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, and was removed to this court on October 19, 2007 (Item 1). Plaintiff alleges that the defendants retaliated against her for the exercise of her rights guaranteed by the First Amendment to the Constitution, in violation of 42 U.S.C. § 1983. This matter is currently before the court on the defendants' motions for summary judgment (Items 51, 72).
In her complaint, plaintiff alleged that since 1991, she was employed by the defendant Board of Education as a clerk at the Riverside Institute of Technology ("Riverside"), where defendant Mogavero was the building principal (Item1, ¶¶ 5-6). Plaintiff alleged that in approximately September 2005, she was instructed by defendant Mogavero to alter payroll documentation to reflect that certain substitute teachers were performing special education duties. Id., ¶ 8. Plaintiff objected to this practice because she believed that Mogavero was misappropriating federal special education funds. Id., ¶¶9, 12, 13. Plaintiff complained about this practice to her supervisor, her union, the Board of Education, the City of Buffalo, and to other employees at Riverside. Id., ¶¶ 15, 16, 18.
Plaintiff alleged that in approximately October 2005, Mogavero began to treat her differently, including subjecting her to demeaning remarks, confrontational behavior, and numerous written warnings (Item 1, ¶ 21). As a result of the hostile working environment, plaintiff left work on sick leave from March 10, 2006 until October 2, 2006. Id., ¶¶ 22, 24. When she returned to work, plaintiff was transferred to the Occupational Training Center. Id., ¶ 25. She did not have enough seniority to retain the position, however, and was forced to choose between returning to Riverside or bidding on another position. Plaintiff chose to return to Riverside. Id., ¶¶ 26, 27.
Plaintiff alleged that upon her return to Riverside, defendant Mogavero again subjected her to harassment, which included moving her desk out of the main office and forbidding her use of the fax machine, copier, or lavatory near the main office, forbidding her from speaking to or e-mailing him, issuing unwarranted disciplinary warnings, and giving her the work assignments of two or three people (Item 1, ¶ 28). Plaintiff alleged that the defendants, while acting under color of state law, have retaliated against her for exercising her rights to free speech as guaranteed by the First Amendment to the United States Constitution. Id., ¶¶ 31-32.
In lieu of an answer, on November 14, 2007, defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (Item 8). That motion was denied in a Memorandum and Opinion filed July 29, 2008 (Item 13). The defendants filed their answer on August 25, 2008 (Item 14). Thereafter, on December 17, 2008, the defendants filed a motion to amend/correct the answer (Item 18). Plaintiff opposed the motion (Items 20, 21). In an order filed March 27, 2009, the court granted the motion to amend (Item 25), and the amended answer was filed April 2, 2009 (Item 26).
The parties unsuccessfully attempted to mediate this dispute, then proceeded to discovery. On June 13, 2011, defense counsel filed a motion for summary judgment on behalf of the Board of Education - City of Buffalo only, not the individual defendant Mogavero (Item 51). On June 16, 2011, the parties filed a stipulation which provided that the City of Buffalo Corporation Counsel discovered "a possible or apparent conflict of interest in continuing representing both defendants Board of Education and Mogavero" and withdrew from representation of defendant Mogavero (Item 52, p. 1).
On September 9, 2011, attorney Robert Heary filed a notice of substitution of counsel on behalf of defendant Mogavero (Item 62). Plaintiff filed her response to the City's motion for summary judgment on September 30, 2011 (Items 65, 66). Thereafter, on January 6, 2012, defendant Mogavero filed a motion for summary judgment (Item 72). Plaintiff filed a response to the motion on February 8, 2012 (Items 77-79), and defendant Mogavero filed a reply on March 9, 2012 (Item 81). The court has determined that oral argument is unnecessary. For the reasons that follow, the motions for summary judgment are granted and the complaint is dismissed.
At all times relevant to the motions, plaintiff was employed by the Board of Education of the City of Buffalo as a school clerk stenographer and was a member of the Professional, Clerical, Technical Employees Association ("PCTEA"). Plaintiff testified that she began working for the defendant in 1991 and became a clerk stenographer at Riverside in 1993 (Item 51, Exh. B, p. 10). Her duties included payroll, bookkeeping, ordering and distribution of supplies, inventory, answering telephones, correspondence, reports, and attendance. Id. Plaintiff's job description specifically provided that plaintiff was responsible for "compil[ing], enter[ing] and maintain[ing] biweekly payrolls of faculty and school staff" (Item 65, Exh. F).
Plaintiff testified that teachers performed clerical tasks in the office at Riverside, a practice which she opposed (Item 51, Exh. C, p. 75-79, 81-82). In September or October 2005, plaintiff advised her supervisor and complained to her union president that defendant Mogavero asked her to commit payroll fraud. Id., pp. 85-86. Mr. Mogavero instructed her to use special education funds to justify substitutes for regular teachers who were doing clerical work. Id., p. 108. Specifically, plaintiff testified that defendant Mogavero instructed her to "white out" absences on payroll documents for two teachers to make it appear that they were present in the classroom. Id., p. 106. He then instructed her to mark two special education teachers absent. Id. Substitute teachers covered the classrooms for the two teachers who were assigned to work in the office. Id., p. 108. Plaintiff stated that, as a parent of children with special needs, she was upset by defendant Mogavero's manipulation of the special education funds at Riverside. Id., p. 242. Plaintiff felt Mogavero was "taking away money from the special ed kids." Id., p. 268. Plaintiff complained about these practices to her supervisor and union. She also met with the union attorney and provided him copies of payroll records. Id., p. 65.
Plaintiff's complaints led to an investigation by the Board of Education. Plaintiff testified that defendant Mogavero never reprimanded her until he learned that he was under investigation (Item 51, Exh. C, p. 235). Following the investigation, Mogavero ordered the staff at Riverside not to assist plaintiff with her duties. Id., pp. 92-94. Plaintiff testified that in October 2005, she began to suffer harassment in the form of disciplinary write-ups, reprimands, and verbal attacks (Item 51, Exh. B, pp. 16 - 23). Other employees at Riverside told plaintiff that Mogavero instructed them not to associate with plaintiff. Id, p. 23. Plaintiff complained to her union and her supervisor about the harassment. Id., p. 41. In 2006, plaintiff, who suffers from lupus, was advised by her physician to take a medical leave because the stress of the workplace was exacerbating her lupus. Id., p. 35.
When plaintiff returned from her medical leave, she first was assigned to the Occupational Training Center (Item 51, Exh. C, p.180). In August 2006, she returned to Riverside, where defendant Mogavero instructed her to work out of the attendance office and forbade her to enter the main office or speak to him. Id., p. 248. Plaintiff was asked to voluntarily transfer to Seneca Vocational, but she refused. Id., pp. 182-83. ...