by requiring him to speak to the employee before initiating disciplinary proceedings. Plaintiff did not tell Proffit of the complaint. DOI informed plaintiff that his charges were determined to be unfounded. No further action on the matter was taken. Plaintiff claims that after making the DOI complaint, he was "subjected to retaliation and a campaign of harassment designed to keep him away from sensitive decision making and client involvement, which was designed to humiliate, denigrate and interfere with [his] career path expectations . . . ." Compl. at 7, P 4.
The only specific incidents that plaintiff has cited as retaliatory all occurred three years after the date of his DOI complaint. I find there are no triable issues of fact and defendants are entitled to judgment as a matter of law because plaintiff will be unable to establish the causation he must prove in order to prevail on his claims.
II. STANDARD FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment where the evidence shows that "there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary judgment "is properly regarded . . . as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 1). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). An issue of credibility is insufficient to preclude the granting of a motion for summary judgment. Neither side can rely on conclusory allegations; instead, the disputed issues of fact must be supported by evidence that would allow a "rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Finally, factual disputes that are irrelevant to the disposition of the suit under governing law will not preclude entry of summary judgment. Anderson, 477 U.S. at 248.
A. First Amendment Claim
To succeed on his First Amendment claim, plaintiff "must demonstrate by a preponderance of the evidence that the speech at issue was protected, that he suffered an adverse employment action, and that there was a causal connection between the protected speech and the adverse employment action." Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994) (citing Mount Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977)) (emphases added).
1. Was Plaintiff's Speech Constitutionally Protected?
Public employee speech is constitutionally protected only when the speech is of public concern and does not merely pertain to a personal dispute that involves internal office affairs. Ezekwo v. New York City Health & Hosps. Corp., 940 F.2d 775, 781 (2d Cir.), cert. denied, 502 U.S. 1013, 116 L. Ed. 2d 749, 112 S. Ct. 657 (1991). As the Supreme Court explained in Connick v. Myers, 461 U.S. 138, 149, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983),
To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark--and certainly every criticism directed at a public official--would plant the seed of a constitutional case. While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.