# White Plains Towing Corp. v. Patterson

> Court of Appeals for the Second Circuit · April 21, 1993 · 991 F.2d 1049

URL: https://www.frixlaw.com/law-library/cases/9009903

## Case

- **Full name:** WHITE PLAINS TOWING CORP. d/b/a Don's Towing and Don Cherico, Plaintiffs-Appellees-Cross-Appellants v. James G. PATTERSON, Harold J. Wright and E.P. Streider, Defendants-Appellants-Cross-Appellees
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** April 21, 1993
- **Citations:** 991 F.2d 1049; 1993 WL 127183
- **Precedential status:** Published
- **Opinion:** Concurring in part by Lumbard
- **Judges:** Feinberg, Kearse, Lumbard
- **Cited by:** 205 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9009903

## How later opinions describe it (automated extraction)

- recognizing that “[e]ven as to an issue that could arguably be viewed as a matter of public concern, if the employee has raised the issue solely in order to further his own employment interest, his First Amendment right to comment on that issue is entitled to little weight” (c…
- explaining that "[e]ven as to an issue that could arguably be viewed as a matter of public concern, if the employee has raised the issue solely in order to further his own employment interest, [her] First Amendment right to comment ... is entitled to little weight"
- finding that complaints to the government regarding “private commercial grievances” did not “relate to any matter of political, social, or other concern to the community and hence could not provide a basis for recovery”
- holding that plaintiff did not have property interest in towing assignment because arrangement was informal, in that no statute or regulation governed the assignment and plaintiff had no contract interest in assignment

## Opinion text

LUMBARD, Circuit Judge,
concurring in part and dissenting in part:
I concur with the majority as to the due process claim, but dissent as to the First Amendment claim.
In reversing judgment for the plaintiffs, the majority finds that the district court failed to apply the proper legal standard. See Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 287 , 97 S.Ct. 568, 576 , 50 L.Ed.2d 471 (1977) (employer may avoid liability if it demonstrates by a preponderance of the evidence that it would have reached the same decision absent the protected conduct). The majority nevertheless concludes that the district court’s findings “compel” rejection of the plaintiffs’ claim. I disagree.
Defendants must prove that they would have terminated Cherico even absent the personnel complaint. In light of the district court’s finding that Cherico’s complaint was a “substantial motivating factor” in the defendants’ decision to cancel the referrals, I cannot conclude, on this record, that defendants have met their burden of proof. Therefore, I believe the more appropriate course is to remand this *1065 matter to the district court for further findings.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9009903. Public record. Not legal advice.