The opinion of the court was delivered by: Brieant, J.
Before this Court are two motions: (1) a motion for summary judgment filed by Defendants Deborah Haslun, Carlos Millan, Joseph Bloomer, Ramesh Mehta, Jonathan Barr, Stephen Grabowski, Donald Bell, Frances Rosales, Michael Flynn, Traci Horwedel, and Richard Newhouse on January 11, 2008 (Docs. 17, 18); and (2) Plaintiff Florence E. Huth's cross-motion (put forth in her opposition papers to Defendants' motion for summary judgment) for leave to serve a second amended complaint to include an additional defendant, Thomas Fitzgerald, and to remove dismissed defendants from the action and the caption (Doc. 30). On February 28, 2008, the parties filed a stipulation of partial dismissal, with prejudice, of Defendants Grabowski, Bell, Rosales, Flynn, Horwedel, and Newhouse, which this Court so ordered on March 25, 2008. Thus, only Defendants Haslun, Millan, Bloomer, Mehta, and Barr remain in the action. Plaintiff filed her memorandum of law in opposition to the motion for summary judgment and in support of a cross-motion for leave to amend the complaint on February 29, 2008. Defendants filed their reply on March 7, 2008. Oral arguments were held on March 28, 2008 and this Court reserved decision.
Plaintiff commenced this action on January 9, 2007, alleging violations of her First and Fourteenth Amendment rights, and filed an amended complaint on April 13, 2007. Plaintiff brings this action under 42 U.S.C. § 1983 alleging that Defendants violated her First and Fourteenth Amendment rights, and her co-worker's First Amendment rights.
At all times relevant, Plaintiff was an Assistant Toll Division Manager employed by the New York State Thruway Authority. Defendants were also employed by the Thruway Authority at all times relevant, Haslun as a Director of Labor Relations, Millan as an Assistant Director of Labor Relations, Bloomer as a Toll Division Manager, Mehta as the Division Director of the New York Division, and Barr as the Director of Administrative Services. (Pl.'s 56.1 Stmt. ¶¶ 2-6.)
On April 26, 2005, Plaintiff encountered Dorothy Archer, an employee of the Thruway Authority who is not a party to this action, at the Thruway Authority's Tarrytown facility. Plaintiff and Ms. Archer were friends acquainted through work. Ms. Archer was one of Plaintiff's subordinates. (Pl.'s Br. 12.) On that day, Plaintiff was on duty, but Ms. Archer was not. Plaintiff testified that Ms. Archer "was very upset and needed someone to talk to." (Defs.' Ex. I, at 183: 18-22.) Ms. Archer complained to Plaintiff about the workplace activities of certain of her co-workers and supervisors; Plaintiff alleges that these were criminal activities. (Pl.'s 56.1 Stmt. ¶ 30.) Plaintiff alleges that she later that day reported Ms. Archer's complaints about her co-workers' possibly criminal activities to Defendant Bloomer and that he responded that he was already aware of Ms. Archer's concerns. (Pl.'s 56.1 Stmt. ¶ 64.)
After Plaintiff encountered Ms. Archer at the Tarrytown facility on April 26, 2005, Plaintiff drove Ms. Archer in a Thruway Authority vehicle to a Thruway Authority facility in Newburgh, New York. Plaintiff stopped the vehicle at toll plazas along the way, where Ms. Archer solicited and obtained Thruway Authority employees' signatures on petitions to nominate Ms. Archer for union office. Plaintiff alleges that Ms. Archer did not tell her that she was stopping to solicit and obtain nominating petitions. (Pl.'s 56.1 Stmt. ¶ 24.) Plaintiff testified at her disciplinary hearing that Ms. Archer told her "that she was not feeling well, [and] she needed to get out and walk around." (Farber Decl., Ex. I, at 164:22-23.) Plaintiff made a written statement on May 2, 2005 and testified at her September 18, 2007 deposition that Ms. Archer told her when they met at the Tarrytown facility that she was going to stop at Woodbury and Newburgh. (Pl.'s 56.1 Stmt. ¶ 39; Farber Decl., Ex. B, at 1.)
Plaintiff alleges that on April 29, 2005, Defendant Bloomer advised Plaintiff and Ms. Archer that they were under investigation in connection with the April 26, 2005 events. (Pl.'s 56.1 Stmt. ¶ 65.) Defendant Millan questioned Plaintiff about the events and advised her that she might be charged with disciplinary violations. (Pl.'s 56.1 Stmt. ¶ 65.) According to Defendants, Thruway Authority policy prohibited management personnel such as Plaintiff to be involved with union elections and prohibited the use of Thruway Authority vehicles or equipment in connection with union elections. (Defs.' 56.1 Stmt. ¶ 37-38.) Defendant Haslun sent a letter to Plaintiff on June 27, 2005 notifying her that she was "charged with misconduct and/or incompetence in that [she] violated administrative services bulletin 2004-16 Union Elections" by driving Ms. Archer in a Thruway Authority vehicle "from the Authority's Tarrytown facility to Woodbury Toll, Newburgh Toll, the Newburgh Maintenance building and back again to the Tarrytown facility enabling [Ms.] Archer to solicit signatures for a Union campaign." (Farber Decl., Ex. E.) Plaintiff alleges that Defendant Haslun prepared this letter in consultation with Defendant Millan and with the approval of Defendant Mehta. (Pl.'s 56.1 Stmt. ¶ 68.)
A hearing was held before hearing officer Joel Douglas on August 17, 2006 and November 16, 2006. (Pl.'s 56.1 Stmt. ¶ 69.) Defendant Millan prosecuted the charges on behalf of the Thruway Authority against Plaintiff. (Pl.'s 56.1 Stmt. ¶ 69.) It was stipulated that, on April 26, 2005, Ms. Archer had stopped at Thruway Authority facilities and "asked [employees] to sign her Union petition and that all did and that all were aware of [Thruway Authority policy regarding union elections] and in fact that none were disciplined for signing the Archer petition." (Farber Decl., Ex. H, at 2.) It was also stipulated that "[n]o manager was ever disciplined for signing or permitting signatures [to] be obtained in violation of [Thruway Authority policy]." (Farber Decl., Ex. H, at 2.) On January 30, 2007, the hearing officer issued findings and recommendations concluding that Plaintiff was "innocent of the Charges and Specifications as set forth in the Statement of Charges [in the letter from Defendant Haslun] dated June 27, 2005." (Farber Decl., Ex. H, at 6.)
On April 11, 2007, Defendant Barr, the Thruway Authority's Director of Administrative Services, notified Plaintiff in writing that he had reviewed the record from the disciplinary hearing and rejected the hearing officer's findings and recommendations. (Farber Decl., Ex. D, at 1.) He found "a significant contradiction" between Plaintiff's May 2, 2005 written statement, in which she stated that Ms. Archer told her before they left for Newburgh that she needed to stop at the Woodbury and Newburgh toll stations, and her November 16, 2006 hearing testimony, where she stated that Ms. Archer was not feeling well and needed to get out and walk around. (Farber Decl., Ex. D, at 1-2.) Defendant Barr "found [Plaintiff] guilty of misconduct and/or incompetence for violating Administrative Services Bulletin 2004-16, Union Elections" and as a penalty demoted Plaintiff to her last permanently held lower level position. (Farber Decl., Ex. D, at 1.)
Defendant Haslun testified at her deposition that Defendant Barr, prior to issuing his decision letter to Plaintiff, discussed his final determination with her and that he asked her office to assist him in writing the final document. (Nicaj Aff., Ex. 15, at 30:23-31:15.) Haslun notified Defendant Millan of Barr's request. (Nicaj Aff., Ex. 15, at 31:16.) Millan, who prosecuted Plaintiff at her disciplinary hearing, testified at his deposition that he met with Barr to discuss Barr's decision to reject the hearing officer's recommendations and then drafted Barr's letter to Plaintiff. (Nicaj Aff., Ex. 16, at 13:11-17.) Defendant Haslun initially testified that she did not "have anything to do with the drafting" of Barr's final disciplinary determination. (Nicaj Aff., Ex. 15, at 32:16-24.) Confronted with her responses to Plaintiff's interrogatories, however, she admitted that she had reviewed the document before Millan gave a final draft to Barr. (Nicaj Aff., Ex. 15, at 35:6-20.)
Plaintiff commenced this action on January 9, 2007, following completion of her disciplinary hearing, but before the hearing officer issued his findings and recommendations. Plaintiff alleges that she was subjected to retaliation as a result of her First Amendment activity, which consisted of reporting Ms. Archer's concerns about her co-workers' possibly criminal activities to Defendant Bloomer and commencing this action in January 2007. Plaintiff asserts additional first amendment claims on behalf of Ms. Archer.
In their motion for summary judgment, Defendants argue that (1) Plaintiff has failed to show that she engaged in protected speech or that there was a causal connection between any speech and her discipline, (2) Plaintiff lacks third-party standing to assert rights belonging to Ms. Archer, (3) Plaintiff cannot establish an equal protection ...