The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 seeking damages for Defendants' alleged violation of his First Amendment rights. Plaintiff also alleges a violation of New York State's 'whistleblower' statute, Civil Service Law § 75-b. Presently before this Court are Plaintiff's Motion for Partial Summary Judgment on his First Amendment retaliation claim*fn1 and Defendants' Motion for Summary Judgment dismissing the complaint.*fn2
This Court has considered the parties' submissions and finds oral argument unnecessary. For the reasons that follow, Defendants' motion is granted in its entirety and Plaintiff's motion is denied.
Plaintiff is a former deputy district attorney and assistant district
attorney in the Erie County District Attorney's Office. (Pl's Decl. ¶
1, Docket No. 59-2.) In 2007, when he held the position of deputy
district attorney, Plaintiff was directed by then-District Attorney
Frank J. Clark to conduct and supervise an investigation into possible
Election Law violations associated with Paul Clark's*fn3
2007 campaign for Erie County Executive. (Compl. ¶ 19; Decl.
of Frank J. Clark ¶¶ 24-25.) According to Plaintiff, this
investigation uncovered "numerous instances of Election Law and Penal
Law crimes" by Paul Clark, members of his campaign, and others,
including G. Steven Pigeon, a former Erie County Democratic Party
Chairman. (Compl. ¶¶ 20-23; Pl's Decl. ¶¶ 3-6.)
While the investigation was ongoing, District Attorney Clark announced that he would not seek another term as Erie County District Attorney. (Clark Decl. ¶ 6; Pl's Decl. ¶ 35.) Defendant Frank Sedita, III ran for and was ultimately elected to this position in November 2008. (Decl. of Frank Sedita, III, District Attorney of Erie County, ¶¶ 10-11; Compl. ¶ 55; Pl's Decl. ¶¶ 8, 10.) Plaintiff alleges that "Pigeon, a close political and social friend of Sedita's father, Supreme Court Judge Frank Sedita, Jr. was instrumental in Sedita
III obtaining . . . endorsements" from the Conservative, Independence, and Democratic Parties, as well as Buffalo Mayor Byron Brown. (Compl. ¶ 37.)
In December 2008, Paul Clark, the political action committee "Friends of Paul Clark," and After Care Management Service, Inc., pleaded guilty to misdemeanors related to the 2007 Election Law investigation. (Pl's Decl. ¶ 10; Clark Decl. ¶¶ 36-38.) According to District Attorney Clark, he discussed this resolution of the investigation with both Plaintiff and another assistant district attorney assigned to the investigation, and received no objections. (Clark Decl. ¶¶ 36-38.) He informed Defendant Sedita, then District Attorney-elect, that the investigation was closed. (Id. ¶ 44.) Plaintiff, however, asserts that he "repeatedly objected to this arrangement" because there was more substantial evidence of serious crimes involving other persons, "and the evidence regarding Steve Pigeon was just beginning to come to light." (Compl. ¶ 50.)
Plaintiff took these concerns to Defendant Sedita, but "Sedita rebuffed [him] and directed that he should put his information in a memo." (Compl. ¶¶ 56-57.) In response to that request, Plaintiff prepared a 13-page memo with supporting exhibits, dated December 30, 2008,*fn4 that "detailed the allegations against Pigeon and Tim Clark," Paul Clark's brother. (Pl's Decl. ¶ 11; Compl. ¶¶ 31, 61.) Defendant Sedita denies reading this memo prior to September 2009, when he was contacted about it by the press. (Sedita Decl. ¶¶ 54-55.)
Defendant Sedita took office as Erie County District Attorney on January 1, 2009. (Sedita Decl. ¶¶ 1, 11.) On January 2, 2009, Plaintiff was informed that he was being demoted from deputy district attorney to assistant district attorney in charge of arson prosecutions. (Compl. ¶ 66; Sedita Decl. ¶ 35.) Defendant Sedita asserts that this demotion was part of the creation of a streamlined reporting system, where the four deputy district attorney positions were eliminated in favor of a single deputy and a new chief counsel to the district attorney position. (Sedita Decl. ¶¶ 15-21.) Plaintiff alleges that he was thereafter subject to a "campaign of harassment" that included denial of leave and the forced return of a county car. (Compl. ¶ 71.)
On September 27, 2009, Plaintiff issued a statement to the press, which was referenced in a Buffalo News article of that date and printed in its entirety in the publication Artvoice. (Pl's Decl. ¶ 15, Ex. B; Sedita Decl. ¶¶ 56-58, Exs. D, E.) In that statement, Plaintiff asserted, among other things, the following:
My name is Mark Sacha and I am an Assistant Erie County District Attorney. I have served in that capacity for over 22 years. . . . Until January 2, 2009, I held the position of Deputy District Attorney with signing authority on behalf of District Attorney Clark. I have been in charge of most of the specialized units of the District Attorney's Office and in that time supervised over 100 Assistant District Attorneys. I have been the chief public corruption prosecutor in Erie County over the past ten years.
As such I am thoroughly familiar with the New York State Election Law and the importance of Election Law prosecution. I was the lead prosecutor in the investigation of the Paul Clark campaign for Erie County Executive. It is in that capacity that I feel legally, morally and ethically obligated to speak out about matters that [a]ffect the public's right to free and fair elections. . . . . . . . . . Events leading up to my demotion as well as information I have obtained since that time make clear that I was demoted for reasons related to my work on the Paul Clark investigation and the District Attorney's campaign for office. It is now clear that no further action has been taken regarding the unfinished matters in my memo. It is now clear that that the District Attorney has "given a pass" to a political supporter and friend. It is clear that person who received the pass has been involved in similar conduct as to what was discussed in my memo. It is also clear that the reasons being given by the DA for failing to act are an effort to disguise a blatant conflict of interest and abuse of discretion. . . . . . . The investigation was very successful. It was too successful for the powers that be. Compelling evidence was discovered of various Election Law violations. Paul Clark took some responsibility. Roger Peck and Michael Mullins took some ...