The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #34.
Currently before the Court is defendants' motion for summary judgment seeking dismissal of plaintiff's complaint alleging retaliation in violation of his First Amendment rights and violation of New York Labor Law § 201-d. Dkt. #36. For the following reasons, the motion is granted in part and denied in part.
Plaintiff commenced employment with the defendant Town of Tonawanda ("Town"), as a laborer at the Incinerator Plant on November 26, 1971 and transferred to the Engineering Department in 1976. Dkt. #37, ¶ 5 & 6; Dkt. #43, ¶ 6. Plaintiff began to perform the duties of Construction Inspector in 1980 and received the title of Construction Inspector after the Town adopted the Civil Service title in 1994-1995. Dkt. #43, ¶ 6.
Defendant John Camilleri was appointed by the Town Board as the Director of the Water Resources Department on July 16, 1996. Dkt. #37, ¶ 2. Following his appointment, Mr. Camilleri conducted a needs assessment and determined that the Department needed ten additional employees. Dkt. #37, ¶ 9. Because the Water Resources Department generated the majority of construction inspection work and had other inspection-related duties, including manhole inspections, mapping hydrant and manhole location and underground facilities protection organizations ("UFPO's") which could provide the construction inspectors with work during winter and between construction jobs, the Construction Inspectors were transferred to the Water Resources Department as part of the reorganization of the Engineering Department in 1999. Dkt. #37, ¶ ¶ 12 & 13. As a result, plaintiff and Charles Goetz were transferred to the Water and Sewer Maintenance Division of the Water Resources Department in February, 1999. Dkt. #37, ¶ 14. Project Engineer Karl Scherer and Princpal Engineering Assistant Fred Kubus were also transferred to the Water Resources Department. Dkt. #37, ¶ 14.
Plaintiff, Mr. Goetz and Mr. Decker, a Construction Inspector already assigned to the Water and Sewer Maintenance Division, reported to Mr. Scherer. Dkt. #37, ¶ 15. Mr. Scherer reported to Kirk Rowland, Division Head for the Water and Sewer Maintenance Division. Dkt. #37, ¶ ¶ 4 & 15. Mr. Rowland reported to Mr. Camilleri. Dkt. #37, ¶ 15.
Manhole inspections involve inspecting the sanitary sewer mains for blocks or structural problems. Dkt. #37, ¶ 20. Plaintiff affirms that manhole inspections were only added to the duties after the Construction Inspectors['] transfer to the Belmont building in 1999. Moreover, this duty as well as others were challenged by the Inspectors as being out of title work because they were clearly laborer type work. I protested to the point the President of the Salaried Association became involved, however he came to us to make us agree to do the work, after Mr. Camilleri's request.
Additionally, our positions were threatened by Councilman Miller and Supervisor Calabrese who told Mr. Goetz that if [plaintiff] continues this action all Construction Inspectors would be laid off. Based on this threat the Inspectors dropped the issue and began to begrudgingly perform the duties.
In the early Fall of 2001, Mr. Goetz asked his direct supervisor, Mr. Scherer if he could be relieved from manhole inspections because he had recently been spending more than fifty percent of his work time on this assignment and the effort of pulling off the manhole covers was aggravating his physical condition, which was subsequently diagnosed as suspected multiple sclerosis, causing severe leg cramps. Dkt. #61, ¶ 8. When Mr. Scherer failed to accommodate his request, Mr. Goetz went to Mr. Camilleri and asked to be relieved from manhole inspections. Dkt. #61, ¶ 8.
Mr. Camilleri avers that he was aware that Mr. Goetz' physician had written a note for his personnel file substantiating Mr. Goetz' physical limitation. Dkt. #39, ¶ 22. Upon review of the Construction Inspector time sheets, Mr. Camilleri confirmed, and plaintiff concedes, that Mr. Goetz had worked manhole inspections for most of 2001. Dkt. #39, ¶ 24; Dkt. #43, ¶ 30.
Between October 23, 2001 and November 13, 2001, plaintiff picketed outside the Water and Sewer Maintenance Division facility on Belmont Street for approximately one hour each day after his work hours, Monday through Friday. Dkt. #37, ¶ 24. One side of the sign plaintiff carried read as follows:
Dkt. #44-2, p.2. The other side of the sign read:
HEY, YOU!! YEA [sic], YOU
Dkt. #44-2, p.3. Plaintiff affirms that he was protesting the expenditure of tax dollars for consulting by Resultant's International; installation of a sewer connection for the Town Police Club; excessive overtime allotted to Crew Chiefs; unnecessary renovations at the Belmont Street facility; Crew Chiefs conducting personal business during work hours; purchase and lease of vehicles for Town employees; and waste of valuable materials. Dkt. #44-3, ¶¶ 9-19.
Mr. Camilleri received a phone call from someone at the Belmont Street facility on the first day of plaintiff's picketing. Dkt. #37, ¶ 25. Before he left for the Belmont Street facility, Mr. Camilleri called Mr. Stocker. Dkt. #37, ¶ 25. Upon his arrival at the Belmont Street facility, Mr. Stocker suggested that plaintiff should be seeing someone, a comment plaintiff interpreted as suggesting plaintiff would not be picketing unless he was suffering from a mental or other illness. Dkt. #43, ¶ 27. Plaintiff responded to this comment by stating, "I ought to knock you on your God damn ass asking me a question like that." Dkt. #45, p.31. Plaintiff informed Mr. Stocker that his picketing was a taxpayer protest over the wasted money at the Belmont Street facility. Dkt. #43, ¶ 26. Plaintiff denied that the picketing was related to union activity. Dkt. #43, ¶ 26. At the time, plaintiff was the Town of Tonawanda Salaried Workers' Association ("SWA"), Steward for the bargaining unit employees working for the Water and Sewer Maintenance Division. Dkt. #43, ¶ 23. Plaintiff also became the Chairman of the SWA grievance committee during this time frame. Dkt. #43, ¶ 23. There were no further conversations between Mr. Camilleri and plaintiff regarding his picketing. Dkt. #43, ¶ 29.
On November 9, 2001, plaintiff, who had been assigned as Construction Inspector to the Various Sewer Repairs Project, was on vacation prior to the Veterans' Day weekend. Dkt. #39, ¶ 33. Mr. Camilleri instructed Mr. Kubus to assign Mr. Goetz as Construction Inspector to the Various Sewer Repairs Project and to continue that assignment once plaintiff returned to work. Dkt. #39, ¶ 25. Mr. Camillieri affirms that the reassignment was directed as an accommodation to Mr. Goetz. Dkt. #39, ¶ 31.
Upon his return to work on November 13, 2001, plaintiff was assigned to manhole inspections. Dkt. #37, ¶ 35. Plaintiff affirms that manhole inspections are more physically demanding than the work required on the Various Sewer Repairs Project and required less skill and alleges that the reassignment was in retaliation for his picketing. Dkt. #43, ¶ 36. With the exception of a few brief construction jobs, plaintiff remained on manhole inspections until he retired. Dkt. #43, ¶ 54. Plaintiff affirms that following his reassignment, Crew Chiefs began to check on him and scrutinize his whereabouts. Dkt. #44-3, ¶¶ 57-59.
Plaintiff also alleges that on December 21, 2001, he was greeted rudely and verbally attacked by Mr. Stocker at a health care arbitration he was attending in his capacity as Vice Chairman of the Grievance Committee. Dkt. #44-3, ¶ 55.
On January 23, 2002, plaintiff, in his capacity as an employee and grievance committee chairman, filed a grievance with respect to his reassignment and loss of overtime. Dkt. #39-4, p.2. Mr. Camilleri affirms that he had not considered that plaintiff would lose overtime when he directed the reassignment. Dkt. #39, ¶ 29.
Plaintiff filed this action on February 8, 2002, alleging that Mr. Camilleri reassigned him in retaliation for his picketing. Dkt. #1.
In the Spring of 2002, plaintiff alleges that he attended a meeting with Mr. Stocker, Mr. Rowland, Mr. Scherer, Mr. Camilleri, Mr. Moffitt and Ms. Jividen at which he was questioned about his address and compliance with the Town's residency law; acceptance of a jacket from a contractor; and payroll records. Dkt. #44-3, ¶ 60-61. Mr. Stocker and Mr. Scherer affirm that Mr. Stocker asked plaintiff to provide an updated address to personnel but plaintiff refused and the matter was not pursued further; Mr. Stocker asked plaintiff about time sheets which had been completed by someone else, at which point Mr. Scherer advised that he routinely completed time sheets for the Construction Inspectors; and that after Mr. Stocker inquired about a jacket with a contractor logo which plaintiff was wearing, Mr. Scherer advised that he and plaintiff had each received a jacket from the contractor as gifts, prompting Mr. Stocker to advise them that he felt that was inappropriate and direct them not to wear the jackets at work. Dkt. ##60 & 63. Plaintiff also complains that his computer was tampered with and his Town vehicle was searched. Dkt. #44-3, ¶ 62-63.
By Memorandum dated June 27, 2002 to all personnel in the Water Resources Department, John Camilleri advised that the State of New York was offering an early retirement incentive and asked employees to advise if they might be interested in the incentive, a copy of which was attached to the memorandum. Dkt. #39-4, p.10. Thirty-nine Town employees, including plaintiff and 13 other Water Resources Department employees, expressed interest in the retirement incentive. Dkt. #37, ¶ 49.
Donald Moffitt, President of the SWA, affirms that plaintiff informed him that he planned on taking advantage of the retirement incentive and that although he would receive less of a pension than he would receive if he continued working until age 55, he could offset that loss by performing construction inspection for the Village of Kenmore. Dkt. #40, ¶ 4. Plaintiff asserts that he "intended to retire as an alternative to continuing to work in a retaliatory and harassing ...