Full opinion text
MEMORANDUM OF DECISION DOMINIC J. SQUATRITO, District Judge. The Plaintiff, Daniel Albert (“Albert”), a police officer with the Hartford Police Department (“HPD”), brings this five count action against the City of Hartford (“City Defendant”), various members of the HPD (“Individual Defendants”), and the City Defendant and the Individual Defendants, together (“Defendants”), for the alleged wrongful demotion, suspension and retaliation that he suffered. Albert filed the Original Complaint on July 24, 2003, alleging (1) violation of the Fourteenth Amendment Right to Equal Protection, as to the Defendants; (2) violation of the Fourteenth Amendment Right to Procedural and Substantive Due Process, as to the Defendants; and (3) violation of 42 U.S.C. § 1983, as to the City Defendant. On June 30, 2004, Albert filed an Amended Complaint alleging two additional causes of action, (4) intentional infliction of emotional distress, as to the Defendants; and (5) violation of the First Amendment Right against retaliation, as to the Individual Defendants. The Individual Defendants named in Count Five are Hartford Police Chief Bruce Marquis (“Chief Marquis”), Hartford Police Assistant Chief Kevin Jones (“Assistant Chief Jones”), Hartford Police Assistant Chief William Reilly (“Assistant Chief Reilly”), Hartford Police Captain Stephen Heslin (“Captain Heslin”), Hartford Police Captain Katherine Perez (“Captain Perez”), Hartford Police Lieutenant David Kenary (“Lieutenant Kenary”), Hartford Police Captain Mark Pawlina (“Captain Pawli-na”), and Interim City Manager Albert Ilg (“Manager Ilg”). On August 5, 2004, the Defendants filed an Answer to the Amended Complaint denying liability on all counts and asserting the special defenses of failure to state a claim upon which relief can be granted, qualified immunity, lack of jurisdiction and the failure to exhaust administrative remedies. On September 20, 2004, the Defendants filed a motion for summary judgment (dkt.# 58) as to the entire Amended Complaint, a memorandum (dkt.# 59), a local rule 56(a)(1) statement (dkt.# 60), and the affidavit of Colleen Kenton (“Kenton”) (dkt.# 61). On December 6, 2004, Albert filed a memorandum in opposition (dkt.# 69) to the Defendants’ motion for summary judgment. The Defendants filed a reply to Albert’s memorandum in opposition to the motion for summary judgment on December 30, 2004. Further, on December 30, 2004, the Defendants submitted a motion to strike (dkt.# 75) portions of the evidence that Albert submitted along with his opposition to the motion for summary judgment. For the following reasons, the Defendants’ motion for summary judgment (dkt.# 58) is GRANTED in part and DENIED in part. I. FACTS This case concerns Albert’s promotion to lieutenant, demotion to sergeant, transfer to detention, and various other events that he claims to have suffered as a result of filing the instant lawsuit. Albert, a white male, was promoted to the rank of police lieutenant by Chief Marquis on May 27, 2001. The terms of Albert’s promotion were governed by equal opportunity policies, including, the Charter of the City of Hartford (“the Charter”), the City of Hartford Personnel Rules and Regulations (“Personnel Rules”), and the collective bargaining agreement between the City of Hartford and the Hartford Police Union (“the CBA”). In accordance with the Personnel Rules, an officer who is promoted enters a “probationary or working test period” lasting between three and twelve months. (Dkt.# 61, Ex. 2.) If the employee does not successfully complete the probationary period, the employee is reinstated to the position that he or she occupied prior to the promotion. The probationary period is regarded as an integral part of the competitive examination process. The period is utilized by supervisors and department heads for observing the employee’s work, securing the most effective adjustment of a new employee to his position, and for rejecting any employee whose performance does not meet the required work standards. (Dkt.# 61, Ex. 2.) During the probationary period an officer is subject to probationary employee performance evaluations (“performance evaluations”). During Albert’s probationary period, he received three performance evaluations that graded his work in the areas of dependability, job knowledge, skills and human relations. Each evaluation was completed initially by Albert’s immediate supervisor, Captain Heslin, and then forwarded up the chain of command to the Assistant Chief of Police and the Chief of Police, who then either concurred, dissented or altered Captain Heslin’s assessment. The August 2, 2001, Performance Evaluation Albert’s first performance evaluation was completed by Captain Heslin on August 2, 2001. Captain Heslin rated Albert’s performance as satisfactory and Assistant Chief Jones and Chief Marquis concurred with the rating. Events Contributing to the November 18, 2001, Performance Evaluation On August 29, 2001, Albert responded to a report of a suspicious package located at the federal building in Hartford, Connecticut. The parties dispute Albert’s handling of this event. According to Albert, he arrived at the scene, spoke with building a security guard, and found a vinyl suitcase behind a concrete bench outside of the building. Albert argues that the suitcase was not suspicious and that the record shows that the situation was not a bomb threat. (Dkt.# 61, Ex. 15.) Albert explained his response to Captain Heslin who then sent Assistant Chief Jones a memorandum dated October 1, 2001, which stated: “After reviewing Sgt. Morin’s complaint and Lt. Albert’s reply I do not believe disciplinary action is warranted against Lt. Albert. Lt. Albert arrived on scene and made an assessment of the situation. He did not believe a threat existed and so he took the steps that he did.” (Dkt.# 61, Ex. 4.) Assistant Chief Jones disagreed with Captain Heslin’s recommendation and, in an October 3, 2001, memorandum stated that Albert violated Order 7-1 of the HPD. Order 7-1 requires that officers who encounter suspicious packages safeguard the scene to ensure that no one touches the package. Albert contends that he did not fail to comply with Order 7-1 because the HPD had not received a bomb threat, the suitcase did not turn out to be a bomb, and because the only reason that Albert’s response was reported to Captain Heslin was due to the fact that the reporter of the incident had a personal vendetta against Albert. Further, Albert asserts that an investigation was not initiated until the date of his demotion. On October 11, 2001, Captain Heslin completed a “Report of Disciplinary Infraction,” which charged Albert with violating Section 6.08 of the HPD’s Code of Conduct, “negligent failure to comply with any , lawful orders, procedures, directives, or regulations, oral or written.” (Dkt.# 70, Ex. 1.) Albert was notified, by letter dated November 27, 2001, to attend a disciplinary hearing regarding the package incident. Although Albert does not dispute that the hearing resulted in an oral reprimand by Chief Marquis, he argues that the explanation of his actions were unjustly rejected. On October 16, 2001, Albert responded to a report from the Connecticut Children’s Medical Center that a white powder had been found. The Medical Center feared the power might have been anthrax. While at the scene, Albert concluded that white powder found in a patient’s room was laundry detergent. Again, the parties dispute the appropriateness of Albert’s response. The Defendants claim that Captain Pawlina received a complaint from a citizen regarding Albert’s actions. In his deposition, Captain Pawlina testified that he contacted the complainant over the phone and ultimately decided not to refer the incident to Internal Affairs Division. (Dkt. # 70, Ex. 15, Captain Pawlina Depo. pp. 28, 80.) Although Captain Pawlina could have initiated formal disciplinary proceedings against Albert, Captain Pawli-na did not do so but, instead, counseled Albert on the incident. Although Albert admits that Captain Pawlina counseled him, Albert notes that he did not receive any formal discipline regarding this incident until the day of his demotion. On October 16, 2001, Albert responded to a second complaint fearing anthrax, at 866 Main Street, Hartford, Connecticut. The parties dispute whether a complaint was filed by Assistant Fire Chief M.A. Parker (“Assistant Chief Parker”) and whether Albert received counseling from Captain Heslin regarding this incident. On or about November 16, 2001, Captain Heslin completed Albert’s first probationary employee performance evaluation. The evaluation referenced Albert’s responses to the package incident and the two complaints fearing anthrax. Captain Heslin determined that Albert had a need for improvement and Assistant Chief Jones and Chief Marquis concurred with the evaluation. Despite these facts, Albert continues to contest that he handled the package incident and the complaints fearing anthrax, properly. Events Contributing to the April 1, 2002, Performance Evaluation On March 6, 2002, HPD’s Internal Affairs Division commenced an investigation into allegations that Albert regularly removed newspapers from a D.B. Mart, read the papers and returned them without paying. The investigation was conducted by Sergeant Richard Calderone (“Sergeant Calderone”), whom Albert believed to be fair and impartial. Sergeant Calderone completed a “Report of Disciplinary Infraction,” on March 20, 2002, which sustained a violation of Section 1.00 of the HPD’s Code of Conduct, “Conduct Unbecoming an Employee.” Albert notes that the Internal Affairs investigation did not sustain a criminal violation against him or find that he stole any newspapers from the D.B. Mart. Further, Albert argues that he “removed newspapers from the D.B. Mart with the owner’s permission and returned them later in the day.” (Dkt. # 70, Ex. 15, Albert Aff. ¶ 7). Albert concedes, however, that there may have been a failure to communicate or that the proprietor might have felt intimidated. The allegations surrounding Albert’s actions at the D.B. Mart surfaced in a series of media reports in The Hartford Courant. Albert argues that these newspaper reports were false. Specifically, Albert argues that Manager Ilg requested The Courant to focus its reporting on Albert’s mistakes rather than the plight of the D.B. Mart proprietor. This request, Albert claims, made Chief Marquis more likely to demote Albert. As evidence of the malin-tent Albert cites to Manager Ilg’s testimony: “As chief executive, I wanted to set a standard and that standard was that if someone had done something wrong whether it was a police officer or not, that no one else was to interfere with the investigation by the police.” (Dkt.# 70, Ex. 15, pp. 37-38.) As a result of this media pressure, Albert argues, Chief Marquis felt compelled to demote Albert. On March 6, 2002, Captain Heslin completed Albert’s performance evaluation, providing a rating of “satisfactory.” Upon submitting the evaluation, Captain Heslin did not possess knowledge of the Internal Affair’s investigation of the newspaper incident. The evaluation form was forwarded to Assistant Chief Jones, who was aware of the investigation. Assistant Chief Jones disagreed with Captain Hes-lin’s assessment and determined that Albert’s work had a need for improvement and was not satisfactory. Chief Marquis also disagreed with Captain Heslin’s assessment of Albert and submitted a memorandum entitled “Interim Probationary Evaluation,” that stated: The conduct that came to light during a recent internal investigation shows that during the period of this evaluation you have exhibited a serious lack of judgment in areas critical to proper supervision. Your immediate supervisor apparently had no knowledge of the specifics of the investigation prior to his review of the evaluation. The information compiled in this investigation has shown that you performed unsatisfactorily during this evaluation period. (Dkt.# 70, Ex. 9.) Albert’s Demotion On April 2, 2002, Chief Marquis submitted a memorandum to Patricia C. Washington (“Washington”), the Director of Personnel, recommending that Albert be demoted. Pursuant to the Personnel Rules, Chief Marquis had the authority to recommend that Albert be demoted and Washington had the authority to approve such a recommendation. Chief Marquis’ memorandum stated, in pertinent part: “The position of Police Lieutenant requires considerable knowledge of the methods, principles, practices and techniques of police and detective work. It also requires considerable knowledge of the principles and practices of police administration and of controlling laws and ordinances. Critical to the performance of this position is the ability to observe situations analytically and objectively [and to] act accordingly.... Upon arrival [on August 29, 2001], Lieutenant Albert retrieved the suspicious package and deemed it safe. He failed to follow Order 7-1 procedures and regulations relating to bomb, bomb threats, etc.... Lieutenant Albert is currently being investigated regarding an incident with the public that came to light on March 6, 2002. Based on preliminary reports, it is my opinion that Lieutenant Albert’s judgment is, again, in question .... Despite being trained, counseled and disciplined, Lieutenant Albert has continued to fail in properly executing the responsibility with which he is charged. He has repeatedly failed to exercise the considerable judgment that must be exercised independently in interpreting orders, rules, and regulations as a commanding officer.... Lieutenant Albert has repeatedly exhibited very significant inappropriate conduct and failed to live up to the expectations of a supervisor. His own failure in judgment has deeply affected those he commands by bringing the question of integrity of his leadership, compromised potentially dangerous situations and has irreparably harmed the image of the Hartford Police Department.” (Dkt.# 70, Ex. 14.) Washington approved the recommendation and authorized Albert to return to the rank of sergeant. Albert received notice of his demotion on April 3, 2002. A few months later, on June 8, 2002, Albert was transferred to the detention division. As far as the court can determine, Albert remains in this position despite at least one request for transfer to patrol. (Dkt. # 70, Ex. 15, Lieutenant Lopez Depo. p. 129.) The August 5, 2003, Disciplinary Hearing On August 5, 2003, Assistant Chief Reilly held a disciplinary hearing to determine whether to sustain three Code of Conduct violations that had been assessed against Albert in the years since his demotion. The first violation was of Section 1.00, “conduct unbecoming to an employee.” This violation stemmed from an incident that took place on July 16, 2002. On that day, Albert allegedly approached a witness who, when subsequently interviewed by investigators, was reluctant to speak (“the witness incident”). Chief Marquis ordered an Internal Affairs investigation regarding Albert’s conduct with this witness. The investigation was conducted by Sergeant Neville A. Brooks (“Sergeant Brooks”), who was under the direct supervision of Lieutenant Neil Dryfe (“Lieutenant Dry-fe”), Commander of Internal Affairs Division. The investigation, which concluded that Albert exercised very poor judgment in his dealings with the witness, yielded an atmosphere of fear and discouraged the cooperation of a witness. (Dkt.# 61, Ex. 17.) The second charge addressed at the hearing was for the violation of Section 6.09, “intentional and willful failure to comply with any lawful orders, procedures, directives or regulations, oral or written.” This violation stems from a report that on May 26, 2003, Albert spent an hour reading a book while on duty and in full uniform at a West Hartford diner (“the lunch break incident”). (Dkt.# 70, Ex. 1.) Albert’s conduct at the diner was reported to Assistant Chief Jones by Captain Perez. As a result of Captain Perez’s report Albert’s supervisor, Lieutenant Kenary, completed a Report of Disciplinary Infraction dated June 10, 2003. This report was affirmed and signed by Assistant Chief Kevin Jones. The basis of the violation was that Albert took an elongated lunch break that was outside of the jurisdiction and without the permission of his supervisor. The final charge addressed at the hearing was for the violation of Section 8.04, “failure to be on time when reporting for duty, including roll calls, court appearances, and other duty assignments.” This violation was the result of Albert arriving late to work on May 30, 2003 (“the late incident”). (Dkt.# 70, Ex. 1.) In fact, Albert arrived at 7:30 a.m., which was the normal time for his scheduled shift. Unbeknownst to Albert, his shift time had changed and he was now supposed to arrive at 7:00 a.m. Lieutenant Mark Rudew-icz (“Lieutenant Rudewicz”), Commander of the HPD Detention Division, submitted a “Report of Disciplinary Infraction” charging that Albert was assigned to work in detention for squad A from 7:00 a.m. until 3:00 p.m., but that Albert arrived at 7:30 a.m. On June 15, 2003, Captain Pawli-na signed the form notwithstanding the knowledge that Albert was not given notice of the shift change. Captain Pawlina wrote that Albert should be disciplined even though “[i]t does appear that Sgt. Albert was not notified of assignment change.” (Dkt.# 70, Ex. 1.) Assistant Chief Jones signed his name below Captain Pawlina’s note, affirming it’s contents. At the disciplinary hearing, Albert was forced to defend against each of the three violations. In a letter dated September 16, 2003, Assistant Chief Reilly sent Chief Marquis a memorandum of the findings from the disciplinary hearing. (Dkt.# 70, Ex. 3.) The Section 1.00 violation was sustained. Albert maintains, however, that he did not use poor judgment with the witness and that the incident was brought up as a means of retaliating against him for the filing of the present lawsuit. The Section 6.09 violation was also sustained. The Section 8.04 violation, however, was not sustained due to the fact that Albert had no knowledge of the shift change. (Dkt.# 70, Ex. 3.) In a letter dated September 23, 2003, Chief Marquis suspended Albert for fifteen (15) days. Albert filed a grievance for this suspension pursuant to the CBA of the HPD. Additional facts, undisputed or construed in a light most favorable to Albert, will be discussed as to individual claims. II. DISCUSSION Albert brings this action against the Defendants alleging the violation his Fourteenth Amendment Right to Equal Protection, the violation of his Fourteenth Amendment Right to Procedural and Substantive Due Process, and the intentional infliction of emotional distress under Connecticut law. Albert’s action also seeks to recover against the City Defendant pursuant to a violation of 42 U.S.C. § 1983, and against the Individual Defendants for violating his First Amendment Right against retaliation. The motion for summary judgment is made with respect to each count of the Amended Complaint and raises qualified immunity as a defense. Each claim is discussed in turn herein. A. Summary Judgment Standard A motion for summary judgment may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Summary judgment is appropriate if, after discovery, the non-moving party “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 Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute.” American Int’l Group, Inc. v. London Am. Int’l Corp., 664 F.2d 348, 351 (2d Cir.1981) (internal quotation marks omitted) (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.1975)). A dispute concerning a material fact is genuine “if evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Aldrich v. RaNDolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992) (internal quotation marks omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court must view all inferences and ambiguities in a light most favorable to the nonmoving party. See Bryant v. Maffucci 923 F.2d 979, 982 (2d Cir.1991). “Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Id. B. “Persons” Under 42 U.S.C. § 1983 Prior to addressing each count, the court must consider the Defendants claim that summary judgment should be granted on Counts One, Two and Five because under § 1983 the Defendants are not “persons,” and therefore can not be sued in their official capacities. In support of their argument the Defendants rely on the Supreme Court decision of Will v. Michigan Dep’t of State Police, 491 U.S. 58,109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). The issue is whether local government entities are “persons” acting under color of state law such that they may be sued under 42 U.S.C. § 1983. The Defendants reliance on Will is erroneous. To state a claim under § 1983, a plaintiff must allege a constitutional deprivation by “persons” acting under color of state law. 42 U.S.C. § 1983. Under Will, “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Id. at 71, 109 S.Ct. 2304 (emphasis added). Here, however, the entity in concern is not the state and its officials but rather the local government and its officials. The issue of whether local government bodies could be sued under § 1983 was addressed in the case of Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Monell court held that “Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.” Id. at 690, 98 S.Ct. 2018. The Court further explained that bodies of local governments may be sued under § 1983 for monetary, declaratory, or in-junctive relief where the allegedly unconstitutional action was the result of a policy or custom. Id. at 690-91, 98 S.Ct. 2018. Accordingly, this argument of the Defendants will not be considered in the following decision. C. The Fourteenth Amendment Right to Equal Protection In the First Count of his Amended Complaint, Albert alleges that “[t]he acts of the individual [Defendants, under color of law, by virtue of their authority as police supervisors and state officials of the City of Hartford, herein alleged constitute a denial to [Albert] of the equal protection of the laws guaranteed to him by the Fourteenth Amendment to the United States Constitution.” (Dkt.# 47, Am.Compl^ 24.) The Fourteenth Amendment to the United States Constitution provides, “[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The Supreme Court has held that the Equal Protection Clause is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr. Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). A plaintiff claiming a violation of his equal protection rights can proceed according to several theories: A plaintiff could point to a law or policy that expressly classifies persons on the basis of race.... Or, a plaintiff could identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner.... A plaintiff could also allege that a facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus. Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir.2000) (citations omitted; internal quotation marks omitted). Further, the United States Supreme court has held that a plaintiff need not be a member of a traditionally “protected class” in order to allege an equal protection violation. See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Instead, a plaintiff may bring claims as “a class of one, where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Olech, 528 U.S. at 564, 120 S.Ct. 1073 (internal quotation marks omitted). Courts afford a plaintiff the opportunity to bring “class of one” actions because “[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Id. (internal quotation marks omitted). The court finds it difficult to determine exactly which equal protection violation Albert is proceeding under. Albert contends that “[he] was not treated the same as similarly situated officers” and that “[he] was falsely disciplined and demoted because of his race.” (Dkt.# 47, Am. Compl.Cnt.1ffl 22.) Albert alleges that “[a]fter false reports and publicity, the defendants began a campaign to undermine the plaintiff and destroy his position within the department,” and “[t]he defendants misconstrued facts, altered documents and covered up departmental violations by other officers in order to demote and discipline Albert.” (Dkt.# 47, Am. Compl.CntJ 14-15). Given these actions, Albert claims that the Defendants violated his constitutional rights and “have not expressed any legitimate reason for singling him out and discriminating against him.” (Dkt.# 47, Am.Compl.CnO 31). Accordingly, the court understands Albert’s allegations to be comprised of a class of one equal protection claim as well as a hostile work environment equal protection claim. 1. Equal Protection “Class of One” “In order to succeed on a class of one claim, the level of similarity between [the] plaintiffs and the persons with whom they compare themselves must be extremely high.” Neilson v. D’Angelis, 409 F.3d 100, 104 (2d Cir.2005) (internal quotation marks omitted). Moreover, the plaintiff must “alleg[e] that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Inturri v. City of Hartford, 365 F.Supp.2d 240, 251 (D.Conn.2005) (internal quotation marks omitted). “[T]he standard for determining whether another person’s circumstances are similar to the plaintiffs must be ... whether they are prima facie identical.” Neilson, 409 F.3d at 105 (emphasis in original; internal quotation marks omitted); see Inturri, 365 F.Supp.2d at 251 (holding that, to be considered similarly situated, “employees must be similarly situated in all material respects”) (internal quotation marks omitted). Indeed, the level of similarity must be so great that: (i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendant acted on the basis of a mistake. Neilson, 409 F.3d at 105. Thus, in class of one cases, “the existence of persons in similar circumstances who received more favorable treatment than the plaintiff is offered to provide an inference that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose-whether personal or otherwise-is all but certain.” Neilson, 409 F.3d at 105 (citing Olech, 528 U.S. at 565, 120 S.Ct. 1073.). To prevail on his class of one claim, Albert must set forth evidence that would permit a reasonable jury to find that his position in the police force was prima facie identical, in all material aspects, to the comparators who were retained or promoted. In Albert’s memorandum in opposition to the motion for summary judgment he contends that he is similarly situated to Lieutenant Malik Merritt, Lieutenant Henry Martin, Lieutenant Giselle Gamble, Lieutenant Jones, Lieutenant Ron Bair, and Lieutenant Daryl Roberts. The court, in reviewing Albert’s materials, concludes that he cannot prove that he is similarly situated because these officers incurred less numerous and less significant behavioral complaints and they worked under different probationary conditions than Albert. Albert’s class of one action must fail because he cannot show that the other officer’s incurred similar behavioral complaints and code violations. Albert has neither argued nor set forth any evidence to show that either Lieutenants Jones, Merritt, or Bair incurred any complaints or code violations. Thus, Albert cannot prove that he is similarly situated with these officers. Albert does set forth evidence, however, that Lieutenants Roberts, Gamble and Martin were assessed behavioral complaints. Specifically, in his deposition, Albert claims that Lieutenant Roberts received a violation in the spring of 2002 for mismanaging a subordinate, but that Chief Marquis covered up this incident. (Dkt. # 70, Ex. 15, Albert Depo. pp. 51-53) Albert also argues that Lieutenant Gamble received a one day suspension for being absent without permission. (Dkt. # 70, Defs.’ Stat. ¶ 80). Finally, Albert contends that on October 12, 2003, Lieutenant Martin received an unsatisfactory evaluation for excessive use of sick days. (Dkt. # 70, Defs.’ Stat. ¶ 81). None of these incidents place the officers in a similar light to Albert because he incurred a greater number of complaints than the other officers. Whereas Albert incurred three unsatisfactory probationary reports, four code violations, and various other complaints, the evidence shows only one incident that reflected poorly on Lieutenants Roberts, Gamble and Martin. Second, Albert is not similar to the other officers because the complaints that he received related to his on-duty practice and procedure. Conversely, when Lieutenants Gamble and Martin were disciplined it was not for their on-duty practice and procedure, but rather their off-duty use of absences and sick time. The court also notes that while Lieutenant Roberts allegedly was disciplined for his on-duty practice and procedure, this can not be considered by the court because Albert has failed to corroborate this assertion with the proper evidence. Therefore, none of the incidents argued by Albert prove that he is similarly situated to the other officers. The officers also are not similar to Albert because different conditions and circumstances existed for each officer during his probationary period as lieutenant. For example, each of the six officers named by Albert, with the exception of Lieutenant Jones, were promoted to lieutenant at different times than Albert. Albert was appointed to lieutenant on May 27, 2001, Lieutenants Roberts and Merritt were promoted on July 28, 2002, Lieutenant Martin was promoted on December 12, 2002, and Lieutenants Gamble and Bair were promoted on January 14, 2004. Logically, officers who work under different time periods are subject to different situations and circumstances within the department. Another difference between Albert and the other officers is the class size in which the officers were promoted. While Albert and Lieutenant Jones were promoted with six other officers, Lieutenants Roberts and Merritt were promoted with three, Lieutenant Martin was promoted with no one else, and Lieutenants Gamble and Bair were promoted with nine other officers. The varying class size, not to mention the amount of permanent lieutenant positions available for any given class, no doubt effects the situation of each individual officer. Another circumstance that varied for some of the six officers is that some were promoted by Chief Marquis while others were promoted by Chief Pawlina. Where as Albert, Jones, Roberts, Merritt, and Martin were promoted by Chief Marquis, Lieutenants Gamble and Bair were promoted by Chief Pawlina. Thus, with the exception of Lieutenant Jones, the conditions and circumstances that the other officers faced were substantially different from those that Albert faced. Accordingly, given the difference in the complaints and the conditions of the probationary period, Albert cannot show that he is prima facie identical in all material aspects to any of the other six officers. Therefore, the Defendants’ motion for summary judgment as to the class of one claim in GRANTED. 2. Equal Protection Hostile Work Environment Section 1983 provides a cause of action for race-based employment discrimination based on a hostile work environment. See Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143-14 (2nd Cir.1993). Courts considering § 1983 Equal Protection claims utilize Title VII law in deciding whether a plaintiff has established a hostile work environment claim. See Jem-mott v. Coughlin, 85 F.3d 61, 67 (2d Cir.1996). In such a case, a plaintiff facing a motion for summary judgment must first set forth evidence from which a reasonable trier of fact could conclude that the workplace “was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his or] her work environment....” Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir.2003) (quoting Richardson v. New York State Dep’t of Correctional Serv., 180 F.3d 426, 436 (2d Cir.1999)). The abusive conduct must have occurred because of the plaintiffs membership in a protected class. See Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 318 (2d Cir.1999). This must be shown because the purpose of § 1983 is to prohibit discrimination against certain protected classes, and not to provide a general code of civility. See Lewis v. North General Hosp., 502 F.Supp.2d 390, 402 (S.D.N.Y.2007) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Finally, a plaintiff must demonstrate “that a specific basis exists for imputing the conduct that created the hostile work environment to the employer.” Mack, 326 F.3d at 122 (internal quotation marks omitted) (citing Richardson, 180 F.3d at 436). Proving that an environment is permeated with discriminatory intimidation requires both “objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002) (internal quotation marks omitted) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). While “no single factor is required,” see Harris 510 U.S. at 28, 114 S.Ct. 367, the incidents must be “more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 n. 1, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotation marks omitted). Incidents that occur infrequently and over a short period of time may not suffice in proving a hostile work environment. See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir.1987); see also Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997) (“[i]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments” (internal quotation marks omitted)). This court is mindful, however, that even though prior hostile work environment cases have exposed instances of appalling conduct, there is no set standard that a plaintiff must meet for a claim to be actionable. See Richardson, 180 F.3d at 439. “In the end, determining whether workplace harassment was severe or pervasive enough to be actionable depends on the totality of the circumstances.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir.2000) (internal quotation marks omitted). In the present case, Albert argues that “[e]vidence exists to indicate that [the][D]efendants created a racially hostile environment ...” (Dkt. 69, Pl.’s Memo p. 24). In an attempt to prove this argument, Albert has set forth a complicated pattern of evidence that purports to explain the racial backgrounds of the officers and the promotion and demotion decisions of the Defendants. The Defendants disagree with Albert, arguing that his evidence does not show a racially hostile environment and further, that his claim can not survive because his argument is based solely on demotion. Specifically, “[h]e alleges nothing more than that he was demoted and replaced by a black male” and further, “[e]ven if there were evidence for this claim ... viewed objectively, demotion alone cannot create a hostile work environment.” (Dkt. #59, Defs.’ Memo. p. 8.) Here, the court finds that no reasonable jury could conclude that Albert experienced severe or pervasive discrimination because he was white. Albert has not offered sufficient proof to show that the Defendants created a racially hostile environment against white people. In paragraphs seventeen and eighteen of the Amended Complaint Albert alleges that he and another white man were demoted and replaced by two black males. This allegation, however, cannot be considered an incident that is a basis for a race discrimination claim because, without supporting evidence, it requires a fact-finder to make a fantastic assumption. Merely because two whites are demoted and replaced by two blacks does not mean that the Defendants engage in a policy that favors one race over another. Without supporting evidence that shows that the Defendants used racial slurs or comments when promoting and demoting the lieutenants, this incident is not sufficient proof of discrimination. Even assuming that a reasonable jury could find that the evidence satisfies a claim of race discrimination, Albert has not satisfied the pervasiveness requirement to survive summary judgment. Pervasiveness requires that Albert demonstrate that either a single incident was extraordinarily severe, or that a series of incidents were so continuous that they altered his work conditions. See Whidbee, 223 F.3d at 69. In his memorandum in opposition to the motion for summary judgment (Dkt. # 69 Pl.’s Memo. p. 27), Albert asserts the following: “[He] has been subject to ongoing harassment by his supervisors in the form of trumped up discipline, unequal discipline, undeserved demotion and transfer. The defendants went beyond the normal process in providing [he] with evaluations and in determining his demotion.... [He] was given evaluations during his probationary period that were untimely, were purposefully delayed and where the direct supervisor’s recommendations were ignored .... [He] has been forced to work in the [detention [division which is the least preferred [division and [he] is forced to work [t]hird [s]hift, which is the least preferred shift. For four years [he] has been subject to an ongoing pattern of harassment. ...” These incidents are insufficient to support Albert’s claim here because while a fact-finder may find that they indicate abusive conduct, they do not indicate racially abusive conduct. In this case, the law is clear, if not based on a plaintiffs membership in a protected class under Title VII, abusive conduct in the workplace is not actionable under § 1983. Lewis, 502 F.Supp.2d at 402. Accordingly, the Defendants motion for summary judgment as to the claim of a hostile work environment is GRANTED. 3. Other Equal Protection Claims Albert, in his complaint and in his opposition papers, seems to rely on other equal protection violations. Specifically, Albert alleges in his First Count that “[he] was falsely disciplined and demoted because of his race” (Dkt. # 47, Am. Compl. Cnt. 1 ¶¶ 23) and that the lieutenant vacancies created after he and another white probationary lieutenant were demoted were filled by black officers. (Dkt. #47, Am. Compl. Cnt. 1 ¶¶ 17-18). The court interprets these allegations as an equal protection claim that is based upon a selective prosecution theory. This claim, however, fails for the same reason as the class of one claim. The Second Circuit has held, “To succeed in an action alleging selective prosecution, plaintiffs in this Circuit have been required to show both (1) that they were treated differently from other similarly situated individuals, and (2) that such differential treatment was based impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Cobb v. Pozzi, 363 F.3d 89, 110 (2d Cir.2004) (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001)). As Albert cannot satisfy the similarly situated prong, he therefore cannot establish an equal protection claim premised upon a selective prosecution theory. Albert also seems to argue that he has suffered an equal protection violation based on violations of age and gender discrimination. In Albert’s memorandum in opposition he claims that the action arises “under Title 42 U.S.C. § 1983; violations of the First and Fourteenth Amendments to the United States Constitution; and violations of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., (‘ADEA’).” Similarly, in section C of the memorandum in opposition to the motion for summary judgment, Albert argues that “[Albert] has established claims of discrimination pursuant to the ADEA and gender discrimination in violation of the equal protection clause.” These assertions were not alleged in the complaint and therefore are not properly before the court. Even if they were alleged in the complaint, Albert offers no evidence to support these claims. He does not set forth his age or allege how he was treated differently from older or younger officers. In addition, Albert does not establish how he was treated differently from similarly situated female officers. Unsupported allegations are not sufficient to "withstand a motion for summary judgment. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). Accordingly, to the extent that Albert pursues an equal protection theory on age or gender discrimination, those claims fail. Thus, the Defendants motion for summary judgment as to the claims of selective prosecution, age discrimination and age discrimination is GRANTED. D. The Fourteenth Amendment Right to Procedural and Substantive Due Process; Intentional Infliction of Emotional Distress In Count Two of the Amended Complaint Albert alleges that the Defendants violated his rights to procedural and substantive due process under the Fourteenth Amendment. In Count Four of the Amended Complaint Albert alleges that the Defendants intentionally caused him to suffer emotional distress. The Defendants seek summary judgment on the grounds that there are no material facts in dispute and they are entitled to judgment as a matter of law. In his opposition to summary judgment, Albert fails to address either of these claims. In the Defendants’ reply to the memorandum in support of the motion for summary judgment, they argue that these counts should be abandoned because Albert has not opposed them in his opposition papers. The court agrees. Since Albert has failed to address these claims in his opposition to summary judgment, they are deemed abandoned. See Santiago v. Newburgh Enlarged City School Dist., 485 F.Supp.2d 327, 338 (S.D.N.Y.2007) (dismissing the plaintiffs claim that she was fired in retaliation for complaining about discrimination because she failed to respond to the defendant’s summary judgment argument); Coger v. Connecticut, 309 F.Supp.2d 274, 280 (D.Conn.2004) (noting that the court can consider a[§ ] 1981 claim abandoned merely because the plaintiff failed to respond to the defendant’s argument that summary should be granted in his favor); Taylor v. City of New York, 269 F.Supp.2d 68, 75 (E.D.N.Y.2003) (“Federal Courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way”); Douglas v. Victor Capital Group, 21 F.Supp.2d 879, 393 (S.D.N.Y.1998) (holding where the defendant’s summary judgment motion addresses specific employment discrimination claims, and the plaintiffs opposition papers do not oppose such arguments, court may deem the claims abandoned and grant summary judgment). Therefore, the Count Two claims, for violations of procedural and substantive due process and the claim in Count Four, for intentional infliction of emotional distress, are deemed abandoned and summary judgment is GRANTED in favor of the Defendants. E. Violation of 42 U.S.C. § 1983 In Count Three of the Amended Complaint Albert alleges that the City Defendant unlawfully deprived his rights in one or more of the following ways: “B. Failure or refusal to take appropriate investigatory, supervisory and, or, disciplinary action against the City of Hartford supervisors with regard to the negligent, reckless, malicious, deliberate, indifferent, willful, intentional and unlawful conduct complained of....” (Dkt. #47. Am. Compl. Cnt. 3 ¶ 5). For a municipal entity to be held liable under § 1983 for the unconstitutional acts of its employees, a plaintiff must allege and prove that his constitutional rights were violated, that the alleged actions by the employees were the result of an official policy, custom, or practice of the municipal defendant, and that the policy, custom, or practice caused the alleged injuries. City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Monell, 436 U.S. at 690-95, 98 S.Ct. 2018; McDonald v. Bd. of Educ., No. 01 Civ.1991(NRB), 2003 WL 21782685, *2, 2003 U.S. Dist. LEXIS 13338, *8 (S.D.N.Y. July 31, 2003). A plaintiff may satisfy the “policy, custom or practice” requirement by demonstrating in one of four ways: (1) a formal policy which is officially endorsed by the municipality, see Monell, 436 U.S. at 690, 98 S.Ct. 2018; (2) actions taken or decisions made by government officials responsible for establishing municipal policies which caused the alleged violation of the [plaintiffs] civil rights, see Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion); (3) a practice so persistent and widespread that it constitutes a “custom or usage” and implies the constructive notice knowledge of policy-making officials, see Monell, 436 U.S. at 690-91, 98 S.Ct. 2018; or (4) a failure by official policy makers to properly train or supervise subordinates to such an extent that it amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact, see Harris, 489 U.S. at 388, 109 S.Ct. 1197. See Moray v. City of Yonkers, 924 F.Supp. 8, 12 (S.D.N.Y.1996). The Second Circuit has made clear that “[w]here a plaintiff relies not on a formally declared or ratified policy, but rather on the theory that the conduct of a given official represents official policy, it is incumbent on the plaintiff to establish that element as a matter of law.” Jeffes v. Barnes, 208 F.3d 49, 57-58 (2d Cir.2000). The issue before the court, therefore, is whether Chief Marquis is a policymaker such that liability must be imposed on the city under § 1983. In the instant case, the City Defendant argues that merely because Chief Marquis had discretionary authority to administer personnel policy does not render him a final policymaker. Chief Marquis had the discretionary authority to recommend decisions regarding the hiring and firing of employees, but was constrained by policies set forth in the Personnel Rules, the Court of Common Council and the City Manager. (Dkt. 60, PL’s Stat. ¶¶ 1-8.) Expressly, it is the Charter of the City of Hartford that limits Chief Marquis’ powers by vesting final policy making authority with the Council. (Id. at ¶ 1, 2.) The Chapter provides that “no person in the classified service of the city or seeking admission thereto shall be appointed, promoted, reduced, removed or in any way favored or discriminated against because of his race, national origin or his political or religious opinions or affiliations.” (Id. ¶ 3.) The City Defendant equates its situation to that of the defendants in Looby v. City of Hartford, 152 F.Supp.2d 181 (D.Conn.2001). In Looby, the plaintiff fireman sought to impose liability on the city of Hartford for the alleged unconstitutional actions of the fire chief in refusing to promote the plaintiff from lieutenant to captain. The Looby court concluded that even though the fire chief had the authority, through the City Charter, to appoint and remove employees and to institute rules and regulations concerning employee conduct and department operations, he was not a final decision maker. Id. at 188— 89; see also Gordon v. Marquis, No. 3:03-cv-01244 (AWT), 2007 WL 987553, *15, 2007 U.S. Dist. LEXIS 27811, at *52 (D.Conn. Mar. 31, 2007) (“Marquis possessed the ultimate authority to make transfer decisions in addition to employment decisions ... [but] he did not have policymaking authority.”); Knight v. Hartford Police Dept., No. 3:04CV969 (PCD), 2006 WL 1438649, **20-21, 2006 U.S. Dist. LEXIS 36331, at *72 (D.Conn. May 22, 2006) (“it is evident that the individual defendants [including Chief Marquis] did not have policymaking authority with respect to promotions nor with respect to extending promotional eligibility lists”). Albert disagrees with the City Defendant’s assertion that Chief Marquis is not a policymaker. In support of this argument, Albert cites to the case of O’Connor v. Barnes, No. 97-CV-1489 (LEK/DNH), 1998 WL 1763959, **3-6, 1998 U.S. Dist. LEXIS 3386, at *11-17 (N.D.N.Y. March 18, 1998). In O’Connor, the plaintiffs, county jail employees, brought an action under § 1983 and 42 U.S.C. § 1985(3) seeking to impose liability on the sheriff, other officers, and the County of Schenectady, for violating the plaintiffs’ First Amendment rights by retaliating against them for having reported the misconduct of co-workers. Id., 1998 WL 1763959, *1, 1998 U.S. Dist. LEXIS 3386 at * 1. Albert argues that because the O’Connor court found that the sheriff was a policymaker, this court should similarly find that Chief Marquis is a policymaker. The facts in O’Connor, however, are distinguishable from the facts in the instant case. The O’Connor court found that the sheriff of Schenectady was a policymaker because his decisions were unconstrained and because the Second Circuit already had held that the position of sheriff is “the highest ranking law enforcement official in the County.” Id., 1998 WL 1763959, **4-5, 1998 U.S. Dist. LEXIS 3386, at * 14 (internal quotation marks omitted). Here, the decisions of Chief Marquis are constrained, so by definition, he can not be considered the highest ranking official in the city of Hartford. The Charter and other ordinances of Hartford reflect this fact. Specifically, the Director of Personnel has the authority to make rules, the Personnel Board can adopt or amend these rules, and the Court of Common Council either approves or disapproves these rules. It is this presence of review mechanisms that prevents Chief Marquis from being a final decision maker. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); see also O’Connor, 1998 WL 1763959, **4-5, 1998 U.S. Dist. LEXIS 3386 at *12-13 (“an official with authority to make decisions in a particular area can be considered a policymaker where there is an absence of either substantive constraints on or meaningful review of the official’s choice”) (citing Williams v. Butler, 863 F.2d 1398, 1402 (8th Cir.1988), cert. denied, City of Little Rock v. Williams, 492 U.S. 906, 109 S.Ct. 3215, 106 L.Ed.2d 565 (1989)). The fact that Albert has not demonstrated that Chief Marquis possessed something more than discretion in examining certain functions prevents him from recovering from the City Defendant for a violation of § 1983. Moreover, O’Connor does not determine the outcome of this case because the court was constrained in the evidence that they could consider. The defendant’s motion in O’Connor was a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Under a motion to dismiss the court must base its decision on whether “it [was] clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). In the present case, however, the City Defendant’s motion is for summary judgment. Therefore, the court enjoys the benefit of considering additional affidavits and depositions that could not be considered in O’Connor. Albert also alleges, in Count Three of the Amended Complaint, two other claims that are without merit. First, Albert alleges that the City Defendant deprived his rights by failing to supervise its employees. (Dkt. # 47. Am. Compl. Cnt. 3 115.) Second, Albert claims that the City Defendant has a history of permitting retaliation against individuals seeking redress from the government. (Id.) Albert has not produced evidence that supports any assertion regarding a failure to supervise any of the officers involved in the promotion, demotion, or suspension decisions. To satisfy a claim of inadequate training or supervision, the theory must “be based on more than the mere fact that the misconduct occurred in the first place.” Amnesty America v. Town of West Hartford, 361 F.3d 113, 130 (2d Cir.2004). Similarly, to survive summary judgment under a theory of historical retaliation, the court requires evidentiary support of past individuals who, upon seeking redress from the government, were wronged by a city’s retaliatory behavior. Due to the lack of supporting evidence for Albert’s allegations, the court refuses to permit a jury to hear such claims. Accordingly, the City Defendant’s motion for summary judgment as to Count Three of the Amended Complaint is GRANTED. F. The First Amendment Right Against Retaliation In Count Five of the Amended Complaint, Albert alleges that, as a result of his initiating this action, the Individual Defendants retaliated against him in violation of § 1983 and the First Amendment. For a public employee to succeed on a First Amendment retaliation claim under § 1983 he must show, by a preponderance of the evidence, that “(1) the expression at issue was constitutionally protected, (2) the alleged retaliatory action adversely affected his constitutionally protected expression, and (3) a causal relationship existed between the constitutionally protected expression and the retaliatory action.” Camacho v. Brandon, 317 F.3d 153, 160 (2d Cir.2003). Even assuming a plaintiff can establish these factors, the defendant can still succeed on a motion for summary judgment if it can demonstrate “that it would have taken the same adverse employment action even in the absence of the protected conduct.” Cotarelo v. Village of Sleepy Hollow Police Dept., 460 F.3d 247, 252 (2d Cir.2006) (internal quotation marks omitted); see Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir.2003) (“Regardless of the presence of retaliatory motive ... a defendant may be entitled to summary judgment if he can show dual motivation, i.e., that even without the improper motivation the alleged retaliatory action would have occurred.”). The Individual Defendants, in their memorandum in support of the motion for summary judgment, argue that Albert’s retaliation claim must fail because it does not involve a matter of public concern and he is unable to show that the Individual Defendants’ actions were a result of the filing of this lawsuit. Further, the Individual Defendants argue that the court has no jurisdiction to hear this claim because Albert has failed to exhaust his grievance and arbitration .procedure. In opposition, Albert maintains that the matter was public and that he was retaliated against after filing the instant lawsuit. 1. Protected Speech For Albert’s speech to be protected under the First Amendment it must be shown that the speech concerned a matter of public concern. See Cotarelo, 460 F.3d at 252. Whether an employees speech is related to a matter of public concern is a question of law that must be determined by the “content, form, and context of a given statement, as revealed by the whole record.” Ezekwo v. New York City Health & Hosp. Corp., 940 F.2d 775, 781 (2d Cir.1991) (quoting Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). The employee must speak “as a citizen upon matters of public concern,” rather than “an employee upon matters only of personal interest.” Connick, 461 U.S. at 147, 103 S.Ct. 1684; see also Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir.1999) (when determining whether speech is of public concern, the court should focus on the speaker’s motives and determine if the speech was calculated to redress personal grievances or whether it had a broader public purpose). At the same time, this court is aware that while certain issues may touch upon matters of public concern, the issue is whether the speech may be “fairly considered” as relating to such issues. See Connick, 461 U.S. at 146, 103 S.Ct. 1684. A court deciding whether a plaintiffs speech concerns a public matter must consider the recent restrictions the Supreme Court placed on an employee who make statements pursuant to his official duties. See Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). In Garcetti, the Supreme Court considered whether a plaintiff deputy district attorney, who was disciplined for writing a memorandum to his supervisor recommending that a case be dismissed, was protected by the First Amendment. Id. at 1960-61. The Supreme Court held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. See Id., at 1960. Here, Garcetti is inapplicable as Albert’s speech was not made pursuant to his official duties. The next issue to consider is whether Albert’s Original Complaint concerned matters of public concern. The Second Circuit has noted that “if the basis for a First Amendment retaliation claim is a lawsuit, the subject of the lawsuit must touch upon a public concern.” Konits v. Valley Stream Cent. High Sch. Dist., 394 F.3d 121, 124 (2d Cir.2005) (citing Cobb, 363 F.3d at 105-06). In Konits, the Second Circuit vacated the district court’s grant of summary judgment in favor of the defendants and remanded the case for further proceedings. Konits, 394 F.3d at 126. The district court had granted summary judgment against a tenured high school music teacher’s § 1983 action alleging First Amendment retaliation on the basis that an earlier retaliation suit filed by the teacher did not address a matter of public concern. Id. at 124-25. In vacating the district court decision, the Second Circuit noted that the teacher essentially argued that she was subjected to ongoing retaliation for her support of a peer who allegedly had been subjected to gender discrimination by the defendant. Id. at 124. The Konits court reasoned that “when a public employee’s speech regards the existence of discrimination in the workplace, such spe