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August 4, 2005.

Mildred Martinez, Plaintiff,
Steven Sanders, individually and in his official capacity as Assemblyman for the 63d Assembly District of the State of New York, Defendant.

The opinion of the court was delivered by: RICHARD CASEY, District Judge


Before the Court is Defendant's motion for summary judgment on Plaintiff's remaining claim that she was wrongfully terminated in violation of her right to free speech. For the reasons explained, Defendant's motion is granted.


  The underlying facts of this case are set out in some detail in Martinez v. Sanders, No. 02 Civ. 5624 (RCC), 2004 WL 1234041, at *1-2 (S.D.N.Y. June 2, 2004) (granting in part and denying in part Defendant's motion to dismiss), but they merit a brief retelling. Plaintiff joined the office of New York State Assemblyman Sheldon Silver in 1979 where she remained until 1995. Compl. ¶¶ 9, 17. That year, in light of neighborhood redistricting and her desire to continue serving the Lower East Side, Plaintiff sought to switch offices and began working for Defendant Assemblyman Steve Sanders as a full-time employee. Pl. 56.1 ¶ 5.

  Throughout 2001, while still working for Defendant, Plaintiff campaigned for mayoral candidate Fernando Ferrer, who Defendant was not supporting.*fn1 See, e.g., Compl. ¶¶ 54-56. Although Defendant learned of Plaintiff's Ferrer campaign activities as early as February 2001, he allegedly coerced her into also campaigning for his preferred candidate. Compl. ¶¶ 42, 46.

  In May of 2001, while en route to a meeting of mayoral candidates on behalf of Defendant, Plaintiff injured her wrist and claims she was unable to work in her office for a period of five months. Pl. 56.1 ¶ 9. However, during that time, she continued campaigning for Ferrer. Compl. ¶¶ 54-57. Plaintiff returned to work in October 2001 and was promptly fired. Pl. 56.1 ¶ 14. Just under a year later, in July 2002, Plaintiff commenced the instant suit; that October, she filed a Second Amended Complaint. Thereafter, Defendant filed a motion to dismiss all of Plaintiff's claims. The Court granted the motion in part, dismissing all claims except for the state and federal free speech claims. Martinez, 2004 WL 1234041, at *9.


  A. Standard of Review

  Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The substantive law underlying the claim determines if a fact is material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court's role is to "assess whether there are any factual issues to be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986).

  To determine whether genuine issues of material fact exist, the Court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Anderson, 477 U.S. at 255. The moving party bears the burden of demonstrating that no genuine issue of material fact exists. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-1224 (2d Cir. 1994). The movant's burden is satisified when the nonmovant "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex, 477 U.S. at 323. If the moving party meets its burden, the nonmovant must come forward with specific evidence showing that a genuine issue of fact exists. Id. at 324. A genuine factual dispute exists if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.

  B. Free Speech Claims

  Defendant moves for summary judgment on Plaintiff's surviving free speech claims. The First Amendment and New York state free speech claims are judged by the same legal standard. See, e.g., Housing Works, Inc. v. Turner, 179 F. Supp. 2d 177, 199 n. 25 (S.D.N.Y. 2001). To prevail on a free speech retaliation claim, Plaintiff must prove "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Garcia v. S.U.N.Y. Health Sci. Ctr. of Brooklyn, 280 F.3d 98, 106-107 (2d Cir. 2001) (internal quotation marks omitted).

  "The question of whether certain speech enjoys a protected status under the First Amendment is one of law, not fact." Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). Here, where Plaintiff worked for a state legislator, the Court is guided by the reasoning in Gordon v. Griffith, 88 F. Supp. 2d 38 (E.D.N.Y. 2000). In particular, in determining whether any of Plaintiff's speech merits First Amendment protection, this Court notes that If Plaintiff was hired as a clerical aide then her political speech and affiliations are protected by the First Amendment. However, if Plaintiff served in a non-clerical function, one in which her designated role was to campaign throughout the community on behalf of Defendant, the First Amendment does not shield her from termination.

 Martinez, 2004 WL 1234041, at *5 n. 6. That is, "[s]taffers holding positions that are so connected to a legislator's lawmaking and representation roles that constituents might reasonably associate their speech for that of the legislator's are not entitled to First Amendment protection from dismissal where political interests and constituent relations are at issue." Gordon, 88 F. Supp. 2d at 57. The standards discussed here "appl[y] even if the speech falls outside of the aide's public responsibilities. It is the perceived personal connection ...

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