The opinion of the court was delivered by: John T. Curtin United States District Judge
This case was originally filed in New York State Supreme Court, Erie County, on March 4, 2008. It was removed to this court in accordance with 28 U.S.C. § 1441 on March 24, 2008 (Item 1). Plaintiff seeks damages and a permanent injunction pursuant to 42 U.S.C. § 1983 for the alleged violation of her First Amendment rights in retaliation for her decision to run for Superintendent of the Amherst Highway Department in 2007.
The defendants filed an answer to the complaint on March 24, 2008 (Item 3). Discovery was completed by October 4, 2010, and defendants filed the motion for summary judgment on December 2, 2010 (Item 25). Plaintiff filed a response to the motion on January 18, 2011 (Items 40 - 43), and defendants filed reply affidavits on February 1, 2011 (Items 44, 46). The court declined to hear oral argument. For the reasons that follow, the defendants' motion for summary judgment is denied.
Plaintiff commenced her employment with the Town of Amherst Highway Department on December 24, 1989 (Item 40, Exh. A, hereafter "Kaminski Dep.," p. 7). She worked for approximately 14 years in the Parks Division, located on Maple Road in the Town of Amherst, New York. In 2005, plaintiff was the Working Crew Chief in the Forestry Division. Id., p. 11. At that time, the operations of the Forestry Division were moved to the Highway Department facility on North Forest Road in Amherst. Id., p. 8. Kent Richter was the General Crew Chief and became plaintiff's supervisor. Id., pp. 24, 28. As Working Crew Chief, plaintiff supervised a crew of from 8 to 18 laborers. Id., p. 29. Plaintiff testified that she had differences of opinion with Kent Richter periodically during his tenure as her supervisor. Id., p. 80. She met with defendant Anderson, the Superintendent of the Highway Department, regarding her problems with Richter on approximately four occasions. Id., p. 82. On one occasion, plaintiff expressed a desire to leave the Forestry Division, but Anderson told her to work out her differences with Richter. Id., p. 85.
In May 2007, plaintiff was asked to run for the office of Superintendent of the Highway Department as the nominee of the Democratic Party, and she accepted the nomination (Item 42, ¶¶ 5-6). The incumbent Superintendent, defendant Anderson, was the Republican nominee for the office. Id., ¶ 7. In May or June 2007, defendant Anderson approached Larry Taber, plaintiff's then-fiancee, and asked him if plaintiff was running for Highway Superintendent. Taber assured Anderson that plaintiff was not running (Item 40, Exh. B, hereafter "Anderson Dep.," pp. 19-20; Item 42, ¶ 8). A few days later, Anderson learned that plaintiff had asked for the Independence Party endorsement, which had already been given to Anderson. Id., p. 23. On June 12 and 13, 2007, formal announcements were made regarding plaintiff's candidacy (Item 42, ¶ 9). Anderson again approached Taber and angrily accused Taber of having lied to him (Anderson Dep., p. 23). Larry Taber testified at his deposition that he told Anderson that plaintiff had been approached to run but had not decided (Item 40, Exh. G, p. 16). Later, after the announcement was made, Anderson told Taber, a life-long friend, that they were finished and not to ask for another favor. Id., p. 20.
On June 14, 2007, plaintiff's supervisor, Mr. Richter, told her to remove all the equipment from the room that was being used as the office for the Working Crew Chief of the Forestry Division. He explained that the adjacent ladies' room was going to be expanded and made handicap-accessible (Kaminski Dep., pp. 57-58). Plaintiff testified that those renovations were never done. Id., p. 66. Richter testified that the Forestry office was closed and that the files and telephone were moved into his office so as to consolidate and streamline the operation. Additionally, the front office was expanded, and the women's restroom was made handicap-accessible (Item 40, Exh. C, hereafter "Richter Dep.," p. 30). The other crew chiefs felt plaintiff should be in the crew chiefs' office, not in her own Forestry office. Id., p. 34.
Plaintiff was thereafter put in charge of the crew that responded to stump removal requests (Kaminski Dep., p. 68). She no longer was able to respond to residents' calls as she was not situated in an office with a telephone. Id., p. 67. She was no longer in charge of tree planting or tree removal. Id., p. 70. Richter was occasionally observed removing or changing work orders from plaintiff's work area in the crew chiefs' office (Item 40, Exh. E, pp. 16, 31). He admitted as much, but explained that he needed to keep apprised of the work load (Richter Dep., p. 37).
In approximately September 2007, plaintiff was taken off of stump removal duty and was assigned to oversee the scrap yard and the pick-up of scrap metal in the Town of Amherst (Kaminski Dep., pp. 87-88). Anderson decided to put plaintiff in charge of the yard and metal pick-up because there were "complaints about her work ethic, her duties not being performed, her lack of being available during work hours . . .[and] she was off a lot comparatively to the other crew chiefs" (Anderson Dep., p. 13). Richter testified that plaintiff was removed from Forestry and assigned to the yard because she was not performing as well as expected (Richter Dep., p. 47). It was plaintiff's understanding that her assignment to the yard was a form of punishment (Item 42, ¶ 21).
Plaintiff testified that for the duration of the yard assignment, she was told that she could not leave the yard (Kaminski Dep., pp. 90-91). Confined to the yard, plaintiff was not able to work overtime on jobs that continued past 5:00 p.m. as she had previously done. Id., pp. 94-95. She was also unable to check on the work status of the metal pick-up crews. Id., p. 98. She was not able to spend time in the office, but was told to stay outside and supervise the yard. Id., p. 108. Anderson denied specifically instructing plaintiff that she was not to leave the yard (Anderson Dep., pp. 27-28).
On December 7, 2007, plaintiff was working in the yard. It was a very cold day, and she spent much of it driving around the yard in her truck. (Kaminski Dep., p. 113 -14). She was not feeling well, and went home for lunch at approximately noon. She then proceeded to the hospital. Id., p. 116 - 18. At the hospital, plaintiff was given oxygen and had blood work done. When she followed up with her personal physician approximately one week later, plaintiff was told that she had been sickened by carbon monoxide and should not spend so much time in her vehicle. Id., pp. 121-22. Nonetheless, when she returned to work, plaintiff was instructed to stay in the yard in her truck. Id., p. 126.
In February 2008, plaintiff was transferred to the Parks Division and was placed in charge of the maintenance of the Town of Amherst Audubon Golf Courses (Kaminski Dep., pp. 129-30). When she was transferred, plaintiff was assigned a different truck, an old Chevrolet that was difficult to climb into and operate. Id., p. 133 - 34. The general crew chief installed a step so that plaintiff could climb in, but the seat was locked in position so that plaintiff could not easily reach the brake and gas pedals. Id., p. 135. Following the election, in which Anderson was reelected, plaintiff approached him about being reassigned back to the Forestry Division. Anderson told her that she would need to earn his trust. Id., p. 186.
Plaintiff testified that a now-deceased secretary told her that defendant Anderson instructed her not to speak with plaintiff on town time (Kaminski Dep., p. 150).
Anderson denied ordering any town employees to shun plaintiff or not speak to her (Anderson Dep., p. 37). Plaintiff also stated that she lost overtime opportunities by being listed as an "extra" on the Town's snow-plowing list (Kaminski Dep., pp. 99, 193-94). In her affidavit, plaintiff stated that she was assigned to work with employees whom other crew chiefs did not want to work with for various disciplinary reasons (Item 42, ¶ 20). She stated that her son and husband have also been subjected to incidents of retaliation. Specifically, her son was removed from his position in the Signal shop of the Highway Department "for no apparent reason." Id., ¶ 42. Her husband, a former Highway Department employee, manages the ...