The opinion of the court was delivered by: John T. Curtin United States District Judge
This action was originally brought in Supreme Court, Erie County, on March 19, 2003, and was removed to this court on April 8, 2003 (Item 1). In an order filed December 17, 2004 (Item 35), the court dismissed plaintiff's cause of action under the New York State Human Rights Law, and directed plaintiff to file an amended complaint so as to draw his claim under Title 42 U.S.C. § 1983 with more specificity. In the amended complaint, filed January 18, 2005 (Item 36), plaintiff alleged that he was transferred from his position at the Aurora facility of the Erie County Public Works Department, Highway Division, in retaliation for his exercise of the rights of freedom of speech, political affiliation, and other intimate association guaranteed by the First Amendment.
Defendants moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) (Items 38, 40). Plaintiff opposed the motion and moved for permission to file a second amended complaint so as to add a claim under section 1983 for the violation of his Fourteenth Amendment right to due process (Item 48). In a Decision and Order dated February 27, 2006, the court granted the motions to dismiss and denied the plaintiff's motion to amend the complaint (Item 59).
Plaintiff appealed the decision to the Second Circuit, which affirmed in part, vacated in part, and remanded the matter for further proceedings. The court found that plaintiff had sufficiently alleged that he was "retaliated against for his lack of political affiliation with, or his refusal to pledge his allegiance to, the new Erie County administration" (Item 63, p.3). Additionally, the Second Circuit found that plaintiff had sufficiently alleged a First Amendment retaliation claim based on his expression of protected speech following his transfer. Id., pp.3-4. The Second Circuit affirmed the dismissal of plaintiff's First Amendment claim based on statements made by plaintiff's wife, and found that the court did not abuse its discretion in denying plaintiff's motion for leave to amend the complaint. Id., p.4.
Following an unsuccessful attempt at mediation, the defendants moved for summary judgment (Items 84, 90). Plaintiff filed papers in opposition to the motions (Items 99 -104), and defendants filed reply memoranda (Items 108, 109). The court determined that oral argument was unnecessary. For the reasons that follow, the motions for summary judgment are granted, and the complaint is dismissed.
As stated in the amended complaint, plaintiff began his employment with the County of Erie in 1978 and was employed as a blacksmith with the Department of Public Works, Division of Highways, assigned to the Aurora Highway barn (Item 36, ¶ 5). Plaintiff obtained employment with Erie County through a neighbor who advised him of openings in the Highway Department. He completed an application and was hired (Item 102, Exh. A, p. 359).
Following the 1999 election of Joel Giambra, the Republican candidate, as Erie County Executive, defendant Naylon became the Aurora Senior District Highway Engineer, and defendant Rider became the Deputy Highway Commissioner (Item 36, ¶¶ 11-13). Plaintiff was supervised by Naylon, who was in turn supervised by Rider. Plaintiff alleges that neither Naylon nor Rider was qualified for his position. Id., ¶ 14.
In his deposition, plaintiff characterized himself as "the employee that socialized with all my fellow workers" at the Aurora barn (Item 102, Exh. A, p. 307). He testified that he had social relationships with co-workers Paul Rebrovich, Gary Kane, and Linda King, among others. Id., pp. 52, 54, 59. Plaintiff was unaware of the political party affiliations of his co-workers. Id, p. 401. He was unaware of the political beliefs of or any political activity by Paul Rebrovich. Id., pp. 402-03. To plaintiff's knowledge, Rebrovich started out as a laborer and worked his way up to a foreman position. Id., p. 404. They did not discuss politics. Id., p. 408. Plaintiff did not hold himself out as having any political affiliations or associations during his tenure as a County employee. Id., p. 411. He was never asked to buy a ticket to a political event, or to support a particular candidate. Id., p. 305-06. Plaintiff was not aware if any of the previous district managers got their jobs through some political association. Id., pp. 405-06. He did not hold a position with the union. Id., p. 125.
In the fall of 2000, on Naylon's first day of work, while plaintiff was driving Naylon from his home to the workplace, Naylon asked plaintiff his political affiliation during the course of a 15-minute conversation (Item 102, Exh. A, p. 309). This is the only time that plaintiff could recall being asked about his political affiliation. Id., p. 312. Plaintiff told Naylon that he was a Republican, and the discussion on that subject ended. Id., p. 345. During this conversation, Naylon acknowledged that plaintiff was a long-time County employee and asked "who are the guys that put forth or work or do their jobs and who are the goof offs?" Id., p. 339. Plaintiff was uncomfortable with the question and told Naylon to "give it a couple of weeks and I am sure you will be able to figure it out." Id., p. 340. Plaintiff stated that Naylon wanted to know the good and bad employees, and he was uncomfortable providing that information. Id., p. 341-43. Later in 2000, Naylon asked plaintiff which employees socialized together. Id., p. 354. Paul Rebrovich told plaintiff that Naylon asked him to make a list of the good employees and the bad ones. Id., p. 358.
In December 2000, plaintiff came to believe that Naylon was mistreating the employees of the Aurora barn and acting illegally (Item 102, pp. 285-86). Plaintiff spoke to a union representative to advise them that "something was not right." Id., p. 123. He felt he was being "targeted," and the union representative said he would look into it. Id., p. 258. Plaintiff also came to believe that Naylon was not in the office as often as he should be. Id., p. 288. In December 2000, Naylon mentioned a retired employee who was visiting the Aurora barn and told plaintiff that it didn't "look good" for him and the Giambra administration, and that as the employee was "retired from the Gorski administration" he should be "on his merry way." Id., p. 392. Plaintiff testified that Naylon criticized his work and failed to give verbal or written warnings regarding disciplinary infractions. Id., pp. 128-29, 171. Plaintiff testified that, prior to Naylon's tenure, the district engineer did not criticize the employees' work and the assignment of jobs was left to the employees. Id., p. 172.
On January 31, 2001, plaintiff had a conversation with Naylon. Plaintiff wanted to talk about work details and Naylon's treatment of him (Item 102, Exh. A, pp. 364). The men began to argue, and Naylon suggested that plaintiff transfer to another work site. Id., p. 366. Naylon used the term "old regime" three or four times to describe workers at the Aurora barn, including during the January 31, 2001 conversation. Id., p. 397. Naylon once stated that plaintiff was from the "old regime." Id., p. 411.
Following the January 31, 2001 conversation with Naylon, plaintiff was advised by his union representative not to speak to Naylon outside the presence of a union representative (Item 102, Exh. A, p. 406). He was told by Linda King, Naylon's secretary, that Naylon was monitoring the number of plaintiff's telephone calls. Id., pp. 408-09.
On March 1, 2001, plaintiff received a letter from defendant Rider advising him of six disciplinary infractions lodged against him, including insubordination, tardiness, and falsification of County records, and advising him to appear for a disciplinary hearing on March 5, 2001 at the Aurora office (Item 88, Appx. M). Plaintiff stated that there was no basis for the charges (Item 102, Exh. A, pp. 167-68). However, in his deposition testimony, plaintiff admitted that on one occasion, he completed a work log to reflect that he had finished work that had not been done, as that had been the "past practice." Id., pp. 183-85). He considered it petty that Naylon would criticize the practice. Id., p. 188. Plaintiff acknowledged that Naylon instructed him not to leave the work site to collect dead deer carcasses from the county roads, which he had been doing for approximately ten years. Despite this instruction, plaintiff stated that he was given permission to do so by Paul Rebrovich in Naylon's absence. Id., p. 196. Plaintiff also admitted he was late to work on occasion, but that the time clock malfunctioned. Id., pp. 212-13. He also acknowledged a 1995 performance evaluation in which his supervisor stated that he needed to improve his punctuality. Id., pp. 508-09.
Plaintiff stated that he attended the disciplinary hearing with Naylon and Rider in Naylon's office on March 5, 2001. He was not allowed to explain his position, and Naylon could not produce his personnel file which was locked in a file cabinet (Item 102, Exh. A, pp. 223-27). In addition to insubordination and tardiness, plaintiff was accused of taking excessive breaks and personal use of the County telephones. Id., p. 232. After the hearing, plaintiff was told he was being transferred to the Tonawanda barn, and the union filed a grievance on his behalf. Id., pp. 234-35. Following an arbitration, on July 3, 2001, plaintiff received an unfavorable decision (Item 102, Exh. A, p. 239; Item 88, Appx. R). The arbitrator determined that the transfer was not a disciplinary measure (Item 102, Exh. A, p. 241-42; Item 88, App. R, p. 11).*fn1 An employee from the Tonawanda barn later told plaintiff that Rider came to the Tonawanda barn shortly before plaintiff's transfer and said that they were "getting a f up . . . from East Aurora." Item 102, Exh. A, p. 413.
Upon after his transfer to Tonawanda, plaintiff took a three-week medical leave (Item 102, Exh. A, p. 152). While working at the Tonawanda barn, plaintiff was called in to the office to speak to an investigator from the Erie County Sheriff's Department. The investigator explained that Naylon was looking into the theft of lumber from the Aurora barn, and it was known that plaintiff was building a deck around his swimming pool. Id., pp. 445, 451. Plaintiff explained that he had been transferred, had turned in his keys to the Aurora facility, and had no access to the wood. Id., p. 447. The investigator seemed satisfied with his responses, and left. Plaintiff was unaware if other employees were also questioned. Id., p. 449. Plaintiff also testified that Rider came to see him numerous times at the Tonawanda barn for the purpose of harassing him. Id., p. 108. The day he started at the Tonawanda barn, Rider came to see him, but plaintiff had already left for the day. Plaintiff's supervisor advised him that Rider then returned on two consecutive days, but plaintiff had gone home early due to illness. Id., pp. 430-35. Plaintiff testified that on one occasion, Rider questioned him regarding his continuing contact with Rebrovich and told plaintiff to tell his wife to "stay ...