The opinion of the court was delivered by: Randolph F. Treece Magistrate Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Jeffry Jackson brings a civil action pursuant to 42 U.S.C. § 1983, alleging that his First Amendment right to free speech was violated when Defendants failed to reappoint him as the Director of the Bureau of Real Property Tax Services in retaliation for speaking out about Rensselaer County Local Law No. 6. Dkt. No. 1, Compl. at ¶¶ 128-41. Plaintiff further alleges that Defendant Rensselaer County is liable for actions taken by Jimino, as a final policymaker, for failing to reappoint him as retaliation for exercising his First Amendment right and that Defendant Jimino's failure to fulfill her promise to assist Plaintiff in obtaining other public employment constituted a breach of contract. Id. at ¶¶ 142-51. Defendants bring a Second Motion for Summary Judgment.*fn1 Dkt. No. 38. Plaintiff opposes the Motion. Dkt. No. 41. For the reasons to follow, the Defendants' Motion for Summary Judgment is granted in part and denied in part.
Plaintiff, a Rensselaer County employee for twenty-six (26) years, worked as the County Director of Real Property Tax Services for approximately ten (10) years. Compl. at ¶ 1; Dkt. Nos. 25 & 41, Pl.'s Dep., dated July 27, 2004, at p. 6, lines 16-24, p. 9, lines 15-24, & p. 10, lines 1-13.*fn2
As Director, Plaintiff was an "independent officer reporting directly to the county legislative body[.]" Dkt. No. 38, Defs.' 7.1 Statement at ¶ 5; Dkt. No. 41, Pl.'s 7.1 Statement at ¶ 5.*fn3 Pursuant to N.Y. REAL PROP. TAX LAW§ 1532, the Director's duties include, inter alia, preparing and maintaining tax maps as well as providing copies of the maps in accordance with N.Y. REAL PROP. TAX LAW§ 503. Defs.' 7.1 Statement at ¶ 6; Pl.'s 7.1 Statement at ¶ 6. Under N.Y. REAL PROP. TAX LAW§ 503, the original tax maps are to be filed in the Director's office. Defs.' 7.1 Statement at ¶ 7; Pl.'s 7.1 Statement at ¶ 7. In conjunction with other duties, the Director provides advisory services to city and town assessors. Defs.' 7.1 Statement at ¶ 8; Pl.'s 7.1 Statement at ¶ 8.
Plaintiff states that when he became the Director of Real Property Tax Services, he took an oath to uphold the Constitution and laws of the State of New York, including those which involved the proper performance of his duties under the Real Property Tax Law. Defs.' 7.1 Statement at ¶ 15; Pl.'s 7.1 Statement at ¶ 15. During his service in this position, Plaintiff spoke out as to his concern over the legality of Rensselaer County Local Law No. 6, which transferred tax mapping services from his department to the County's Bureau of Research and Information Services ("BRIS"). Defs.' 7.1 Statement at ¶¶ 9 & 16; Pl.'s 7.1 Statement at ¶¶ 9 & 16. In his objection to the transfer, Plaintiff communicated at work and publicly from 1996 until 2002 through letters and memoranda about this issue and the potential effects on the administration of real property tax within Rensselaer County. Defs.' 7.1 Statement at ¶¶ 10 & 17; Pl.'s 7.1 Statement at ¶¶ 10 & 17. Plaintiff asserted that the transfer of mapping services "made it difficult for the [Bureau of Tax Services] to perform an essential element of its service function to assessors,  severely hampered the administration of the local property tax throughout Rensselaer County, and made it difficult for the Bureau of Tax Services to supply tax maps to assessors and otherwise to perform its duties in a timely manner." Defs.' 7.1 Statement at ¶ 11; Pl.'s 7.1 Statement at ¶ 11.
On February 14, 1996, Plaintiff sent a memorandum to County Attorney Smith complaining that Local Law No. 6 changed N.Y. REAL PROP. TAX LAW§ 1532 in that it caused three tax map technicians to be transferred from his office and further requesting Attorney Smith's opinion on the changes since he believed they were inconsistent with the duties of his office under the New York Real Property Tax Law. Defs.' 7.1 Statement at ¶ 18; David A. Bagley Decl., dated Aug. 24, 2006, Ex. E, Mem. to Smith, dated Feb. 14, 1996; Pl.'s 7.1 Statement at ¶ 18. Then, on August 27, 1996, Plaintiff wrote a letter to the New York State Office of Real Property Services ("ORPS"). Defs.' 7.1 Statement at ¶ 12; Bagley Decl., Ex. E, Lt., dated Aug. 27, 1996, with Attachs.; Pl.'s 7.1 Statement at ¶ 12. This letter made reference to, and Plaintiff enclosed a copy of, the county law and resolution as well as his memorandum to the county attorney. Defs.' 7.1 Statement at ¶ 12; Pl.'s 7.1 Statement at ¶ 12. Within this letter, Plaintiff stated that though some duties performed by the tax map technicians remained the same, certain service related functions were no longer being used and, furthermore, there was a "potential [to] severely restrict tax map and assessment file maintenance[.]" Defs.' 7.1 Statement at ¶¶ 12 & 19; Pl.'s 7.1 Statement at ¶¶ 12 & 19.
Subsequently, on January 25, 1999, Plaintiff sent a memorandum to former-County Executive Henry Zwack detailing the duties of Plaintiff's office and asking those duties that were transferred be reinstated as required by the New York Real Property Tax Law. Defs.' 7.1 Statement at ¶ 13; Bagley Decl, Ex. E, Lt. to Zwack, dated Jan. 25, 1999; Pl.'s 7.1 Statement at ¶ 13. On November 23 and 24, 1999, Plaintiff sent two memoranda to County Executive Zwack expressing that, in his opinion, certain letters from assessors addressed the essence of Rensselaer County violating Article 15 of the New York State Property Tax Law and the only resolution to the problem was to restore the tax map positions to Plaintiff's departmental budget. Defs.' 7.1 Statement at ¶¶ 20 & 21; Bagley Decl., Ex. E, Mem. to Zwack, dated Nov. 23 & 24, 1999; Pl.'s 7.1 Statement at ¶¶ 20 & 21.
On or about February 12, 1999, Plaintiff sent a letter to Zwack expressing discontent that personnel changes put the Bureau of Tax Services "in [an] untenable position[.]" Defs.' 7.1 Statement at ¶ 24; Pl.'s 7.1 Statement at ¶ 24; Compl., Ex. X, Mem. to Zwack, dated Feb. 12, 1999. As a result of Plaintiff's evocation of his concerns, the objections to the transfer of the tax mapping functions and personnel changes became points of contention between Plaintiff and Zwack. Defs.' 7.1 Statement at ¶ 22; Pl.'s 7.1 Statement at ¶ 22. During this conflict and addressing Zwack's attacks on his job performance, Plaintiff sent a letter to Zwack defending the performance of his duties. Defs.' 7.1 Statement at ¶ 23; Pl.'s 7.1 Statement at ¶ 23; Compl., Ex. V, Zwack Lt., dated Feb. 20, 2000.
Tax bills for the year 2000 were issued by an outside contractor and Plaintiff advised County Executive Zwack of problems that may result because of inadequate computer resources. Defs.' 7.1 Statement at ¶ 14; Pl.'s 7.1 Statement at ¶ 14. Plaintiff asserts that the transfer of tax mapping duties contributed to difficulties encountered in the issuance of the tax bills for the year 2000.
Defs.' 7.1 Statement at ¶ 14; Pl.'s 7.1 Statement at ¶ 14. Beginning in December 1999, the press got wind of the fact that trouble was brewing with the tax bills from Rensselaer County, namely that they failed to include penalties incurred by property owners. See generally Compl., Ex. W, Articles. Thus, from late December 1999 into 2000 and beyond, a plethora of articles were published by the press. Id. These articles not only discussed the numerous problems associated with the late tax bills and penalties owed to the County, but within some of these articles Zwack began to personally attack Plaintiff for these problems. Id. In addition, several assessors' associates began expressing their views as to the situation regarding the tax bills as well as their opinion of Zwack's attack on Plaintiff. Id. The articles further described Plaintiff's problem with the transfer of tax mappers and the tax mapping function that came as a result of Local Law No. 6 as well as other issues relating to Plaintiff's position. Id.
While these articles were being published, Plaintiff sent several more letters and/or memoranda to Zwack and others regarding the tax bill issue, his personal reputation, and other related issues. Id., Exs. Z, Pl.'s Mem. to Zwack, dated Jan. 7, 2000; AA, Pl.'s Lt. to Swartz, dated Jan. 25, 2000; V, Pl.'s Lt. to Zwack, dated Feb. 20, 2000; BB, Pl.'s Lt. to Swartz, dated Mar. 2, 2000; DD, Pl.'s Mem. to Kathy Jimino, dated July 19, 2001; & EE, Pl.'s Lt. to Jimino, dated Aug. 21, 2001. Among Plaintiff's many correspondences were letters sent to the County Legislature trying to get them to return the tax mapping function to his office. Defs.' 7.1 Statement at ¶¶ 25 & 26; Bagley Decl., Ex. E, Lt. to Swartz, dated Jan. 4, 2000, Lt. to Swartz, dated Jan. 25, 2000, Lt. to Swartz, dated Mar. 2, 2000, & Lt. to Swartz, dated Apr. 28, 2000; Pl.'s 7.1 Statement at ¶¶ 25 & 26.
Subsequently, and while articles were still being published and Plaintiff was still writing letters/memoranda, in May 2001 Zwack resigned as County Executive. See Dkt. Nos. 25 & 41, Henry Zwack Dep., dated June 2, 2004, at p. 4, lines 6-10; Kathy Jimino Dep., dated June 1, 2004, at p. 10, lines 13-23. Upon the resignation in May 2001, Kathy Jimino became the County Executive. Jimino Dep. at p. 19, lines 10-11. During this transition, Plaintiff remained the Director of Tax Services though his term was set to expire on the last day in September 2001. Id. at p. 30, lines 17-18; Pl.'s Dep., dated July 27, 2004, at p. 10, lines 8-13. However, because certain events limited Jimino's time to make a decision on Plaintiff's reappointment, Plaintiff stayed on as "interim" Director until March 1, 2002, when the decision was finally made not to reappoint Plaintiff. Jimino Dep. at p. 30, lines 17-24, p. 49, lines 7-13, p. 51, lines 21-24, & p. 52, lines 1-16; Pl.'s Dep. at p. 12, lines 6-24, & p. 13, lines 1-18.
A. Summary Judgment Standard
Pursuant to FED. R. CIV. P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).
To defeat a motion for summary judgment, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts submitted by the moving party. FED. R. CIV. P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) and Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
Plaintiff claims that his First Amendment right to free speech was violated when Defendants failed to reappoint him as the Director of the Bureau of Real Property Tax Services in retaliation for expressing his views on the legality and propriety of Rensselaer County Local Law No. 6. Compl. at ¶¶ 128-41; Dkt. No. 41, Pl.'s Mem. of Law at pp. 11-19. Defendants assert that no First Amendment violation occurred as Plaintiff did not speak out as a citizen, but instead spoke out pursuant to his official duties as an employee of the County of Rensselaer. Dkt. No. 38, Defs.' Mem. of Law at pp. 4-8.
The Supreme Court has long stated that "public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, ___ U.S. ___, 126 S.Ct. 1951, 1957 (2006) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) & Connick v. Myers, 461 U.S. 138, 147 (1983)) (further citations omitted). However, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 1960; Skehan v. Village of Mamaroneck, 465 F.3d 96, 105 (2d Cir. 2006). This is so because "[e]mployers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity . . . [and s]upervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission." Garcetti v. Ceballos, 126 S.Ct. at 1961.
Notwithstanding, if the public employee is speaking as a citizen and not pursuant to his official duties, the Second Circuit has stated that "although a governmental entity enjoys significantly greater latitude when it acts in its capacity as employer than when it acts as sovereign, the First Amendment nonetheless prohibits it from punishing its employees in retaliation for the content of their speech on matters of public importance." Munafo v. Metro. Transp. Auth., 285 F.3d 201, 211 (2d Cir. 2002); see also Skehan v. Village of Mamaroneck, 465 F.3d at 105-06 (quoting Munafo). If a person is not speaking out pursuant to official duties but rather as a private citizen, then the court must determine, as a question of law, whether the speech is a matter of public concern. Skehan v. Village of Mamaroneck, 465 F.3d at 106 (citing Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir. 2005)).
Accordingly, in order to for a plaintiff to establish a First Amendment retaliation claim, the plaintiff must prove that:
(1) [he] engaged in constitutionally protected speech because [he] spoke as [a] citizen on a matter of public concern; (2) [he] suffered an adverse employment action; and (3) the speech was a 'motivating factor' in the adverse employment decision.
Skehan v. Village of Mamaroneck, 465 F.3d at 106 (citing Gronowski v. Spencer, 424 F.3d at 292 & Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir. 1996) for the proposition that the speech must be "at least a substantial or motivating factor")) (further citation omitted).
A plaintiff must also make a showing that each defendant "was personally involved . . . in the alleged constitutional deprivations." Id. (quoting Gronowski v. Spencer, 424 F.3d at 293). If a plaintiff can establish the requisite burden, a defendant employer may still prevail by showing by a preponderance of the evidence that either "(1) the defendant would have taken the same adverse action against the plaintiff regardless of the plaintiff's speech; or (2) the plaintiff's expression was likely to disrupt the [defendant's] activities and that the harm caused by the disruption outweighs the value of the plaintiff's expression." Id. (citing Cobb v. Pozzi, 352 F.3d 79, 91 (2d Cir. 2003)).
In determining whether the speech was pursuant to a plaintiff's official duties, the Supreme Court has noted that a court must make a practical inquiry into the situation as "[f]ormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes." Garcetti v. Ceballos, 126 S.Ct. at 1961-62.
If the speech is not pursuant to a plaintiff's official duties and it is determined that the plaintiff was instead speaking out as a citizen, the Court must determine whether the speech was a matter of public concern, which can be "fairly considered as relating to any matter of political, social, or other concern to the community." Connick v. Meyers, 461 U.S. at 146; see also Benvenisti v. City of New York, 2006 WL 2777274, at *10 (S.D.N.Y. Sept. 23, 2006) (stating that public corruption, wrongdoing, allegations of racial discrimination, mismanagement of public funds, and criticism of the federal government's national drug control policy could be matters of public concern (citations omitted)). Notwithstanding, "speech on a purely private matter, such as an employee's dissatisfaction with the conditions of his employment," fall outside the realm of constitutional protection. Lewis v. Cowen, 165 F.3d 154,164 (2d Cir. 1999) (quoted in Benvenisti v. City of New York, 2006 WL 2777274, at *10). In order to determine whether speech involves matters of public concern, a practical inquiry into the "content, form, and context of a given statement, as revealed by the whole record" must be done. Connick v. Myers, 461 U.S. at 147-48.
Here, when Plaintiff took his oath as Director of the Bureau of Tax Services, he stated that he would "support the Constitution of the United States and the Constitution of the State of New York[.]" Comp., Ex. M, Oath. The term of this position was to expire on September 30, 2001. Id. The scope of Plaintiff's duties as a Director are promulgated in an opinion of counsel for the Office of Real Property Services and N.Y. REAL PROP. TAX LAW§ 1532. Id., Ex. A, Opinion SBRPS No. 2, dated May 26, 1994 (Reissued May 1995). The opinion of ...