The opinion of the court was delivered by: MCAVOY
Plaintiff, a former assistant professor at the State University of New York in Potsdam ("SUNY Potsdam"), filed this civil rights action pursuant to 42 U.S.C. § 1983, seeking full reinstatement, backpay, and compensatory and punitive damages. He claims that defendants, SUNY Potsdam Administrators, denied him tenure in retaliation for exercising his First Amendment rights. Defendants filed a motion for summary judgment pursuant to Fed. R. Civ. Pro. 56. The motion is granted with respect to plaintiff's claim that defendants fired him in retaliation for exercising his free speech rights.
SUNY Potsdam hired plaintiff in September, 1985 as an assistant professor in the Department of Computer and Information Sciences ("Computer Department"). Plaintiff alleges that this was a "tenure track position," which in the typical case means that in the sixth year of employment, the assistant professor undergoes an evaluation to determine whether he or she will receive tenure or a seventh and final year-long contract. SUNY Potsdam renewed plaintiff's contract five times.
In May, 1989, Defendant DelGuidice, then the Dean of Liberal Studies, allegedly appointed David Valentine to serve as Chairman of the Computer Department. Defendant Kalas, then the Acting Provost, approved Valentine's appointment. Ds' Mem. p. 5. Plaintiff characterizes Valentine at the time of his appointment as "an untenured lecturer, without academic rank" who did not hold a Ph.D. Am. Compl. PP 18-19.
Beginning in May, 1989, plaintiff "on numerous occasions, as well as 3 other members of [the Computer Department] spoke out publicly against the governance of the 'Computer Department' by individuals without 'Academic Rank'." Am. Compl. P 21. Plaintiff asked his union, United University Professors ("the Union"), to help resolve the problem. The Union addressed its concerns about Valentine's appointment to Defendant Merwin, who became the President of SUNY Potsdam in the fall of 1989, but he allegedly responded with inaction. An external review team evaluated the Computer Department in November, 1989, and allegedly concluded that "Valentine was not an appropriate" Department Chairman. Id. P 26. Defendant Merwin allegedly took no action in response to the external review. In February, 1990, SUNY Potsdam students participated in an open meeting during which they asked Defendant Merwin about Valentine's qualifications for his position. Soon after a local newspaper published a story about the meeting, Valentine resigned as Chairman of the Computer Department. Defendant DelGuidice succeeded him.
Plaintiff alleges that "on a number of occasions prior to May 31, 1990, defendants Merwin, DelGuidice and Kalas spoke to [him] and voiced their discontent and annoyance with [his] activities, and each warned plaintiff against his speaking out on [Valentine's appointment]." Id. P 33. On May 31st, after plaintiff had worked at SUNY Potsdam for five years, defendants allegedly fired him by refusing to renew his contract for a sixth year. Id. P 36. Their asserted reason for denying plaintiff continued employment was that he lacked the support of the Computer Department. Id. P 37. Plaintiff calls this "pretext" and claims that defendants actually fired him "in retaliation for his having spoken out on numerous occasions about the propriety of the Valentine appointment and the governance of the 'Computer Department' and for his having participated with the [Union] in seeking corrective measures," in violation of his First Amendment rights to free speech and freedom of association. Id. PP 41-44.
B. Defendants' Motion for Summary Judgment
Defendants filed a motion for summary judgment on the grounds that plaintiff's complaints about Valentine are unprotected by the First Amendment and that even if they are protected, defendants are entitled to qualified immunity. Defendants in their motion papers never refer specifically to plaintiff's freedom of association claim. After a number of extensions and an adjournment, plaintiff filed affidavits in response to the motion, but failed to file a memorandum of law.
C. Summary Judgment Standard
Under Fed. R. Civ. Pro. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), cert. denied, 481 U.S. 1029 (1987). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317 (2d Cir. 1975), and the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought. Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985) cert. denied 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987). The Court has examined plaintiff's complaint in light of the preceding considerations.