The opinion of the court was delivered by: John T. Curtn United States District Judge
Plaintiff, a former employee of the Erie County Department of Public Works, Division for Highways, brings this action pursuant to 42 U.S.C. § 1983. In his complaint, filed January 23, 2004, he alleged that his immediate supervisor, Senior Highway Maintenance Engineer Naylon, and the Deputy Commissioner for Highways Rider subjected him to unjustified disciplinary action and a hostile work environment. Plaintiff states that he suffered such stress, ridicule, and embarrassment that his Multiple Sclerosis was aggravated and he was forced to take sick leave and ultimately resign his position.
On May 23, 2005, plaintiff filed an amended complaint, Item 26, alleging two causes of action under section 1983--the first for the violation of his First Amendment right to political association and the second for the violation of his First Amendment right to free speech. Plaintiff alleges that he was harassed because of his "actual or perceived" political beliefs and support of and friendship with the former County administration (Item 26, ¶ 88) and was retaliated against for speaking out about the unlawful treatment of other employees at the East Aurora Highway Barn and about the illegal and fraudulent activities of the individual defendants during their employment with Erie County. Item 26, ¶ 101.
On October 11, 2006, the court granted plaintiff's request to extend discovery to take a final deposition, that of Maria Lehman, the Erie County Commissioner of Public Works, during the relevant time period. Item 46. At a telephone conference on November 15, 2007, the parties advised the court that the Lehman deposition had been cancelled due to the unexpected illness of plaintiff's counsel and that, because of the late notice, expenses had been incurred by Lehman, a non-party. Defendants objected to a further continuance and had suggested that the deposition go forward with substitute counsel or on interrogatories. Plaintiff rejected those suggestions. In an order dated December 7, 2006, the court instructed defendants to file dispositive motions and, if plaintiff sought to reschedule the Lehman deposition, application should be made pursuant to Fed. R. Civ. P. 56(f). Item 49.
On March 8, 2007, defendants filed a joint motion for summary judgment. Item 54. Plaintiff filed memoranda in opposition to the motion, and cross-moved for further discovery. Items 82-85. Defendants filed reply memoranda on July 11, 2007. Items 88, 90. Oral argument on the motions was heard on July 16, 2007. For the reasons that follow, plaintiff's motion for additional discovery is denied, and defendants' motion for summary judgment is granted.
Plaintiff commenced his employment with Erie County in December 1968. Item 57, Exh. A, p. 12. At all times relevant to the amended complaint, plaintiff was employed as a General Crew Chief in the Highway Division of the Department of Public Works ("DPW"), and was assigned to the East Aurora Highway Barn ("Aurora Barn"). Defendant Naylon was appointed Senior Highway Maintenance Engineer at the Aurora Barn and became plaintiff's supervisor on approximately November 4, 2000. Id., p. 24. Defendant Naylon reported to defendant Rider, who was the Deputy Commissioner of Highways. Both Naylon and Rider were appointed to their positions with Erie County after Republican candidate Joel Giambra was elected to his position as County Executive.
Plaintiff testified in his deposition that during November and December 2000, Naylon "badgered" him about non-work-related topics--for example, whether plaintiff resented being supervised by a younger person, how other employees reacted to Naylon's appointment, and whether plaintiff was invited to certain social functions hosted by Maria Lehman. Item 57, Exh. A, pp. 31-33. Naylon also questioned plaintiff about the personalities, work habits, social connections, and friendships of the employees at the Aurora Barn. Id., pp. 34, 40. Naylon asked plaintiff if he had been appointed by the previous County Executive (Dennis Gorski, a Democrat) and whether he was "backed" by the previous administration. Plaintiff told Naylon that he was not appointed by anyone, was not "backed" by the previous administration, and was not politically active. Id., p. 35. Naylon told plaintiff that he was a close personal friend of Joel Giambra, and that the new administration would eventually get their "own people in here." Id. Naylon also told plaintiff that he would have to "get onboard or pay the consequences." Id. Plaintiff testified that Naylon instructed him to make a list of the "good" employees at the Aurora Barn, then singled those employees out for disciplinary action and transfer. Item 57, Exh. A, p. 36.
Plaintiff testified that Naylon perceived plaintiff to be part of the "old regime." Item 57, Exh. A, p. 67. Naylon emphasized the fact that he had political power as a friend of Giambra and that plaintiff was not "part of the team." Id., p. 50. However, when Naylon talked about the Aurora Barn employees being part of the "old regime," he did not specifically mention Mr. Gorski's name. Id., p. 59. Plaintiff testified that Naylon did not ask him to contribute to a political campaign or attend a political fundraiser. Id., p. 53. At the time, plaintiff was a registered Republican, as were Naylon and Rider. Id., p. 54; Exh. C, p. 71; Exh. I, p. 34.
Plaintiff testified that he never attended a meeting with defendant Rider. Item 57, Exh. A, p. 55. He met Rider during the summer of 2000 at a flooded road in Orchard Park, New York, but had no personal contact with Rider other than casual greetings or telephone conversations regarding work issues. Id., p. 56. Plaintiff never had a political discussion with Rider, nor was he asked by Rider to contribute to a political campaign or attend a political fundraiser. Id., p. 57.
On December 6, 2000, Naylon gave plaintiff an oral warning "not to yell, berate or harass employees in front of all other employees." Item 57, Exh. Q. Additional oral warnings were given to plaintiff during the weeks of December 12-18, 2000 and December 25, 2000 in response to complaints about the plowing of Route 240. Id. On January 8, 2001, Naylon issued a written warning to plaintiff for disobeying "a direct order to stop and see me before [he] leave[s] . . . ." Id.
Defendant Rider testified that during the fall of 2000, he received citizens' complaints about the plowing of Route 240 and forwarded the complaints to Naylon. Item 57, Exh. J, ¶ 15. Naylon accused plaintiff of insubordination when plaintiff tried to explain why only one side of Route 240 had been plowed. Item 57, Exh. A, p. 49; Item 57, Exh. J, ¶ 15. Rider also received complaints about the distribution of overtime at the Aurora Barn, and instructed Naylon to "straighten out the overtime issues." Id., Exh. J, ¶ 16. Rider was copied on a memorandum issued by Naylon to several individuals, including plaintiff, directing them to follow union procedures in awarding overtime. Id., ¶ 17. On January 23, 2001, Naylon gave plaintiff a memorandum advising him that his performance was deficient and listing the various disciplinary actions taken in the previous month. Item 57, Exh. Q. Plaintiff left work on sick leave that day. Id., Exh. A, p. 69.
In December 2000, plaintiff contacted his union steward, who set up a meeting between plaintiff and an agent of the Federal Bureau of Investigation ("FBI"). The agent visited plaintiff at his home, and plaintiff discussed what he perceived to be illegal actions by Naylon, including the operation of a private business out of Naylon's County office. Item 57, Exh. A, p. 92. FBI records indicate that this meeting took place on January 18, 2001. Item 57, Exh. R (filed under seal).
Rider stated in a declaration that while plaintiff was on sick leave, he received several grievances about the distribution of overtime at the Aurora Barn. Item 57, Exh. J, ¶ 19. Rider was told by another employee that plaintiff was in possession of County records relating to overtime and had taken them to his home while on leave. Id. In approximately February 2001, Naylon telephoned plaintiff's home on two occasions, asking him to come to the office to discuss the overtime issue. Plaintiff refused on medical grounds. Id., Exh. A, pp. 70-71. Rider sent plaintiff a letter dated March 23, 2001 requesting that plaintiff appear at a hearing at his office to discuss the missing County property. Id., Exh. M. Plaintiff did not respond. Id., Exh. J, ¶ 20. On May 29, 2001, Rider sent another letter asking that plaintiff appear at his office on June 19, 2001 to discuss the missing County property. Id., Exh. L. Again, plaintiff did not respond. Id., Exh. J, ¶ 23. Plaintiff was aware that Rider was referring to overtime records, but took the position that as he was on sick leave he was not obligated to come into work. Id., Exh. A, p. 72. Plaintiff explained that he kept track of overtime distribution with his own personal reference sheets and had not taken any County time sheets or other property home with him. Id., pp. 72-73.
In May 2001, letters were sent to Steven Pigeon, then-Chairman of the Erie County Democratic Party, and the New York State Attorney General's Office signed by "Concerned Erie County employees (and voting taxpayers)" and asking for an investigation into corruption and incompetence in County government. Item 57, Exhs. S, T. Plaintiff participated in the writing of these letters, but did not "have a big part in drafting these letters . . . ." Id., Exh A, p. 124.
On July 5, 2001, plaintiff exhausted his sick leave and submitted his letter of resignation. Item 85, Exh. M. On June 11, 2001, he applied for New York State disability benefits due to "Multiple Sclerosis complicated by work related stress." Id., Exh. O. County records indicate that a request for information was received from the New York State Employees' Retirement System by Erie County on October 1, 2001. Item 57, Exh. V. That information was transmitted to the State on October 23, 2001. Id., Exh. X. The New York State Retirement System questioned the amount of overtime hours worked by plaintiff and plaintiff responded to this inquiry on November 12, 2001, acknowledging that Erie County had previously sent payroll records to the State. Id., Exh. Y. New York State forwarded a second request for information to the County which was dated November 28, 2001 and the documentation was transmitted on December 6, 2001. Id., Exh. Z. In a letter dated May 29, 2002, New York State requested that plaintiff undergo a psychiatric evaluation. Id., Exh. AA. This evaluation took place on August 12, 2002. On October 3, 2002, New York State requested further information from a physician who examined plaintiff on March 26, 2002. Id., Exh. BB. A final independent medical examination of plaintiff took place on December 13, 2002. Id., Exh. A, p. 112. Plaintiff received disability benefits in February 2003, retroactive to July 2001. Id., Exh. A, p. 113.
In February 2003, plaintiff wrote to Erie County Comptroller Nancy Naples regarding his concerns about Naylon. Item 57, Exh. U. Rider and Naylon both stated that they were unaware that plaintiff had contacted any law enforcement agencies regarding the Aurora Barn or alleged illegal activities associated ...