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June 30, 1994

JOHN V. ESPOSITO, Plaintiff,

The opinion of the court was delivered by: LORETTA A. PRESKA

 LORETTA A. PRESKA, District Judge:

 Plaintiff brings this action under 42 U.S.C. ยง 1983 alleging that he was deprived of a liberty interest without due process in the course of the termination of his employment with defendant. Presently before me is defendant's motion for summary judgment.


 The complaint in this action alleges violations of plaintiff's civil rights stemming from his termination as Chief of Police of defendant Metro-North Commuter Railroad Co. ("Metro-North") on August 5, 1988. The stated reason for the termination was plaintiff's failure to notify his supervisor, Don Nelson, or the President of Metro North, Peter Stangl, of the existence of a videotape involving Metro-North police officers. The videotape, entitled "Bubba on Patrol," shows seven white, on-duty Metro-North police officers patrolling in Grand Central Station in 1983. One of the officers is shown pretending to make his rounds while nude except for his hat, gunbelt, tie, and boots. Other officers are shown directing racial slurs at a "homeless" black person in the station.

 Plaintiff first learned of "Bubba on Patrol" in 1985 from Metro-North Police Captain Dean Evans, who had known about it since 1983. Upon viewing the tape, plaintiff immediately sought to discipline the officers involved but was told by Joseph Meloney, Metro-North's Assistant Manager of Labor Relations, the no action could be taken. Under the collective bargaining agreement, Meloney said, disciplinary action against Metro-North employees had to be commenced within 30 days of discovery of the offending conduct by a management official. Because Captain Evans, a management official, had known of the videotape for over two years, the "statute of limitations" on the videotape, so to speak, had run out. After speaking with Meloney, plaintiff informed Don Nelson, his supervisor, of the existence of "Bubba on Patrol" and of his belief, divined from Meloney, that nothing could be done to punish those involved. Nelson did not ask to see the tape and accepted that the situation was beyond redress.

 On July 28, 1988, while home on suspension from work, plaintiff was contacted by a reporter for a New York City television station who inquired whether plaintiff knew anything about the videotape entitled "Bubba on Patrol." Plaintiff, in response, showed the videotape to the reporter, allowed him to copy it, and consented to its being aired on the local news. His motivation for doing all this was to "get back at . . . the people responsible for" his arrest.

 Within hours of releasing the videotape, plaintiff called Don Nelson to tell him that a television reporter had gotten a copy of "Bubba on Patrol" and would soon broadcast it on television. Plaintiff chose not to tell Nelson that he had been the one who had given the tape to the reporter and, in fact, willfully concealed this piece of information from everyone, including Metro-North investigators and the New York City Inspector General, until his deposition in this action on January 18, 1993.

 On August 1, 1988, Nelson informed President Stangl of the videotape, and Stangl commissioned an internal investigation of all aspects of the situation. The investigator's report corroborated much of plaintiff's story with respect to the videotape, including the date he first became aware of it and his sincere belief that the Collective Bargaining Agreement barred the imposition of any discipline. The report contradicted plaintiff, however, in his assertion that he had informed Nelson of the videotape within days of learning of it himself in 1985. The investigator, supported by Nelson, concluded that plaintiff's July 1988 warning to Nelson that the videotape was soon to be broadcast had been Nelson's first indication of the videotape's existence. Based on the report, and on Nelson's confirmation, Stangl concluded that plaintiff had not reported "Bubba on Patrol" to Nelson in 1985. Stangl further concluded that plaintiff's failure to inform his superior immediately of the existence of the inflammatory and offensive videotape was conduct warranting dismissal.

 On August 3, 1988, "Bubba on Patrol" was broadcast on local New York television, generating a firestorm of controversy and outrage. Plaintiff and representatives of Metro-North commented to the press that plaintiff had sought to discipline the officers involved but had been blocked by the Collective Bargaining Agreement. Two days later, Stangl telephoned plaintiff and informed him that his employment was terminated because of his failure to notify his superior immediately of the existence of the videotape. Plaintiff protested the he had immediately informed Nelson of the videotape; he did not, however, request a hearing on the issue. Also on August 5, Metro-North issued a press release announcing plaintiff's termination and explaining that plaintiff had "made an inexcusable error in judgment by not telling either his supervisor or Stangl about "Bubba on Patrol."

 During the first two years following his dismissal, plaintiff spent most of his time battling the unrelated criminal indictment against him and did not look for other employment. Upon the conclusion of the criminal case, plaintiff sought employment with Conrail in Philadelphia but was told no positions were available. He did not pursue local police jobs after being told that all such jobs in New York State required civil service status, which he did not have. Nor did he seek police-type employment anywhere outside New York State. In 1993, after the instigation of this litigation, plaintiff sought reinstatement in his position with Metro-North, but his application was ignored.


 I. Standard for Summary Judgment

Rule 56(c) provides that summary ...

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