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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


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 function.*fn2
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 public speech.").*fn4


  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.

  So Ordered:

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