Opinion
02-CV-6308(T).
May 24, 2004
DECISION AND ORDER
INTRODUCTION
Plaintiff David Gardner ("plaintiff") brings this action pursuant to 42 U.S.C. § 1983, alleging that defendant David Page ("defendant"), Chief of the Genesee Region State Parks Police Office and plaintiff's supervisor, violated his constitutional right to free speech by terminating his employment for engaging in speech protected by the First Amendment. Defendant contends that he terminated plaintiff's employment based on his insubordination, namely failing to follow the chain of command when registering a complaint about his employment.
In defendant's deposition, he lists several other incidents of plaintiff's insubordination which contributed to his decision to terminate his employment.
For determination is defendant's motion requesting summary judgment in his favor, claiming that the speech in question is not protected by the First Amendment because it failed to address a matter of public concern. Defendant further argues that even if the speech in question is protected by the First Amendment, summary judgment in his favor is appropriate because he is entitled to qualified immunity. Plaintiff cross-moves for summary judgment in his favor, claiming that the evidence establishes that defendant violated his constitutional rights when he terminated his employment. For the reasons set forth below, I find that the speech in question is not protected by the First Amendment. Accordingly, defendant's motion for summary judgment is granted, plaintiff's cross-motion for summary judgment is denied, and plaintiff's claims are dismissed with prejudice.
BACKGROUND
Plaintiff was hired by the New York State Department of Parks and Recreational Services ("the Department") in 1988 as a temporary part-time seasonal police officer. In December 1995, he became a long-term part-time seasonal parks police officer, at which time he underwent a background check. In 2001, the Department mandated updated background checks for all seasonal officers. On June 9, 2001, defendant informed plaintiff that he was required to undergo a background check update, and ordered him to complete and sign a consent form authorizing the update. The consent form requested information concerning each officer's employment, military, academic, medical and financial credit records. Plaintiff was concerned that the consent form was overly broad, and intended to seek the advice of counsel prior to signing it. However, he claims he had insufficient time to consult his attorney because he was informed that he needed to return the completed consent form immediately.
On June 10, 2001, plaintiff had yet to complete the consent form when he wrote a letter to New York State Assemblyman Charles Nesbitt, with whom he claims to have a personal relationship. In this letter, plaintiff expressed his concerns about the consent form. He wrote, in relevant part:
I would personally like to know who is going to be using this waiver and where the information gained will be stored . . . I am told that full time employees are not required to have this check done and [that] seasonal [employees] have to have it done every year . . . I fine [sic] this very intrusive into my personal life . . . I have nothing to hide but I don't think that the state needs to pry into my personal life every year . . . It is too bad that seasonal employees are treated as second class labor . . . Because we are seasonal employees doesn't make us a lesser employee or and [sic] inferior police officer . . . All we want is to be treated equally.
Defendant's Statement of Material Facts in Support of his Motion for Summary Judgment, Exhibit A (Doc. No. 16).
Later that same day, plaintiff faxed a copy of this letter to defendant, along with a copy of the completed and signed consent form. Defendant received the fax from plaintiff on June 11, 2001, but was unable to meet with plaintiff until the following day. In the course of the June 12, 2001 meeting, defendant terminated plaintiff's employment with the Department.
DISCUSSION
Rule 56(c) of the Federal Rules of Civil Procedure prescribes summary judgment where the evidence demonstrates that there is no genuine issue of fact and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.Proc. 56(c). Summary judgment dismissing an employment discrimination case is warranted only where a plaintiff cannot provide evidence to support an essential element of her claim. See Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d Cir. 1998).
It is well-settled that a public employer may not discharge an employee in retaliation for the exercise of his or her free speech right. Ezekwo v. NYC Health Hospital Corporation, 940 F.2d 775, 780 (2d Cir. 1991). Nonetheless, while a public employee "does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment," the government, as an employer, has an interest "in promoting the efficiency of the public services it performs through its employees." Connick v. Meyers, 461 U.S. 138, 140 (1983). Thus, this Court's is charged with the task of balancing these two competing interests. To state a cognizable claim of First Amendment retaliation, a plaintiff must demonstrate that: (1) his speech addressed a matter of public concern; (2) he suffered an adverse employment action; and (3) a causal connection exists between the protected speech and the adverse employment action, "so that it can be said that his speech was a motivating factor in the determination." Mandell v. County of Suffolk, 316 F.3d 368, 382 (2d Cir. 2003).
Plaintiff claims that: (1) he wrote to Assemblyman Nesbitt to inform his of a "significant issue of public concern, specifically the broad and invasive scope of the consent form; (2) his employment with the Department was terminated; and (3) he was fired because he wrote the letter to Assemblyman Nesbitt. However, the Court is unable to consider certain statements made by plaintiff in his affidavit opposing defendant's motion for summary judgment in determining the present motions. "Factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts [his] own prior deposition testimony." Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).
Plaintiff's claim that he wrote Assemblyman Nesbitt out of a sense of public concern appears for the first time in his affidavit in opposition to defendant's motion for summary judgment. In six of the twenty-two paragraphs contained in plaintiff's affidavit, he asserts that he made the inquiry to Assemblyman Nesbitt because he believed the topic was a "significant issue of public concern." (Plaintiff's Affidavit in Opposition to Defendant's Motion for Summary Judgment, ¶ Doc. No. 20). However, in more than 100 pages of previous deposition testimony, plaintiff failed to mention his desire to alert the assemblyman to this perceived public concern. As such, plaintiff's obvious contradiction of his previous deposition testimony can not be used to defeat defendant's motion for summary judgment. Accordingly, paragraphs 12, 16, 17, 18, 19 and 21 of plaintiff's affidavit in opposition to defendant's motion for summary judgment (Doc. No. 20) are excluded from consideration in determining these motions.
After reviewing the remaining evidence, I find that defendant is entitled to summary judgment in his favor because the speech in question is solely of a private nature, and does not address a topic of general public concern. The test is whether, as a matter of law, "the content, form and context of a given statement, as revealed by the whole record," constitute speech on a matter of public concern. Connick, 461 U.S. at 147-48. It is well-established that speech of a truly private nature, such as a general employment grievance, does not rise to the level of protected speech under the First Amendment, and as such cannot form the basis of a claim under § 1983. Ezekwo v. NYC Health Hospital Corporation, 940 F.2d 775 (2d Cir. 1991).
Plaintiff's letter to Assemblyman Nesbitt addresses only private employment concerns. Specifically, in the letter plaintiff states: "I would personally like to know"; "I havepersonally worked"; and "I find this to be very intrusive into my personal life." In essence, the letter concerns only his perception that the Department's seasonal employees are treated differently from the Department's full-time employees. He writes: "It is too bad that seasonal employees are treated as second class labor"; "If we need background checks every year then everyone should have them"; and "Because we are seasonal employees doesn't make us a lesser employee or and [sic] inferior police officer."
The only sentence in plaintiff's letter that could be read to address a topic of public concern is: "All we want is to be treated equally." However, in the context of the letter as a whole and plaintiff's complaints about the disparity he perceived in the treatment between seasonal employees and full time employees, this statement addresses only plaintiff's concerns about his personal employment and not a matter of public concern. As such, plaintiff's letter to Assemblyman Nesbitt may not serve as the basis for his constitutional claim, and defendant is entitled to judgment as a matter of law.
CONCLUSION
For the reasons set forth above, I find that the plaintiff's speech was of a private nature and did not address a topic of general public concern. Therefore, plaintiff's letter to Assemblyman Nesbitt is not speech protected by the First Amendment, and thus cannot serve as the basis of a § 1983 First Amendment retaliation claim. Accordingly, defendant's motion for summary judgment is granted and plaintiff's cross-motion for summary judgment in his favor is denied. Plaintiff's complaint, therefore is dismissed with prejudice.ALL OF THE ABOVE IS SO ORDERED.