The opinion of the court was delivered by: G. Thomas Eisele, Senior District Judge, sitting by designation*fn1
ORDER GRANTING SUMMARY JUDGMENT
Presently before the Court is the remaining due process issue in Defendants' Motion for Summary Judgment.
Plaintiff Christian D'Allessandro was hired by the Albany Police Department ("APD") in 1987.*fn3 At all times relevant, Defendant John Nielsen was Commissioner of Public Safety for the City of Albany and Defendant Robert Wolfgang was Chief of Police for the APD.*fn4 Defendant Nielsen reported to the Mayor,*fn5 and Defendant Wolfgang reported to Defendant Nielsen.*fn6
On January 21, 2004, Commander Tashjian sent an IDC to Defendant Wolfgang stating that Detective Anthony Ryan had informed him that he had found a flier, which was purported to be a parody of then Commander Ralph Tashjian, on a bulletin board in the traffic division.*fn7 The IDC stated that the flier "contained derogatory remarks about [him] and also contained a photograph of an unknown male of mid-eastern descent which may be a reference to [his] heritage. Detective Ryan further informed me that he was upset and pulled the memo from the wall and destroyed it."*fn8 Defendant Nielsen directed Commander Reilly, Commander of the APD Office of Professional Standards ("OPS") to investigate the flier.*fn9 The OPS commenced an investigation into this flier, and approximately 22 employees were interviewed.*fn10 One of the fingerprints on the flier located on the wall of the South Station Lieutenant's locker room was that of Plaintiff.*fn11 However, Lieutenant Timothy Close testified before OPS that he hung the flier in the Sergeant's and Lieutenant's locker room.*fn12
On January 22, 2004, before OPS, Officer Robert Schunk, a subordinate officer to the Plaintiff, testified that during a conversation in the South Station Sergeant's locker room, the Plaintiff encouraged him "to make sure the other officers get to see this and that it doesn't get back to him."*fn13 Officer Schunk testified that the did not distribute the flier.*fn14 Specifically, Officer Schunk testified:
I received the flyer from Cmdr. D'Alessandro at the South Station approximately a week and a half ago. . . . He actually told me that he wanted to show me something. We went into the room off the South Station desk area, which is the Sergeant's locker room. He produced the flyer and asked me if I could see that it got passed around and the other officers could view it. . . . I don't know the exact words, he said, make sure the other officers get to see this and that it doesn't get back to him.*fn15
On January 23, 2004, Officer Schunk further testified that when Plaintiff told him that he had something to show him, "[t]he desk personnel would have been there."*fn16 When asked if he recalled who that was, he stated, "Clerk Walker, I don't know who the police officer was on the desk."*fn17 However, Officer Schunk stated that he did not "know if she was paying attention or what was going on really."*fn18 Officer Schunk also stated that he expected to suffer repercussions from Plaintiff for his testimony.*fn19 On January 23, 2004, Defendants suspended Plaintiff from his position.*fn20 On January 27, 2004, Commander Tashjian filed an incident report alleging Aggravated Harassment regarding the flier, stating that "suspects unknown did create and circulate a flier throughout the Albany Police Department that was derogatory in nature . . . ."*fn21
Plaintiff admits that he gave the flier to Officer Schunk.*fn22 However, during his testimony before OPS on February 4, 2004, Plaintiff, who was represented by counsel, testified that he did not tell Officer Schunk to distribute the flier.*fn23 In his testimony before OPS, Plaintiff also testified as follows:
I was sitting in a chair across from the desk from the clerk in the South Station, in her office. . . . I was sitting in the Clerk's office going through my mail. I opened up a folded piece of paper that was similar to this one here and I started to read it and I noticed somebody walked in. I looked it was Officer Schunk. I showed him the flier and asked him if he had any knowledge of this. He smiled and said no. He didn't take the time to read it and it was my impression that it wasn't the first time he saw it. I asked him if he had any idea who was responsible for it. He shook his head and nodded in the affirmative. I told him that I didn't want this showing up on bulletin boards, because I didn't want it coming back to me. With that he left.*fn24
Plaintiff testified that he was seated in the chair in front of the clerk's desk at South Station when he showed the document to Officer Schunk, and that Jen Teller, the clerk, was present.*fn25 On February 4, 2004, Ms. Teller testified before OPS that she did not recall a time where Plaintiff had a conversation with Officer Schunk in her office.*fn26
Defendant Wolfgang testified that he made the decision to terminate Plaintiff "in consult with" Defendant Nielsen on February 4, 2004, sometime in the afternoon.*fn27 Defendant Nielsen states that the decision to terminate Plaintiff was Defendant Wolfgang's, but he was "supportive" of it.*fn28 However, both Defendants admit that they "personally participated in the decision to terminate plaintiff's employment."*fn29 Commander Reilly testified that he did not make any recommendation that Plaintiff should be terminated.*fn30 However, he testified that he told Chief Wolfgang that he believed that Plaintiff "was being deceptive in his interview" and was "lying" during the interview.*fn31
In an IDC dated February 5, 2004,*fn32 Commander Reilly detailed his attempts to "relay an order" from Chief Wolfgang to Plaintiff to report to the APD's Office of Professional Standards.*fn33 Commander Reilly stated that on February 4, 2004, at about 3:00 p.m., he was ordered to contact Plaintiff.*fn34 He stated that between 3:10 p.m. and 5:02 p.m., he called Plaintiff's home three times, leaving two messages requesting that Plaintiff contact him.*fn35 After receiving no response, Commander Reilly stated that on February 5, 2004, at about 8:20 a.m., he left another message at Plaintiff's home.*fn36 Commander Reilly reported that at 10:21 a.m., he went with Sergeant Krokoff to Plaintiff's home, but no one answered the door, so he left a business card with a message requesting that Plaintiff call him.*fn37 Commander Reilly stated that at 12:01 p.m., Plaintiff called him, and he told Plaintiff that he was relaying an order from Chief Wolfgang to Plaintiff to report to Commander Reilly's office immediately, and that Plaintiff responded, "okay, I'm going to call Paul and I'll get back to you," but by 4:00 p.m., Plaintiff had not contacted him and had failed to report to his office.*fn38 Commander Reilly stated that he received three copies of the termination letter, one to be hand-delivered to Plaintiff, one to be sent by regular mail, and one to be mailed as certified.*fn39 Commander Reilly also stated that he contacted Plaintiff's attorney, Paul DerOhannesian, at 5:00 p.m. and informed him that he was ordered to deliver a termination letter to Plaintiff, but Mr. DerOhannesian stated that Plaintiff was not with him.*fn40 Commander Reilly stated that he phoned Plaintiff's home on his way to deliver the letter to make sure he was home, and that from their conversation it was apparent that Plaintiff had been made aware of the termination letter. Commander Reilly further stated that Plaintiff told him during the phone conversation that he was "not welcome," but by that time it was too late to deliver the letter to Plaintiff's attorney or to mail the certified letter.*fn41
Also, on February 5, 2004, Chief Wolfgang directed Commander Reilly to prepare an IDC outlining Plaintiff's SOP violations.*fn42 The IDC, dated February 5, 2004, states:
The following is a list documenting violations of various sections of the Albany Police Standard Operating Procedures committed by Commander Christian D'Alessandro.
Violation of Sec. 14.1.17(2 counts, Insubordination) of the Albany Police Department Standard Operating Procedures. On February 5, 2004 I [Commander Reilly] informed Commander D'Alessandro that I was relaying an order from you [Chief Wolfgang] to him to report to my office immediately. Commander D'Alessandro acknowledged the order by saying "okay, I'm going to call Paul and I'll get back to you." Commander D'Alessandro failed to report to my office as ordered. Commander D'Alessandro was insubordinate when during the interview conducted by the Office of Professional standards he was not truthful.
Violation of Sec. 14.1.01(Unbecoming Conduct) of the Albany Police Department Standard Operating Procedures- Commander D'Alessandro did order a subordinate officer (Patrolman Robert Schunk) to distribute a flier derogatory in nature toward a fellow employee with specific instructions that the discovery of this flier was not to come back to him (Commander D'Alessandro). These actions do not reflect favorably on the department or Commander D'Alessandro and has brought discredit upon himself and the Albany Police Department.
Violation of Sec. 14.1.44(Truthfulness) During the interview conducted by the Office of Professional Standards Commander D'Alessandro was not truthful.*fn43
Plaintiff testified, however, that he was not ordered to report to work on February 5, 2004.*fn44 He further testified that he learned of his termination from an inquiry by a reporter.*fn45
In his IDC to Chief Wolfgang, Commander Reilly stated that on February 6, 2004, at 9:30 a.m., Commissioner Nielsen ordered him not to deliver the letters until ordered to do so, and on that evening, he was ordered to mail the certified letter and did so.*fn46 The termination letter, dated February 5, 2004, states, "The Albany Police Department's Office of Professional Standards has conducted an investigation into alleged wrongdoing and based on the findings of that investigation, your employment with the Albany Police Department is being terminated immediately.*fn47
Lying to OPS during an investigation is considered to be an offense that warrants discipline or termination by the APD.*fn48 At the time of his termination, Plaintiff did not have an employment contract with the City of Albany and was an at-will employee of the City of Albany.*fn49
On February 11, 2004, Officer Jeffery Hyde, Commander Tashjian's nephew, testified before OPS that Officer Schunk showed him the flier and stated that Commander D'Alessandro "gave it to him and asked him to put it up and make sure it never got back" to Commander D'Alessandro.*fn50 Officer Hyde stated that Officer Schunk was nervous and told him that he did not show the flier to anyone else.*fn51 On February 11 and 17, 2004, respectively, Officer Michael Basile and Detective Robert Wise testified that Officer Schunk approached them with the flier and told them that Commander D'Alessandro gave him the flier and told him to hang it up, but they advised Officer Schunk not to hang it up.*fn52
Plaintiff notes several "irregularities" that occurred with the investigation. Specifically, Plaintiff states that Commander Tashjian reported his problem with the flier to Commissioner Nielsen, rather than to the deputy chief, his direct supervisor.*fn53 Additionally, although Commander Reilly stated that a confidential report should be created at the conclusion of an investigation, no report was created.*fn54 Furthermore, Plaintiff states that no investigation report detailing the steps taken in the investigation or property report were generated, although such documents would typically be found in a case file.*fn55 Plaintiff also states that rather than fingerprinting the flier he allegedly gave to Officer Schunk to distribute, OPS only fingerprinted the flier in the locker room, and although others admitted handling the flier, only his fingerprint was recovered.*fn56 Plaintiff notes ...