The opinion of the court was delivered by: Hurd, District Judge.
MEMORANDUM-DECISION and ORDER
Plaintiff, Bernard Branch ("plaintiff"), brought suit against defendants, Guilderland Central School District ("school district") and Paul Pristera ("Pristera"), in both his individual and official capacity, alleging eight causes of action.*fn1 Pursuant to Fed.R.Civ.P. 12(b)(6), the school district has moved to dismiss plaintiff's first and second causes of action, and Pristera has moved to dismiss plaintiff's fifth cause of action.*fn2 Those causes of action, as asserted in the Amended Complaint, allege the following:
In his second cause of action, plaintiff alleges, as against the school district, retaliation for his exercise of freedom of speech rights and for his filing of administrative charges, in violation of 42 U.S.C. § 1983.
In his fifth cause of action, plaintiff alleges, as against Pristera, retaliation for his exercise of freedom of speech rights, in violation of 42 U.S.C. § 1983.
The parties have fully briefed the relevant issues, and oral argument was heard on October 25, 2002, in Albany, New York. Decision was reserved.
Taken from plaintiff's amended complaint, as is required when disposing of motions made pursuant to Rule 12(b)(6), the following comprise the facts essential to disposing of defendants' motions.
In September of 1994, plaintiff began working for the school district as a Bus Driver Substitute and then, beginning a month later, as a Bus Driver. In September of 1995, he was appointed to the position of Vehicle & Traffic § 19-A School Bus Trainee ("19-A position"). Beginning in 1996, Pristera, who was the school district's Transportation Director, in the presence of plaintiff and others, began making crude and offensive, sexually explicit, gender-based comments about his female charges. During the summer and fall of that same year, plaintiff voiced his complaints about Pristera's behavior to Christine Sagendorf ("Sagendorf"), the school district's Assistant Transportation Supervisor. He also discussed the topic with several co-employees, and with an attorney from the transportation employees' bargaining unit.
Plaintiff alleges that the retaliation against him began in October of 1997, when Pristera, after learning of the complaint, denied him access to files he needed to update and maintain in conjunction with his 19-A position, unless he had special permission from Karen Roennpagel ("Roennpagel"), the school district's Head Trainer. That same month, plaintiff's union representative met with Pristera to discuss the issue. Pristera told the union representative that plaintiff had lodged a harassment complaint against him, and that the access denial orders came from Blaise Salerno ("Salerno") and Bill Adams ("Adams"), the school district Superintendent and Human Resources Administrator, respectively.
The following month, plaintiff and a union representative met with Salerno, Adams, Pristera, and a school district attorney to discuss the issue further. Salerno claimed ignorance of any orders denying plaintiff access to the 19-A office and files, and said he would investigate the matter. When asked by a union representative why he had claimed the orders came from Salerno, Pristera remained silent. By letter dated one day later, Salerno granted plaintiff access to the 19-A office and files, and informed him he would be under the supervision of Roennpagel. Plaintiff alleges Pristera and Roennpagel nonetheless continued to deny him access to the office and files.
In December of 1997, plaintiff alleges that Pristera and others conspired to convince another employee to file a sexual harassment charge against him. Plaintiff claims Pristera and Roennpagel summoned one of plaintiff's trainees, Louise Kosakowski ("Kosakowski"), to the transportation office to discuss plaintiff's job performance. Plaintiff claims Kosakowski told him of the meeting, that she offered a positive appraisal of his job performance, and that it was her belief that "it was obvious they just wanted to dig something up on you." (Amended Complaint, ¶ 26). That same month, Adams met with two school district bus aides, informing them that a sexual harassment complaint would be lodged against plaintiff. According to plaintiff, both women responded in the negative when asked if plaintiff had sexually harassed them. On December 24, 1997, Kosakowski filed a sexual harassment complaint against plaintiff.
On January 5, 1998, "plaintiff stated to defendant Pristera that if he was not permitted to perform the duties of 19-A trainer [by being granted access to the 19-A office and files] then he should resign from the position." (Amended Complaint, ¶ 29). The next day, plaintiff claims Pristera told him that if he wanted to resign, he would need to submit a written resignation to Adams. The next day, January 7, 1998, plaintiff informed Pristera he would not resign his 19-A position. Pristera allegedly responded by telling plaintiff the situation would need to be discussed with Adams.
On January 14, 1998, plaintiff met with a union lawyer to discuss Pristera's conduct. According to plaintiff, the union lawyer told him that the Pristera's behavior had been reported to the school district on a number of occasions, but that no action had been taken. Plaintiff claims the lawyer suggested he talk with his co-employees to ascertain their willingness to file complaints against Pristera, which plaintiff did.
On February 2, 1998, Adams informed plaintiff the school district had accepted his "verbal resignation" from the 19-A position in lieu of terminating him from the same. (Amended Complaint, ¶ 32). Plaintiff retained his Bus Driver position. Two days later, plaintiff filed a Notice of Claim with the school district.
On February 9, 1998, plaintiff was interviewed by Adams regarding Kosakowski's sexual harassment complaint. Plaintiff claims Adams told him the complaint was based on plaintiff complimenting Kosakowski on her weight loss, and telling her that his marriage and home life was troubled. Plaintiff denied the allegations, informed Adams he had never been alone with Kosakowski, that she had recently given him gifts for his home and for his niece, and that, if anything, Kosakowski had made sexually offensive remarks in the workplace. Some time later, plaintiff was informed that the investigation was "inconclusive." (Amended Complaint, ¶ 35).
On February 18, 1998, two weeks after the Notice of Claim was filed, another complaint was filed against plaintiff, this time by one of the alleged conspirators, Roennpagel. The complaint alleged "harassment, sexual harassment, slander and defamation of character." (Amended Complaint, ¶ 36). Investigation into this complaint also resulted in an inconclusive finding.
A week later, plaintiff was interviewed by several administrators, including Adams, regarding his complaint about Pristera's workplace conduct. Though plaintiff informed his interviewers that the conduct had worsened since the complaint, the school district later determined plaintiff's complaint to be "unfounded." (Amended Complaint, ¶ 38).
Almost four months later, on June 11, 1998,*fn3 a union attorney filed an administrative charge of discrimination with the New York State Division of Human Rights ("DHR") on plaintiff's behalf. The charge alleges Pristera and the school district engaged in "an unlawful discriminatory practice . . . because of Opposing Discrimination." (Docket No. 26, Exhibit B). The charge details Pristera's allegedly improper workplace comments, union complaints about such behavior, plaintiff's January 14, 1998, meeting with a union attorney and the advice given therein, the denial of access to the 19-A office and files, his termination from that position, the filing of his Notice of Claim, an allegation that Pristera conspired with others to falsely accuse him of sexual harassment, and a plea to consolidate his complaint with those of others that have or will file similar charges.*fn4 Just over a week later, plaintiff received a negative performance evaluation from Pristera.
A few months later, on September 10, 1998, plaintiff received a disciplinary notice from Pristera for failing to report to work for an early school dismissal. A union official challenged this as erroneous, saying it was clearly a scheduling error on the school district's part, but Adams refused to remove the notice from plaintiff's file.
In November of 1998, Kosakowski allegedly told plaintiff that her filing a sexual harassment charge against him "was all [Pristera's] idea," and that she was sorry. (Amended Complaint, 42). After being asked to put said apology in writing, Kosakowski hesitated, telling plaintiff that Pristera and Roennpagel had pressured her to file the complaint, and that they told her the investigation would be "informal." (Amended Complaint, ¶ 43). She then allegedly admitted to plaintiff, in front of another employee, that her complaint was false, and that school district officials had told her plaintiff was having difficulties with his marriage and home life. Plaintiff told Kosakowski that Adams had told him that she claimed he had such difficulties. The next day, in a meeting with plaintiff and a union representative, Kosakowski claimed Pristera had summoned her into his office after hearing about her admissions and apology made the previous day. Kosakowski informed plaintiff she remained afraid of giving a written apology to plaintiff.
A few months later, in February of 1999, plaintiff and some union representatives and officials met with Salerno, Sagendorf, and Kosakowski concerning the alleged admissions made by Kosakowski. During the meeting, Kosakowski reiterated her belief that the complaint would be handled informally, and allegedly expressed words manifesting surprise that the complaint was treated as a sexual harassment charge. After a union official asked her if that is what she thought it was when she signed the complaint, Salerno interrupted and took Kosakowski out of the room. Upon returning, Kosakowski told plaintiff that he did harass her.
The next month, on March 18, 1999, Sagendorf issued plaintiff a disciplinary notice, ordering him to park his vehicle only in an assigned parking space. Less than a week later, plaintiff claims he found a vehicle parked in his space, causing him to park elsewhere. Later that afternoon, Adams handed plaintiff an envelope containing a letter from Salerno. The letter criticized plaintiff for ignoring Sagendorfs orders, threatened to tow and impound plaintiff's car, and threatened to charge plaintiff with insubordination. Plaintiff got upset and threw away what he thought was just the envelope. When he discovered the letter had been thrown away as well, he attempted to retrieve it, but Adams allegedly would not permit such retrieval, threatening plaintiff with insubordination charges. After this, plaintiff went home after telling a dispatcher he was too upset to drive his afternoon shift. He later received a disciplinary notice from Pristera for failing to cover the shift.
The next day, March 25, 1999, a school district bus driver parked in a spot not assigned to him after finding someone had taken his assigned spot. Plaintiff claims that this driver was questioned but not disciplined, and that the driver was told over the radio that parking in another spot is permissible if his own spot was taken.
On June 17, 1999,*fn5 a union attorney filed a second charge of discrimination with DHR. Because the investigation of plaintiff's first charge was not complete, or perhaps even started, this second charge was consolidated with the first charge. The charge alleges Pristera and the school district engaged in "an unlawful discriminatory practice relating to sex and retaliation." (Docket No. 26, Exhibit C). The charge was filed for the "direct retaliation" plaintiff incurred as a result of voicing his complaint against Pristera and for filing the first administrative charge. (Id.). The charge goes into more detail about the alleged conspiracy and results of the investigation of Kosakowski's complaint, including her apology to plaintiff and the school district's refusal to remove such complaint from plaintiff's permanent file. It also alleges that "since the filing of [the first administrative complaint], . . . Pristera has engaged in a campaign of retaliation against [plaintiff]." (Id.).
Two months later, in September of 1999, plaintiff used accrued leave time, but was required to submit a note from the nursing home where he was going. Plaintiff claims no other employees were required to submit such a note. In that same month, Pristera allegedly told the school district Assistant Superintendent, Leo Guelpa, that plaintiff, while in his 19-A position, had taken Kosakowski to his home to engage in sexual relations. This allegation was false. Later that same month, on September 24, 1999, Pristera was suspended by the school district as a result of his being arrested and criminally charged with larceny, scheming to defraud, and falsifying business records, all such charges stemming from his position with the school district. Pristera was terminated the following month, but plaintiff claims the harassment and retaliation continued.
In January of the following year, Sagendorf, apparently in response to plaintiff complaining of the continued harassment and retaliation, told plaintiff "words to the effect[,] `[y]ou have no complaints with me, [Pristera's] gone." (Amended Complaint, ¶ 56). Plaintiff claims he told Sagendorf that she was a school district representative and that the harassment and retaliation had to stop.
A few months later, in April of 2000, plaintiff told Sagendorf, now the Transportation Supervisor, that he was unable to complete his assigned bus driving route in the time allotted. After giving the reasons for such inability, Sagendorf refused to adjust his route time, despite allegedly doing so readily for other drivers. Five months later, plaintiff again complained to Sagendorf of his inability to complete his route in the allotted time. Allegedly, despite adjusting other drivers' route times, she again refused plaintiff's request, and, in fact, a wheelchair-bound student was even added to plaintiff's route. Three months later, in November of 2000, a school district dispatcher under Sagendorfs control allegedly refused to add plaintiff to the "extra work list," which gave drivers additional routes.
During March and April of 2001, plaintiff claims school district employees contacted administration officials and parents of children riding on plaintiff's bus, asking them when plaintiff was arriving and departing, whether anyone wished to complain about plaintiff's performance, and informing them that plaintiff was ...