MEMORANDUM OPINION AND ORDER

JOHN S. MARTIN, Jr., District Judge:

Samara Swanston ("Plaintiff") brings this employment discrimination action against the State of New York, the State of New York Department of Environmental Conservation (the "DEC"), John Cahill ("Cahill"), as Acting Commissioner of the DEC, and Charles Sullivan, Jr. ("Sullivan"), as Bureau Chief of the DEC (collectively "Defendants"), alleging that her termination from employment as an attorney with the DEC violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. ("Title VII"), the First Amendment, and various provisions of the New York Human Rights Law. Defendants move for summary judgment claiming that Plaintiff was fired because she violated the DEC's conflict-of-interest policy. For the reasons set forth below, Defendants' motion is granted.

BACKGROUND

Plaintiff is a lawyer who was hired by the DEC in 1993 as an Assistant Counsel and Field Unit Leader of the Eastern Field Unit, based in Tarrytown. Plaintiff identifies herself as a female of African-American descent. At the time she was hired, she was the only minority in a Field Unit Leader position, and the number of minorities in supervisory positions within the DEC today remains extremely low. During the month of September 1995, following Governor Pataki's election, a series of terminations occurred at the DEC. Plaintiff was terminated and reinstated two times that month.

During the period after the second notice of termination, Plaintiff performed legal work for a group of Native Americans, known as the Traditional People of the Oneida Nation (the "Traditional People"), in the course of an administrative appeal before the United States Department of the Interior. The Traditional People were involved in an ongoing dispute with the recognized leader of the Oneida Nation, Mr. Halbritter, and sought to challenge a lease agreement entered into by Mr. Halbritter and approved by the Department of the Interior.

While on the DEC payroll, Plaintiff signed an affidavit as the attorney for the Traditional People. She did not obtain prior approval from the DEC for her work for the Traditional People. Plaintiff maintains that she believed that she was no longer employed by the DEC and that she would not be re-hired. On or about September 22, 1995, Plaintiff received an offer to return to her position, and she accepted without disclosing the work that she had performed on the Traditional People's behalf.

During Plaintiff's employment at the DEC, she worked on a matter involving the town of Beekman, which was believed to be responsible for pollution in its water supply. Plaintiff, on behalf of the DEC, engaged in negotiations seeking to force the town to remedy the pollution. Plaintiff disagreed with various aspects of how the Beekman negotiations were being handled by the DEC. She believed that the town of Beekman was treated too leniently, due to the fact that it was represented by attorneys who had formerly been with the same law firm as Governor Pataki and Acting Commissioner Cahill. During one particularly objectionable meeting, the town's engineer circulated a racist joke. When Plaintiff expressed her outrage about the joke, Bureau Chief Sullivan agreed that the engineer was a "jerk" but took no further action.

On or about September 14, 1996, then-General Counsel Cahill received a copy of a letter from Michael R. Smith, an attorney representing the recognized leader of the Oneida Nation, that had been received by the Governor's Counsel's office. (Cahill Aff. Ex. A) The letter raised concerns about Plaintiff's representation of the Traditional People and complained that the representation was a conflict of interest. The primary concern expressed in the letter was that Plaintiff's representation of the Traditional People jeopardized the relationship between the State of New York and the Oneida Nation by attacking the validity of the recognized leader of the Nation while the two government's were negotiating gaming contracts and land claims. Cahill asked Plaintiff to respond to the allegations, which she did by letter dated September 24, 1996. (Cahill Aff. Ex. E.) Plaintiff stated that she had conferred with private ethics counsel and determined that she had not violated any conflict-of-interest ideals or policies. Unsatisfied with Plaintiff's response, Cahill determined that Plaintiff had violated the DEC conflict-of-interest policy and that her response to his inquiry exhibited a lack of understanding of the conflict-of-interest issues. Thereafter, according to Cahill, he decided to terminate Plaintiff. Although Cahill issued a certification to the State Ethics Commission indicating that Plaintiff's termination was a result of economic factors, he contends that he only provided this notice to Plaintiff in order to exempt her from the normal two-year ban on practicing before the DEC. (Cahill Dep. at 50-51.) Cahill testified in his deposition that he wished to give Plaintiff the same opportunities as other terminated employees. (Cahill Dep. at 50-51.)

Plaintiff filed a complaint with the EEOC on April 17, 1997, which was dismissed by the EEOC on September 29, 1997. Plaintiff commenced this action on or about December 22, 1997. At this stage, Plaintiff's remaining claims against the State and DEC are: racial and national origin discrimination under Title VII and the New York Human Rights Law; a claim asserted under 42 U.S.C. § 1981 (a); a claim asserted under 42 U.S.C. § 1981; violation of Plaintiff's First Amendment rights; a claim asserted under 42 U.S.C. § 1983; and a claim asserted under 42 U.S.C. § 1985. Plaintiff also asserts a claim for retaliatory discrimination under the New York Human Rights Law against Cahill, Sullivan, the State and the DEC.

Defendants argue that Plaintiff was fired because she violated the DEC conflict-of-interest policy. They assert that she was neither discriminated against on the basis of her race or national origin, nor fired in retaliation for any protected speech. Plaintiff responds that her activities did not violate the conflict-of-interest policy and that the low number of minority employees at the DEC supports her contention that she was the victim of unlawful discrimination. Her First Amendment claim has apparently shifted from a claim that she was retaliated against for her position regarding the town of Beekman matter to a claim that she was retaliated against for her representation of the Traditional People. In the end, Plaintiff's allegations do not amount to a sustainable claim for discrimination or retaliation, and thus Defendants' motion for summary judgment is granted and the complaint is dismissed.

DISCUSSION

I. Title VII Claim

To bring a claim for employment discrimination under Title VII, Plaintiff must first establish a prima facie case of discrimination by showing that: (1) she belongs to a protected class; (2) she was performing her duties satisfactorily; (3) she suffered an adverse employment action; and (4) the circumstances surrounding the employment action give rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). Once a plaintiff has made out a prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the challenged employment action. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094 (1981). If the defendant proffers a non-discriminatory basis for its employment decision, the burden returns to the plaintiff to demonstrate that the defendant's reason is simply a pretext for discrimination. See id. at 256, 101 S.Ct. at 1095. At that point, the governing standard becomes "whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." James v. N.Y. Racing Assoc., 233 F.3d 149, 156 (2d. Cir. 2000) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-47, 120 S.Ct. 2097, 2108-09 (2000)).

For the purposes of this summary judgment motion, the Court will assume, without deciding, that Plaintiff has made her prima facie case. Defendants represent that Plaintiff's employment with the DEC was terminated because she violated the DEC conflict-of-interest policy by providing legal representation to the Traditional People in a proceeding before the United State Department of the Interior. The conflict-of-interest policy states in relevant part:

It is the policy of the Department of Environmental Conservation to prevent conflict of interest situations from occurring as a result of private interests, outside employment or activities of employees . . . Since the Department is involved in regulating many activities in New York State, the public has a right to expect that the Department's employees will be objective and unbiased in carrying out their responsibilities. This places an added burden of responsibility upon Department employees to avoid actual, apparent or potential conflicts of interest in situations concerning outside activities.

(Cahill Aff. Ex. F.) The policy requires that approval be obtained before engaging in outside activities that might give rise to an apparent or potential conflict of interest.

Defendants argue that Plaintiff's work with the Traditional People violated this policy on several levels. First, the Traditional People were bringing a claim that a proposed casino would violate environmental laws. Although Plaintiff's involvement occurred when the claim was being reviewed by the Federal Government, there was a possibility that the DEC would become embroiled in the matter because the land turned over to the Oneida Nation may have been within the DEC's jurisdiction. There was also the possibility of an apparent conflict of interest because the Governor of New York was negotiating land claims with the recognized leader of the Oneida Nation while Plaintiff was representing his rivals. Furthermore, it is undisputed that Plaintiff never sought approval for the work she performed for the Traditional People.

Plaintiff alleges that Defendants' claim that she was fired for violating the conflict-of-interest policy is pretextual because she was not employed by the DEC when she performed this outside legal work. Defendants have produced a letter sent to Plaintiff, dated September 6, 1995, which clearly states that her employment with the DEC was being extended through the close of business on September 22, 1995. (Cahill Aff. Ex. L.) Although Plaintiff claims that there was considerable confusion regarding her employment status during the month of September, she does not dispute receiving this letter. (Hathaway Aff. Pl. Dep. I at 78-79.) Despite having received this letter and remaining on the DEC payroll, Plaintiff signed an affidavit as the attorney for the Traditional People on September 21, 1995. Plaintiff did not request approval from the DEC before signing the affidavit, nor did she alert the DEC to the potential conflict when she accepted an offer to return to her position at the DEC on September 25, 1995.

There is no question that the month of September was a confusing time for both the DEC and Plaintiff. However, the letter extending Plaintiff's employment through September 22, combined with her continuing presence on the DEC payroll, is fatal to Plaintiff's argument that she was not employed by the DEC on September 21, 1995.

Plaintiff next argues that even if she was still employed by the DEC when she signed the affidavit as the attorney for the Traditional People, she did not violate the conflict-of-interest policy. She bases this argument on her belief that the Oneida case did not involve the DEC in any way, and also on the fact that she did not receive compensation from the Traditional People. Plaintiff's argument regarding compensation is misplaced because the DEC policy applies to uncompensated work. Her argument that the work was unrelated to her work at the DEC fails to acknowledge that DEC employees must consider apparent conflicts and the possibility of future conflicts when engaging in outside activities. It is for this reason that the policy advises employees to seek approval for outside work. In fact, Plaintiff acknowledges that she often sought approval for outside activities while working at the DEC.

It is possible that a rational person could disagree with Cahill's determination that Plaintiff had violated the DEC conflict-of-interest policy, but such a possibility does not require a denial of summary judgment. The availability of a different interpretation of the conflict policy does not prove that Cahill's stated reason for firing Plaintiff should be disregarded. Cahill's reading of the policy is reasonable and therefore serves to meet Defendants' burden of proffering a legitimate non-discriminatory reason for Plaintiff's termination.

Plaintiff argues that the notice sent to the State Ethics Commission indicating that her termination was for economic factors proves that Cahill's reason for firing her was pretextual. However, Cahill offered a reasonable explanation for this inconsistency: he wanted to treat her like other attorneys who were terminated at that time and allow her to avoid the two-year ban on practicing before the DEC.

Even if Plaintiff had shown that Defendants' proffered reason for her termination was false, which she has not done, the case would not automatically proceed to a jury because there is simply no evidence to support a finding of pretext or discrimination in this case. See James, 233 F.3d at 157. There is nothing in the record to suggest that Cahill's decision to terminate Plaintiff's employment with the DEC had anything to do with her race or national origin. Plaintiff's attempt to characterize his expression of discomfort with Plaintiff remaining in her position as a type of discriminatory "code" is similarly unsupported. She submits no other evidence of discriminatory behavior by Cahill or any other DEC employee. Examining the record in its entirety and resolving all inferences in favor of Plaintiff, there is simply no evidence of unlawful discrimination. Defendants' motion for summary judgment on Plaintiff's Title VII claim is therefore granted. Plaintiff's claim for relief under 42 U.S.C. § 1981 (a), the remedial statute for violations of Title VII, is also dismissed.

Because New York courts look to federal law in adjudicating discrimination claims under the New York State Human Rights Law, see Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1177 (2d Cir. 1996); Ferrante v. American Lung Assoc., 665 N.Y.S.2d 25, 28 (1997); Burger v. Litton Indus., Inc., 91 Civ. 0918, 1996 WL 421449, at *18 (S.D.N.Y. Apr. 25, 1996), those claims are evaluated under the same standards. Therefore, the New York Human Rights Law claims should be dismissed on the merits.

II. First Amendment Claim

Plaintiff also asserts a First Amendment claim against the State and the DEC seeking damages and declaratory relief. She seeks relief for this claimed violation under 42 U.S.C. § 1983, the remedial statute for violations of federal rights. These claims are barred by the Eleventh Amendment because States and their agencies are immune from suit under Section 1983, regardless of the relief sought. See Komlosi v. New York State Office of Mental Retardation Developmental Disabilities, 64 F.3d 810, 815 (2d Cir. 1995); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58, 116 S.Ct. 1114 (1996) ("[T]he relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment.").

Although the complaint does not specifically assert a First Amendment claim against Cahill or Sullivan in their official capacities, any such claim for damages would be construed as claims against the state and fall to the same Eleventh Amendment bar. See Edelman v. Jordan, 415 U.S. 651, 666-67, 94 S.Ct. 1347, 1357-58 (1974). On the other hand, if one were to construe the complaint very liberally so that the Eleventh Amendment claim seeks prospective injunctive relief and is asserted against Cahill or Sullivan individually, the Eleventh Amendment would not bar the claim. See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 909 (1984); Dube v. State Univ. of N Y, 900 F.2d 587, 595 (2d Cir. 1990).

To sustain a First Amendment claim, Plaintiff must first establish that her speech was constitutionally protected and that her termination was a result of that speech. See Hale, 219 F.3d at 70. Although public employees retain the First Amendment right to speak about matters of public concern, a government employer may regulate employee speech to promote efficient public service. See Hale v. Mann, 219 F.3d 61, 70 (2d Cir. 2000) (citing Connick v. Meyers, 461 U.S. 138, 140, 103 S.Ct. 1684, 1686 (1983)). These competing interests must be balanced in evaluating Plaintiff's claim that her termination was an unlawful retaliation for the exercise of her First Amendment rights. Furthermore, a government employer can still escape liability "by showing that the speech threatened to interfere with government operations and that the potential disruptiveness was sufficient to outweigh the First Amendment value of that speech." McCullough v. Wvandanch Union Free Sch. Dist., 187 F.3d 272, 278 (2d Cir. 1999).

The analysis of Plaintiff's First Amendment claim presents some challenges due to the shifting nature of the claim. Defendants correctly point out that the claim initially appeared to be based on Plaintiff's objections to the alleged impropriety surrounding the town of Beekman controversy. Perhaps sensing that she would be unable to prove a causal link between the Beekman matter and her termination, Plaintiff appears to have transformed the claim to one based on her representation of the Oneida Traditional People. Such a change certainly establishes a causal link between the speech and the termination because Defendants have always asserted that Plaintiff's unauthorized representation of the Traditional People resulted in her termination. Under this new formulation of the claim, Plaintiff attempts to ward off defenses based on her status as a public employee by arguing that she was not a public employee at the time that she represented the Traditional People. As discussed above, this argument fails. Plaintiff was notified by letter that her employment would continue through September 22, 1995, and she does not dispute that she remained on the DEC payroll at that time. Thus, in order for Plaintiff's First Amendment claim to survive summary judgment, her representation of the Oneida Traditional People would have to constitute protected speech, the value of which outweighed any potential disruptiveness to the DEC.

The question of whether Plaintiff's representation of the Traditional People is protected speech that addresses a matter of public concern is one of law. See Hale, 219 F.3d at 70. Plaintiff was representing a faction of the Oneida Nation in a struggle against the recognized leader of their Nation. It is possible to construe this conflict as a matter of public concern because the United States and New York governments were negotiating land rights issues with this recognized leader. If the leader was not legitimate, the negotiations would be worthless. However, it is questionable whether Plaintiff's involvement in the internal power structure of the Oneida Nation rises to the level of speech relating to a matter of public concern.

Even assuming that Plaintiff's representation of the Traditional People was technically protected speech, it was also a violation of the DEC's conflict-of-interest policy. Thus, the potential disruption to the DEC caused by any conflict of interest, whether apparent, potential, or actual, outweighs the First Amendment value of the speech. State governments and their agencies must be allowed to formulate conflict-of-interest policies in order to maintain the public trust and reduce interference with government functions. Allowing government employees who are terminated for conflict-of-interest violations to recover damages or injunctive relief for violations of their First Amendment rights would defeat the purpose of the conflict-of-interest policies.

Plaintiff argues that Cahill's failure to conduct a thorough investigation regarding Plaintiff's representation of the Traditional People before terminating her saves the First Amendment claim. See Heil v. Santoro, 147 F.3d 103, 109-110 (2d Cir. 1998). While it is true that Cahill did not perform an in-depth inquiry into all of the possible ways that Plaintiff's conduct violated the conflict-of-interest policy, he did give Plaintiff an opportunity to respond to the allegations of a possible conflict. After receiving Plaintiff's response, Cahill was satisfied that she had performed outside legal representation that amounted to an apparent conflict of interest, at the very least, without obtaining prior approval as specified by the conflict-of-interest policy. No further inquiry was necessary.

As Defendants point out, Plaintiff's retaliation claim under the New York Human Rights Law, see N.Y. Exec. Law § 296(1)(e), fails because the statute only provides a basis for a claim for retaliation that occurred as a result of the employee's complaints about employment discrimination. Plaintiff did not make any complaints about employment discrimination at the DEC until after she was terminated. There are also no facts alleged to suggest a hostile work environment or any other basis to sustain this claim.

Finally, Plaintiff seeks to have any claims barred by the Eleventh Amendment remanded to State Court. Plaintiff cites no authority for the proposition that a district court has the power to remand supplemental claims, even if it were so inclined. The power to remand claims to state court is envisioned in cases that have been removed from state court under 28 U.S.C. § 1447. In cases such as this, a federal court may decline to exercise supplemental jurisdiction and dismiss supplemental claims. In any event, Plaintiff's Eleventh Amendment claim is without merit. Thus, there is no basis for remanding any of Plaintiff's claims.

CONCLUSION

For the reasons set forth above, Defendants' motion for summary judgment is granted and the complaint is dismissed.

SO ORDERED.