The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
MEMORANDUM OPINION AND ORDER
This is a Section 1983 action in which Plaintiff Norman Morey seeks damages for alleged violations of his First and Fourteenth Amendments rights.*fn1 (Cmplt. ¶¶ 1, 24-25) Morey asserts that Defendants terminated his employment as head custodian at Somers Central High School in retaliation for his expressing concern about possible asbestos contamination in the high school gymnasium.*fn2 (Id. ¶¶ 19, 21)
Defendants have moved for summary judgment, arguing that Plaintiff's speech is not constitutionally protected, that there is no causal connection between the speech and adverse employment action, and that, in any event, Plaintiff would have been terminated for reasons independent of his speech. (Docket No. 15) Because Plaintiff's speech is not constitutionally protected, Defendants' motion for summary judgment will be granted.
Morey worked as a custodian for the Somers School District from 1984 until his January 2004 termination. (Def. Rule 56.1 Stat. ¶ 4)*fn3 Beginning in November 1995, and continuing until his termination, he served as head custodian at the District's High School. (Id. ¶ 5) During the relevant time period -- May 2003 to January 2004 -- Defendants Marien and Crowley served, respectively, as District Superintendent and Assistant Superintendent for Business. (Id. ¶¶ 6, 8)
During his employment, but before becoming head custodian at the high school, Morey received district-sponsored training concerning the handling, inspection, and management of asbestos. (Id. ¶¶ 9-10; Silverman Decl. Ex. C at 35-44)*fn4 He received state-issued certificates for completing this training. (Def. Rule 56.1 Stat. ¶11; Ex. C at 38) Morey's duties as head custodian included supervising the maintenance of buildings and grounds; cleaning the building; handling work requests and making assignments; ensuring that the heating, air conditioning and fire alarm systems were in working order; assisting with custodial, maintenance and repair work; and assisting cafeteria workers. (Id. ¶12; Ex. C at 30-31) Plaintiff's duties as head custodian did not include identifying or removing asbestos (Pltf. Rule 56.1 Stat. ¶ 10; Ex. D at 25), but prior to assuming this position he had performed work for the District involving asbestos removal or encapsulation and received a specialstipend for this work. (Ex. C at 40-41)
In May 2003, Morey received a phone call stating that there was a "mess" in the high school gymnasium that required his attention. (Id. ¶ 22) Grayish-white "chunks" and "larger pieces" of insulation from the elbow of a roof drain had become dislodged, fallen from the ceiling, and were scattered on the floor near the gym's air handler vent. (Id. ¶¶ 24-25; Ex. C at 57-58) Morey contacted Superintendent of Buildings and Transportation John Ness, and -- based on his prior training -- informed Ness that the fallen insulation might contain asbestos. Ness instructed Morey to dispose of this material. (Def. Rule 56.1 Stat. ¶¶ 26-28) Morey swept the fallen insulation into a plastic bag and stored the bag in a custodial closet until he was instructed to throw it away. (Id. ¶ 29)
Later that day, Morey showed Ness where the insulation had come loose. Morey also alleges that he told Ness "that the gym should have been closed down until it was determined [whether the material] was asbestos . . . via air samples or what have you." (Id. ¶ 31-32; Ex. C at 64-65) Ness, however, merely instructed Plaintiff to come to school early the next day and tape up the loose insulation. (Def. Rule 56.1 Stat. ¶¶ 33-34)
Defendant Crowley called Morey and "thanked him for not making a big deal about the situation."*fn5 (Id. ¶ 36; Ex. C at 70-71)
The parties dispute whether there were additional conversations in 2003 about a potential asbestos problem at the high school. (Id. ¶ 38-9; Pltf. Rule 56.1 Stat. ¶¶ 38-39; Pltf. Rule 56.1 Counter-Stat. ¶¶ 12-13, 15, 17, 19, 22; Def. Rule 56.1 Counter-Stat. ¶¶ 12-13, 15, 17, 19, 22) Plaintiff alleges that he expressed concerns to Ness and Crowley about possible asbestos contamination and that Ness told him "not to be a troublemaker and  that the administration has ways of dealing with trouble makers." Morey understood this as a threat of disciplinary action. (Ex. C at 75-76; Def Rule 56.1 Stat. ¶ 43) While the parties dispute whether Morey discussed his concerns with District officials after May 2003, it is undisputed that Morey never shared his concerns with the public, with students, or with anyone outside the District administration. (Def. Rule 56.1 Stat. ¶¶ 47-48)
During the first week of September 2003, Defendant Marien removed Morey from his duties at the high school and instructed him to remain at home. (Pltf. & Def. Rule 56.1 Counter-Stat. ¶ 24) On September 18, 2003, Morey and his union representative met with Defendants Marien and Crowley, and Marien served Morey with disciplinary charges. (Def. Rule 56.1 Stat. ¶¶ 62, 65) It is undisputed that the alleged asbestos incident in the gym was not discussed at the meeting or addressed in the disciplinary charges. (Id. ¶¶ 67-68) These charges were later rescinded because the Board of Education had not yet approved them. (Id. at ¶ 65)
On October 8, 2003, Morey was suspended and re-served with disciplinary charges. (Id. ¶ 70) The charges alleged misconduct dating back to April 2002 and included allegations that Morey had: (1) submitted inaccurate time sheets in connection with obtaining overtime pay; and (2) verbally and physically abused custodial staff. (Pltf. & Def. Rule 56.1 Counter-Stat. ¶ 28) Prior to the May 2003 incident in the gym, Plaintiff had never been the subject of any formal disciplinary charges but had been the subject of several critical letters and memoranda. (Pltf. & Def. Rule 56.1 Counter-Stat. ¶ 2)
Pursuant to Section 75 of the New York Civil Service Law, a hearing took place in October and November of 2003 concerning the disciplinary charges against Morey.*fn6 (Def. Rule 56.1 Stat. ¶ 75; Ex. N) Plaintiff had union representation at the hearing. (Def. Rule 56.1 Stat. ¶¶ 76-77) In a written decision, Hearing Officer Joseph Wooley found Morey guilty of several charges of misconduct and recommended that he be terminated. (Def. Rule 56.1 Stat. ¶ 78; Ex. N) Based on the Section 75 hearing, the Board of Education terminated Morey's employment on January 7, 2004. Morey appealed his termination in a state court Article 78 proceeding, but on December 12, 2005, the court confirmed the hearing officer's determination and denied Morey relief. (Def. Rule 56.1 Stat. ¶ 81; Ex. P) See Morey v. Somers Cent. Sch. Dist., 24 A.D.3d 558, 559 (2nd Dep't 2005).
Morey filed this Section 1983 action on March 9, 2006. On June 12, 2006, Defendants filed a motion to dismiss. Judge Conner denied the motion in an opinion dated March 21, 2007. Morey v. Somers Cent. Sch. Dist., No. 06 Civ. 1877 (WCC), 2007 WL 867203 (S.D.N.Y. Mar. 21, 2007). Judge Conner held that collateral estoppel based on the Section 75 and Article 78 proceedings did not bar Morey's First Amendment retaliation claim, that Morey's statements regarding possible asbestos in the high school are constitutionally protected because they involve a matter of public ...