The opinion of the court was delivered by: VITALIANO, D.J.
Plaintiff Robert Olson ("Olson"), a former New York State Trooper, brings this action alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and of his civil rights, pursuant to 42 U.S.C. § 1983, against the State of New York, the Division of State Police, and State Police employees Stephen Oates, Preston L. Felton, and James W. McMahon (collectively "defendants").
Specifically, plaintiff has pled a cause of action against the state and the State Police for violation of the ADA and, pursuant to 42 U.S.C. § 1983, against the state, the State Police, and the individual defendants, in both their official and individual capacities, for violating his First Amendment rights. For relief, plaintiff demanded damages against all defendants on each claim, and injunctive relief in the form of immediate reinstatement and removal from his personnel file of any wrongful disciplinary actions, plus attorney's fees and costs.
On August 20, 2004, defendants moved against the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), which resulted in an Order of District Judge Denis R. Hurley dismissing plaintiff's § 1983 claims against the individual defendants in their official capacities and plaintiff's § 1983 claims against the individual defendants in their individual capacities, except as relating to Olson's contention of wrongful termination from employment. See Olson v. State of New York et al., No. 04-cv-0419, 1, 5-6 (E.D.N.Y. March 9, 2005) (Hurley, U.S.D.J.) [hereinafter "Olson, at __."] Judge Hurley also denied defendants' motion to dismiss with respect to plaintiff's ADA claims. See Olson, at 7-9. Discovery is now certified as complete, and defendants have moved for summary judgment on plaintiff's remaining claims, charging that he was wrongfully terminated in violation of § 1983 on account of his union activities and that his suspension, reassignment to another barracks, and ultimate termination were based on disability discrimination in violation of the ADA.
Olson, now 57 years old, became a New York State Trooper in 1981 and was promoted to Investigator in the Bureau of Criminal Investigation ("BCI") in September 1989. From 1989 to his suspension on January 18, 2002, plaintiff was assigned to the Riverhead Barracks under the direct supervision of defendant Senior Investigator Stephen Oates ("Oates"). During this period, in April 2000, Olson was elected the Long Island delegate of his union, the New York State Police Investigators Association.
In March of 2001, plaintiff was hospitalized for acute depression and took voluntary sick leave until January 2002. The parties agree that Olson's job performance declined prior to his hospitalization, including difficulty in concentrating and paying attention to detail, and that Olson told Oates he "was having a tough time, you know, basically coping." Oates responded to plaintiff's diminished job performance by saying that plaintiff should take time to do whatever he needed to get better. Although they disagree as to when and how Oates learned Olson was being treated for depression, they agree that, as of the date Olson claims be began to experience discrimination, Oates perceived plaintiff as having an impairment.
As to the unfolding of plaintiff's illness and treatment, the parties further agree that Oates expressed concern and support for Olson, though, plaintiff claims, that such expressions were in the hopes that Olson would not have to be hospitalized and take sick leave. Plaintiff also offers a conversation that Oates allegedly had with plaintiff's wife after learning of plaintiff's condition, in which Oates told her that Olson would not be able to return to work if he took medical leave to treat his depression. To the same effect, plaintiff offers the deposition testimony of Trooper Michael F. Kelley that Oates stated plaintiff would not be returning after his medical leave. Defendants counter with the testimony of Captain William Carey that there was general talk among members of plaintiff's troop, including Oates, that Olson would choose to retire rather than return to duty. Oates testified at his deposition that, in the same time period, he did contact then First Deputy Superintendent William Bennett regarding the possibility of plaintiff's retirement, but stated that he did so solely to ensure that plaintiff would receive his benefits.
On a different plane, plaintiff alleges that, while he was out on sick leave, he requested temporary light duty upon his return, but was told by Patrick Hawkins of the State Police Employee Assistance Program in response to his request that there was no such thing as light duty within the Division of State Police. This was confirmed back-handedly by defendant Preston L. Felton ("Felton"), an assistant deputy superintendent of the State Police, who testified in accord with the New York State Police Administrative Manual that modified duty was available, but only for troopers, who, at minimum, were less than 50% disabled and had made their request for such duty in writing. Plaintiff testified that he never submitted a written request for modified duty because he was told light duty did not exist; there is agreement that no written request for modified duty was ever made by Olson or ever denied. Plaintiff, it is not disputed, returned to full duty on January 3, 2002.
On January 18, 2002, plaintiff entered Oates's office upon arriving at work in the morning to tell him that he wished to go to Commack to meet with the president of CSEA, the union representing most state workers, at the request of other union representatives. An inspection by superior officers was scheduled for the barracks that day. Oates denied plaintiff's request. Oates then instructed plaintiff to update a warrant, and Olson hoped, if he did so, he would be allowed to go to Commack. Despite Oates's direction to plaintiff to go to Southampton to deal with the warrant, plaintiff asked Investigator William Rivera to make a telephone call regarding the warrant because, according to Olson, he believed Rivera's fluency in Spanish better equipped him to complete the assignment. Olson then represented that the work was done and renewed his request to go to Commack. Oates again declined permission, telling plaintiff to return to his office. According to Oates, Rivera, and another trooper, Tammy Mickoliger, plaintiff remarked in reply that there would be some bloodshed.
Olson denies making any such statement. Trooper Patrick Liberti and Sergeant Paul Slevinski also deny hearing plaintiff make it. Notwithstanding, according to defendants, Mickoliger, and not Oates, reported Olson's alleged comment to Captain Carey. Defendants do not deny, however, that upon being questioned by Carey, Oates confirmed the alleged threat. Carey then interviewed Mickoliger and directed Rivera to prepare a written memorandum of the events. Carey did not interview plaintiff, Slevinski, or Liberti. After reviewing the information gathered from Oates, Mikoliger, and Rivera and with knowledge of plaintiff's voluntary leave for depression, Felton signed a suspension order, pursuant to Rule 13.1(b) of the New York State Police Code, which allows an employee to be placed on involuntary leave of absence when the employee is determined to be a potential danger to himself or others. The suspension was predicated on the alleged verbal altercation between plaintiff and Oates and the alleged bloodshed remark. At approximately 7:00 p.m. on January 22, 2002, Carey and a senior investigator arrived at the barracks, demanded plaintiff's badge and gun, and informed him of the suspension. In the ensuing conversation, plaintiff admitted that he may have been aggressive in the way he spoke to Oates, that he may have been posturing when speaking to him, and that he did make a remark to the effect that he was not going to be pushed around anymore.
Plaintiff was examined by a psychiatrist, Dr. Patrick Corone, appointed by the State Police; Dr. Corone deemed Olson fit to return to duty. Dr. Corone issued a report to that effect, which was sent to a State Police physician, Dr. William F. Conway. Conway and the personnel director then jointly recommended that plaintiff be restored to duty, which was adopted by Felton. Olson returned to duty on February 13, 2002. Upon his return, plaintiff was reassigned from Riverhead to the Brentwood barracks. The transfer was involuntary, but, as a result, Oates ceased to be plaintiff's supervisor.
After his return to work, Olson sent out a statewide email regarding a fund raiser for a fellow trooper's father. In response, plaintiff received an email from Carey warning him that if he sent out another statewide email without the permission of the troop commander, he would be subject to disciplinary action. Plaintiff subsequently sent out emails anyway in support of a political candidate and was called in to speak to a senior investigator about them. After advising the senior investigator of a family emergency via telephone, plaintiff arrived late to the meeting on August 9, 2002 and, it is uncontested, directed obscenities at the senior investigator. Based on sending the emails statewide and the incident with the senior investigator, plaintiff received a memorandum from the First Deputy Superintendent dated November 6, 2002 with the recommendation that plaintiff be suspended for three days, placed on probation for six months, and formally censured for violating State Police regulations. Plaintiff chose to accept the recommended penalty rather than demand that formal charges be brought.
On January 15, 2003, plaintiff, while on probation, drafted a memorandum in the name of another investigator in reference to overtime pay disputes, suggesting that "back room" investigators trade places with "front room" investigators. Plaintiff alleges that the memorandum was facetious in nature and that, when he showed it to others in the squad room, they laughed and recognized it as a joke. Plaintiff also used the State Police facsimile machine to fax the memo to the White Plains station. (Plaintiff was no longer the union delegate when he drafted and sent this memo.) Plaintiff admits that he knew the facsimile machine was to be used only for official business. Subsequently, Olson was ordered to provide a statement about the memo, which he refused to do without the advice of counsel. Plaintiff, however, offers no proof that he ever sought the advice of counsel or requested a delay in disciplinary procedures to ...