The opinion of the court was delivered by: Glasser, United States District Judge:
This Memorandum and Order addresses the defendants' motion for summary judgment in a case that was commenced more than fourteen years ago, the history of which is reflected on a docket sheet of 254 entries. A procedural history of this case is provided in a Memorandum and Order ("Order") deciding the defendants' Rule 12(b)(6) motion dated August 27, 2008. Dkt. No. 141. A broad overview of that history begins with the dismissal of the original Complaint sua sponte by the judge to whom the case was originally assigned on the ground that the Complaint failed to logically articulate the theory of the case or the claims asserted. The dismissal was without prejudice and with leave to replead. Dkt. No. 38. The First Amended Complaint was filed shortly thereafter and was again dismissed sua sponte for essentially the same reasons. The plaintiff was again granted leave to replead. Dkt. No. 51. After the plaintiff filed a Second Amended Complaint, the Court dismissed the complaint, on that occasion without leave to amend. Dkt. No. 64.
The plaintiff appealed to the Second Circuit which found that the Second Amended Complaint satisfied Rule 8 of the Federal Rules of Civil Procedure and remanded the case. Wynder v. McMahon, 360 F.3d 73 (2d Cir. 2004). On remand, the plaintiff filed a Third Amended Complaint which was reassigned to this Court upon the plaintiff's request. When the Clerk of the Court erroneously entered final judgment in favor of the defendants, the plaintiff, rather than move to amend the judgment to correct the clear error, appealed to the Second Circuit again, which vacated the judgment. Wynder v. McMahon, 184 F. App'x 92 (2d Cir. 2006).
On remand and upon defendants' motion to dismiss the Third Amended Complaint, the Court dismissed many of Mr. Wynder's claims. Dkt. No. 141. Three years after that decision, in 2011 the plaintiff moved to file a Fourth Amended Complaint to include New York State as a defendant which Magistrate Judge Pollak denied. This Court upheld the denial, noting that it had already decided the issue in its 2008 Order and that "plaintiff has been on notice since at least 1999 that, as a matter of law, New York State was a proper party" but never named it as a defendant. Dkt. No. 222. The plaintiff promptly made a "Motion for Reconsideration and to Renew" but in fact did not argue for reconsideration of the denial and instead sought to relitigate an entirely separate issue on meritless grounds. The Court denied the motion and, after the plaintiff's counsel opposed threatened sanctions by rearguing the same issues raised in the motion for reconsideration, the Court imposed sanctions pursuant to 28 U.S.C. § 1927. Dkt. Nos. 228, 237 & 245.
The defendants, James McMahon, David Spahl, Robert Jones, Louis Barbaria, Craig Masterson, and Josh Keats (collectively, "defendants"), now move for summary judgment on the plaintiff's four remaining claims: (1) disparate treatment under 42 U.S.C. §§ 1981 and 1983, the New York State Human Rights Law ("NYSHRL"), and the New York State Constitution; (2) procedural due process under § 1983; (3) hostile work environment under §§ 1981 and 1983, NYSHRL, and the New York State Constitution; and (4) retaliation under NYSHRL and the New York State Constitution.*fn1 The defendants argue that the plaintiff cannot establish the claims as a matter of law and assert defenses of absolute immunity and qualified immunity. For the following reasons, the defendants' motion is GRANTED.
Kenneth Wynder ("plaintiff" or "Wynder") is an African-American man who was employed as a state trooper by the New York State Police ("NYSP") between 1987 and 1999. He claims that during the course of his employment he was subjected to discriminatory treatment and a hostile work environment because of his race. Mr. Wynder's host of allegations are described in detail in this Court's previous Order, familiarity with which is assumed. See Order at 1--13. The facts pertinent to the pending motion, either undisputed or, where disputed, viewed in the light most favorable to Mr. Wynder, are as follows.*fn2
A. New York State Police Academy
Mr. Wynder graduated from the NYSP Academy in 1987 and began his employment with NYSP immediately. Wynder Deposition Day I ("Wynder Dep.") at 14, 30 (Dkt. No. 253).*fn3 After working as a trooper at NYSP's Peekskill station for five years, in 1992 he transferred to work at the Academy as a basic counselor. Id. at 30--31, 39, 41. At the Academy, Mr. Wynder refused to run with recruits or perform other chores that other counselors did. Id. at 46--48. Mr. Wynder believed that running with recruits is not part of a counselor's job. Id. at 46. Defendants assert that it is. Defendants' Rule 56.1 Statement ("Defs.' 56.1") ¶ 5 (Dkt. No. 239). Mr. Wynder claimed that because of this refusal, Captain Masterson, Assistant Director of the Training Academy, told him that he would not return as a counselor for the next session. Wynder Dep. at 49.
Mr. Wynder contacted Lieutenant Cook, the affirmative action officer at NYSP, to complain about Masterson's refusal to allow him to return and to inform Cook that there were no minority academic instructors at the Academy. Id. at 50--51. Shortly thereafter, Masterson told Mr. Wynder that he would return for the next session, but as an instructor rather than as a counselor. Id. at 53--55; Defs.' 56.1 ¶ 8. Defendants assert that the promotion was intended to remedy the lack of minority instructors. Id. Mr. Wynder construed the promotion as a punishment for complaining; he also thought that he was set up to fail because he was unqualified for the position. Wynder Dep. at 55--57.
Prior to assuming his position as an instructor, Mr. Wynder was required to attend the Academy's Instructor Development School. Defs.' 56.1 ¶ 9; Wynder Dep. at 14, 59. He claimed that he was thereafter assigned to teach a course that recruits were required to pass to remain in the Academy and that he felt pressured when Masterson observed his classes but not the classes of others. Id. at 59--60, 63--64. Mr. Wynder believed that Masterson attempted to have him removed from his position after the first two classes of the session but that after complaining to Cook, he was permitted to stay on as an instructor. Id. at 64, 67. At the end of the session, in 1993 Mr. Wynder returned to the Peekskill station as a trooper; six months later, he was transferred to the Hawthorne station and remained there until he retired in 1999. Id. at 85, 88, 93--94.
B. Internal Affairs Bureau Investigations
Around November 1996, the Internal Affairs Bureau ("IAB") of NYSP began investigating Mr. Wynder based on a confidential source's allegations that, among other things, Mr. Wynder had committed a drug-related homicide in California and then reported his gun stolen to cover up that crime. Fitzgerald Declaration ("Fitzgerald Decl."), Ex. C (Dkt. No. 241). Mr. Wynder claimed that his gun had been stolen in 1989 during his vacation in California with Christopher Downing, a U.S. Customs agent, and NYSP Trooper Keith Forte. Wynder Deposition Day II ("Wynder Dep. II") at 78--79, 85, 89 (Dkt. No. 254). The investigation did not corroborate any of the source's accusations, but IAB determined that Mr. Wynder had not complied with NYSP regulations requiring him to report his stolen weapon. Defs.' 56.1 ¶ 35.
During the course of the investigation, Lieutenant Barbaria, one of the IAB investigators, contacted U.S. Customs about Mr. Wynder's trip to California with Downing and Forte. Id. ¶ 43; Fitzgerald Decl., Ex. D. Barbaria learned that Mr. Wynder and Downing were involved in a business called "For You Enterprises." Defs.' 56.1 ¶ 42; Fitzgerald Decl., Ex. D; Wynder Dep. at 159--65.*fn4 Based on this information, Gregory Schreffler of the NYSP Financial Crimes Unit conducted a financial background investigation of Mr. Wynder and discovered that he had filed for bankruptcy three times and that the third petition appeared to contain false information. Defs.' 56.1 ¶ 45.
Mr. Wynder believed that he was harassed throughout the investigation, claiming, among other things, that (1) IAB subpoenaed his bank records and, in the process, told his bank that he was under criminal investigation; (2) Captain Spahl, the station commander at NYSP's Hawthorne station, told other troopers that Mr. Wynder was under criminal investigation, that he was "dirty," and that he "should be stayed away from"; and (3) Spahl directed an ostensibly random drug test at the Hawthorne station to be rescheduled from a date on which Mr. Wynder was out on sick leave to the day after he returned to work. Wynder Dep. at 130--32, 181--85; Wynder Dep. II at 26, 42--47, 52--53, 59.
C. First Disciplinary Hearing
On December 22, 1997, NYSP charged Mr. Wynder with filing a false bankruptcy petition and engaging in outside employment without authorization. Durden Declaration ("Durden Decl."), Ex. D (Dkt. No. 240). A disciplinary hearing was held on January 27 and 29, 1998, where Captain Jones presented the charges against Mr. Wynder before a hearing board. Durden Decl., Exs. E & F. McMahon accepted the findings and recommendations of the hearing board, finding Mr. Wynder not guilty of the false bankruptcy petition charge but guilty of the unauthorized outside employment charge. Durden Decl., Ex. H. As a result, Mr. Wynder was suspended without pay for five days, formally censured for his conduct, and put on probationary status for six months. Id.
D. Second Disciplinary Hearing
Mr. Wynder claimed that on January 20, 1998, and again on January 27, Barbaria informed him that because of his earlier failure to properly report his stolen gun, the gun listing in the NYSP computer system ("NYSPIN") needed to be corrected. Wynder Dep. II at 143--44. On January 28, Mr. Wynder went to NYSP's Newburgh station to correct the listing. Id. at 144. After a superior officer denied him access to the NYSPIN terminal, Mr. Wynder reentered the station and accessed the terminal. Durden Decl., Ex. M.
In a subsequent IAB investigation, it was discovered that Mr. Wynder had accessed the terminal through the log-in of Trooper Keats. Id. At that time, Keats told IAB that he had logged off the terminal on January 28 when he had finished using it. Defs.' 56.1 ¶ 76. At some later point, Keats realized that, in fact, he had neglected to log off the terminal on that day but had mistakenly told IAB that he had logged off because his customary practice was to log off when he had finished using the terminal. Durden Decl., Ex. K (Keats Dep.) at 54. On May 11, 1999, NYSP held a disciplinary hearing regarding Mr. Wynder's conduct at the Newburgh station and, as a result of the findings of the hearing board, he was suspended without pay for ten days, formally censured, and put on probationary status for six months. Durden Decl., Ex. L. LEGAL STANDARD FOR MOTION FOR SUMMARY JUDGMENT Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law." Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quotation omitted).
The moving party bears the burden of establishing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim. Id. at 322--23. To defeat a motion for summary judgment, the nonmoving party "'must do more than simply show that there is some metaphysical doubt as to the material facts,'" Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586--87 (1986)), and cannot "rely on conclusory allegations or unsubstantiated speculation." Id. (quotation omitted).
A court deciding a motion for summary judgment must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation omitted). "'Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
Title 42 U.S.C. § 1981 provides the substantive right that "[a]ll persons . . . shall have the same right . . . to make and enforce contracts," while § 1983 provides the exclusive legal remedy for violations of § 1981 by state actors. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989); Patterson v. Cnty of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004); see also Rehman v. State Univ. of N.Y. at Stony Brook, 596 F. Supp. 2d 643, 654 (E.D.N.Y. 2009) (extending this principle to actions against individual state actors in their individual capacities). Defendants seek to dismiss Mr. Wynder's § 1981 claim for disparate treatment and hostile work environment on the basis of Jett. Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Defs.' Mem.") at 13 (Dkt. No. 242).
When a plaintiff alleges § 1981 and § 1983 claims for the same conduct, a court may dismiss the § 1981 claim or deem it merged with the § 1983 claim; the result, in practice, is the same. See Gladwin v. Pozzi, No. 06 Civ. 0650 (SCR) (JFK), 2010 WL 245575, at *7 (S.D.N.Y. Jan. 22, 2010); Perry v. Metro. Suburban Bus Auth., 319 F. Supp. 2d 338, 341--42 (E.D.N.Y. 2004). When the Court previously analyzed Mr. Wynder's § 1981 and § 1983 claims in tandem at the motion to dismiss stage, it effectively deemed the § 1981 claim merged with the § 1983 claim. See Order at 64--76. To resolve any remaining ambiguity, Mr. Wynder's § 1981 claim, as an independent cause of action, is dismissed.
Absolute immunity from civil liability is accorded to judges and prosecutors for actions taken in their official capacities, as well as to government officials performing analogous functions. DiBlasio v. Novello, 344 F.3d 292, 296--97 (2d Cir. 2003). Such immunity "'defeats a suit at the outset, so long as the official's actions were within the scope of the immunity.'" Root v. Liston, 444 F.3d 127, 130--31 (2d Cir. 2006) (quoting Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976)). "The process for determining whether a given defendant is entitled to absolute immunity involves two steps: first, the court must determine whether the administrative ...