dr. Musarat Shareef,

that explained Plaintiff’s conduct at the 2013 Fireman’s Fair was

consistent with the “poor judgment and odd behavior” exhibited by

those suffering from Alzheimer’s disease. (Sept. 27 Letter at ECF

p. 21.) The September 27 Letter noted that Dr. Shareef

“recommend[ed] that [Plaintiff] remain an active member [of GVFD]

(to help his morale, self-esteem, etc.),” but added that this was

not Plaintiff’s wish; rather, BaRoss Junior communicated that

“[Plaintiff] feels we (the BaRoss family) agreed to your terms

(you and the other 3 GFD leaders) for him to stay away from the

fire house for 2 years and will honor that agreement (even with

this explanation of conduct provided by his doctor).” (Id. at ECF

pp. 17-18.) The letter concludes by reiterating that “[Plaintiff]

isn’t asking to come back as his doctor suggested. He wants to

honor our agreement with you and the chiefs (understanding the

risk that his health probably will continue to suffer due to

stress/humiliation/frustration of his condition, etc.).” (Id. at

ECF p. 20.) As BaRoss Junior explained in his deposition, “The

intention [of the September 27 Letter] was to be a good cop and .

. . just try to throw ourselves at their mercy but hope they can

read between the lines what we’re saying here, please drop the

penalty . . . .” (BaRoss, Jr. Dep. Tr., Reilly Decl., Ex. C, Tr.

at 139:16-20, ECF pp. 26, 64; see also 56.1 Stmt. ¶ 32 (Plaintiff’s

response arguing that “[i]t was agreed between plaintiff and

defendants that plaintiff would discretely refrain from coming to

defendant’s activities and there would be no formal suspension on

record”).)

IV. The October 3 Meeting and Plaintiff’s Suspension

On October 3, 2013, GVFD held a special meeting to

address the Fireman’s Fair incident. (56.1 Stmt. ¶ 42.) The

parties dispute whether the October 3 Meeting complied with GVFD’s

Bylaws. According to GVFD Bylaws, a member can be suspended or

expelled for “conduct [that] serves to dishonor or discredit” GVFD.

(Bylaws § 8.3.1.) Once an allegation has been made in writing to

the GVFD President, the President must notify the Board and provide

a copy of the allegations to the charged member. (Id. § 8.3.2.)

Subsequently, the Board must conduct an investigation into the

allegations and present its finding to GVFD membership at a special

meeting. (Id. § 8.3.3.) At the special meeting, a seventy-five

percent affirmative vote is required to suspend or expel a member.

(Id. § 8.3.4.)

At the October 3 Meeting, which Plaintiff did not attend,

the Individual Defendants, supposedly in line with the parties’

agreement, proposed suspending Plaintiff for two years. (56.1

Stmt. ¶¶ 43-44.) There were no “factual findings by the Defendants

about why [P]laintiff engaged in misappropriation,” and there was

no “disciplinary hearing,” because Defendants believed that

Plaintiff had agreed to the two-year suspension. (Id. ¶¶ 47-48.)

Moreover, the Individual Defendants did not advise GVFD membership

of Dr. Shareef’s letter, which had been provided to Defendant

Waryold on September 27, and which explained that Plaintiff’s

conduct at the 2013 Fireman’s Fair was consistent with behavior

exhibited by those suffering from Alzheimer’s disease. (56.1 Stmt.

¶ 70.) Indeed, it does not appear Defendant Waryold ever showed

Dr. Shareef’s letter to the other Individual Defendants. (Id. ¶¶

64-68.) GVFD members voted unanimously to implement the two-year

suspension. (Id. ¶ 45.) Pursuant to the suspension, Plaintiff

was banned from attending GVFD social events. (Id. ¶ 46.) The

suspension did not affect Plaintiff’s receipt of length of service

award program payments (“LOSAP payments”) or pension payments.

(Joseph Decl., ¶ 23.) That same day, GVFD communicated the

suspension to Plaintiff in a letter. (Oct. 3 Letter, Joseph Decl.,

Ex. E, ECF p. 58.)

After the suspension, BaRoss Junior began contacting

media outlets and state representatives in an effort to clear his

father’s name. (56.1 Stmt. ¶ 50.) He also filed a discrimination

complaint with the New York State Division of Human Rights, which

was dismissed. (Id.) Plaintiff died on November 5, 2016, shortly

after this lawsuit was filed. (Id. ¶ 2.)

PROCEDURAL HISTORY

Plaintiff initiated this action on August 26, 2016,

alleging claims pursuant to (1) the ADA, (2) Section 1983 for

violation of Plaintiff’s due process, equal protection and liberty

rights, and (3) the New York State Human Rights Law and other state

laws. (See generally Compl., ECF No. 1.) After Defendants moved

to dismiss the Complaint, Plaintiff opposed and withdrew the state

law claims. (Pl. Br., ECF No. 38 at 23.) In an order dated May

16, 2017, the Honorable Arthur D. Spatt granted in part and denied

in part Defendants’ motion to dismiss. (May 16, 2017 Order, ECF

No. 43.) Specifically, Judge Spatt held that GVFD is a state actor

and public entity subject to the Section 1983 and the ADA (id. at

10-13); that Plaintiff’s claims were not time-barred (id. at 13-

14); and that Plaintiff alleged sufficient facts to plausibly plead

an action under the ADA, Section 1983, and for punitive damages

under Section 1983 (id. at 14-15). However, Judge Spatt dismissed

Plaintiff’s ADA claims against the Individual Defendants. (Id. at

10.)

The parties completed discovery in July 2018 and, after

exchanging Defendants’ Local Rule 56.1 Statement, Defendants filed

their motion for summary judgment, which Plaintiff opposes. (Mot.;

Pl. Opp.) Judge Spatt ordered supplemental briefing to address

whether, “irrespective of the Plaintiff’s alleged waiver,

(1) suspension from GVFD events constitutes a deprivation of a

constitutionally protected interest and (2) assuming a

constitutional[ly] protected interest exits, what procedural

protections are required to comply with procedural due process.”

(See Mar. 16, 2020 Elec. Order.) The parties filed supplemental

briefs pursuant to Judge Spatt’s March 16, 2020 Electronic Order.

(See Pl. Supp. Br.; Defs. Supp. Br.; Pl. Supp. Reply; Defs. Supp.

Reply.) On June 30, 2020, the case was reassigned to the

undersigned.

ANALYSIS

I. Legal Standard

Summary judgment is appropriate where 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). “Material

facts are those which might affect the outcome of the suit under

the governing law, and a dispute is genuine if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Wagner v. Chiari & Ilecki, LLP, 973 F.3d 154,

164 (2d Cir. 2020) (quoting Coppola v. Bear Stearns & Co., 499

F.3d 144, 148 (2d Cir. 2007)) (internal quotation marks omitted).

The movant bears the burden of establishing that there are no

genuine issues of material fact. Gallo v. Prudential Residential

Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). Once the movant

makes such a showing, the non-movant must proffer specific facts

demonstrating “a genuine issue for trial.” Giglio v. Buonnadonna

Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at *4 (E.D.N.Y.

Sept. 25, 2009) (internal quotation marks and citation omitted).

Conclusory allegations or denials will not defeat summary

judgment. Id.

In reviewing the record, “the court is required to

resolve all ambiguities and draw all permissible factual

inferences in favor of the party against whom summary judgment is

sought.” Sheet Metal Workers’ Nat’l Pension Fund v. Vadaris Tech.

Inc., No. 13-CV-5286, 2015 WL 6449420, at *2 (E.D.N.Y. Oct. 23,

2015) (quoting McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.

1997)). The Court considers the “pleadings, deposition testimony,

answers to interrogatories and admissions on file, together with

any other firsthand information including but not limited to

affidavits.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).

II. Discussion

A. Plaintiff’s Claims Are Not Moot

First, Defendants contend Plaintiff’s claims are moot,

relying primarily on Fox v. Board of Trustees of State University

of New York, 42 F.3d 135 (2d Cir. 1994). (Defs. Br. at 10-11.)

The Court disagrees and finds Fox unpersuasive against the claims

asserted here. In Fox, the district court concluded that the First

Amendment claims brought by plaintiffs, a group of university

students, were moot because all of the plaintiffs had graduated

and could not benefit from the declaratory and injunctive relief

they sought. Id. at 137. The Second Circuit affirmed, agreeing

that the plaintiffs’ claims became moot when they graduated,

because “after their graduation and absent a claim for damages,

‘it bec[ame] impossible for the courts, through the exercise of

their remedial powers to do anything to redress the injury.’” Id.

at 140 (emphasis added) (quoting Cook v. Colgate Univ., 992 F.2d

17, 19 (2d Cir. 1993)).

Here, Plaintiff seeks monetary relief, including

punitive damages, notwithstanding BaRoss Junior’s representations

that his family is “not interested in the money.” (See, e.g.,

Compl. ¶¶ 65, 80, 82-86; BaRoss Jr., Dep. Tr. at 173:6-19.)

Accordingly, to the extent Plaintiff has a valid claim for money

damages under the ADA or Section 1983, those claims survive the

mootness inquiry. See B.C. v. Mount Vernon School Dist., 660 F.

App’x 93, 96 (2d Cir. 2016) (summary order) (following Fox in

finding graduated plaintiff’s request for injunctive relief was

moot but concluding plaintiff’s claims for monetary relief under

the ADA, Section 1983, and other claims for monetary relief,

“survive the mootness inquiry”).

B. Plaintiff’s ADA Claim Fails as a Matter of Law

Plaintiff is proceeding under Title II of the ADA, which

provides that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any such

entity.” McElwee v. County of Orange, 700 F.3d 635, 640 (2d Cir.

2012) (quoting 42 U.S.C. § 12132). To establish liability under

Title II of the ADA, the plaintiff must show that (1) he is a

qualified individual with a disability; (2) the defendant is

subject to the ADA; and (3) the defendant denied him the

opportunity to participate in or benefit from the defendant’s

services, programs, or activities, or otherwise discriminated

against him, because of his disability. Id. A defendant

discriminates under the ADA when it fails to “mak[e] reasonable

accommodations to the known physical or mental limitations” of a

qualified individual with a disability, “unless such covered

entity can demonstrate that the accommodation would impose an undue

hardship on the operation of the business of such covered entity.”

Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008)

(quoting 42 U.S.C. § 12112(b)(5)(A)). Accordingly, “a requested

accommodation that simply excuses past misconduct is unreasonable

as a matter of law,” because “workplace misconduct is a legitimate

and nondiscriminatory reason for terminating employment, even when

such misconduct is related to a disability.” McElwee, 700 F.3d at

641; see also Krasner v. City of New York, 580 F. App’x 1, 3 (2d

Cir. 2014) (summary order).

The parties agree that Plaintiff was a qualified

individual with a disability, that is, Alzheimer’s disease, and

that GVFD is subject to the ADA. Thus, at issue is whether GVFD

discriminated against Plaintiff because of his disability when it

suspended him for misappropriating funds at the 2013 Fireman’s

Fair.

The Second Circuit’s decision in McElwee resolves that

issue and is controlling here. In McElwee, the plaintiff, who

suffered from a neurodevelopmental disorder, was dismissed from

the defendant’s volunteer program after engaging in “erratic and

harassing behavior toward female staff members.” 700 F.3d at 637.

Plaintiff filed suit in response, arguing the defendants violated

Title II of the ADA by failing to provide a reasonable

accommodation for his disability. Id. at 639. The Second Circuit

disagreed, finding that the plaintiff’s claim “is as much a request

to excuse his past misconduct as it is a request for future

accommodation,” and that the plaintiff’s “inappropriate behavior

is indisputably a legitimate non-discriminatory reason for

dismissing [plaintiff] from the volunteer program, even if the

behavior resulted from his disability.” Id. at 644.

Here, it is undisputed that GVFD suspended Plaintiff

because he misappropriated funds from the pizza booth at the 2013

Fireman’s Fair.4 Under binding Second Circuit case law, it is

immaterial that Plaintiff’s misconduct related to his disability,

which the Court believes to be the case. See id.; see also Krasner

v. City of New York, 580 F. App’x 1, 3 (2d Cir. 2014) (“The fact

that such aberrant behavior may be a result of [the plaintiff’s]

Asperger’s is immaterial, inasmuch as workplace misconduct is a

legitimate and nondiscriminatory reason for terminating

employment, even when such misconduct is related to a disability.”

(citation omitted)); Bourara v. N.Y. Hotel Trades Council & Hotel

Ass’n of N.Y.C., Inc. Employee Benefit Funds, No. 17-CV-7895, 2020

WL 5209779, at *10 (S.D.N.Y. Sept. 1, 2020) (“The ADA, however,

does not immunize disabled employees from discipline or discharge

for incidents of misconduct in the workplace . . . and even if an

incident of misconduct is connected to an alleged disability, an

employer is entitled to discipline an employee for that incident,

so long as it is not pretext for discrimination.” (internal

4 The Court finds that Plaintiff has failed to controvert the fact

that Defendants were not aware that Plaintiff suffered from

Alzheimer’s disease before BaRoss Junior informed them at the

September 22 Meeting. (See 56.1 Stmt. ¶ 23.) Indeed, BaRoss

Junior admitted as much during his deposition. (See BaRoss, Jr.

Dep. Tr. at 16:24-17:2 (“I accept at face value that they said

they didn’t know [Plaintiff suffered from Alzheimer’s disease] at

the night of the fair on August 31st.”).) While Plaintiff

speculates that Defendants might have known about his condition

before the 2013 Fireman’s Fair because GVFD took Plaintiff to the

hospital in the past, where his condition was reported, such

“speculation and conjecture will not suffice” to show a genuine

issue of fact. Timberlake v. New York Presbyterian Hosp., No. 05-

CV-5615, 2009 WL 3122580, at *4 (S.D.N.Y. Sept. 29, 2009).

citations omitted)); Klaper v. Cypress Hills Cemetery, No. 10-CV-

1811, 2014 WL 1343449, at *9 (E.D.N.Y. Mar. 31, 2014), aff’d, 593

F. App’x 89 (2d Cir. 2015). GVFD was thus entitled to discipline

Plaintiff for conduct that violated its Bylaws. This is the case

even though, as Plaintiff points out, Defendants “learned of

Plaintiff’s Alzheimer’s diagnosis prior to implementing his

punishment.” (Pl. Opp. at 9.) “Since reasonable accommodation is

always prospective, an employer is not required to excuse past

misconduct even if it is the result of the individual’s

disability.” U.S. EQUAL EMP. OPPORTUNITY COMMISSION, ENFORCEMENT GUIDANCE:

REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES

ACT, 2002 WL 31994335, Question 36 (2002); see also U.S. EQUAL EMP.

OPPORTUNITY COMMISSION, ENFORCEMENT GUIDANCE ON THE ADA AND PSYCHIATRIC

DISABILITIES, Question 30 (1997) (“Example A: An employee steals

money from his employer. Even if he asserts that his misconduct

was caused by a disability, the employer may discipline him

consistent with its uniform disciplinary policies because the

individual violated a conduct standard -- a prohibition against

employee theft -- that is job-related for the position in question

and consistent with business necessity.”) Indeed, the fact that

the defendant in McElwee was advised that the plaintiff suffered

from a disability that may have been the cause of his misconduct

prior to terminating the plaintiff did not change the analysis

there. McElwee, 700 F.3d at 639. Nor does it change the analysis

here.

Accordingly, Defendant’s motion for summary judgment as

to Plaintiff’s ADA claim is GRANTED.

C. Plaintiff’s Section 1983 Claims Fails as a Matter of Law

The thrust of Plaintiff’s Section 1983 claim is that

Defendants violated his procedural due process rights under the

Fourteenth Amendment by failing to provide him with a pre-

deprivation hearing.5 Defendants assert that they are entitled to

summary judgment on Plaintiff’s Section 1983 due process claim on

the grounds that GVFD is not a state actor for the purposes of the

Fourteenth Amendment, and Plaintiff waived his right to a pre-

deprivation hearing by consenting to the two-year suspension. The

Individual Defendants also contend they are entitled to qualified

immunity. The parties further dispute whether Plaintiff’s

suspension constitutes a deprivation of a constitutionally

protected interest and, if so, what procedural protections were

5 Because Plaintiff declined to oppose Defendants’ arguments that

they are entitled to summary judgment on Plaintiff’s substantive

due process and equal protection claims in violation of Section

1983, the Court finds Plaintiff waived its opposition, and

Defendants are entitled to summary judgment on both claims.

Striker Sheet Metal II Corp. v. Harleysville Ins. Co., No. 16-CV-

5916, 2018 WL 654445, at *11 (E.D.N.Y. Jan. 18, 2018) (“In the

Second Circuit, a party that fails to raise an argument in its

opposition papers in a motion for summary judgment has waived that

argument.”) (collecting cases).

required, pursuant to Judge Spatt’s March 16, 2020 Electronic

Order.

1. GVFD is a State Actor

First, although the parties devote several pages to the

issue in their respective briefs, Judge Spatt already held that

GVFD is a state actor for the purposes of the Fourteenth Amendment.

(May 16, 2017 Order at 10-13.) His conclusion is therefore “law

of the case,” which “commands that ‘when a court has ruled on an

issue, that decision should generally be adhered to by that court

in subsequent stages in the same case’ unless ‘cogent and

compelling reasons militate otherwise.’” Johnson v. Holder, 564

F.3d 95, 99 (2d Cir. 2009) (quoting United States v. Quintieri,

306 F.3d 1217, 1225 (2d Cir. 2002)). Defendants do not offer any

“cogent” or “compelling” reasons to depart from Judge Spatt’s

holding, and this Court may “apply the law of the case doctrine to

a determination made at the motion to dismiss stage.” Klaper,

2014 WL 1343449, at *4 (collecting cases). Therefore, GVFD is a

state actor for the purposes of the Fourteenth Amendment.

2. There is a Genuine Dispute Whether Plaintiff Waived

His Right to a Pre-Suspension Disciplinary Hearing

Second, the Court finds there is a genuine dispute as to

whether Plaintiff consented to the two-year suspension. A

reasonable jury, evaluating the September 27 Letter as well as

BaRoss Junior’s testimony regarding the letter, could conclude

that Plaintiff did not consent to the suspension. At no point in

the September 27 Letter does BaRoss Junior explicitly consent to

the suspension on Plaintiff’s behalf. Indeed, the excerpts from

the letter that signal amenability to the suspension are expressed

in the subjunctive (e.g., “[Plaintiff] feels we (the BaRoss family)

agreed to your terms”; “[Plaintiff] wants to honor our agreement”)

and cabined with parentheticals that suggest Plaintiff did not

consent. (Sept. 27 Letter at ECF pp. 17-18, 20 (emphases added).)

Moreover, the parties disagree whether BaRoss Junior consented to

the suspension at the September 22 Meeting he had with the

Individual Defendants. Based on the foregoing, and drawing all

permissible factual inferences in favor of Plaintiff as the non-

moving party, a reasonable jury may conclude that Plaintiff had

not waived his right to a disciplinary hearing under the Bylaws.

But to survive summary judgment, disputes must be over

material facts, that is, facts that might affect the outcome of

the case under the governing law. And the genuine dispute as to

whether Plaintiff consented to the suspension, thereby waiving his

right to a pre-termination disciplinary hearing, is only material

if the suspension deprived Plaintiff of a constitutionally

protected interest, as Judge Spatt intuited. Therefore, the Court

turns to the question whether Plaintiff had a constitutionally

protected interest in his inactive membership in GVFD. Because

the Court answers that question in the negative, it concludes that

the dispute over whether Plaintiff waived his right to a

disciplinary hearing is not material.

3. Plaintiff Did Not Have a Constitutionally Protected

Interest in an Inactive Membership in GVFD

Section 1983 “is not itself a source of substantive

rights.” Patterson v. County of Oneida, 375 F.3d 206, 225 (2d

Cir. 2004) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3

(1979)). Rather, Section 1983 provides “a method for vindicating

federal rights elsewhere conferred,” such as those conferred by

the Due Process Clause of the Fourteenth Amendment to the

Constitution. Id. (citing Baker, 443 U.S. at 144 n.3). As the

Second Circuit has recognized, “the Due Process Clause does not

protect against all deprivations of constitutionally protected

interests in life liberty, or property, ‘only against deprivations

without due process of law.’” Rivera-Powell v. N.Y.C. Bd. of

Elections, 470 F.3d 458, 464 (2d Cir. 2006) (citing Parratt v.

Taylor, 451 U.S. 527, 537 (1981)). Thus, “to prevail on a Section

1983 claim for violation of the procedural due process rights

guaranteed by the Fourteenth Amendment, the plaintiff must show

(1) that he possessed a protected liberty or property interest;

and (2) that he was deprived of that interest without due process.”

Jackson v. Roslyn Bd. of Educ., 652 F. Supp. 2d 332, 338-39

(E.D.N.Y. 2009) (Spatt, J.) (citing McMenemy v. City of Rochester,

241 F.3d 279, 285-86 (2d Cir. 2001)). It is well settled that

“the Due Process Clause does not itself create the property

interests that it protects,” but that constitutionally protected

property interests are “created and their dimensions are defined

by existing rules or understandings that stem from an independent

source such as state law.” McMenemy, 241 F.3d at 286 (internal

quotation marks omitted) (quoting Luck v. Mazzone, 52 F.3d 475,

477 (2d Cir. 1995)).

Turning to the parties’ arguments, first, the line of

cases holding that volunteer firefighters have a property interest

in their ongoing employment is not controlling here, because at

the time of his suspension Plaintiff was an inactive member of

GVFD and was not receiving any tangible economic benefit, such as

a salary. In each of the firefighter cases, many of which

Plaintiff cites, the volunteer firefighter claimed that the fire

department failed to afford him due process in disciplinary

proceedings that resulted in his termination as an employee. See

Reed v. Medford Fire Dep’t Inc., 806 F. Supp. 2d 594, 600-03, 610

(E.D.N.Y. 2011) (Spatt, J.) (active-duty firefighter challenging

termination)6; Bigando v. Heitzman, 187 A.D.2d 917, 590 N.Y.S.2d

553, 553 (N.Y. App. Div. 3rd Dep’t 1992) (same); Greene v. Medford

Fire Dep’t, Inc., 6 A.D.3d 705, 706, 775 N.Y.S.2d 538, 539 (N.Y.

6 Indeed, if Judge Spatt thought that his decision in Reed was

dispositive on this question, then it would have been unnecessary

to order supplemental briefing.

App. Div. 2d Dep't 2004) (same); McEvoy v. Oyster Bay Fire Co. No.

1, 117 A.D.3d 953, 954, 986 N.Y.S.2d 187, 190 (N.Y. App. Div. 2d

Dep’t 2014) (active-duty firefighter challenging his one-year

suspension). The firefighter in each case stood to lose his

employment and livelihood, weighty interests that the courts did

not hesitate to conclude were constitutionally protected property

interests. But the suspension here did not cost Plaintiff his

employment and livelihood. Rather, as a retired or inactive member

of GVFD, the suspension only barred him from attending GVFD’s

social events, events that he was required to pay to attend. Nor

did the suspension interfere with any pension benefits accrued

from Plaintiff’s prior active service, such as LOSAP payments.

While the Court recognizes that GVFD social events were important

to Plaintiff’s sense of pride and self-esteem, this loss is

distinguishable from the loss of employment and livelihood

identified in the foregoing firefighter cases and this Circuit’s

procedural due process caselaw more broadly.

Instead, the facts here are more analogous to cases where

courts have concluded that plaintiffs who were temporarily

suspended from their position, either with or without pay, did not

suffer deprivations sufficient to invoke the procedural

protections of the due process clause. Ware v. City of Buffalo,

186 F. Supp. 2d 324, 332–34 (W.D.N.Y. 2001); M.O.C.H.A. Soc., Inc.

v. City of Buffalo, 872 F. Supp. 2d 264, 286–87 (W.D.N.Y. 2012);

Larsen v. Lynch, No. 95-CV-0302, 1998 WL 229919, at *6 (D. Conn

Mar. 31, 1998). In Ware, the plaintiff, a Buffalo firefighter,

brought a Section 1983 claim alleging procedural due process

violations after he was suspended without pay for violating the

city’s drug testing policy. Ware, 186 F. Supp. 2d at 327-29. The

court observed that while “discharge from public employment

qualifies as a loss of property interest,” suspensions without pay

require a “more rigorous[]” and “fact-specific” analysis. Id. at

332, 333. Applying this rigorous, fact-specific analysis, the

court concluded that the plaintiff’s suspension did not deprive

him of a property interest because “[h]is status was not

significantly altered” and “his full-time employment was not

terminated.” Id. at 334; see also Larsen, 1998 WL 229919, at *6

(holding five-day suspension without pay did not constitute a

constitutionally protected interest).

Rigorously reviewing the facts here, the Court finds

that Plaintiff’s two-year suspension did not deprive him of a

constitutionally protected interest. His membership was not

terminated, and, as noted supra, the suspension did not deprive

him of his ability to earn a living or otherwise affect his GVFD

benefits. Indeed, he did not lose benefits accrued during active

service or the right to participate in GVFD elections. See

M.O.C.H.A., 872 F. Supp. 2d at 286-87 (holding firefighters

suspended with pay for violating city’s drug policy were not

deprived of a constitutionally protected interest). In that sense,

Plaintiff’s loss was less weighty than the losses in Ware and

Larsen, where the plaintiffs lost wages and other benefits because

of the suspension.

In conclusion, Plaintiff’s interest in attending certain

GVFD social functions, at his own cost, while understandably

important to him, is “significantly less compelling than that of

an individual who has been denied the very means by which to live.”

Ware, 186 F. Supp. 2d at 334 (quoting Costello v. Town of

Fairfield, 811 F.2d 782, 786 (2d Cir. 1987) (Van Graafeiland, J.,

concurring)). Plaintiff’s interest is “qualitatively different”

from the property interests that receive due process protections,

like employment or welfare benefits, the loss of which is

“characterized by a quality of either extreme dependence in the

case of welfare benefits, or permanence in the case of tenure, or

sometimes both . . . .” S&D Maintenance Co. v. Goldin, 855 F.2d

962, 966 (2d Cir. 1988). For that reason, courts in this Circuit

recognize that not every “grievous loss visited upon a person by

the state is sufficient to invoke the procedural protections of

the due process clause.” Gendalia v. Gioffre, 606 F. Supp. 363,

366 (S.D.N.Y. 1985) (quoting Meachum v. Fano, 427 U.S. 215, 224

(1976)).

Because Plaintiff fails to assert a property interest7

entitled to procedural due process protections, the Court need not

consider whether GVFD provided Plaintiff sufficient process before

suspending him. Moreover, because Plaintiff’s Section 1983

procedural due process claim fails as a matter of law, Plaintiff

cannot sustain a claim for punitive damages thereunder, and the

Court finds it unnecessary to address whether the Individual

Defendants are entitled to qualified immunity. Liggins v. Griffo,

2009 WL 4826929, at *2 (2d Cir. Dec. 16, 2009) (summary order).

Accordingly, Defendant’s motion for summary judgment as

to Plaintiff’s Section 1983 claim for violation of his procedural

due process rights as protected by the Fourteenth Amendment is

GRANTED.

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7 Moreover, Plaintiff declined to raise in his supplemental

briefing whether his suspension implicated a “liberty” interest.

Accordingly, that argument is waived. Striker Sheet Metal II

Corp., 2018 WL 654445, at *11. Even were it not waived, the Court

finds that Defendants did not violate Plaintiff’s liberty

interest, because “[a] person’s interest in his or her good

reputation alone, apart from a more tangible interest, is not a

liberty or property interest sufficient to invoke the procedural

protections of the Due Process Clause or create a cause of action

under § 1983.” Patterson v. City of Utica, 370 F.3d 322, 329-30

(2d Cir. 2004) (emphasis added) (citing Paul v. Davis, 424 U.S.

693, 701 (1976)). As noted supra, Plaintiff did not suffer a

tangible interest, “such as [loss of] government employment,”

apart from damage to his reputation. Patterson, 370 F.3d at 330.

CONCLUSION

For the stated reasons, Defendants’ motion for summary

judgment is GRANTED. The Clerk of the Court is directed to mark

this case CLOSED.

SO ORDERED.

/s/_JOANNA SEYBERT_________

Joanna Seybert, U.S.D.J.

Dated: March 10 , 2021

Central Islip, New York