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.
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.
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