United States District Court, S.D. New York
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
MEMORANDUM & ORDER
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 between legislator and staffer, and the legislator's
resulting concern for his constituent relations, that is
critical." Id. at 58 (emphasis added).
The court in Gordon found that the plaintiff was a political
aide because her title was "Community Relations Director," she
met with community leaders and constituents on behalf of her
state assemblyman boss, she attended community meetings on behalf
of her boss, and engaged in partisan political activity to assist
her boss. Gordon, 88 F. Supp. 2d at 40. In contrast, in
considering a separate § 1983 First Amendment retaliation case,
the Supreme Court described a clerical position as one in which
the employee's "work station was a desk at which there was no
telephone, in a room to which the public did not have ready
access, [with a] job . . . to type data from court papers into a
computer that maintained an automated record of the status of
civil process in the county." Rankin v. McPherson,
483 U.S. 378, 380-381 (1987).
Plaintiff describes the nature of her work as a Housing
Specialist for Assemblyman Sanders, as follows:
As the Housing Specialist, I contacted agencies and
charities to secure funding for constituents in need
of money for rent, I acted as a mediator between the
constituent and landlord of their building, and I
contacted the marshal in an attempt to stop the
eviction of the client. I contacted the New York City
Housing Authority on a daily basis to work out rental
issues for constituents. . . . I saw an average of
twelve constituents a day.
Martinez Decl. ¶¶ 11, 14.
Plaintiff also stated in her declaration that she attended
community meetings "several times" expressly on behalf of
Defendant Assemblyman and made explicitly clear that she
represented his views:
On the rare occasion that I would be asked to attend
the community meetings, I was specifically informed
by Mr. Sanders that I should attend the meeting as a
representative of the Office of New York State
Assemblyman Steven Sanders and that I should be
certain to announce that I was attending on Sanders'
behalf. Martinez Decl. ¶ 19. As Plaintiff herself stated, the
Chief of Staff, who she replaced at community
meetings, "speaks for and on behalf of the
Assemblyman to the community . . ." and he "is a
political aide whose speech is not afforded the
protection of the First Amendment." Pl. Mem. Opp.
Summ. J. at 9. According to Plaintiff's own
statements, then, on several occasions Sanders tapped
her to perform this very same non-clerical
Her supervisors provided similar non-clerical characterizations
of Plaintiff's job description. For example, Defendant
Assemblyman Sanders expected that employees in the role of
community liaison must "represent [his] views about different . . .
matters. . . ." Sanders Dep. At 13, Graber Decl. Ex. O.
Further, when Defendant's Chief of Staff Stephen Kaufman was
asked how his office coped with finding a replacement for
Plaintiff during her absence, he explained that ". . . it's not
like you're hiring someone to type, you have to know the
community, know public housing, know the assemblyman's positions
to be able to communicate them and be his representative.
[Plaintiff] was sort of the face of Steve Sanders of the Lower
East Side." Kaufman Dep, at 42, Graber Decl. Ex. P. Defendant
also offers undisputed evidence that Plaintiff represented
Assemblyman Sanders at a 2000 meeting about the environmental
effects of certain Consolidated Edison projects, declaring that
"I am Mildred Martinez, I'm the President of Campos Plaza, and I
work in Assemblyman Steve Sanders Office!" Gennaro Decl. ¶ 6;
see also Mendez Decl. ¶¶ 5-7 (recounting several situations in
which Plaintiff appeared at community meetings and announced that
she was appearing and speaking on behalf of Defendant).*fn3
Plaintiff concedes that this Con Ed meeting was "the very meeting
that Defendant requested Plaintiff attend and announce that she
was there on behalf of the Office of Assemblyman Sanders." Pl.
Mem. Opp. Summ. J. at 12.
In an attempt to dispute the job descriptions offered by
Defendant, Plaintiff offers a New York State Assembly description
of "the general job of community liaison . . ." Rickman Decl.
Exs. A (New York State Assembly Employee Job Description for
Office of Steven Sanders), B (New York State Assembly Employee
Job Description for Office of Sheldon Silver). Plaintiff does not
dispute, however, Defendant's assertion that the responsibilities
of any particular community liaison "depend? on . . . the
interpretation of the assembly member and . . . the needs of the
community and the strengths and weaknesses of individual members
of the assembly member's staff." Sanders Dep. at 11, Graber Decl.
Ex. O. Thus, apart from making conclusory statements that her position is a clerical one, Plaintiff has not offered
relevant evidence to dispute Defendant's evidence that she spoke
to constituents and public authorities on his behalf.
There is no evidence from which a reasonable jury could find
that Plaintiff's position in the office of Defendant was clerical
and not political. Unlike the solely-clerical plaintiff in
Rankin, Plaintiff's responsibilities did include interacting
with the public. In fact, like the political employee in
Gordon, Plaintiff was required to speak regularly with
Defendant's constituents and public authorities on his
constituents behalf. See Gordon, 88 F. Supp. 2d at 40;
Martinez Decl. ¶ 6. Martinez was also required to participate in
partisan activities as directed by Sanders. See Gordon,
88 F. Supp. 2d at 40; Martinez Decl. ¶¶ 15-16. Further, the public
had the perception that when she appeared at community meetings
she was there on Assemblyman Sanders' behalf. See, e.g.,
Gennaro Decl. ¶ 6; Mendez Decl. ¶¶ 5-7; see also Gordon,
88 F. Supp. 2d at 58 (noting it is the "perceived personal
connection between legislator and staffer . . . that is
critical"). Accordingly, Plaintiff was a political employee and,
as a result, her campaigning on behalf of Ferrer was not
protected speech. Gordon, 88 F. Supp. 2d at 57-58
("[L]egislative aides occupying positions in which their public
speech may reasonably be associated with, or mistaken for, that
of the legislator's may constitutionally be dismissed for their
For the reasons explained above, Defendant's motion for summary
judgment on Plaintiff's federal and state free speech claims is
granted. The Clerk of the Court is asked to close the case.