Fire Lieutenant loses retaliation claim for Union speech
Plaintiff Kevin Heffernan alleged that disciplinary charges were filed against him by defendant Frank Straub in retaliation for his exercise of his First Amendment right of free speech and association. The disciplinary charges were filed by the Fire Bureau in connection with the delayed response to a fire that occurred on April 20, 2005 while the plaintiff was in charge of a number of fire fighters at the White Plains Drill School that day. Heffernan contends the charges were filed in response to his speech on behalf ot eh Union and statements he made over the radio on April 20, 2005. Straub, the Commissioner of the Department of Public Safety of White Plains, New York, and the other defendants joined in the suit moved for dismissal on grounds. The trial court granted dismissal in part, but refused to dismiss the complaint in its entirety. The defendants then moved for reconsideration of the opinion, and the claim was subsequently dismissed.
A motion for reconsideration or re-argument may only be granted if the court has failed to take in to account “controlling decisions or factual matters that were put before it on the underlying motion...and which, had they been considered, might have reasonably altered the result before the court.” Greenwald v. Orb Coomc’ns & Mktg., Inc., No. 00Civ.1939 LTSHBP, 2003 WL 660844, at *1 (S.D.N.Y. Feb. 27, 2003). The defendant’s further directed the court to McCullough v. Wyandanch Union Free School District, which held speech occurring just before the retaliatory act will not support an inference of causation based on proximity if the plaintiff has engaged in this speech throughout his employment.
