The opinion of the court was delivered by: Brieant, J.
Before the Court for decision is a motion for summary judgment, filed by Defendants on November 30, 2006, to dismiss all of Plaintiff's claims. (Doc. 58). Opposition papers were filed on December 20, 2006, and reply papers were filed on December 29, 2006. Familiarity with the underlying facts of this extensive litigation is presumed.
Facts and Procedural History
Plaintiff Richard J. Sassi, II, sometimes referred to as "Sassi Jr." is a resident of the City of Beacon ("City"). At all times relevant to this Complaint, he was a Police Officer employed on a full-time basis by the City.*fn1 Plaintiff commenced the first of these consolidated civil rights actions on December 13, 2005, by filing a complaint asserting claims against the City, members of the Beacon City Council, and the City Administrator*fn2 . 05-Civ.-10450 ("Sassi I"). In Sassi I, Plaintiff alleged that Defendants violated his derivative First Amendment Right to Free Speech and Free Association with his father (who was at that time the Beacon City Chief of Police) by:
1) enacting Local Law #6 of 2005:*fn3 2) rejecting Plaintiff as a candidate for the position of Detective by the City; and 3) publishing a memorandum about alleged "entrapment tactics of [Plaintiff] at local establishments." The memorandum also served as the basis for a claim by Plaintiff for defamation under New York State law. Plaintiff alleged that these acts were done in retaliation for a series of public letters his father wrote to the City Council, criticizing their policies in regard to funding the police department.
Defendants filed motions to dismiss on March 3, 2006. By Memorandum and Order dated May 4, 2006, this Court held Local Law 6/2005 to be void as inconsistent with New York State Civil Service law, dismissed the defamation claims, and denied the motions in all other respects.
On May 26, 2006, Plaintiff filed the second of these three consolidated actions. 06-Civ-4037. ("Sassi II"). In that complaint, Plaintiff asserted claims against substantially the same Defendants for violations of his rights as guaranteed him by Title VII, 42 U.S.C. § 2000 et seq. and 42 U.S.C. §§ 1981, 1983, as well as New York State Executive Law § 296 et seq. These claims were again based on Defendants' failure to promote Plaintiff to the position of Detective. However, the complaint in Sassi II alleged that Defendants promoted Police Officer Jose Rios over Plaintiff because Rios is Hispanic, despite the fact that Rios was less qualified, and had allegedly lied to authorities about his supposed acts of heroism on the job.
Sassi II was consolidated with Sassi I, and Defendants then moved to dismiss all claims pursuant to Rule 12(b)(6). By Memorandum and Order dated October 10, 2006, this Court granted the motion to the extent that it sought punitive damages against the City, and denied the motion in all other respects.
Plaintiff filed the third of these consolidated actions on August 22, 2006. 06-Civ-6374 (CLB) ("Sassi III"). In that complaint, Plaintiff alleged once again that his First Amendment right to Free Speech was violated when Defendants passed him over for promotion to the position of Detective. Plaintiff alleged that in August of 2006, when there came to be another vacancy for the position of Detective, Defendants conspired to pass over Plaintiff and hire Police Officer Mark Thomas, "despite his physical impairments and lesser qualification than Plaintiff." Unlike Sassi I, this First Amendment claim did not derive from the protected speech of Plaintiff's father, but rather from Plaintiff's own speech. Specifically, Plaintiff claimed that he was passed over in retaliation for having filed Sassi I and Sassi II.
In his most recent submission to the Court, Plaintiff sought to have his complaint dismissed as to all individual Defendants, which the Court so ordered on January 5, 2007. Therefore, the only remaining Defendant is the City. The City moves for summary judgment pursuant to Fed. R. Civ. P. 56 dismissing all of Plaintiff's remaining claims.
Our Court of Appeals has held that "in order to establish a First Amendment retaliation claim, plaintiff must prove that: (1) [he] engaged in constitutionally protected speech because [he] spoke as [a] citizen on a matter of public concern; (2) [he] suffered an adverse employment action; and (3) the speech was a 'motivating factor' in the adverse employment decision." Skehan v. Village of Mamaroneck,465 F.3d 96, 106 (2d Cir. 2006) (quoting Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir.2005);
Defendant claims that Plaintiff has failed to make out a prima facie case for First Amendment retaliation based on Chief Sassi's speech*fn4 , because Chief Sassi wrote the letters to the City Council in his official capacity as Police Chief, citing Garcetti v. Ceballos, 126 S.Ct. 1951 (2006). Defendant states that "[c]learly, Plaintiff's father criticized the police department funding and morale in his official capacity as the Chief of Police, an employee of the City of Beacon." Defendant acknowledges that Chief Sassi began every letter by stating he was writing as "resident taxpayer" of the City of Beacon. (This is but one of several instances where Chief Sassi has shown an uncanny ability to conform his written words to current federal case law.) However, Defendant argues that "merely characterizing his statements as being made 'in his capacity as a resident and taxpayer' is not the sole standard; otherwise individuals could easily cloak themselves in First Amendment protection by stating such."
The Plaintiff in Garcetti, Richard Ceballos, was a deputy District Attorney in the Los Angeles County District Attorney's office. Ceballos was the calendar deputy, and in that role had "certain supervisory responsibilities over other lawyers." Id at 1955. Ceballos had concerns about a police affidavit that had been used to obtain a search warrant, because he believed that the affidavit "contained serious misrepresentations." Id. He communicated his concerns in memos, meetings and telephone conversations with his supervisors.
The prosecution proceeded despite Ceballos' objections, and Ceballos testified for the defense in a traverse hearing. The trial court rejected the challenge to the warrant. Ceballos claimed that after these events, "he was subjected ...