The opinion of the court was delivered by: Loretta A. Preska, U.S.D.J.
Plaintiff Jose L. Tavarez brings this action against Defendants Darren Green and Lateef Mu'Min under 28 U.S.C. § 1983.*fn1 Plaintiff claims that Defendants terminated his employment in retaliation for his speaking out on a matter of public concern in violation of the First Amendment and that he was denied due process when he was terminated in violation of the Fourteenth Amendment. Defendants now move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is granted.
On June 14, 1999, Plaintiff was hired as a seasonal lifeguard at Riverbank State Park ("Riverbank") by the State of New York Office of Parks, Recreation and Historic Preservation. (Defs. 56.1 Stmt. ¶ 1).*fn2 When he was hired, Plaintiff was provided with a Seasonal Employee Handbook and a Seasonal Appointment Letter. (Id. ¶¶ 1-2). These documents informed Plaintiff that, inter alia, his employment was "temporary" and that it "may be terminated at any time." (Speres Aff., Ex. A at DEF 430 (Seasonal Employee Handbook); Speres Aff., Ex. C at DEF 120 (Seasonal Appointment Letter)).*fn3
Seasonal lifeguards, including Plaintiff, are entitled to representation by the New York State Correctional Officers and Police Benevolent Association ("NYSCOPBA").
(Defs. 56.1 Stmt. ¶ 18). During the period in question, a collective bargaining agreement (the "CBA") governed the relationship between the State of New York and the NYSCOPBA. (Carabba Aff., Ex. L (CBA)).*fn4 Article 8 of the CBA provided that, inter alia, "employees otherwise subject to the provisions of Sections 75 and 76 of the [New York] Civil Service Law" shall be terminated only for just cause and after proper notice is provided. (Id. at 25-26). Appendix D to the CBA is entitled "Seasonal/Temporary Part-Time Employees Agreement." (Id. at 122). It provided that, inter alia, "[e]mployees who have completed at least six years of continuous service of six pay periods on a scheduled half time or greater basis in each of those six years, shall be entitled to an exit interview . . . following notice of involuntary separation" and that a "local union representative may accompany the employee in the exit interview session." (Id. at 123).
In 2001, Plaintiff had a meeting with Tracey Townes, a Riverbank employee, about his less than satisfactory performance. (Speres Aff., Ex. J at 34/15-22 (Transcript of Plaintiff's January 24, 2006 Deposition)). Specifically, the meeting focused on Plaintiff's improper practice of calling in sick the day before or after his day off. (Id. at 34/23-35/2, 38/20-22. In 2002, Plaintiff had a meeting with, among other persons, Gilroy Enriquez, a supervisor at Riverbank, where Plaintiff was informed that his performance was less than satisfactory. (Id. at 33/2-34/4). Plaintiff also received verbal warnings about his poor time and attendance in the Summers of 2002, 2003, and 2004. (Id. at 39/20-40/19). In addition, Plaintiff received performance evaluations in the Summers of 2002 and 2003 which stated, inter alia, that he needed to take more initiative and that his productivity had not improved despite being at Riverbank for several years. (Id. at 36/3-38/9; see also Speres Aff., Ex. I at DEF 22-23 (Plaintiff's Summer 2003 Evaluation) & DEF 24-25 (Plaintiff's Summer 2002 Evaluation)).*fn5
>From January 30, 2004 to August 5, 2004, Plaintiff was on approved Worker's Compensation leave. (Opening Mem. at 7; Opp'n Mem. at 15; see also Speres Aff., Ex. H (Defendant Darren Green's 2004 Log of Plaintiff's Time and Attendance)).*fn6 In late July 2004 or early August 2004, Mr. Enriquez, Arturo Alicea, David Gonzalez, and Luis Trinidad, all supervisors at Riverbank, met to review the performance of Riverbank's seasonal lifeguards. (Defs. 56.1 Stmt. ¶ 46). They recommended to Defendant Darren Green that three seasonal employees, including Plaintiff, be terminated at the end of the Summer of 2004. (Id. ¶ 47). Defendant Green agreed with the recommendation and conveyed it to Shelley Weinreb, the Director of Administration and Operations for the State of New York Office of Parks, Recreation and Historic Preservation's New York City Region, and Defendant Lateef Mu'Min, then a pool supervisor at Riverbank. (Id. ¶¶ 8, 48). Ms. Weinreb and Defendant Mu'Min agreed with the recommendation. (Id. ¶ 49).
On August 19, 2004, Defendant Green sent Ms. Weinreb an e-mail (the "August 19, 2004 E-Mail") asking her to check on the health insurance, retirement, and RS 5014 form information for the three lifeguards identified by Mr. Alicea, Mr. Gonzalez, Mr. Trinidad, and Mr. Enriquez. (Id. ¶ 50; see also Speres Aff., Ex. D (August 19, 2004 E-Mail)). "The RS 5014 form is the New York State and Local Retirement Systems' Withdrawal Application form used by a State employee for the return of that employee's contributions to the retirement system after that employee's separation from service, whether voluntary or involuntary." (Reply Weinreb Aff. ¶ 10 (citing Ex. M (RS 5014 Form))).*fn7
On September 1, 2004, Plaintiff witnessed a sexual assault at Riverbank. (Speres Aff., Ex. J at 57/1-61/12 (Transcript of Plaintiff's January 24, 2006 Deposition); see also Compl. ¶ 18).*fn8 Plaintiff was supervising Samuel Suarez, a Riverbank employee. (Speres Aff., Ex. J at 60/13-61/12; see also Compl. ¶ 18). Mr. Suarez called out to Plaintiff, who was on duty, to "watch this," as he gestured towards four children approximately 11 or 12 years of age (three boys and one girl) who were swimming in the pool when one of the boys pulled down the top of the girl's bathing suit. (Speres Aff., Ex. J at 59/3-60/10; see also Compl. ¶ 18). Plaintiff immediately gestured for Mr. Suarez to speak with him, and Mr. Suarez merely smirked and laughed. (Speres Aff., Ex. J at 61/5-12; see also Compl. ¶ 18).
At the end of Plaintiff's shift that day, he reported the sexual assault to his supervisor, Mr. Alicea, and his belief that Suarez orchestrated the incident. (Speres Aff., Ex. J at 74/6-75/5). Mr. Alicea assured Plaintiff that he would "take care of it." (Id. at 70/7-12).*fn9
On September 2, 2004, Mr. Alicea told Plaintiff that Mr. Suarez was arrested the day before for a different alleged sexual assault of a child. (Id. at 81/2-14). Plaintiff responded by asking Mr. Alicea what he had done with his complaint about Mr. Suarez's behavior and Mr. Alicea was non-responsive. (Id. at 82/13-83/10).
Plaintiff then went to Defendant Green to see if he had received Plaintiff's complaint about Mr. Suarez from Mr. Alicea. (Id. at 85/14-25). Defendant Green said he never received any report. (Id. at 86/1-15).
Later that morning, Plaintiff was speaking with a pool patron who asked Plaintiff about the arrest of Mr. Suarez.
(Id. at 84/4-21). The pool patron was allegedly a lawyer who frequently voiced concerns about the pool at Riverbank. (Compl. ¶ 23). Defendant Green then approached Plaintiff and told him to "shut the fuck up, if not [he] was going to be fired." (Speres Aff., Ex. J at 87/2-12).*fn10
That same day, Defendant Green sent Ms. Weinreb and Defendant Mu'Min an e-mail at 10:48 a.m. (the "September 2, 2004 E-Mail") with draft termination letters for the three lifeguards identified by Mr. Alicea, Mr. Gonzalez, Mr. Trinidad, and Mr. Enriquez, including Plaintiff.*fn11 (Defs. 56.1 Stmt. ¶ 53). The subject line of the September 2, 2004 E-Mail was "Revised Termination Letters.2004." (Speres, Ex. E at DEF 2). In the E-Mail, Defendant Green requested that Ms. Weinreb review the letters and stated that "Jose will receive his letter on Saturday 9/4/04 before he goes on his Pass Days." (Id.).
On September 3, 2004, Plaintiff did not come to work because he was sick. (Speres Aff., Ex. J at 89/12-15 (Transcript of Plaintiff's January 24, 2006 Deposition)). He was emotionally and mentally unable to work in light of "everything that had occurred." (Id. at 89/16-20).
On September 4, 2004, Plaintiff returned to work and spoke with Mr. Enriquez. (Id. at 90/16-18, 90/22-91/3). Mr. Enriquez told Plaintiff that investigators had spoken with various lifeguards, and Plaintiff stated that he wanted to speak with authorities ...