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.
A. Free Speech
Government employees who claim that they were terminated in retaliation for exercising their free speech rights must establish three elements in order to succeed. First, they must show that the speech is "fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). Second, even if the speech does touch a matter of public concern, the employer must establish that the speech's potential to disrupt the employer's operations outweighs the value of the speech. Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir.), cert. denied, 133 L. Ed. 2d 114, 116 S. Ct. 173, 1995 U.S. LEXIS 6088; 1995 WL 428110 (1995). See also Waters v. Churchill, 511 U.S. , 128 L. Ed. 2d 686, 114 S. Ct. 1878, 1884 (1994) (plurality opinion); Pickering v. Board of Ed., 391 U.S. 563, 569, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.), cert. denied, 126 L. Ed. 2d 144, 114 S. Ct. 185 (1993). Third, the plaintiff must show that the speech was a substantial or motivating factor behind the discharge. Mount Healthy City Bd. of Ed. of Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); see also White Plains, 991 F.2d at 1058. If the plaintiff succeeds in showing that his or her speech was a substantial or motivating factor in the defendant's termination decision, then the defendant must have an opportunity to prove that it would have reached the same decision even if the speech in question had never occurred. Mount Healthy, 429 U.S. at 287; White Plains, 991 F.2d at 1059.
Plaintiff has failed to establish that his speech concerned a matter of public concern. "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Connick, 461 U.S. at 146. The Court determines as matter of law whether the speech at issue touches a matter of public concern by examining its "content, form, and context . . . as revealed by the whole record." Id. at 147-48 & n.7.
In Connick, the plaintiff drafted and circulated a questionnaire designed to elicit from her colleagues their views about working conditions at the New Orleans District Attorney's Office. The questions pertained to office morale, grievance procedures, confidence in various supervisors, and pressure to work on political campaigns. With the exception of questions about the last-mentioned topic, the Supreme Court refused to classify the questionnaire as related to matters of public concern. The rest of the questions simply reflected "one employee's dissatisfaction with a transfer and an attempt to turn that dissatisfaction into a cause celebre"--they neither informed the public that the District Attorney's Office had failed to discharge its responsibility to prosecute crimes nor brought to light "actual or potential wrongdoing or breach of public trust." 461 U.S. at 148.
Federal courts have consistently held that the First Amendment does not protect disgruntled public employees who voice essentially personal complaints about their employers. For example, in Colburn v. Trustees of Indiana University, 973 F.2d 581 (7th Cir. 1992), a case whose facts are strikingly similar to those presented here, the court held that the plaintiffs' speech did not involve a matter of public concern where they accused the members of an academic department at a public university of basing their evaluations of colleagues' requests for career advancement on personal biases. The court noted that although the public would probably be displeased to learn about such an evaluation process:
the fact that the issue could be "interesting" to the community does not make it an issue of public concern. Plaintiffs' statements revealed that individual biases within the . . . Department's peer review process may have been present to excess, but they did not attempt to expose some malfeasance that would directly affect the community at large.