The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
This matter has been the subject of two previous decisions, and the parties' familiarity with the facts and procedural history is assumed. Briefly, plaintiff, a psychologist employed by the New York State Office of Mental Health ("OMH"), alleges that after he testified on behalf of a patient who had sued the New York State Department of Corrections ("DOCS"), his own employer retaliated against him by removing him from participation in the Forensic Extra Services Program ("FESP").*fn1 In Muller v. Costello, 997 F. Supp. 299 (N.D.N.Y. 1998), aff'd 187 F.3d 298 (2d Cir. 1999), the plaintiff was a DOCS corrections officer who claimed he was intentionally discriminated against by the state agency in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.. Specifically, Muller alleged that when he complained about second-hand smoke in his workplace which aggravated his reactive airway disease and asked for duties which would not expose him to this health hazard, he was discharged in violation of the ADA. Plaintiff in the present case testified at the trial regarding his therapy sessions with Muller, Muller's mental health and Muller's concerns about the problems he was having at work. The case was submitted to a jury which then returned a verdict in favor of Muller on both the discrimination and retaliation claims. Thereafter, the trial court ordered DOCS to reinstate Muller and provide him with a smoke-free work environment.
In a previous decision, deBroize v. New York State, 2001 WL 1217192, 22 NDLR P 24 (N.D.N.Y. Sept. 21, 2001) (NO. 99-CV-0904), this Court granted motions to dismiss all of plaintiff's claims on two grounds: 1) the Eleventh Amendment barred the ADA claims against the State of New York, OMH, DOCS and defendant Bradigan, a state employee, for acts Bradigan allegedly committed in his official capacity; and 2) the remaining ADA claim against defendant Bradigan in his personal capacity was barred because the ADA applies only to employers, not individual defendants. There, however, the Court also granted plaintiff's request to amend his pleading to add a claim against defendant Bradigan individually under 42 U.S.C. § 1983.
Plaintiff filed a second amended complaint which again set forth an unlawful retaliation claim under the ADA against the same defendants referenced in his original complaint in nearly identical terms as the first amended complaint. Plaintiff also alleged a second cause of action against defendants premised on 42 U.S.C. § 1983. Therein, plaintiff alleged that defendants violated his right of free speech under the First Amendment and his right of equal protection under the Fourteenth Amendment by retaliating against him for his testimony in the Muller case.
In June 2004, the Court granted a motion to dismiss the first cause of action against all defendants for the reasons stated in the Court's September 2001, Memorandum-Decision and Order, but denied defendant Bradigan's motion to dismiss plaintiff's claim against him based on 42 U.S.C. § 1983.
A. Applicable Standard of Review
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986). Irrelevant or unnecessary facts do not preclude summary judgment, even when they are in dispute. See id. The moving party bears the initial burden of establishing that there is no genuine issue of material fact to be decided. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect to any issue on which the moving party does not bear the burden of proof, it may meet its burden on summary judgment by showing that there is an absence of evidence to support the nonmoving party's case. See id. at 325. Once the movant meets this initial burden, the nonmoving party must demonstrate that there is a genuine unresolved issue for trial. See Fed. R. Civ. P. 56(e). Although all inferences must be drawn in favor of the nonmoving party, mere speculation and conjecture is insufficient to preclude the granting of the motion. Western World Ins. Co. v. Stack Oil, 922 F.2d 118, 121 (2d Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (holding that nonmoving party must do more than merely show "some metaphysical doubt" as to material facts to escape summary judgment). It is with these considerations in mind that the Court addresses defendant's motion for summary judgment.
B. Plaintiff's Claim under 42 U.S.C. § 1983
Plaintiff asserts that he was retaliated against after exercising his right to free speech under the First Amendment by testifying for Muller and denied equal protection of the law under the Fourteenth Amendment. In order to state a cause of action for infringement of First Amendment rights under 42 U.S.C. § 1983, plaintiff must allege that: 1) his speech was constitutionally protected; 2) he suffered an adverse employment action; and 3) there is a causal connection between his speech and the adverse employment action such that the speech is determined to have been a motivating factor in the adverse employment decision. See Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). To adequately state a claim for denial of equal protection rights under the Fourteenth Amendment, plaintiff must allege that compared with similarly situated individuals, he was selectively treated adversely and that the selective treatment was motivated by an impermissible consideration such as race, religion or an attempt to inhibit the exercise of constitutional rights. See Zahra v. Town of Southhold, 48 F.3d 674, 683 (2d Cir. 1995).
The Court notes that it is not at all clear that plaintiff's testimony in the Muller case amounted to protected constitutional speech or that he actually suffered an adverse employment action in this case. Nevertheless, even assuming without deciding for the purpose of the present motion that plaintiff has met the first two prongs of the test for infringement of his First Amendment rights under 42 U.S.C. § 1983, this claim is still legally deficient for failure to satisfy the third prong of establishing a causal connection between the alleged protected speech and retaliatory action. Upon review of the second amended complaint in this case, this Court noted previously:
The second amended complaint is essentially bereft of factual allegations which clarify the bases of plaintiff's constitutional claims. Indeed, there are no factual assertions which establish any connection or communication between persons employed by DOCS who would have been aware of or affected by plaintiff's testimony during the Muller trial and his supervisor at OMH who made the decision to not renew plaintiff's participation in the FESP. Plaintiff is apparently basing his claims on allegations that the Muller case was so "high profile" and his testimony was so damaging that it must have influenced OMH's decision. While plaintiff must ultimately rely on more than rank speculation and conjecture to establish a material evidentiary question on these constitutional claims, he has adequately pleaded them for the purpose of the present motion.
It appears from review of the evidence submitted by plaintiff in opposition to defendant's summary judgment motion that although he has been afforded adequate time and opportunity to conduct discovery in this case, he still has nothing upon which ...