Full opinion text
MEMORANDUM AND ORDER JOSEPH F. BIANCO, District Judge. On October 15, 2008, plaintiff Richard Frisenda (“plaintiff” or “Frisenda”) brought this action against defendants The Incorporated Village of Málveme (“the Village”), Patricia Ann Norris-McDonald (“McDonald”), James J. Callahan, III (“Callahan”), Joseph J. Hennessy (“Hennessy”), John Aresta (“Aresta”), and James Frankie (“Frankie”), individually and in their official capacities as employees of the Village (collectively, the “individual defendants”), alleging that defendants violated plaintiffs rights under the First and Fourteenth Amendments of the United States Constitution, pursuant to 42 U.S.C. §§ 1983 (“Section 1983”) and 1985, as well as under Section 209-a of the New York State Civil Service Law and Section 201-d(2)(d) of the New York Labor Law. Plaintiff was a Lieutenant in the Málveme Police Department and was employed by the Department for over twenty-seven years. Plaintiff asserts that the disciplinary charge that was brought against him in March 2008 (to which he pled guilty as part of a negotiated plea agreement)— namely, donating blood in the Village of Rockville Centre while on duty on October 31, 2006 — was in retaliation for his First Amendment activities. Specifically, plaintiff contends that, in the winter of 2007-2008, the defendants threatened to bring numerous disciplinary charges against him, initiated a disciplinary proceeding, and constructively discharged him by forcing him to resign, all in retaliation for certain First Amendment activity — namely, (1) his membership and participation in the Málveme Police Benevolent Association, including certain union-related activities in November 2007; (2) his involvement as a witness in a federal lawsuit filed by another Málveme police officer alleging retaliation, including testifying at the officer’s trial in March 2008; and (3) a December 2007 memo written by plaintiff to the Village Board and Chief of Police regarding what plaintiff believed was a failure by members of the Málveme Police Department to follow procedure in responding to a particular emergency situation. On April 27, 2010, defendants moved for summary judgment, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure on various grounds. For the reasons set forth below, defendants’ motion is denied with respect to plaintiffs Section 1983 claim for retaliation in violation of his First Amendment rights. Similarly, the motion is denied as to the state law claims. However, the motion is granted as to the plaintiffs Section 1983 claim under the Equal Protection Clause. I. Facts The Court has taken the facts set forth below from the parties’ depositions, affidavits, and exhibits, and from the parties’ respective Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2005). Unless otherwise noted, where a party’s 56.1 statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it. In 1981, the Village hired plaintiff as a probationary police officer for the Málveme Police Department (“MPD”) and, after three months, was hired to be a permanent MPD police officer. (Defs.’ 56.1 ¶¶ 5-6.) Plaintiff was promoted to Lieutenant in 1993. (Defs.’ 56.1 ¶7.) The Chief of Police is the highest-ranking member of the MPD, followed by Lieutenant, then Sergeant, and then police officer. (Defs.’ 56.1 ¶¶ 9-10.) Between 2006 and 2008, there were approximately 20-22 members of the MPD, which included anywhere from 3-5 Sergeants and 15-16 police officers. (Defs.’ 56.1 ¶¶ 8,11.) As a Lieutenant, plaintiff was directly responsible for the daily oversight of approximately 2-5 police officers. (Defs.’ 56.1 ¶ 12.) Plaintiff typically worked the day shift. (Defs. 56.1 ¶ 13.) In April 2008, plaintiff resigned from the MPD. (Defs.’ 56.1 ¶ 14.) Plaintiff was a member of the Málveme Police Benevolent Association (“PBA”) during his entire period of employment with the MPD. (Defs.’ 56.1 ¶ 29.) The members of the MPD were also members of the PBA. (Defs.’ 56.1 ¶ 30.) The PBA is responsible for negotiating a collective bargaining agreement (“CBA”) with the Village on behalf of the MPD Lieutenants, Sergeants and police officers, and also attempts to ensure that the CBA is complied with by the Village. (Defs.’ 56.1 ¶¶ 31, 33.) The PBA holds monthly membership meetings, which have rarely been attended by the MPD’s Chief of Police, and the Chief of Police negotiates his own employment contract with the Village. (Defs.’ 56.1 ¶ 34.) The PBA has four elected officer positions: President, Vice President, Secretary, and Treasurer, each of whom serve two-year terms of office. (Defs.’ 56.1 ¶¶ 35-36.) Plaintiff served as PBA Treasurer from approximately 1984 to 1986, and as PBA Vice President for a single two-year term beginning in approximately 1986. (Defs.’ 56.1 ¶¶ 37-38.) Plaintiff ran for PBA President in 1989, but lost. (Defs.’ 56.1 ¶ 39.) The PBA Contract Committee consists of the PBA President and 2-3 other individuals appointed by the President. (Defs.’ 56.1 ¶ 41.) Plaintiff served on the PBA Contract Committee in approximately 1988 or 1989, and again beginning in October 2007 when he was appointed by PBA President John Cantanno. (Defs.’ 56.1 ¶¶ 42, 50.) At the time of plaintiffs appointment in October 2007, Cantanno had been the PBA President for 4-5 years, and plaintiff served on the Contract Committee with Police Officers Thomas Martini and Thomas Winters. (Defs.’ 56.1 ¶¶ 51-52.) Plaintiff served on this committee until his resignation in April 2008. (Defs.’ 56.1 ¶ 53.) Plaintiffs first involvement in the 2007 CBA negotiations occurred in or about November 2007, when plaintiff attended a contract negotiation session with the Village. (Defs.’ 56.1 ¶ 57.) The parties had not reached a new CBA by the time of plaintiffs resignation in April 2008. (Defs.’ 56.1 ¶ 69.) Plaintiff asserts that the reassignment of his loyalty from management to personnel came as a surprise to the Village Defendants. (Frisenda Decl. ¶ 15.) Specifically, plaintiff contends that, in front of other members of the PBA Contract Committee during the November 2007 negotiating meeting, Village Attorney James Frankie looked at plaintiff and said in an angry tone, “What is he doing here?” and Frankie was advised that plaintiff had been added to the committee. (Defs.’ 56.1 ¶¶ 58, 61.) According to Frankie, his comment at this daytime meeting was prompted by his concern that as to who was manning the front desk at the police station, since plaintiff typically worked as the daytime desk officer and was wearing his police uniform. (Defs.’ 56.1 ¶¶ 65-66.) Plaintiff asserts that Frankie, even after being advised that plaintiff was part of the Contract Committee, continued to display mannerisms indicating that he was angry with plaintiffs participation. (Pl.’s 56.1 ¶ 68.). Plaintiff further asserts that, on or about November 16, 2007, the Village received opposition to its motion for summary judgment in the lawsuit of Donovan v. The Incorporated Village of Malverne, No. 05-cv-3726, which included a declaration from PBA President Cantanno in which he stated that the Village had been threatening the PBA with respect to an issue that came up during the contract negotiations should the PBA members not unite with the trustees for the purpose of convincing Donovan to drop his lawsuit. (PL’s 56.1 ¶ 57.) In the months prior to the November 2007 negotiating session between the Village and the PBA, plaintiff was part of a group of the high-ranking MPD officers who were exploring the possibility of breaking off from the PBA and forming their own collective bargaining unit— called the Málveme Superior Officers Association (the “SOA”). (Defs.’ 56.1 ¶¶ 70-71.) The SOA was to consist solely of the Lieutenants and Sergeants of the MPD. (Defs.’ 56.1 ¶ 72.) Plaintiff and the other superior officers were in favor of creating this new bargaining unit, but first needed to see how contract issues with the Village would play out. (Defs.’ 56.1 ¶ 73.) According to plaintiff, all potential members of the SOA kept their efforts hidden from the PBA. (Frisenda Deck ¶ 14.) With regard to the proposed SOA, plaintiff and Sergeant Kid met with Chief Aresta and Trustee James J. Callahan III. (Defs.’ 56.1 ¶ 76.) According to plaintiff, Callahan indicated that the Village Board wanted to see the SOA get formed, but plaintiff would not proceed any further without having a CBA for the SOA to sign. (Defs.’ 56.1 ¶ 77.) A proposed CBA was circulated for the SOA, but plaintiff believed there were too many sticking points that could not be resolved. (Defs.’ 56.1 ¶ 78.) Plaintiff further asserts that the SOA would have left the PBA with less negotiating power, lower membership, and less individuals at the top. (Pl.’s 56.1 ¶ 76.) Plaintiff also contends that Chief Aresta told him that, if he could convince the other potential members to create the SOA, then the Village would create a new post (Deputy Inspector) for plaintiff, which would make plaintiff in second command of the MPD, involve more pay, and provide a more flexible schedule. (Pl.’s 56.1 ¶ 78.) According to plaintiff, he put an end to the SOA idea in either October or November 2007, at some point after a series of emails on October 16, 2007 between Sergeant Kid and plaintiff. (Defs.’ 56.1 ¶¶ 79-80; PL’s 56.1 ¶¶ 79-80.) In around the end of October or early November 2007, the proposed SOA members held a meeting and voted 5-1 against forming the SOA — with plaintiff, Sergeant Clements, Sergeant Engel, Sergeant Oddo, and Sergeant Moss voting against the formation of the SOA, and Sergeant Kid voting in favor of the formation of the SOA. (Defs.’ 56.1 ¶¶ 81-82; PL’s 56.1 ¶ 81.). According to plaintiff, although he did not notify the Village Board of the vote, he notified Chief Aresta, who was not happy about the vote and told plaintiff he was making a big mistake. (PL’s 56.1 ¶ 83.) Immediately prior to the vote, plaintiff also told PBA President Cantanno about the proposed SOA and Cantanno was angry about the situation. (Defs.’ 56.1 ¶¶ 84-85.) Article 14.0 of the CBA between the Village and the PBA, entitled “Special Days,” reads: “In the event that a ‘special day’ or holiday or day for special observance is declared by the President of the United States, the Governor of the State of New York or the Nassau County executive, a member who is on duty on that day shall be entitled to receive a compensatory time for such duty.” (Defs.’ 56.1 ¶ 86.) On December 7, 2007, Chief Aresta sent an email to all MPD members regarding the Department’s usage of “Special Days”— also referred to as “Green Days” — which stated: “It has come to my attention that members of this department have been receiving time in their ‘time returned’ bank under the name ‘Special Days’ or ‘Green Days’. Be advised that none of this time credited to individual’s records is authorized or valid. I have ordered Sergeant Stan Kid to expunge from each members records, that time which was incorrectly added.” (Defs.’ 56.1 ¶ 88.) Thus, Chief Aresta proceeded to take away the Special Days that had been credited to all MPD members. (Defs.’ 56.1 ¶ 89.) According to Trustee Callahan, the Village Board had long been concerned with the high amount of overtime being paid in the MPD. (Defs.’ 56.1 ¶ 9 1.) According to Chief Aresta, he first learned about the abuse of Special Days after finding a slip of paper on his copy machine that contained dates and names. (Defs.’ 56.1 ¶ 92.) Chief Aresta contends that he asked Sergeant Kid about the contents of the paper and Sergeant Kid, who was responsible for inputting time records in the MPD, told him that the slip of paper contained a list of Special Days for which the MPD officers were receiving credit, including days such as Haym Solomon Day, Child Health Day, and Harriet Tubman Day. (Defs.’ 56.1 ¶¶ 93-95.) According to defendants, PBA President Cantanno had given a list of Special Days to Sergeant Kid for input into the MPD attendance records. (Defs.’ 56.1 ¶ 96.) Defendants also assert that neither Chief Aresta nor the Board authorized these specific Special Days. (Defs.’ 56.1 ¶ 97.) Chief Aresta advised the Village Board in November or December 2007 that the Department’s use of “Special Days” had been a cause of the increase in overtime payments. (Defs.’ 56.1 ¶ 98.) Plaintiff disputes the timing of Chief Aresta’s knowledge regarding this practice and asserts that Chief Aresta had specific knowledge of the “Special Days” prior to December 2007 because Chief Aresta requested a cash, payroll reimbursement for the date of March 10, 2006, which was “Harriet Tubman Day,” and is contrary to the CBA because the CBA only allows time to be credited to a member’s time bank for use at a later date. (Pl.’s 56.1 ¶ 92.) Plaintiff also asserts that timekeeping oversight is, at all times, the responsibility of the timekeeper, who was Sergeant Kid, and Chief Aresta. (Pl.’s 56.1 ¶ 12.) By Board resolution of December 17, 2007, the Board commissioned an investigation into the MPD’s use of Special Days. (Defs.’ 56.1 ¶ 99.) The Village hired Thomas Nerney to perform the Special Days investigation. (Defs.’ 56.1 ¶ 100.) At the time, Village Mayor McDonald had known Nerney for approximately 30 years. (Defs.’ 56.1 ¶ 101.) Nerney retired from the New York Police Department (“NYPD”) after 36 years of service, 28 of which he worked as an NYPD detective, including in the NYPD’s Major Case Squad. (Defs.’ 56.1 ¶¶ 102-03.) Nerney had previously assisted the Village in rewriting portions of the MPD’s patrol guide. (Defs.’ 56.1 ¶ 104.) According to the defendants, Nerney interviewed all members of the MPD in January and February 2008. (Defs.’ 56.1 ¶¶ 105-06.) Defendants further assert that, at the request of the Village Board, Village Attorney Frankie assisted Nerney, schedule permitting, with the initial part of the investigation and attended some of the interviews. (Defs.’ 56.1 ¶ 107.) Plaintiff disputes the respective roles of Frankie and Nerney in the investigation. For example, plaintiff asserts that Frankie conducted and largely led the interviews for Sergeant Kid and plaintiff, and also participated in the interview of Police Officer John Cantanno. (PL’s 56.1 ¶ 105.) Plaintiff also disputes the timing of the interviews. Specifically, plaintiff contends that the interviews of the MPD members were conducted from December 2007— with Sergeant Kid being interviewed on December 21, 2007, and Police Officers Robert Lang and Vincent Esposito (PBA Vice President) being interviewed on December 27, 2007. (PL’s 56.1 ¶ 106.) On January 4, 2008, Nerney interviewed plaintiff, with plaintiffs PBA attorney, another PBA representative, and Village Attorney Frankie. (Defs.’ 56.1 ¶¶ 108-09.) Plaintiff concedes that he was not the only member of the MPD interviewed as part of the Special Days investigation. (PL’s’ 56.1 ¶ 110.) Plaintiff, however, contends that each member of the MPD was interviewed as a pretext to constructively terminating plaintiff. In particular, plaintiff asserts that, even after the investigators were presented with proof that Chief Aresta and Sergeant Kid were the individuals with authority over the use of Special Days and that Chief Aresta falsely stated that he had no knowledge of the use of Special Days, defendants continued to focus their investigation on plaintiff and Police Officer Cantanno. (Frisenda Deck ¶ 31; Latham Deck ¶¶ 14-15.) As an example, plaintiff notes that, when he attempted to demonstrate that Chief Aresta had knowledge of the “Special Days” issue prior to December 2007, Village Attorney Frankie responded by asking, “Ok, and this helps in my investigation how?” (Latham Decl. ¶ 15.) Plaintiff further notes that he was then reminded to turn over documents which related to his schedule (ie., memo book) and the use of Blood Days, discussed infra. (Latham Decl. ¶ 15.) Plaintiff asserts that he was treated differently during the interviews because: (1) out of the 21 interviews, plaintiff was one of a few MPD members required to take an oath, and (2) plaintiff was the only member instructed during the interview by the Village Attorney to produce his memo book as part of the investigation. (Latham Decl. ¶¶ 12,16.) Nerney prepared a report, dated March 12, 2008, summarizing his findings in the Special Days investigation. (Defs.’ 56.1 ¶ 113.) The Village did not charge anyone in connection with the abuse of Special Days, but rather simply took back the days that had been credited to all of the officers. (Defs.’ 56.1 ¶ 115.) Around the same time in 2007 that the Special Days issue was presented to the Village Board, the Village also directed that an investigation be conducted into the MPD members’ use of Blood Days. (Defs.’ 56.1 ¶ 116.) In particular, on December 17, 2007, the Village Board directed Chief Aresta to determine whether any MPD members had been improperly using Blood Days. (Defs.’ 56.1 ¶ 117.) Blood Days refer to the practice where Department members received 12 hours of compensatory time for donating blood. (Defs.’ 56.1 ¶ 118.) The Village Board also asked Village Attorney Frankie to investigate issues such as whether anyone in the MPD was donating blood on department time, whether it was being done outside the Village, and whether it was sanctioned. (Defs.’ 56.1 ¶ 119.) On December 18, 2007, Chief Aresta sent an e-mail to all members of the MPD regarding blood donations, which stated: “The Board of Trustee has recently learned that members of this Department have been receiving time returned for blood donations. As time returned is not available for blood donations, effective immediately all time returned that a member has received since January 1, 2002 will be removed from each member’s time records.” (Defs.’ 56.1 ¶¶ 120-21.) While the CBA did not authorize Blood Days, plaintiff believes it was a practice that had been going on in the department for some time. (Defs.’ 56.1 ¶ 122.) Plaintiff understood a Blood Day as, “[i]f we donate blood, we receive 12 hours credit for it on the books for the blood donation.” (Defs.’ 56.1 ¶ 123.) Village Attorney Frankie (“Frankie”) looked at the blood donation records of all members of the MPD. (Defs.’ 56.1 ¶ 124.) Plaintiff did not know if the entire MPD was investigated about their use of blood donation days, but he was aware that he and some other MPD members were being investigated. (Defs.’ 56.1 ¶ 125.) Plaintiff had never seen anywhere in writing that anyone was specifically targeting him through the blood days investigation. (Defs.’ 56.1 ¶ 126.) Upon review of the relevant records, Frankie learned that plaintiff and 1-2 other MPD officers had donated blood while on duty. (Defs.’ 56.1 ¶ 127.) With respect to the individuals other than plaintiff who were found to have donated blood on department time, the incidents occurred years prior and the Village believed that any disciplinary charges would have been untimely. (Defs.’ 56.1 ¶ 128.) On December 30, 2007, plaintiff wrote a memorandum to Chief Aresta to detail problems that he had perceived in the MPD. (Defs.’ 56.1 ¶ 160.) The items set forth in plaintiffs December 30, 2007 Memorandum were things he came to learn as part of his duties and responsibilities in the MPD. (Defs.’ 56.1 ¶ 161.) It was part of plaintiffs job duties to take corrective or disciplinary action towards subordinates who committed improper conduct. (Defs.’ 56.1 ¶ 162.) Plaintiffs December 30, 2007 Memorandum details that he spoke to the officers involved in the incident described in plaintiffs Memorandum and recommended that the Village have one of the officers retrained. (Defs.’ 56.1 ¶ 163.) Plaintiff also wrote that he felt the enactment of a Procedure Manual was warranted and that communication was lacking in the police department as Chief Aresta (“Aresta”) had not called an officer’s meeting in two years. (Defs.’ 56.1 ¶ 164.) On January 4, 2008, Frankie questioned plaintiff regarding his use of blood donation days and plaintiff admitted leaving the Village while on duty to go donate blood. (Defs.’ 56.1 ¶¶ 129,131.) On multiple occasions, plaintiff would take a police vehicle and leave the Village of Málveme while on duty in order to donate blood, sometimes going to the neighboring Incorporated Village of Rockville Centre. (Defs.’ 56.1 ¶ 132.) Rockville Centre is located a couple of miles from the Village and requires passing through the Incorporated Village of Lynbrook. (Defs.’ 56.1 ¶ 135.) Although plaintiff asserts that Rockville Centre from Málveme is mere minutes away, defendants dispute that and point to evidence that it can take 10-15 minutes to get there because of traffic. (Defs.’ 56.1 ¶ 136; PL’s 56.1 ¶ 132.) Village Attorney Frankie gave an oral report to the Board as to his findings. (PL’s 56.1 ¶ 139.) Although defendants assert that the investigation revealed that plaintiff had violated Department regulations and had been abusing the blood donation day practice, plaintiff disputes that his conduct was against regulations or was an abuse. (Defs.’ 56.1 ¶ 130; PL’s 56.1 ¶ 130.) In particular, plaintiff points to the following evidence to dispute this contention: (1) Village Attorney Frankie stated that to his knowledge there are no regulations that require members of the MPD to stay within the Village during lunch breaks; (2) plaintiff stated under oath that, while in service in the MPD since 1981, it has been the regular practice for members of the MPD to leave the Village of Málveme while on duty, in police vehicles, during their break, and no other officer was disciplined for that kind of use of department vehicles and at one point it was even encouraged by a former Chief of Police; (3) when combined, the authorized break period for a member of the MPD during one shift, can equal one hour and forty-five minutes; (4) Police Officer Donovan testified that, if a member of the MPD was on break, then he or she was permitted to leave the confines of the Village in order to donate blood; (5) during Police Officer John Cantanno’s interview, during the Special Day/Blood Day investigation, he told Mr. Frankie and Mr. Nerney that he was once told, by desk officer Sergeant Stanley Kid, that he had left early to donate blood; (6) according to plaintiff, defendants did not investigate Sergeant Kid’s blood donation, and he was promoted to Lieutenant less than one month after plaintiff resigned; (7) defendant Aresta could not recall if Sergeant Kid was investigated for having donated blood twice in less than 56 days, despite that blood can only be donated once every 56 days; (8) John Donovan was also credited for two blood days within a 56-day period, but was not investigated for having done so; (9) the Village of Málveme hires its graduates from the Basic Police Training Course, administered by the Nassau County Police Department, and (according to plaintiff) the accepted practice of the Academy is to allow recruits to donate blood while on duty and this practice was made known to the Village Board during the Blood Days investigation; and (10) the Village Board, by statute or by means of the CBA, did not expressly prohibit officers from donating blood while on duty. (PL’s 56.1 ¶¶ 130-131,133.) According to the Village, it was concerned that plaintiff had left the confínes of the Village while on duty, using a Village vehicle, and going to donate blood, which would result in him being less than 100% fit to respond to a call (while carrying a gun) and potentially even unavailable in the event of an emergency situation. (Defs.’ 56.1 ¶ 137.) The Mayor also believed that, as a supervisor, plaintiff was expected to uphold department regulations. (Defs.’ 56.1 ¶ 138.) Again, plaintiff disputes that these were the real concerns of the Village and the Mayor, but rather asserts that it was retaliatory because of his First Amendment activities. On the issue of being able to perform his duties while donating blood, plaintiff asserts that he was no less fit to perform his duties as Lieutenant after donating blood because his duties were primarily administrative in nature, and typically required him to stay in the station house, at a desk, receiving incoming calls and dispatching ears. (PL’s 56.1 ¶ 137.) Plaintiff also asserts that at least one other officer donated blood prior to coming on duty, which raises the same concerns about fitness to perform duties, and another officer testified that they sometimes have blood drives at the MPD. (PL’s 56.1 ¶ 137.) On March 7, 2008, plaintiff testified at the trial in Donovan v. The Incorporated Village of Malverne, No. 05-cv-3726. (Defs.’ 56.1 ¶ 183.) MPD Police Officer John Donovan had brought that lawsuit in August 2005, alleging that the Village did not promote him because of his membership in the PBA. (Defs.’ 56.1 ¶ 172.) Plaintiff does not recall if Donovan was a member of the PBA Board or on the contract committee. (Defs.’ 56.1 ¶ 173.) Plaintiff offered to testify on behalf of Donovan in the lawsuit and, in November 2006, plaintiff was deposed in that case. (Defs.’ 56.1 ¶¶ 174-75.) Plaintiff believes that he did not get promoted to Chief in 2006 because of his deposition testimony. (Defs.’ 56.1 ¶ 176.) No Board members told plaintiff that they were unhappy that he was testifying and assisting Donovan in his lawsuit, but plaintiff claims that Chief Aresta mentioned the Donovan lawsuit to him a couple of times. (Defs.’ 56.1 ¶¶ 177-78.) According to plaintiff, in October or November 2007, plaintiff told Aresta, “I’m aware that Donovan’s case is coming up and they’re not happy about that.” (Defs.’ 56.1 ¶ 179.) According to plaintiff, Aresta responded, “[t]hat’s your choice,” which plaintiff understood as a choice between participating in the Donovan lawsuit thereby facing retaliation from the Village Board, or removing himself from that lawsuit to gain favor with the Village Board. (Defs.’ 56.1 ¶ 180; PL’s 56.1 ¶ 180.) Plaintiff further claims that, in or about 2006, Aresta (then a Lieutenant) and plaintiff (also a Lieutenant) discussed who would take over running the police department after Chief Jacobsen had been fired. (Defs.’ 56.1 ¶ 181.) According to plaintiff, Aresta discussed that plaintiff was a witness in the Donovan case, and plaintiff felt it was obvious the Board had no interest in having plaintiff take over the department. (PL’s 56.1 ¶ 182.) Other than the deposition and trial testimony, plaintiff played no role in the Donovan lawsuit. (Defs.’ 56.1 ¶ 184.) Defendants point out that plaintiff was not demoted after participating in the Donovan lawsuit, and did not lose salary or get assigned different job responsibilities or duties after participating in that lawsuit. (Defs.’ 56.1 ¶¶ 185-86.) However, plaintiff claims that he was not considered for a promotion because of his participation in the Donovan lawsuit. (PL’s 56.1 ¶ 185.) Moreover, plaintiff asserts that defendants continued to harass him immediately after his testimony in the Donovan trial on March 7, 2008. (PL’s 56.1 ¶ 187.) In particular, plaintiff asserts that, on March 11, 2008, the jury in the Donovan lawsuit returned a verdict in favor of the Village and, on March 13, 2008, defendant McDonald met with defendants Aresta and Frankie in the MPD for the purpose of discussing disciplinary action to be taken against plaintiff. (PL’s 56.1 ¶ 187.) According to plaintiff, when he appeared for questioning on March 14, 2008, as ordered, defendants Frankie and Aresta harassed plaintiff by asking him questions about various days on which he donated blood, why these activities did not appear in plaintiff’s memo book, and generally questioning the veracity of plaintiffs whereabouts on those particular days. (PL’s 56.1 ¶ 187.) Plaintiff submitted a letter of resignation dated March 19, 2008. (Defs.’ 56.1 ¶ 140.) Plaintiff consulted with his attorney before resigning in March 2008 and his attorney told him that disciplinary charges would be forthcoming. (Defs.’ 56.1 ¶¶ 141-42.) The Village Attorney advised the Board that there were multiple charges that the Village could bring against plaintiff and wanted to discuss a plea bargain. (Defs.’ 56.1 ¶ 143.) In particular, the Village Attorney believed that the Village could have charged plaintiff with numerous charges for things such as giving blood on Village time, leaving the police department understaffed, and participating in a Village running race while on duty. (Defs.’ 56.1 ¶ 144.) Plaintiff negotiated a written, signed plea agreement with the Village whereby he agreed to plead guilty to a single disciplinary charge and forfeited ten vacation days. The Village felt that since plaintiff was retiring, the plea agreement only needed to contain a single charge. (Defs.’ 56.1 ¶ 145.) The sole disciplinary charge accused plaintiff of Violating Article 6, Section 8(5) of the MPD’s Rules and Regulations, as follows: “[Plaintiff], on or about October 31, 2006 at approximately 1600 hours while on scheduled duty for the Málveme Police Department left the confines of the Village of Málveme without permission, authority or police necessity.” (Defs.’ 56.1 ¶ 147.) Before signing the negotiated plea agreement, plaintiff understood that he was waiving his right to a disciplinary hearing and to confront and present witnesses. (Defs.’ 56.1 ¶ 148.) Plaintiff asserts that he submitted his resignation because the Village was attempting to force his resignation by bringing disciplinary charges against him and placing him in fear of losing his pension if found guilty of the disciplinary charges. (Pl.’s 56.1 ¶ 140.) Plaintiff also disputes the implication that he was guilty of any of the proposed charges that the Village Attorney threatened to bring because, as discussed above, plaintiff asserts that the MPD often encouraged police officers to engage in these activities and held blood drives at the MPD building itself. (Pl.’s 56.1 ¶ 144.) Plaintiff further contends that he waived his right to a disciplinary hearing because he was being constructively discharged, and did not believe he would get a “fair shake” from the Village Board if he fought the charge. (Pl.’s 56.1 ¶¶ 148-49.) In addition, as noted above, plaintiff asserts other officers were disciplined differently by the Village Board, including two officers who (according to plaintiff) let a prisoner escape from custody and were never disciplined in any way. (PL’s 56.1 ¶ 149.) The PBA filed a grievance over the Special Days issue. (Defs.’ 56.1 ¶ 165.) In November 2008, approximately six months after plaintiffs resignation, the arbitrator found in the Village’s favor on the Special Days grievance. (Defs.’ 56.1 ¶ 166.) The arbitrator found that Cantanno improperly told Sergeant Kid to modify Village records to support his view that the days at issue qualified as Special Days. (Defs.’ 56.1 ¶ 167.) Cantanno was not disciplined for his role in the Special Days investigation. (Defs.’ 56.1 ¶ 168.) The PBA also filed a grievance on the Blood Days issue. (Defs.’ 56.1 ¶ 169.) The PBA won the grievance in November 2008, as the arbitrator found that the Blood Days were not authorized in the CBA, but that the Village’s practice of time returned constituted a “past practice” that could not be summarily taken away. (Defs.’ 56.1 ¶ 170.) There is no finding in the arbitration decision as to whether or not plaintiff had abused the Blood Days as alleged. (Defs.’ 56.1 ¶ 171.) II. Procedural History Frisenda filed the complaint in this action on October 15, 2008. Defendants answered the complaint on January 6, 2009. On April 27, 2010, defendants submitted their motion for summary judgment. Plaintiff submitted his opposition on July 30, 2010. Defendants submitted their reply on August 12, 2010. The Court held oral argument on September 9, 2010. On September 14, 2010, counsel for defendants submitted a letter to address an issue raised at oral argument. The Court has fully considered the submissions of the parties. III. Standard of Review The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Globecon Grp., LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir.2006). “The moving party bears the burden of showing that he or she is entitled to summary judgment.” See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2004). The Court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment is unwarranted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”). Once the moving party has met its burden, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.... The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (emphasis in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties will not defeat a properly supported motion for summary judgment.” Id. at 247-48, 106 S.Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth “concrete particulars” showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (internal quotations omitted). Accordingly, it is insufficient for a party opposing summary judgment “merely to assert a conclusion without supplying supporting arguments or facts.” BellSouth Telecommc’ns, Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996). IY. Discussion As stated supra, plaintiff brings his First Amendment retaliation and equal protection claims pursuant to Section 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). For claims under Section 1983, a plaintiff must prove that “(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States.” Snider v. Dy- lag, 188 F.3d 51, 53 (2d Cir.1999) (citation omitted). Here, for purposes of this motion, the parties do not dispute that defendants were acting under color of state law. The question presented, therefore, is whether defendants’ conduct deprived Frisenda of the rights he asserts under the First Amendment and under the Equal Protection Clause. A. First Amendment Retaliation Claim Plaintiff claims that he was retaliated against for three types of First Amendment activity: (1) his membership and participation in the Málveme Police Benevolent Association; (2) his involvement as a witness in a federal lawsuit filed by another Málveme police officer alleging retaliation; and (3) a December 2007 memo written by plaintiff to the Village Board and Chief of Police regarding what plaintiff believed was a failure by members of the Málveme Police Department to follow procedure in responding to a particular emergency situation. The Second Circuit has “described the elements of a First Amendment retaliation claim in several ways, depending on the factual context.” Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008). Where, as here, a public employee brings a retaliation claim based on the First Amendment, a plaintiff must put forth evidence that demonstrates the following in order to establish a prima facie case: “(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 decisión.” Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir.2006), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138, 140 (2d Cir.2008). However, defendants may still “escape liability if they can demonstrate that either (1) the defendant would have taken the same adverse action against the plaintiff regardless of the plaintiffs speech; or (2) the plaintiffs expression was likely to disrupt the government’s activities and that the harm caused by the disruption outweighs the value of the plaintiffs expression.” Id. The latter is known as the “Pickering balancing test” and is a question of law for the Court. See Cobb v. Pozzi, 363 F.3d 89, 101-02 (2d Cir.2004) (referring to Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Even if the government prevails on the Pickering test, plaintiff may still succeed by showing that the adverse action was in fact motivated by retaliation and not by any fear of a resultant disruption. See Reuland v. Hynes, 460 F.3d 409, 415 (2d Cir. 2006). Defendants contend that plaintiffs First Amendment retaliation claim cannot survive summary judgment on several grounds: (1) plaintiffs December 30, 2007 memo was not protected speech; (2) plaintiff did not suffer an adverse employment action; and (3) plaintiff has not established that his speech was a substantial or motivating factor in any adverse employment action. (Defs.’ Mem. of Law at 3-12.) Defendants further argue that, even if plaintiff is able to sustain a prima facie claim, his claim cannot survive summary judgment because defendants have shown that defendants would have taken the same action regardless of the allegedly protected conduct. (Defs.’ Mem. of Law at 13-15.) After careful consideration of the record under the applicable summary judgment standard, the Court finds that summary judgment on the First Amendment retaliation claim is unwarranted. 1. The Protected Speech Issue Defendants argue that the December 30, 2007 memorandum written to the MPD Police Chief Aresta, in which he pointed out certain MPD procedures that he believed created dangerous circumstances, cannot as a matter of law constitute protected speech for purposes of a First Amendment retaliation claim. In particular, defendants argue that the memo involved unprotected speech as a public employee, pursuant to his official duties, rather than protected speech as a private citizen. As set forth below, the Court agrees. However, plaintiff has set forth evidence of two other types of conduct in which he engaged — namely, participating in union activity and providing testimony in another employee’s retaliation lawsuit — that both constitute protected speech that can form the basis for a retaliation claim. Thus, summary judgment on this ground as to those other categories of speech is unwarranted. As the Second Circuit recently emphasized, “[i]t is established law in this Circuit that, ‘[rjegardless of the factual context, we have required a plaintiff alleging retaliation to establish speech protected by the First Amendment.’ ” Sousa v. Roque, 578 F.3d 164, 169-70 (2d Cir.2009) (quoting Williams, 535 F.3d at 76). More specifically, “[t]o determine whether or not a plaintiffs speech is protected, a court must begin by asking ‘whether the employee spoke as a citizen on a matter of public concern.’ ” Id. at 170 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). It is critical to note that this test contains two separate requirements — namely, (1) that the employee speak as a citizen, and (2) that the employee speak on a matter of public concern. If either of these requirements is not met, then plaintiffs First Amendment retaliation claim must fail as a matter of law. See id. (“If the court determines that the plaintiff either did not speak as a citizen or did not speak on a matter of public concern, ‘the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.’ ” (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951)). In Garcetti v. Ceballos, the United States Supreme Court clarified the threshold inquiry for a First Amendment retaliation claim in the public employment context. To determine whether the speech at issue is constitutionally protected, the court must first decide whether the plaintiff was speaking as a “citizen,” rather than as a public employee. 547 U.S. at 421, 126 S.Ct. 1951. “If the answer is ‘no,’ then no First Amendment claim arises, and that ends the matter.” Caraccilo v. Vill. of Seneca Falls, N.Y., 582 F.Supp.2d 390, 405 (W.D.N.Y.2008). In Garcetti the Supreme Court explained that: [r]estricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. 547 U.S. at 421-22, 126 S.Ct. 1951. By expressly holding that speech pursuant to a public employee’s official duties is not insulated from employer discipline, Garcetti emphasized the dual nature of the threshold inquiry into the status of speech; it first directs a court’s attention to the role that the speaker occupied, requiring that “before asking whether the subject-matter of particular speech is a topic of public concern, the court must decide whether the plaintiff was speaking ‘as a citizen’ or as part of [his] public job.” Mills v. City of Evansville, 452 F.3d 646, 647 (7th Cir.2006); see also Weintraub v. Bd. of Educ. of City of New York, 489 F.Supp.2d 209, 214 (E.D.N.Y.2007) (noting that Garcetti made clear that, in addition to the “public concern” element, there is a “new and independent element of a claim of First Amendment retaliation — that the public employee’s speech was made in the employee’s capacity as a private citizen rather than as an employee, a criterion that is never satisfied when the employee speech at issue was made pursuant to the employee’s official duties.”); Benvenisti v. City of New York, No. 04 Civ. 3166(JGK), 2006 WL 2777274, at *7 (S.D.N.Y. Sept. 23, 2006) (“First, the Court must determine whether the plaintiff was speaking as a ‘citizen’ for First Amendment purposes. After that, the Court must turn to the traditional [Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)] analysis and ask whether, viewing the record as a whole and based on the content, context, and form of a given statement, the plaintiff’s speech was made as a citizen upon ‘matters of public concern.’ ” (citations omitted)). Garcetti however, did not “articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate.” 547 U.S. at 424, 126 S.Ct. 1951. In that case, there was no dispute that the plaintiff, a deputy district attorney and calendar deputy with certain supervisory responsibilities over other lawyers, wrote the memorandum at issue, which recommended dismissal of a case based on misrepresentations found in an affidavit, pursuant to his employment duties. Id. at 421, 126 S.Ct. 1951; accord Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127 (9th Cir.2008). Although the Supreme Court did not set forth specific criteria for determining when speech is made pursuant to an employee’s officials duties, it instructed that the inquiry “is a practical one[,]” because “the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.” Garcetti 547 U.S. at 424-25, 126 S.Ct. 1951. It also noted that speech by a public employee retains some possibility of First Amendment protection when it “is the kind of activity engaged in by citizens who do not work for the government.” Id. at 423, 126 S.Ct. 1951 (emphasis added). To illustrate its point by way of comparison, Garcetti “also listfed] examples of prototypical protected speech by public employees, namely ‘mak[ing] a public statement, discussing] politics with a coworker, writing] a letter to newspapers or legislators, or otherwise speaking] as a citizen.’ ” Davis v. McKinney, 518 F.3d 304, 812 (5th Cir.2008) (quoting Spiegla v. Hull, 481 F.3d 961, 967 (7th Cir.2007)). Since Garcetti, some lower courts have developed more guidelines for determining whether speech is made pursuant to a public employee’s official duties. Although none of the following factors are dispositive, they may be considered by the Court: “the plaintiffs job description;” the persons to whom the speech was directed; and “whether the speech resulted from special knowledge gained through the plaintiffs employment.” See Caraccilo, 582 F.Supp.2d at 405. As indicated by Garcetti two relevant factors that, considered in isolation, are not dispositive are whether the speech occurs in the workplace and whether the speech concerns the subject matter of the employee’s job. See 547 U.S. at 420-21, 126 S.Ct. 1951; accord Abdur-Rahman v. Walker, 567 F.3d 1278, 1282 (11th Cir.2009). Again, in general, “[although there is no simple checklist or formula by which to determine whether the employee was speaking as a private citizen or as a public employee ... ‘the cases distinguish between speech that is the kind of activity engaged in by citizens who do not work for the government and activities undertaken in the course of performing one’s job.’ ” Caraccilo, 582 F.Supp.2d at 410 (quoting Davis, 518 F.3d at 312-13). a. The December 30 Memorandum As set forth below, after careful consideration of the underlying undisputed facts, the Court concludes that plaintiffs speech contained in the December 30 Memorandum was made in his capacity as a Lieutenant in the MPD, not as a citizen. Consequently, plaintiffs speech in the December 30 Memorandum does not fall within the ambit of First Amendment protection. First, it is undisputed that the subject matter of plaintiffs speech in the December 30 Memorandum related to his employment. Specifically, the Memorandum sought to address plaintiffs belief that “[t]here are currently serious communications problems within the Málveme Police Department, leading to potentially dangerous situations and exposing the village to legal liability.” (Kleinberg Deck, Ex. DD, at 1.) In fact, not only did the Memorandum relate to plaintiffs job, but rather it pertained to a core function — namely, communications between police officers in investigating, and responding to, calls for police assistance. Thus, the Memorandum certainly related to his employment. Second, there is no question that plaintiffs speech, in the form of this Memorandum, was only made internally within the MPD. The Memorandum was addressed to Chief John Aresta, and was “cc’d” to the Board of Police Commissioners. There is no indication that plaintiff circulated this Memorandum outside the MPD, or spoke to anyone outside the MPD about the communications issues raised in the Memorandum. See, e.g., Healy v. City of New York Dep’t of Sanitation, 286 Fed.Appx. 744, 746 (2d Cir.2008) (affirming summary judgment for defendant and holding that report of corruption was made within scope of official duties where, inter alia, the plaintiff uncovered the corruption while performing an assigned task and there was no evidence of external communications). Third, it is undisputed that the issues raised in the Memorandum were things that he came to learn as part of his duties and responsibilities in the MPD. See Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir.2007). Specifically, the Memorandum describes in great detail things that plaintiff observed, including specific incidents, during the course of his duties that he believed demonstrated a failure to communicate among MPD officers. In fact, plaintiff conceded this fact in his opposition by noting, “[t]o be sure, the December Memo did contain descriptions of actions taken by Plaintiff that were within the scope of Plaintiffs duties and that he probably would not have learned otherwise.” (PL’s Opp. at 11.) Again, the Court recognizes that none of the aforementioned factors, including the motivation by the plaintiff in engaging in the speech, is dispositive. See, e.g., Caraccilo, 582 F.Supp.2d at 412 (“[T]he fact that plaintiffs speech to these officials may have related in some way to her job is not dispositive of whether it was made pursuant to her job duties or that it was unprotected[.]” (emphasis in original)); Davis, 518 F.3d at 313 n. 3 (“We recognize that it is not dispositive that a public employee’s statements are made internally.”). However, taken together, all of these undisputed facts paint a clear picture of an employee speaking out about his views regarding how best to perform his job duties, rather than of someone attempting to make a “contribution[ ] to the civic discourse.” Garcetti, 547 U.S. at 422, 126 S.Ct. 1951. Far from resembling anything close to “activity engaged in by citizens who do not work for the government[,]” id. at 423, 126 S.Ct. 1951, plaintiffs speech was rather “a means to fulfill his employment requirements.” Renken v. Gregory, 541 F.3d 769, 774 (7th Cir.2008). Accordingly, under the particular circumstances of this case, the speech is not properly subject to the protections of the First Amendment. Cf., e.g., Caraccilo, 582 F.Supp.2d at 411 (finding that speech was made as a public employee where the speech was directed at other members of the local government and concerned matters relating to the plaintiffs job duties, and distinguishing that speech from an affidavit that plaintiff signed “in connection with a citizen’s Article 78 proceeding,” which was found to be speech made as a citizen). The Court finds plaintiffs arguments in response to these undisputed facts to be unpersuasive. For example, plaintiff argues that sending a memorandum of this type to the Chief of Police and Village Board are not within the scope of his job duties, and the recipients are not required to respond to such memorandum. As a threshold matter, the Court notes that it is undisputed that it is part of his job duties to take corrective or disciplinary action towards subordinates who commit improper conduct, which was the subject of the Memorandum. (Defs.’ 56.1 ¶ 162.) In any event, the critical issue is not whether the Memorandum was required as part of his formal job description. In other words, even if the statements were not an explicit requirement of plaintiffs job, such would not automatically render the speech protected. As the Second Circuit concluded in Weintraub v. Board of Education of the City of New York, 593 F.3d 196, 203 (2d Cir.2010), and joining other circuits who had reached the same conclusion, “under the First Amendment, speech can be ‘pursuant to’ a public employee’s official duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer.” Thus, in Weintraub, the Court held that the plaintiffs “grievance was ‘pursuant to’ his official duties because it was ‘part-and-parcel of his concerns’ about his ability to ‘properly execute his duties.’ ” Id. (quoting Williams, 480 F.3d at 694); see also Fox v. Traverse City Area Pub. Schs. Bd. of Educ., 605 F.3d 345, 349 (6th Cir.2010) (“It is clear — without any intricate parsing of [plaintiffs] job description — that her complaint about class size owes its existence to her responsibilities as a special education teacher.” (quotation marks omitted)); see also Hickey v. Myers, No. 09-CV-307, 2010 WL 786459, at *7 (N.D.N.Y. Mar. 2, 2010) (plaintiffs speech as Dean was not protected under First Amendment because his “complaints about the fraudulent admission policies directly affected Plaintiffs ability to properly execute his job as Dean”). Here, plaintiff was a Lieutenant, which is the highest ranking MPD officer below the Chief, and thus was reporting to the next person in his direct chain-of-command a matter that he had observed during his employment and that related directly to the performance of lower-ranking MPD police officers. There is absolutely no question that this communication was prompted by his concerns about his ability, and the ability of other officers, to properly execute their duties as police officers. Thus, this type of communication falls squarely within the scope of speech as a public employee under Garcetti. Moreover, the fact that plaintiff also copied the Memorandum to next level of supervision (i.e., the Village Board) does not alter the analysis in this case. The fact that plaintiff not only expressed the grievance to his immediate supervisor, but also to the entity ultimately responsible for the proper functioning of the police department is simply further evidence that this speech was not citizen speech; rather, the Memorandum — whether required or not— was clearly pursuant to his duties as a police officer. See, e.g., White v. Sch. Bd. of Hillsborough Cnty., No. 8:06-CV-1626-T27MAP, 2008 WL 227990, at *5 (M.D.Fla. Jan. 25, 2008) (holding that letter that was copied to the school’s Board of Directors was written pursuant to her duties and was not protected speech); see also Knight v. Drye, 375 Fed.Appx. 280, 282 (3d Cir. 2010) (police officer’s “complaint up the chain of command to [another officer] and [the Police Chief] is not speech protected by the First Amendment”); Conard v. Pa. State Police, 360 Fed.Appx. 337, 339-40 (3d Cir.2010) (the fact that plaintiff broke the chain of command to report misconduct to a higher level supervisor, and the fact that it was outside her job description, did not alter conclusion that the statements were made as a public employee during course of her official duties); Winder v. Erste, 566 F.3d 209, 215 (D.C.Cir. 2009) (“In our cases applying Garcetti, we have consistently held that a public employee speaks without First Amendment protection when he reports conduct that interferes with his job responsibilities, even if the report is made outside his chain of command.”); Akins v. Fulton Cnty., Ga., 278 Fed.Appx. 964, 971 (11th Cir. 2008) (“That the plaintiffs had no affirmative duty to go outside the formal chain of command and directly report these bid irregularities to [the Commissioner], or any other commissioner, does not convert their speech to that of a private citizen.”); Fulmer v. Pennsylvania, No. 2:08cv1630, 2011 WL 915846, at *9 (W.D.Pa. Mar. 16, 2011) (“Plaintiff [police officer’s] speech was made to superiors who are charged with the duty of investigating internal complaints and regulating employee conduct. It was disseminated to those whose job it was to gather such information and pass it up the chain-of-eommand. As such, the speech was given in a setting designed to uncover the truth about the conduct of fellow officers and provide appropriate official response or discipline. Speech given to such individuals in such a setting is not designed to disseminate the information to the public.”). Thus, plaintiffs argument that the Memorandum was not written within the scope of plaintiffs duties as a Lieutenant is simply without merit. Plaintiffs argument regarding where he wrote the letter is similarly unavailing. The fact that the plaintiff claims to have written the Memorandum at his home does not, by itself, magically transform speech as an employee into speech as a private citizen. In other words, when all of the other undisputed facts point to the speech as a public employee, the location where the internal Memorandum was written does not alter the fundamental nature of the speech, which was made in connection with, and during the course of, plaintiffs job duties. In sum, given the undisputed facts— including, among other things, that (1) all of the actions described in the Memorandum occurred in the workplace; (2) plaintiff learned of the actions during the course of his job performance; (3) the actions related to the subject matter of plaintiffs job and the ability of MPD officers to effectively execute their jobs; and (4) the Memorandum was an internal Memorandum up to the chain-of-command to the Chief and the Village Board-the Memorandum was made pursuant to plaintiffs official duties and, under Garcetti cannot give rise to a First Amendment retaliation claim. b. Plaintiffs Membership and Participation in the PBA In addition to asserting that his December 30 Memorandum was protected speech, plaintiff asserts that his membership and participation in the Málveme Police Benevolent Association is protected activity under the First Amendment. As set forth below, the Court agrees with plaintiff that such conduct, as a matter of law, constitutes protected activity for purposes of a First Amendment retaliation. The Second Circuit has held that “[t]here is no doubt that retaliation against public employees solely for their union activities violates the First Amendment.” Clue v. Johnson, 179 F.3d 57, 60 (2d Cir. 1999). Therefore, an employee’s association with a union, as well as any speech that arises from his or her position in a union, is constitutionally protected under the First Amendment. See, e.g., Heffernan v. Straub, 612 F.Supp.2d 313, 328 (S.D.N.Y.2009); Donovan v. Inc. Vill. of Malverne, 547 F.Supp.2d 210, 218 (E.D.N.Y.2008). In the instant case, plaintiff has put forth evidence that he was an active member of the PBA over the course of his employment at the MPD including, among other things, joining in its campaign activities in 2005. More specifically, plaintiff has asserted that defendants were upset with his union-related activities in or about November 2007, including his participation in a CBA negotiating meeting with the Village after being appointed to the PBA Contract Committee, and the fact that he withdrew his support for the creation of the SOA and voted against it because he believed it was supported by the Village to weaken the ranks of the PBA. If such evidence is credited, the Court concludes that such union activities and union speech by plaintiff would satisfy the first element of a prima, facie case for a First Amendment retaliation claim — namely, the “protected speech” requirement. Thus, any attempt by defendants to obtain summary judgment on this ground as to this alleged activity/speech is denied. c. Plaintiffs Involvement in the John Donovan Lawsuit Finally, plaintiff also argues that his involvement in the John Donovan lawsuit constitutes protected speech for purposes of a First Amendment retaliation claim. As set forth below, the Court agrees. The Second Circuit has held that “Voluntarily appearing as a witness in a public proceeding or a lawsuit is a kind of speech that is protected by the First Amendment.” Kaluczky v. City of White Plains, 57 F.3d 2