Appendix — City of New York v. Piesco

1-359 A. |

9

Supreme Court, U.S

FILED

No. 91-

: seis

IN THE

Supreme Comt of the Writer Wires te eK

OCTOBER TERM, 1991

THE CITY OF NEW YORK, DEPARTMENT OF

PERSONNEL, JUAN ORTIZ, AND NICHOLAS

LA PORTE, JR.,

Petitioners,

-against-

DR. JUDITH PIESCO,

Respondent.

APPENDIX TO PETITION

FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

LEONARD J. KOERNER,* VICTOR A. KOVNER,

PAUL MARKS, Corporation Counsel of

FAY S. NG, the City of New York,

Of Counsel. Attorney for Petitioners,

100 Church Street,

New York, N. Y. 10007.

*Counsel of Record. (212) 788-1034 or 1010

August 28, 1991.

TABLE OF CONTENTS

Page

DECISION OF THE UNITED

STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT,

DATED JUNE 3, 1991 ....... . 1

MEMORANDUM DECISION OF

THE UNITED STATES

DISTRICT COURT FOR THE

SOUTHERN DISTRICT #£OF

NEW YORK, DATED

DECEMBER 18, 1990 a 56

ORDER OF THE UNITED

STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT,

DATED JUNE 3, 1991 ....... 103

JUDGMENT OF THE UNITED

STATES DISTRICT COURT

FOR THE SOUTHERN

DISTRICT OF NEW YORK,

ENTERED DECEMBER 26,

el FEE eS Pee ere 105

DECISION OF THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT,

DATED JUNE 3, 1991

DR. JUDITH PIESCO,

Appellant,

-y.-

THE CITY OF NEW YORK, DEPT. OF

PERSONNEL, JUAN ORTIZ and NICHOLAS

LAPORTE, JR.,

Appellees.

Before:

TIMBERS, MESKILL AND PRATT,

Circuit Judges.

Appeal from a summary’ judgment

entered December 26, 1990, in the Southern

District of New York, John S. Martin, Jr.,

District Judge, dismissing appellant's civil

rights action and pendent state law claims.

Reversed and remanded in part; affirmed in

part.

RONALD PODOLSKY, New York, N.Y. for

appellant Dr. Judith Piesco.

FAY S. NG, New York, N.Y. (Victor A. Kovner,

Corporation Counsel of the City of

New York, Pamela Seider Dolgow and

Paul Marks, N.Y., on the brief) for

appellees City of New York, Dept. of

Personnel, Juan Ortiz and Nicholas

LaPorte, Jr.

TIMBERS, CIRCUIT JUDGE:

Appellant Dr. Judith Piesco appeals

from a summary judgment in iver of

appellees the City of New York, Department

of Personnel (DOP or the City), Juan Ortiz

and Nicholas LaPorte, Jr. entered December

26, 1990 in the Southern District of New

York, John S. Martin Jr., District Judge,

dismissing appellant's civil rights action and

pendent state law claims.

The chief issue pressed on appeal is

whether the district court erred _ in

dismissing appellant's first amendment claim.

In asserting her claims of error, Dr. Piesco

advances two principal contentions: (1) the

-2-

district court improperly concluded _ that

DOP's interest as an employer outweighed

Dr. Piesco's first amendment interest in

truthfully testifying before a_ legislative

committee; and (2) since certain factual

issues were unresolved, it was. neither

appropriate to consider conduct, other than

her testimony before the committee, as a

basis for the alleged retaliation, nor proper

to conclude that her’ testimony was

irresponsible as a matter of law.

A subordinate issue pressed on appeal

by appellant is that appellees Ortiz and

LaPorte are not immune from suit under 42

U.S.C. § 1983 (1988).

For the reasons which follow, we

reverse that part of the judgment dismissing

Dr. Piesco's first amendment claim. We

affirm the dismissal of the pendent state law

claims and the constitutional claims other

than the first amendment claim.

I.

We shall summarize only those facts and

prior proceedings believed necessary to an

understanding of the issues’ raised on

appeal. Since this is an appeal from a

summary judgment, we review the facts in

the light most favorable to the non-movant,

Dr. Piesco.

In September 1982, Dr. Piesco was

appointed on a_e provisional basis to the

position of Deputy Personne! Director for

Examinations in the New York City

Department of Personnel. In that capacity,

she was responsible for the administration of

the Bureau of Examinations, the largest

bureau within DOP. The Bureau of

Examinations is charged with the

preparation, evaluation and administration of

all civil service tests for the City of New

York. During Dr. Piesco's tenure at DOP,

the size of her staff fluctuated between

175-200 employees.

In December 1984, New York City

administered examination no. 4061 for the

position of police officer. Thereafter, in

February 1985, Dr. Piesco and _. other

administrators met to establish a passing

grade for examination no. 4061. At that

meeting, Police Department personnel

advocated adopting a passing grade of 82,

while Dr. Piesco urged that the passing

grade be set at 89. Ortiz, then Personnel

Director, ultimately decided to set the

passing grade at 85. By setting the passing

grade at that level, each successful

candidate was required to answer correctly

119 of the exam's 140 questions. By

contrast, had the passing grade been set at

89, successful candidates would have been

required to answer at least 125 questions

correctly.

In June 1985, Dr. Piesco and appellees

Ortiz and LaPorte (the latter then being

First Deputy Personnel Director) met with

members of the New York State Senate

Committee on Investigations, Taxation, and

Government Operations (Committee). The

Committee was conducting a review of the

management of the New York City Police

Department. While it is unclear who first

used the word "moron", Dr. Piesco

responded affirmatively when asked by a

staff member whether it was possible for a

moron to pass the police examination with the

passing grade set at 85.

On July 11, 1985, Dr. Piesco and Ortiz

appeared at a public hearing held by the

Committee. Although not subpoenaed, the

record indicates that the Deputy Chief

Investigative Counsel for the Committee

contacted Ortiz and informed him that if Dr.

Piesco did not appear she would. be

subpoenaed. The transcript of the hearing

reveals that Senator Goodman, Chairman of

the Committee, rejected Ortiz’ request to be

the sole spokesperson for DOP. Senator

Goodman __ specifically requested that Dr.

Piesco "testify directly”. After she was

duly sworn, the following colloquy ensued

between Senator Goodman and Dr. Piesco:

SENATOR GOODMAN: Is it not a

fact that under questioning by this

Commission['s] staff you indicated that

the written exam was so easy "that a

moron could pass"?

DR. PIESCO: The_ conversation

that we had was ae every _ informal

conversation, and if I used it as [a]

characterization, I think it was rather

unfortunate|[ . ] I was not obviously

aware of the [sic] that the conversation

which was informal was in the way of

cross examination.

I certainly would have modified my

statement merely because the term

"moron" is rather offensive and has

certain technical meanings.

The answer to your question is

yes.

SENATOR GOODMAN: Would a

functional illiterate. pass the functional

portion in the police academy?

[ Although there exists some

confusion concerning whether this

question was correctly transcribed,

it apparently is not disputed that

the question posed to Dr. Piesco

was "[wJlould a functional illiterate

pass the entrance examination to

the police academy?" ]

DR. PIESCO: At the pass mark

that is set, I would say that it is

possible.

On July 12, 1985, one day following Dr.

Piesco's testimony before the Committee,

Ortiz wrote a memorandum to Mayor Koch

detailing events leading up to Dr. Piesco's

appearance before the Committee. Ortiz

enumerated factors that were considered in

setung the passing grade for examination

no. 4061: (1) insuring the quality of police

officers; (2) providing the Police

Department, over the life of the eligible list,

with a sufficient number of candidates to

fulfill its hiring needs; (3) recognition that

-8-

the test was only the first of several

screening devices in the process’. of

recruiting and training police officers, i.e.,

all candidates who passed the test also would

have to pass the rigorous curriculum at the

Police Academy and the Department's

18-month probationary period, as well as

psychological, character, physical and

medical screening; and (4) the mandate of

Title VII, 42 U.S.C. §2000e, et seq. (1988),

to minimize disparate impact on_ minority

candidates. Ortiz explained to the mayor

that the difference between the passing

score advocated by Dr. Piesco and _ that

ultimately established is "six items out of a

140 question’ test". In a_ misleading

characterization of Dr. Piesco's testimony

before the Committee, Ortiz stated that "to

call any successful candidate a ‘moron’ or a

‘functional illiterate’, is irresponsible because

it is without basis in fact".

On July 13, 1985, just two days after

Dr. Piesco's testimony, the New York Post

carried an article quoting Ortiz as stating

that 7 believe her statement is

irresponsible. Whether that merits any

action at this point--I haven't addressed the

issue."" The New York Post reported that

Ortiz “hinted [that] he may fire [Dr.

Piesco}]."" Dr. Piesco refused the request of

the New York Post to respond to Ortiz’

statements.

On July 31, 1985, a meeting was held at

DOP concerning examination no. 4061. Dr.

Piesco, Ortiz, LaPorte, DOP's General

Counsel Arthur Friedman, and its Deputy

General Counsel Michael Rabin attended this

meeting. On August 2, 1985, Ortiz in an

intradepartmental memorandum reprimanded

Dr. Piesco for her actions at this meeting.

The memorandum reflected that during the

course of the meeting Ortiz asked Dr. Piesco

-10-

why she had not reviewed the test before it

was administered. Dr. Piesco responded by

standing up, pointing her finger at Ortiz in

an aggressive manner and yelling, "you

don't know a fucking thing about testing. I

am fed up with your. obullshit'§= and

inaptitude."” Ortiz then asked appellant to

calm down and conduct herself in a civil

manner, to which she replied, "I don't have

to do a fucking thing, why don't you fire

me?".

On August 13, 1985, appellant received

two performance evaluations from LaPorte.

For the period July 1, 1983 through June

30, 1984, appellant received a "very good"

overall rating. For the period July 1, 1984

through June 30, 1985, she received a

"marginal" overall rating. These evaluations

were in marked contrast to earlier

evaluations and statements from her

superiors. For the period 1982-83, Dr.

-ll-

Piesco received an _ overall evaluation of

"outstanding". In a memorandum to Dr.

Piesco dated March 21, 1983, Ortiz

congratulated Dr. Piesco on her "outstanding

performance". He noted that Dr. Piesco was

one of a smail number of DOP managers who

received a 10 percent salary adjustment and

was "indeed an asset to the agency”. Ina

letter dated July 15, 1983, Ortiz authorized

another salary increase for Dr. Piesco "[i]n

recognition of [her] tireless efforts towards

excellence and [her] professional

dedication". After receiving the evaluations

of August 13, 1985, Dr. Piesco claimed that

Ortiz and LaPorte had retaliated against her

for making statements to the Committee.

Specifically, Dr. Piesco asserted various acts

of retaliation: (1) she received’ two

performance evaluations which improperly

criticized her professional conduct; (2) a

letter was placed in her personnel file

-12-

criticizing her behavior at the Julw 31, 1985,

meeting; and (3) she was excluded from two

meetings with Commissioners from other

agencies.

Sometime thereafter, the New York City

Department of Investigation (DOI) conducted

a probe of Dr. Piesco's allegations. On

December 5, 1985, prior to the firing of Dr.

Piesco, DOI concluded that the 1983-85

performance evaluations were improperly

prepared to highlight criticism of her

conduct. Ortiz and LaPorte had changed

key responsibilities and performance

expectations in violation of DOP's handbook,

Guidelines for Evaluating Managerial

Performance in New York City. DOI found

that "[t]his treatment resulted, in part,

from her testimony at the Goodman hearing".

It recommended that Dr. Piesco receive new

performance evaluations. DOI also found

that there was no retaliatory motive for

-]3-

excluding Dr. Piesco from certain meetings

and there was insufficient proof that placing

the letter of reprimand in Dr. Piesco's

personnel file was a retaliatory act.

In early December 1985, NBC contacted

DOP requesting that Dr. Piesco speak to

NBC on the subject of examinations in

general. On December 9, 1985, Ortiz

informed Dr. Piesco that she could not speak

to NBC. Instead, Ortiz chose another DOP

representative to be interviewed.

On December 19, 1985, Dr. Piesco

commenced the instant action pursuant to 42

U.S.C. § 1983, alleging that DOP, Ortiz and

LaPorte violated her first, fourth, fifth and

fourteenth amendment rights. With reference

to her first amendment claim, Dr. Piesco

alleged that Ortiz and LaPorte retaliated

against her for’ testifying before’ the

Committee. She also alleged various state

law claims. Eight days later, on December

-14-

27, 1985, appellant was terminated from her

position at DOP.

Subsequent to DOI's_ investigation,

Senator Good’ an's Committee launched a

probe of Dr. Piesco's firing. On June 24,

1986, the Committee published a report on

the firing of Dr. Piesco which concluded that

she was discharged "in significant measure

because of her’ testimony before’ the

Committee and the wide attention it received

in the media." The Committee further stated

that "[fJollowing Dr. Piesco's' testimony

before the Committee, Mr. Ortiz evidently

set about to build a retroactive case against

her to justify her dismissal." Commenting

on the ramifications of Dr. Piesco's firing,

the Committee found that "the way in which

this matter was handled by the city could

have a chilling effect on future testimony

about the operations of government." The

report also indicated that shortly after Dr.

-15-

1

———

“~~

Piesco's testimony, Senator Goodman _ took

certain steps to prevent retaliation against

Dr. Piesco: "First, he telephoned Deputy

Mayor Stanley Breznoff in July 1985 . . . to

ask him to use his good offices to prevent

retaliation against Piesco. Second, Goodman

on three occasions urged the _ City's

Corporation Counsel, Frederick A. O.

Schwartz, Jr., to seek the cooperation of

City Hall in finding some suitable position

for Dr. Piesco."

In June 1987, Dr. Piesco filed an

amended complaint which added a count for

wrongful discharge. She also amended her

original complaint to include Mayor Koch as a

defendant. (By stipulation dated July 17,

1990, Dr. Piesco discontinued her action

against Mayor Koch. )

On March 30, 1990, defendants filed a

motion for summary judgment seeking

dismissal of all of Dr. Piesco's claims. The

-16-

motion initially came before Judge Edelstein.

In an order dated May 18, 1990, he

concluded that, because "there are material

issues of fact, defendants’ motion for

summary judgment is denied."

Tne case subsequently was reassigned

to Judge Martin. On August 14, 1990, the

court granted defendants' motion for

reconsideration of their summary judgment

motion. Thereafter, in an opinion dated

December 18, 1990, the’ district court

granted defendants' motion for summary

judgment and dismissed the complaint. The

court held that, under the balancing test

articulated in Pickering v. Board of

Education, 391 U.S. 563, 568 (1968), the

City's interest, as an employer, in promoting

the efficiency of the public services it

performs outweighed plaintiff's interest, as a

citizen, in speaking out on matters of public

concern before a Senate Committee.

-17-

Accordingly, it dismissed appellant's first

amendment claim.

As an alternate ground for dismissing

the first amendment claim, the court found

that appellant's outburst of expletives at the

meeting of July 31, 1985, certainly tipped

the Pickering balance toward defendants.

The court also concluded that, even if it had

not held that the Pickering balance tipped In

favor of the defendants, qualified immunity

protected defendants Ortiz and LaPorte from

suit.

The pendent state law claims § and

remaining constitutional claims also were

dismissed. Dr. Piesco does not press

specific challenges on appeal to the dismissal

of those claims. We therefore affirm their

dismissal.

On appeal, appellant chiefly contends

that the district court erred in dismissing

her first amendment claim. She contends

that the Pickering balance should tip in her

favor since her statements were made under

oath in the context of a legislative hearing.

She also contends that statements made

subsequent to her testimony raise questions

of fact which cannot be decided on a

summary judgment motion. As a subordinate

issue, she contends that qualified immunity

does not insulate Ortiz and LaPorte from

suit.

II.

On an appeal from a summary judgment,

we review the record de novo to determine

whether any genuine issue of material fact

remained for trial and whether the

substantive law had been applied correctly.

Inland Cities Exp., Inc. v. Diamond Nat'l

Corp., 524 F.2d 753, 754 (9 Cir. 1975). We

assess the record in the light most favorable

to the party opposing summary judgment and

draw all reasonable inferences in her favor.

-19-

(ae

Ramseur v. Chase Manhattan Bank, 865 F.2d

460, 465, (2 Cir. 1989). "[T}he party who

defended against the motion for summary

judgment. . . will have his allegations

taken as true, and will receive the benefit of

the doubt when his assertions conflict with

those of the movant." 10 Wright, Miller &

Kane, Federal Practice and Procedure § 2716

(1983) (footnote omitted); see also United

States v. Diebold, Inc., 369 U.S. 654, 655

(1962); Ambook Enter. v. Time Inc., 612

F.2d 604, 611 & n.8 (2 Cir. 1979), cert.

dismissed, 448 U.S. 914 (1980).

Ill.

(A)

We turn first to Dr. Piesco's contention

that the district court erred in granting

summary judgment in favor of the City on

her first amendment claim. She contends

that the court erred in not according

significant weight to her’ interest’ in

-320-

4 meena anemia ei

truthfully testifying before the Committee

under the Pickering balancing test. We

agree.

In considering this contention, we need

decide only whether, as a matter of law, Dr.

Piesco's first amendment interest in

testifying before the Committee outweighed

the City’s countervailing interest, as an

employer, in promoting the efficiency of the

services it performs. Such determinations

are questions of law. Connick v. Myers,

461 U.S. 138, 148 n.7 (1983). Since this is

an appeal from summary judgment, we take

as true Dr. Piesco’s allegation that the

City's retaliatory actions were precipitated

by her testimony before the Committee. We

therefore do not address whether her

subsequent __ actions, including use of

expletives at a DOP meeting, constituted an

independent basis sufficient to justify the

City's actions. We agree with other courts

-321-

which have held that "summary judgment is

inappropriate when ‘questions of motive

predominate in the inquiry about how big a

role the protected behavior played in' the

employment decision." Peacock vy. Duval,

694 F.2d 644, 646 (9 Cir. 1982) (quoting

Mabey v. Reagan, 537 F.2d 1036, 1045 (9

Cir. 1976)); accord Eichman vy. Indiana State

Univ. Bd. of Trustees, 597 F.2d 1104,

1108-09 (7 Cir. 1979); Wilderman vy. Nelson,

467 F.2d 1173, 1176-77 (8 Cir. 1972).

"Without a searching inquiry into these

motives, those intent on punishing’ the

exercise of constitutional rights could easily

mask their behavior behind a complex web of

post hoc rationalizations."" Peacock, supra,

694 F.2d at 646.

Likewise, we decline to decide whether

Dr. Piesco honestly believed that it was

possible for a functional illiterate to pass the

police examination at the leve! established by

-923-

the City. Reviewing Dr. Piesco's affidavit

opposing summary judgment and her brief on

appeal, it is apparent, even at. this

juncture, that she believes in the veracity of

her testimony before the Committee.

Moreover, unlike the district court, we do

not summarily discount the = significance

between the passing score advocated by Dr.

Piesco, 89, and the score set by DOP, 85.

Although it is true that the difference

between the two scores would mean only that

a successful candidate would have to answer

six additional questions correctly, a study of

the record reveals that eighteen percent of

those who took the test failed to do so.

Since such a significant percentage failed to

answer those additional questions correctly,

we fail to see how that statistic clearly

undermines the veracity of Dr. Piesco's

testimony. In any event, whether a

functional illiterate could pass the police

examination presents aé_e material factual

question which is disputed by the parties.

Summary judgment is an_ inappropriate

vehicle to resolve such factual issues.

(B)

It is well settled that persons do not

relinquish their first amendment rights to

comment on matters of public interest by

becoming government employees. Rankin v.

McPherson, 483 U.S. 378, 383-84 (1987);

Connick, supra, 461 U.S. at 140; Pickering,

supra, 391 U.S. at 568. It also has been

recognized that the government has a

legitimate interest in regulating the speech

of its employees that differs significantly

from its interest in regulating the speech of

people in general. JId. In Pickering, the

Supreme Court attempted to strike a balance

between these interests, in holding that the

scope of a public employee's first amendment

rights must be determined by balancing the

-24-

public employee's rights "as a citizen, in

commenting upon matters of public concern

and the interest of the State, as an

employer, in promoting the efficiency of the

public services it performs through its

employees." Id.

"The threshold question in applying

this balancing test is whether [a _ public

employee's] speech may be ‘fairly

characterized as constituting speech on a

matter of public concern.'" Rankin, supra,

483 U.S. at 384 (quoting Connick, supra,

461 U.S. at 146). "Whether an employee's

speech addresses a matter of public concern

must be determined by the content, form,

and context of a given’ statement, as

revealed by the whole record." Connick,

supra, 461 U.S. at 147-48. When it has

been determined that a statement touches

upon a matter of public concern, we then

balance the often competing interests of

-25-

sn

employer and employee. The statement at

issue will "not be considered in a vacuum;

the manner, time, and place of the

employee's expression are relevant, as is the

context in which the dispute arose."

Rankin, supra, 483 U.S. at 388; Connick,

supra, 461 U.S. at 152-53. Other relevant

considerations include "whether the statement

impairs discipline by superiors or harmony

among co-workers, has a detrimental impact

on close working relationships for which

personal loyalty and confidence are

necessary, or impedes the performance of

the speaker's duties or interferes with the

regular operation of the enterprise."

Rankin, supra, 483 U.S. at 388.

Applying the Pickering balancing test to

the instant case, the district court concluded

that as a matter of law "the City's interest,

as an employer, in promoting the efficiency

of the public services it performs outweighed

-36-

oe

a

[Dr. Piesco's] interest, as a_ citizen, in

speaking out on matters of public concern."

In reaching this conclusion, the court first

acknowledged that Dr. Piesco's statements to

the Committee "were clearly of public

concern". While recognizing that Dr. Piesco

was required to testify truthfully before the

Committee and that she had a right to

express her views on the appropriateness of

selecting a passing grade of 85 for the police

examination, the court attached considerable

significance to the fact that Dr. Piesco's

comments were made "in the _ emotionally

charged atmosphere of public debate on the

minority hiring policies of the New York City

Police Department." The court. cited

Guardians Ass'n of New York City Police

Dep't v. Civil Service Comm'n of New York,

633 F.2d 232 (2 Cir. 1980), aff'd, 463 U.S.

582 (1983), cert. denied, 463 U.S. 1228

(1983), which held that a previous written

-97-

7

a

test used by the City to screen applicants

for the position of police officer was not job

related and had a disparate impact on

minority members. Relying on that case, the

court concluded that "the appropriateness of

an 85% passing mark was one of important

concern to the senior members of the City's

administration, including the leaders of the

Police Department = and [Dr. Piesco's]

superiors in the Department of Personnel."

Since Dr. Piesco was aware that

selecting a passing grade of 85 minimized the

disparate impact of examination no. 4061 and

that the established passing grade was of

significant concern to the leaders of the

Police Department and her own superiors at

DOP, the court found that she “had the

obligation to insure that her comments

accurately reflected legitimate concerns, did

not exacerbate unnecessarily a_ sensitive

public issue and did not unfairly undermine

-28-

lil

=

the judgment made by her superiors and the

senior officials of the Police Department.”

Having attached those constraints on Dr.

Piesco's right to comment on matters of

public concern, it was not difficult for the

court to conclude’ that’ Dr. Piesco's

statements in private and public meetings

with the Committee were "inappropriate and

irresponsible". The court suggested that

the appropriate course was for Dr. Piesco to

"amplify[] her testimony to indicate how

extremely remote that. possibility was."

Concluding that the City was justified in

terminating Dr. Piesco, the court granted

summary judgment in favor of the defendants

on the first amendment claim.

In reviewing Dr. Piesco's claims of

error, "'we are compelled to examine for

ourselves the statements in issue and the

circumstances under which they [are] made

to see whether or not they .. . are of a

-99-

el

character which the principles of the First

Amendment, as adopted by the Due Process

Clause of the Fourteenth Amendment,

LAL)

protect. Connick, supra, 461 U.S at 150

n.10 (quoting Pennekamp v. Florida, 328

U.S. 331, 335 (1946)). The Supreme Court

has recognized that one of the critical

purposes of the first amendment is_ to

provide society with a basis to make

informed decisions about the government.

Garrison v. Louisiana, 379 U.S. 64, 74-75

(1964).

"Whatever differences may exist about

interpretations of the First Amendment,

there is practically universal agreement

that a major purpose of that Amendment

was to protect the free discussion of

governmental affairs. This of course

includes’ discussions of candidates,

structures and forms of government,

the manner in which government is

operated or should be operated, and all

such matters’. relating to _ political

processes."

Mills v. Alabama, 384 U.S. 214, 218-19

(1966) (emphasis added). Indeed, the first

amendment guarantees that debate on public

-30-

Jil

issues is "'uninhibited, robust, and wide

open’. Bond v. Floyd, 385 U.S. 116, 136

(1966) (quoting New York Times Co. vy.

Sullivan, 376 U.S. 254, 270 (1964)). "In

short, speech on matters of public concern

is that speech which lies 'at the heart of the

First Amendment's protection". Rankin,

supra, 483 U.S. at 395 (Scalia, J.,

dissenting) (quoting First Nat'l Bank vy.

Bellotti, 435 U.S. 765, 776 (1978)).

Here, Dr. Piesco's statements addressed

the employment policies of the New York City

Police Department. Specifically, her

testimony enlightened members of the state

legislature, and indeed the public, on the

level of education and intellectual capacity

required to satisfy the threshold requirement

for becoming a_ police officer. The

implications of her testimony are far reaching

in light of the tremendous powers vested in

police officers. Since the police officer

-31-

ee

represents the most basic unit of

government, one which arguably most affects

the day-to-day lives of the citizenry, Dr.

Piesco's testimony concerning the competency

required to become a police officer clearly is

a matter of public concern. Based on the

nature of her testimony, it also is apparent

that this case can be readily distinguished

from those cases where aé_— disgruntled

employee voluntarily comments on an

employment-related matter out of a personal

interest. E.g., Connick, supra, 461 U.S.

at 148; Barkoo v. Melby, 901 F.2d 613,

618-20 (7 Cir. 1990); McEvoy v. Shoemaker,

882 F.2d 463, 466-67 (10 Cir. 1989).

Having found that Dr. Piesco's

testimony addressed matters of public

concern, we also find that it should be

accorded significant weight in the Pickering

balance. This conclusion is buttressed by

our prior decisions. We recently held that

-32-

allegations of fraud, theft, and misallocation

of public funds made to the FBI were

matters of serious concern and as such were

entitled to "greater weight" in the Pickering

balance. Vasbinder v. Ambach, 926 F.2d

1333, 1339-40 (2 Cir. 1991); see also

Rookard v. Health & Hosps. Corp., 710 F.2d

41, 46 (2 Cir. 1983) (complaint of fraudulent

and corrupt practices carries great weight).

At the minimum, we consider Dr. Piesco's

statements before the Committee to carry the

same weight in the Pickering balance as

allegations of unlawful conduct. Speech

critical of the government is precisely the

kind of speech the first amendment was

designed to protect. Contrary to appellees’

contention, we conclude that Dr. Piesco's

testimony substantially involved matters of

public concern and was entitled to great

weight in the Pickering balancing test.

-33-

nuw————_es ie

Although the district court

acknowledged that Dr. Piesco's testimony was

“clearly of public concern", there is no

indication that it accorded significant weight

to her interest in testifying before the

Committee in its balancing of interests.

instead, it attached considerable significance

to the nature of Dr. Piesco's comments and

her senior position at DOP. We agree that

these are relevant considerations in the

Pickering balance. On the facts of the

instant case, however, we reject’ the

contention that these factors outweigh Dr.

Piesco's interest in testifying truthfully

before a legislative committee. We find that

the burden of caution a high ranking official

such as Dr. Piesco normally bears when

commenting on organizational matters is

mitigated by the necessity for candor in the

legislative forum. We are aware of only one

case that acknowledges the _ exceptional

-34-

Se

ae

significance of a government’ employee's

interest in testifying truthfully before a

legislative committee.

In Patteson v. Johnson, 721 F.2d 228,

231-33 (8 Cir. 1983), a case factually

analogous to the instant one, the court

recognized the plaintiff's interest in

testifying about pending legislation before a

legislative committee and in responding to

questions posed by state senators.

Concluding that testimony before a legislative

committee touched upon issues of significant

public concern, the court directed that

"special attention" be given to the nature of

plaintiff's speech on remand. Id. at 232-33.

The court articulated the proper balancing of

interests when a public employee testifies

before a legislative committee: "the

disruptive effect of [plaintiff's] legislative

testimony upon the employment relationship

[should be weighed] against [plaintiff's]

-35-

—EE

right to testify upon pending legislation, his

obligation to respond truthfully to legislative

questioning, the public interest relating to

the matter in controversy, and whether or

not it was essential that [plaintiff] speak out

without fear of retaliatory dismissal."

Id. at 233. Applying these factors on

remand, the district court concluded that the

plaintiff's interest in testifying before the

legislative committee outweighed the state's

countervailing interest. Patteson vy.

Johnson, 787 F.2d 1245, 1248 (8 Cir.)

(discussing district court's opinion with

approval), cert. denied, 479 U.S. 828

(1986). The district court reasoned that

"Tals a citizen . . . [plaintiff] had a

legitimate and substantial interest in

speaking his support for the proposed

legislation and to speak truthfully in direct

response to questions... .'" ZId. (quoting

district court's memorandum decision). The

-36-

district court added that plaintiff's testimony

was "a matter of substantial public concern."

Id. (emphasis added).

On the peculiar facts of the instant

case, we conclude that Dr. Piesco's right to

give truthful answers before the Committee

takes precedence over the City's interest in

efficiently performing government services.

While not subpoenaed to testify, it was

apparent that Dr. Piesco would have been

compelled to appear had she declined the

Committee's invitation. Dr. Piesco's

comments were made while under oath before

a legislative committee. She responded to a

direct question by Senator Goodman in the

manner contemplated. Her testimony related

to matters of significant public interest and,

in view of her senior position at DOP's

Bureau of Examinations, she was uniquely

qualified to comment on _ the _ police

examination. Dr. Piesco was not simply a

-37-

test scorer or proctor charged with the

responsibility for monitoring the exams; her

duties were much more comprehensive. She

had expertise in the area of examinations.

It is for this reason that the Committee

sought her testimony. Finally, Dr. Piesco's

superior, Juan Ortiz, sat next to her during

her testimony, and there is no indication in

the record that he counseled her to elaborate

on her testimony.

While we acknowledge that Dr. Piesco's

statements to the Committee tangentially

touched on the sensitive area of minority

recruitment, we do not read the first

amendment as requiring one to shade her

testimony before a legislative committee so as

not to "exacerbate" a sensitive public issue.

When responding to a question under oath,

absent some valid privilege, a person has

one obligation under law - to answer

-38-

honestly. N.Y. Penal Law §210.00-.50

(McKinney 1988).

The need for honest and_ candid

' testimony takes on added significance when

one appears before a legislative committee

conducting an investigation. The Supreme

Court has recognized that "the power of

inquiry -- with the process to enforce it --

is an essential and appropriate auxiliary to

the legislative function". [McGrain vy.

Daugherty, 273 U.S. 135, 174 (1927). "A

legislative body cannot legislate wisely or

effectively in the absence of information

respecting the conditions which the

legislation is intended to affect or change;

and where the legislative body does not

itself possess the requisite information --

which not infrequently is true -- recourse

must be had to others who do possess it."

Id. at 175. Although the Court was

re‘erring to the investigative powers of

-39-

Congress, it cited with approval various

state authorities which stand ffor’ the

proposition that state legislatures possess

identical investigative authority. Id. at

165-67; see also Keeler v. McDonald, 99

N.Y. 463, 482-83 (1885) (provision

authorizing state legislative committees to

take testimony and summon witnesses may be

"indispensable to intelligent and effectual

legislation"). Indeed, the power to secure

needed information by investigation "has long

been treated as an attribute of the power to

legislate", predating the enactment of the

Constitution in both England and the United

States. Id. at 161.° Recognizing the

importance of an enlightened legislature to

our system of government, one commentator

reached the inevitable conclusion — that

"[p]ublic policy requires that the [state

legislature's investigative] power be broad

because of the need for informed legislative

-40-

decisions." Vitiello, The Power of State

Legislatures to Subpoena Federal Officials,

58 Tul. L. Rev. 548, 551 (1983). Requiring

less than candor and honesty from witnesses

appearing before legislative committees would

undermine our system of- government which

is predicated on an informed and enlightened

legislature. We decline to read into the first

amendment aé_ restriction which requires a

person to temper’ testimony before a

legislative committee SO as not to

"exacerbate" a sensitive issue.

We hold that the district court erred in

failing to accord significant weight both to

the inherent first amendment value of Dr.

Piesco's testimony and to the forum in which

it was elicited.

(C)

Having concluded that Dr. Piesco's

testimony was entitled to great weight in the

Pickering balancing test, we turn next to

-41-

= — = 7 :

me —————— =

Sn triettnetrtitentintinnrin <ieereen ene — a cane pal

aa

PP aca a Po na nina Nest nee ee

a -

—

——————— ———

the question of whether her statements

undermined the efficiency of the services

performed by DOP. In reviewing the harm

caused by Dr. Piesco's statements, we are

mindful that the burden is on the public

employer to show that its interest in

promoting the _ efficient performance of

services outweighs the employee's speech

interest. Rankin, supra, 483 U.S. at 388;

Vasbinder, supra, 926 F.2d at 1339. The

"burden in justifying a particular discharge

varies depending upon the nature of the

employee's expression." Connick, supra,

461 U.S. at 150.

In Connick, an_ assistant’ district

attorney circulated a questionnaire in the

office soliciting views of her fellow staff

members on such topics as office policies,

morale, level of confidence in superiors, and

whether employees felt pressured to work in

political campaigns. The Court first

-492-

concluded that the questionnaire addressed

only matters of limited public concern. Id.

at 148-49. In addressing the government's

burden of demonstrating that the employee's

statements undermined office relationships,

the Court held that it was unnecessary for

an employer "to allow events to unfold to the

extent that the disruption of the office and

the destruction of working relationships is

manifest before taking action". Id. at 152.

It therefore held that the District Attorney

and his first assistant's unsupported claims,

that the questionnaire interfered with

working relationships, was’ sufficient to

carry the government's burden of proof.

Id. at 151-52. The Court emphasized,

however, that where ths employee's speech

more substantially involved matters of public

concern, a _ stronger showing by the

government is required. Id. at 152.

Consistent with that caveat, the Court held

-43-

a ee Cae

’ aieaiecnaenllli meena ee

in a subsequent case that an employee's first

amendment rights must. prevail in_ the

balancing of interests where there is no

evidence that the employee's’ statements

interfered with the efficient functioning of

the office. Rankin, supra, 483 U.S. at

388-89; see also id. at 393 "hs (Powell, J.,

concurring) ("[i]Jn this case, however, there

is no objective evidence that [plaintiff's]

lone comment had any negative effect on

morale or efficiency of the Constable's

office"); American Postal Workers Union v.

United States Postal Serv., 830 F.2d 294,

303-04 & n.12 (D.C. Cir. 1987) (official's

opinion that speech interfered with efficient

operation is insufficient to outweigh an

employee's interest in speaking on a matter

of public concern). Cf. Tinker v. Des

Moines Indep. School Dist., 393 U.S. 503,

508 (1969) ("in our system, undifferentiated

fear or apprehension of disturbance is not

-44-

enough to overcome the right to freedom of

expression"). I

Where, as in the instant case, the

employee's speech substantially involved

matters of public concern, the government is

required to make a_ stronger showing of

interference with operations. Connick,

supra, 461 U.S. at 152. Examining the

record before us, we cannot conclude that

Dr. Piesco's statements to the Committee

undermined the _ effective and_— efficient

operation of DOP. The record is devoid of

any facts which demonstrate that Dr.

Piesco's testimony either interfered with

DOP's efficient functioning or impeded the

proper performance of her daily duties.

Neither Ortiz nor LaPorte has_ submitted

affidavits explaining how their working

relationship with Dr. Piesco was affected by

her testimony or how the operations of DOP

were disrupted. Moreover, unlike appellees,

-45-

we do not interpret Dr. Piesco's exclusion

from meetings as demonstrating that work

relationships were disrupted at DOP.

Construing the facts most favorably to Dr.

Piesco, her exclusion could be considered a

further act of retaliation. Consistent with

Connick and its progeny, we decline the

government's invitation to presume that Dr.

Piesco's speech was' harmful to DOP's

efficient functioning. Where the statements

involved so clearly touch on matters of

public concern, the government is required

to demonstrate interference with the efficient

functioning of the workplace. Id. We hold

that the City has failed to carry its burden

of proving harm to the efficient functioning

of DOP.

As a final matter, we appreciate the

potential ramifications of holding Dr. Piesco's

testimony unprotected by the first

amendment, as did the district court. A

government employee called to testify before

a legislative committee about work-related

matters would be confronted with a Hobson's

choice. She could either (1) honestly

answer the question, in which case, as a

matter of law, she could be fired; (2) commit

perjury; or (3) refuse to answer the

question posed and be held in contempt, see

N.Y. Penal Law §215.60(3) (McKinney 1988);

Lanza v. New York, 370 U.S. 139 (1962)

(upholding conviction for refusing to answer

questions before a New York State legislative

committee), overruled on other’ grounds,

Katz v. United States, 389 U.S. 347 (1967).

By offering a government employee the

option of jail or unemployment, we would put

our imprimatur on chilling speech in a forum

where candor is_ critical to informed

decision-making. This we decline to do. We

consider it essential that a person in Dr.

Piesco's circumstance be able to _ testify

-47-

before a legislative committee without fear of

retaliation.

In light of both appellees’ failure to

demonstrate that Dr. Piesco's statements

caused any harm to DOP or to intra-office

work relationships and the court's failure to

accord significant weight to Dr. Piesco's

testimony before the Committee, we hold that

the district court improperly balanced the

Pickering factors. On this record, it was

inappropriate to grant summary judgment in

favor of appellees.

IV.

This brings us to the district court's

holding that Ortiz and LaPorte are insulated

from suit by the doctrine of qualified

immunity.

The qualified immunity doctrine shields

government officials performing discretionary

functions from liability for civil damages

insofar as their actions did not violate

-48-

"clearly established statutory or

constitutional rights of which a _ reasonable

person would have known." Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Even

where the rights were clearly established,

officials are immune if it was objectively

reasonable for them to believe that their acts

did not violate those rights. Anderson vy.

Creighton, 483 U.S. 635, 639 (1987). An

official does not have immunity, however,

where the contours of the right were

sufficiently clear that a reasonable official

would understand that what he is doing

violates that right. Id. at 640. "This is

not to say that an official action is protected

by qualified immunity unless the very action

in question has_ previously been held

unlawful, but it is to say that in the light of

preexisting law the unlawfulness must be

apparent." Id. (citation omitted).

-49-

To determine whether it was objectively

reasonable to conclude that retaliation was

appropriate "will often require examination of

information possessed" by the retaliating

official. Id. at 641. The question we must

answer therefore is whether a_ reasonable

official would have believed that retaliation

was lawful in light of clearly established law

and information available to the retaliating

official. Id. We reiterate that "[i]n the

context of a summary judgment motion, we

also must view the record most favorably to

{[Dr. Piesco], as the party opposing the

motion, and ‘accept [her] account of the

reasons for [her] dismissal.'" Giacalone v.

Abrams, 850 F.2d 79, 85 (2 Cir. 1988)

(quoting Hawkins v. Steingut, 829 F.2d 317,

319 (2 Cir. 1987) (citation omitted)). As

stated above, for the purpose of this appeal,

it is assumed that Ortiz and _ LaPorte

-50-

retaliated against Dr. Piesco because of her

testimony before the Committee.

In light of the clear public interest

value of Dr. Piesco's speech and _ the

apparent lack of disruption at DOP, we

conclude that the court erred in holding that

Ortiz and LaPorte were immune. We consider

this case much like others which have

addressed an official's claim of qualified

immunity where it was apparent that the

individual retaliated against was exercising

his first amendment rights. In Reuber vy.

Food Chemical News, Inc., 899 F.2d 271,

287-88 (4 Cir. 1990), rev'd on _ other

grounds, 925 F.2d 703 (4 Cir. 1991) (en

banc), the court held that the piaintiff's

remarks which were critical of the

government go "to the heart of the interests

protected by the First Amendment, and the

defendants could not have reasonably

believed that they were acting within their

rights". Id. Similarly, in Dobosz v. Walsh,

892 F.2d 1135, 1141 (2 Cir. 1989), we held

that a police officer "clearly was exercising

his right to free speech" when he cooperated

with the F.B.I. and testified in court

against a fellow officer. "Because the

proscription of retaliation for a_ plaintiff's

exercise of First Amendment rights has long

been established, ... we conclude[d] that

[the superintendent of the police department

was] not entitled to qualified immunity ri

Id. at 1141-42.

Here, as in Reuber and Dobosz, we

consider Dr. Piesco's statements of such

clear public concern that is would not be

reasonable for Ortiz and LaPorte to conclude

that it was lawful to discharge or otherwise

retaliate against Dr. Piesco. The claim of

qualified immunity is further undercut by

appellees’ failure to present any evidence of

harm resulting from Dr. Piesco's testimony.

-52-

Moreover, the DOI report which was released

approximately three weeks prior to Dr.

Piesco's dismissal put Ortiz and LaPorte on

notice that their iepreperty prepared

evaluation of Dr. Piesco was retaliatory in

nature. In light of the DOI report, it is

incomprehensible how Ortiz and _ LaPoarte

reasonably could have’ considered their

subsequent discharge of Dr. Piesco to be

lawful.

We hold on the record before us that it

was improper to conclude that Ortiz and

LaPorte were immune.

V.

To summarize:

We hold that the district court erred in

granting summary judgment in favor of

appellees. First, the court improperly

applied the Pickering balancing test.

Although Dr. Piesco testified concerning

matters of great public concern in a forum

-53-

where candor is critical, the court failed to

attach significant weight to Dr. Piesco's

testimony in the Pickering balancing test.

Moreover, in light of the significant first

amendment value of Dr. Piesco's speech, the

court failed to hold the government to its

standard of proving interference with DOP's

efficient operations.

We further hold that the court erred in

concluding that Ortiz and LaPorte were

immune from _ suit. Since Dr. Piesco's

testimony was of significant public concern

and there was no evidence of disruption at

DOP as a result of her comments, it was not

reasonable for Ortiz and LaPorte to believe

that their actions were lawful.

The judgment of the district court is

reversed insofar as it dismissed Dr. Piesco's

first amendment claim. We remand that claim

for further proceedings not inconsistent with

this opinion. We affirm the dismissal of the

-54-

pendent state law claims and the

constitutional claims other than the first

amendment claim.

Reversed and remanded iin part;

affirmed in part.

-55-

DECISION OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF NEW YORK, DATED

DECEMBER 18, 1991

DR. JUDITH PIESCO,

Plaintiff,

-against-

THE CITY OF NEW YORK, DEPARTMENT OF

PERSONNEL, JUAN ORTIZ, NICHOLAS

LaPORTE, JR., and EDWARD I. KOCH,

Defendants.

JOHN S. MARTIN, JR., District Judge

This matter is before the court on

motion | for summary judgment by _ the

defendants. At issue is the claim of

plaintiff, Dr. Judith Piesco, an_ at-will

employee of the City of New York

Department of Personnel, that she was

improperly discharged from her position as

Deputy Personnel Director for Examinations

because of her exercise of First Amendment

-56-

rights in statements she made to the New

York State Senate Committee on

Investigation, Taxation and Government

Operations (the "State Senate Committee"),

in June and July of 1985.

In addition to her claim based upon the

First Amendment, plaintiff also alleges that

her discharge consti ited an unconstitutional

deprivation of her due process property and

liberty rights. Finally, plaintiff asserts

pendent state law claims _ for wrongful

discharge, intentional infliction of emotional

distress and prima facie tort. For the

following reasons, defendants’ motion for

summary judgment is granted in its entirety.

FACTUAL BACKGROUND

In September of 1982, plaintiff was

appointed to the position of Deputy

Personnel Director for Examinations in the

New York City Department of Personnel (the

"DOP"). The Deputy Personnel Position was

-57-

an in-house position which plaintiff held on a

provisional basis.

The record leaves little question that

plaintiff was far from a model employee

before she appeared before the State Senate

Committee. For example, plaintiff has

admitted that at a May 1984 meeting with

representatives of the Sanitation Department,

she called the Sanitation Commissioner,

Norman Steisel, who was not present, a

"fucking liar."" Similarly, at a March 1985

meeting with Police Department officials and

First Deputy Mayor’ Stanley’ Breznoff,

plaintiff called the Police Department's chief

of personnel, who was present, a "liar."

These and other remarks of the plaintiff

apparently led to complaints about her from

Deputy Mayor Breznoff, Police Commissioner

Benjamin Ward and the Chief of the General

Litigation Division of the New York City Law

Department.

-58-

Although, the City now cites’ these

incidents as providing a basis for’ the

decision to terminate plaintiff, it does not

appear from the record before the court that

those incidents were the basis of any

disciplinary action against plaintiff prior to

the time she made the statements to the

State Senate Committee which give rise to

her claim that her discharge violated her

First Amendment rights.

In these circumstances, for the purpose

of this summary judgment motion, the court

could not conclude that the incidents that

took place prior to plaintiff's statements to

the State Senate Committee were the basis

for her subsequent termination. Thus, the

court must look to the statements which

plaintiff made to the State Senate Committee

and her subsequent conduct to determine

whether there is a triable issue of fact on

the question of whether plaintiff was

-59-

improperly terminated because of her

exercise of her First Amendment rights.

In order to understand the _ First

Amendment issues raised in this lawsuit, it

is necessary to consider the background of

plaintiff's appearance before the State Senate

Committee. As part of her duties as Deputy

Personnel Director for Examinations, plaintiff

was responsible for the development and

administration of all civil service

examinations for the City of New York,

which included the examinations for incoming

police officers. In December’ 1984,

Examination No. 4061 for police officers was

administered by the City. In February

1985, the plaintiff and other officials of the

DOP met with representatives of the Police

Department, including Police Commissioner

Ward, to establish a passing grade for

Examination No. 4061. At that meeting, the

Police Department personnel advocated a

-60-

passing grade of 82, while plaintiff

advocated setting the passing mark at 89.

Ultimately the passing grade was set at 85,

which meant that a successful candidate was

required to answer correctly 119 of the

test's 140 questions. To achieve a score of

89, a candidate would have been required to

answer correctly 125 of the 140 questions.

In June of 1985, plaintiff and the

defendants Juan Ortiz, then DOP's Personnel

Director, and Nicholas LaPorte, then DOP's

First Deputy Personnel Director, met with

members of the State Senate Committee which

was then conducting a _ review of the

management of the New York City Police

Department. While there is a factual dispute

in the record as to who first used the term

"moron", plaintiff or a member of Senate

committee staff, it is clear that, at a

minimum, plaintiff responded affirmatively

-§1-

when asked if it was possible that "a moron

could pass" with the test score set at 85.

On July 11,

1985, plaintiff testified

before the State Senate Committee and the

following colloquy took place:

SENATOR GOODMAN: Is it not a fact that

DR. PIESCO:

under questioning by

this commission's staff

you indicated that the

written exam was_ so

easy "that a moron

could pass"

The conversation that

we had was a_ very

informal conversation,

and if I[ used it as

characterization, I

think it was_ rather

unfortunate. I was

not obviously aware of

the . . . that the

conversation which was

informal was in_ the

way of cross-

examination. I

certainly would have

modified my statement

merely because’ the

term "moron" is rather

offensive and has

certain technical

meanings. The answer

to your question is

yes.

* * *€ *

o

SENATOR GOODMAN: Wouid a functional

illiterate pass the

functional portion in

the police academy?

DR. PIESCO: At the pass mark that

is set I would say that

is possible.

It is apparent that plaintiff's testimony

before the State Senate Committee caused

some uproar and consternation within City

government. On July 12, the day following

plaintiff's testimony, her superior, Mr.

Ortiz, wrote a memorandum to then-Mayor

Koch "to give you some background on the

issues raised in yesterday's hearings before

the Goodman Committee ... ." That

memorandum stated in part:

It should be noted that the difference

in a score of 89 and 85 percent is six

items out of a 140 question test.

Furthermore, 85 percent yielded a

greater pool of candidates to meet the

Department's hiring needs. And, at

that pass mark, the disparate impact of

the test was significantly minimized,

thus reducing the risk of litigation and

a possible injunction against all hiring.

A passing score of 85 percent meant

that a successful candidate correctly

answered 119 out of 140 items on a

-63-

exam which was written above the

tenth-grade reading level. It is

obvious, therefore, that to call any

successful candidate a 'moren'' or

‘functional illiterate,' is irresponsible

because it is without basis in fact.

The following aay, July 13, 1985, the

New York Post carried an article quoting

Ortiz as saying "that sworn comments by his

deputy about ‘functional illiterates' passing

the last police exam were ‘irresponsible’ and

he hinted he may fire her.

The next event of significance with

respect to this litigation occurred on July

31, 1985, when a meeting was held at the

DOP concerning Examination No. 4061. At

this meeting were plaintiff, defendants Ortiz

and LaPorte, the Department's General

Counsel, Arthur Friedman, and its Deputy

General Counsel, Michael Rabin. On August

2, 1985, defendant Ortiz prepared a

memorandum to plaintiff setting forth what

occurred at that meeting, which plaintiff

-§4-

subsequently acknowledged to be accurate in

substance.

The memorandum reflects that after

Ortiz raised a question concerning plaintiff's

admitted failure to look at the test or the

questions before the test was administered,

plaintiff "stood up, pointed [her] finger at

[Ortiz] in an aggressive manner and yelled,

"You don't know a= fucking thing about

testing. I am fed up with your bullshit

.'" Ortiz then asked plaintiff to calm

down and conduct herself in a civil manner

to which plaintiff replied, "I don't have to

do a fucking thing. Why don't you fire

me."

On August 13, 1985, plaintiff received

two performance’ evaluations from the

defendant LaPorte. For the period July 1,

1983 through June 30, 1984, plaintiff was

rated "very good." She received a

"marginal" rating for the period July 1, 1984

-65-

through June 30, 1985." According to

plaintiff, in November or December 1985,

Ortiz ordered her not to speak to a reporter

for WNBC-TV. A memorandum to the file

from Ortiz, dated December 9, 1985,

indicates tiiat an NBC_ reporter’ had

requested plaintiff to appear, but Ortiz had

decided to send another representative of

the DOP.

On December 23, 1985, plaintiff served

defendants with a summons and complaint in

this action in which she alleged that in

retaliation for her testimony before the State

Senate Committee, she had been deprived of

a raise, [sic] by her employer, the City of

New York Department of Personnel, had been

excluded and prevented from _ attending

various meetings which her position required

her to attend, and that defendant Ortiz, in

non-privileged communications, intentionally

and maliciously stated that Dr. Piesco was

-66-

irresponsible and derelict in the performance

of her duties. On December 27, 1985,

defendant Ortiz informed plaintiff that her

employment was terminated as of that date.

DISCUSSION

I, Plaintiff's First Amendment Claim

While plaintiff asserts several causes of

action, the heart of her complaint is the

claim that she was terminated for the

exercise of her First Amendment rights in

eennection with her statements to the State

Senate Committee.

It is now beyond dispute that a public

employee does not relinquish his or her First

Amendment rights to comment on matters of

public interest as a result of the individual's

status as a governmental employee.

Pickering v. Board of Education, 391 U.S.

563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d .

811 (1968); Connick v. Myers, 461 U.S. 138,

-§7-

r r= = —— a

= = = ——=—=—

= 9 —— =

140, 103 S.Ct. 1684, 1686, 75 L.Ed.2d 708

(1983); Rankin v. McPherson, 483 U.S. 378,

383-84, 107 S.Ct. 2891, 2896, 97 L.Ed.2d

315 (1987), reh. den. 483 U.S. 1056, 108

S.Ct. 31, 97 L.Ed.2d 819 (1987). As the

Supreme court recognized in Pickering, a

state employee's "right to speak on issues of

public importance may not furnish the basis

for his dismissal from public employment."

391 U.S. at 574, 88 S.Ct. at 1738. At the

same time, the Supreme court has _ also

recognized that "the State has interests as

an employer in regulating the speech of its

employees that differ significantly from those

it possesses in connection with regulation of

the speech of the citizenry in general."

Pickering, 391 U.S. at 568, 88 S.Ct. at

1734.

Thus, the determination whether a

public employer has properly discharged an

employee for engaging in speech of a public

-68

nature requires the court “to arrive at a

balance between the _ interest of the

[employee] as a citizen in commenting upon

matters of public concern and the interest of

the state as an employer in promoting the

efficiency of the public services it performs

through its employees." Pickering, 391 U.S.

at 568, 88 S.Ct. at 1734-35; see also

Connick, 461 U.S. at 140, 103 S.Ct. at

1686. As the Supreme court reasoned:

[t]his balancing test is necessary in

order to accommodate the dual role of

the public employer as_ provider of

public services and as a governmental

entity operating under the constraints

of the First Amendment. On the one

hand, public employers are employers,

concerned with the efficient function of

their operations; review of every

personnel decision made by a _ public

employer could, in the long” run,

hamper the performance of public

functions. On the other hand, 'the

threat of dismissal from public

employment is ... a potent means of

inhibiting speech. '

Rankin, 483 U.S. at 384, 107 S.Ct. at 2897

(emphasis in original).

-69

Here, Dr. Piesco's statements to the

State Senate Committee did relate to matters

of public concern and therefore raise First

Amendment issues which require application

of the Pickering balancing test. The

question the court must decide under

Pickering is whether, despite the First

Amendment implications in her statements,

the City was_ nonetheless’ justified in

terminating Dr. Piesco’s employment because

of those statements. This is a question of

law that is properly decided on a motion for

summary judgment. Connick, 461 U.S. at

148 n.7 and 150 n.10, 103 S.Ct. at 1690 n.7

and 1692 n.10; Giacalone v. Abrams, 850

F.2d 79, 87 (2d Cir. 1988).

Application of the Pickering balancing

test to the present facts compels_ the

conclusion that the City's interest, as an

employer, in promoting the efficiency of the

public services it performs outweighed

-70-

plaintiff's interest, as a citizen, in speaking

out on matters of public concern. The court

recognizes that, in the context of a

legitimate inquiry by a _ State Senate

Committee, Dr. Piesco was’ required to

truthfully state her views on the validity of

the passing grade established for the police

examination and the issues presented before

the Committee were clearly of public

concern.

In determining that the City's interests

outweigh the plaintiff's such that the

discharge of Dr. Piesco because of her

statements to the State Senate Committee was

constitutionally permitted, we focus on the

nature of plaintiff's comments viewed in the

light of her’ responsibilities as Deputy

Personnel Director for examinations. |

. In performing the balancing test, the

(Footnote Continued)

-71-

The fixing of an appropriate passing

grade for the police entry level examination,

while one of public concern, was also one

requiring sensitivity to the need to resolve

competing social interests in an atmosphere

(Footnote Continued)

Supreme court requires that the subject

speech not be "considered in a vacuum; the

manner, time, and place of the employee's

expression are relevant, as is the context in

which the dispute arose." Rankin, 483 U.S.

at 388, 107 S.Ct. at 2899, citing, Connick,

461 U.S. at 152-53, 103 S.Ct. at 1692-93;

Givhan v. Western Line Consolidated School

Dist., 439 U.S. 410, 415 n.4, 99 S.Ct. 693,

696, 58 L.Ed.2d 619 (1979).

In addition, the Supreme court has

considered as pertinent factors:

whether the statement impairs discipline

by superiors or harmony among co-

workers, has a detrimental impact on

close working relationships for which

personal loyalty and confidence are

necessary, or impedes the performance

of the speaker's duties or interferes

with the regular operation of the

enterprise.

Rankin, 483 U.S. at 388, 107 S.Ct. at 2899,

citing, Pickering, 391 U.S. at 570-573, 88

S.Ct. at 1735-1737.

-72-

EE

free from public hysteria. As. the

memorandum from defendant Ortiz to then-

Mayor Koch of July 12, 1985 indicates, one

of the issues which had to be considered in

setting the passing grade for the test was

"the mandate of Title VII to minimize

disparate impact on minority candidates."

Selecting a passing grade of 85 percent

rather than 89 adeuenit "yielded a greater

pool of candidates to meet the Department's

hiring need. And, at that pass mark, the

disparate impact of the test was significantly

minimized." As Dr. Piesco's affidavit

demonstrates, she was aware that, prior to

1985, there had been litigation brought by a

class of minority group members challenging

the written test used by the City to screen

applicants for the Police Department on the

ground that such tests were not job-related

and had a disparate impact on _ minority

members. Guardians Ass'n of New York City

-73-

Police Department Vv. Civil Service

Commission of the City of New York, 633

F.2d 232 (2d Cir. 1980), aff'd, 463 U.S.

582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983),

cert. denied, 463 U.S. 1228, 103 S.Ct. 3568,

77 L.Ed.2d 1410 (1983). Thus, the issue of

the appropriateness of an 85% passing mark

was one of important concern to the senior

members of the City's administration,

including the leaders of the _ Police

Department and plaintiff's superiors in the

Department of Personnel.

With this background, Dr. Piesco could

not have failed to understand that her

comments on the passing grade for the test

were being made in the emotionally charged

atmosphere of public debate on the minority

hiring policies of the New York City Police

Department. Thus, while Dr. Piesco had a

right to express her views’ on_ the

appropriateness of selecting a passing grade

-74-

of 85 for the police examination, as a senior

public official she had the obligation to

insure that her comments accurately reflected

legitimate concerns, did not exacerbate

unnecessarily a _ sensitive public issue and

did not unfairly undermine the judgment

made by her superiors and the_ senior

officials of the Police Department. In these

circumstances, it was totally inappropriate

for Dr. Piesco to have stated that a "moron"

could have passed the test, whether or not

she herself interjected the term or simply

acquiesced in someone else's’. character-

ization.”

Similarly, it was irresponsible for Dr.

Piesco to testify that it was possible for a

functional illiterate to pass the examination

There is a sharp dispute as to whether or

not Dr. Piesco herself introduced the term

"moron" into the discussion with the staff of

the State Senate Committee.

-75-

with a score of 85. The affidavits of Dr.

Yakowicz in support of the motion for

summary judgment indicates that even

accounting for exceptionally good luck, a

functional illiterate could not achieve a score

of more than 60% on the test, i.e., a score

of 85 correct answers out of a total of 140

questions. While it might be inappropriate

to accept Dr. Yakowicz's affidavits as

conclusive on a_— motion for summary

judgment, Dr. Piesco's own affidavit

responding to Dr. Yakowicz indicates that, if

there was any possibility that a functional

illiterate could pass the examination at a

passing grade of 85%, that possibility was at

best theoretical. Indeed, since the passing

grade Dr. Piesco advocated -- 89% --

involved answering correctly only 6 more of

a total of 140 questions than would a score

of 85%, it is impossible to conclude that she

honestly believed that there was a_ real

-76-

possibility that a functional illiterate would

pass the test at the lower grade level.

It is not necessary, therefore, to

resolve the conflict between Dr. Yakowicz

and Dr. Piesco to conclude that it was

irresponsible for Dr. Piesco to testify in a

public hearing that it was possible for a

functional illiterate to achieve a passing

grade of 85% without amplifying her

testimony to indicate how extremely remote

that possibility was.

Plaintiff's superiors were amply justified

in characterizing her testimony to the State

Senate Committee as_ irresponsible. In

determining whether that conduct was

sufficient to justify her dismissal, weight has

to be given to the important position which

Dr. Piesco held for, as the Supreme court

has stated:

. In weighing the state's interest in

discharging an employee based on any

claim that the content of a _ statement

made by the employee somehow

-77-

undermines the mission of the public

employer, some attention must be paid

to the responsibilities of the employee

within the agency. The burden of

caution employees bear with respect to

the words they speak wil vary with the

extent of authority and _—i public

accountability the employee's role

entails.

Rankin, 483 U.S. at 390, 107 S.Ct. at 2900.

As Deputy Personnel Director for

Examinations and the chief official

responsible for civil service examination

matters in New York City, it was critical

that plaintiff maintain a working relationship

of trust and confidence not only with

defendants Ortiz and LaPorte but also with

other high-level City officials, including

those in the Police Department. For a senior

City official of Dr. Piesco's stature to make

an irresponsible and inflammatory statement

concerning a matter of such clear public

concern as the appropriate passing level for

candidates for the Police Department was

certainly enough to undermine not only her

relationship with her superiors but also her

relationship with senior officials in the Police

Department. Given the importance of these

working relationships to the performance of

Dr. Piesco's important responsibilities, her

conduct justified her termination. As the

Supreme court also recognized in Rankin:

[iJnterference with work, personal

relationships or the speaker's’ job

performance can detract from the public

employer's function. Avoiding such

interference can be a_e strong. state

interest.

483 U.S. at 388, 107 S.Ct. at 2899.

Thus, in applying the Pickering

balancing test and looking solely at Dr.

Piesco's statements to the State Senate

Committee, the court concludes that the City

was justified in terminating her employment

and is entitled to summary judgment on this

claim.

Even if the City had not been justified

in terminating Dr. Piesco's employment based

solely upon her statements to the State

-79-

Senate Committee, summary judgment would

still be appropriate given her subsequent

conduct. While it might be argued that the

question of whether Dr. Piesco's subsequent

conduct provided justification for her

.termination involves factual issues’. of

motivation that should not be decided on a

summary judgment motion, in order "to

arrive at a balance between the interests of

the [employee], as a citizen, in commenting

on matters of public concern and the interest

of the State as employer," which Pickering

requires, 391 U.S. at 568, 88 S.Ct. at

1734-35, the court cannot ignore undisputed

subsequent conduct which clearly belongs in

the balance. As the Supreme court noted in

Connick v. Myers, this is the type of

situation which the court cannot "avoid

making an independent constitutional

judgment of the facts of the case." 461

U.S. i150, n.10, 103 S.Ct. at 1692, n.lu,

-80-

quoting, Jacobellis v. Ohio, 378 U.S. 184,

190, 84 S.Ct. 1676, 1679, 12 L.Ed.2d 793

(1964). Indeed, it would be unreasonable to

ignore plaintiff's subsequent conduct in

making the "constitutional judgment” since

"[t]he Pickering balance’ requires full

consideration of the government's interest in

the effective and efficient fulfillment of its

responsibilities to the public." Connick, 461

U.S. at 150, 103 S.Ct. at 1692 (emphasis

added).

Thus, in assessing the City's claim that

it was justified in firing Dr. Piesco, the

court cannot ignore the fact that subsequent

to the allegedly protected First Amendment

statement to the State Senate Committee in

June and July of 1985, plaintiff told her

superior Mr. Ortiz, "You don't know a

fucking thing about testing. I am fed up

"

with your bullshit and, when told to

-8l-

calm down, stated, "I don't have to do a

fucking thing. Why don't you fire me?"

If plaintiff's statements before’ the

Committee did not fatally undermine

plaintiff's authority and destroy the close

working relationships which were required

for her’ to effectively perform her

responsibilities, then plaintiff's outburst of

expletives directed at her immediate

supervisor certainly accomplished the task.

As the Supreme court said in considering an

analogous situation presented in Connick,

461 U.S. at 154 (1983):

[t]he limited First Amendment interest

involved here does not require that

[the employer] tolerate action which he

reasonably believed would disrupt the

office, undermine his authority and

destroy close working relationships.

This case, like all cases involving’ the

Pickering balance, turns upon the particular

facts and circumstances. In the present

situation, the undisputed facts established

-§2-

that plaintiff's conduct exceeded the bounds

protected by the First Amendment. Thus,

the court concludes that plaintiff's

statements -- whether’ considering her

testimony alone, her post- testimony

statements alone or the statements in total --

so severely undermined the working

relationships which were required for an

effective performance of her duties that the

City's interest as an employer outweighs Dr.

Piesco's speech interest.°

II. Qualified Immunity

Even if the court had not determined

that the Pickering balancing test favored the

Since the court concludes that First

Amendment considerations did not preclude

the City from firing Dr. Piesco on the basis

of her State Senate Committee testimony

alone or on the basis of her July 31, 1990

statements, it is irrelevant that the actual

decision to terminate her employment was not

made immediately.

-83-

defendants, the court, for the reasons

discussed below, would nevertheless grant

the motion of defendants LaPorte and Ortiz

seeking dismissal on the grounds of qualified

immunity.

. It is well-settled that government

officials performing discretionary functions

are shielded from personal liability "insofar

as their conduct does not violate clearly

established statutory or constitutional rights

of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S.

800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d

396 (1982); see also Magnotti v. Kuntz, 90

Civ. 7497 (2d Cir. November 8, 1990);

Russell v. Coughlin, 89 Civ. 2321 (2d Cir.

August 2, 1990). Even when such rights

are clearly established, qualified immunity

also protects a government official "if it was

objectively reasonable for [the official] to

believe that his acts did not violate those

-84-

-_— —— TE LLL, LL

= ——

rights." Robison v. Via, 821 F.2d 913, 921

(2d Cir. 1987); see also Anderson v.

Creighton, 483 U.S. 635, 641, 107 S.Ct.

3034, 3039, 97 L.Ed.2d 523 (1987).

For purposes of the issue of qualified

immunity, "we need answer dgiily the limited

question of whether it should have been

apparent to [defendants LaPorte and Ortiz]

that [plaintiff's] discharge violated [her]

First Amendment rights." Giacalone, 850

F.2d at 88. Based upon. our prior

discussion of plaintiff's responsibilities and

the disruption that plaintiff's conduct caused

to the effective operation of the employer's

office as well as to her’ working

relationships, we conclude that the Pickering

balancing test and the decisions construing

it at the time of plaintiff's discharge (as well

as decisions subsequent to the discharge)

"would more likely have suggested" to

defendants that plaintiff's "First Amendment

-85-

interest was outweighed by the disruption

[her] action fostered." Id. As such, the

court concludes that defendants LaPorte and

Ortiz are immune from individual liability for

damages.

III. Additional Constitutional and State Law

Claims

Apart from her First Amendment claim,

Dr. Piesco also asserts a number of other

constitutional and common law claims. For

the following reasons, defendants' motion for

summary judgment with respect to each of

these claims is granted.

Specifically, Dr. Piesco alleges that her

dismissal amounted to a deprivation of her

property interest without due process of law

in violation of the Fifth and Fourteenth

Amendments. In order to prevail, plaintiff

must have had "constitutionally protected

property ... or liberty rights to which the

Fourteenth Amendment's procedural

-86-

protections would attach." Schwartz v.

Mayor's Comm. on Judiciary, 816 F.2d 54, 56

(2d Cir. 1987), citing, Board of Regents of

State Colleges v. Roth, 408 U.S. 564, 577,

92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

However, as the Supreme court explained in

Roth:

[t]o have a property interest in a

benefit, a person clearly must have

more than an abstract need or de.ire

for it. He must have more than a

unilateral expectation of it. ~ He must,

instead, have a_ legitimate claim of

entitlement to it.

408 U.S. at 577, 92 S.Ct. at 2709.

"In the employment: context, a property

right arises only where the state is barred,

by statute or contract, from terminating (or

not renewing) the employment relatienship

without cause." S & D Maintenance Co. v.

Goldin. 844 F.2d 962, 967 (2d Cir. 1588)

(emphasis in original); Cf. Cleveland Bd. of

Education v. lLoudermill, 470 U.S. 532,

538-39, 105 S.Ct. 1487, 1491-92, 84 L.Ed.2d

-R7-

494 (1985) (froperty interest created by

state civil service statute's for-cause

termination provision) with Bishop vy. Wood,

426 U.S. 341, 345, 96 S.Ct. 2074, 2077, 48

L.Ed.2d 684 (1976) (no property interest

due to absence of for-cause prov'sion) and

Roth, supra, 408 U.S. at 578, 92 S.Ct. at

2709 (same).

In interpreting the Supreme Court's

holdings, the Second Circuit has repeatedly

found that an employee who, by relevant

Statute, may be discharged without cause

and without a hearing, does not possess a

property right protected by the due process

clause of the Constitution. Goetz v. Windsor

Central School District, 698 F.2d 606, 608

(2d Cir. 1983); Baden v. Koch, 638 F.2d

486, 492 (2d Cir. 1980), later app., 799

F.2d 825, 829 (2d Cir. 1986); Quinn y.

Syracuse Model Neighborhood Corp., 613

F.2d 438, 448 (2d Cir. 1980).

-88-

In the present action, Dr. Piesco does

not dispute that she was appointed in 1982

to the civil service title of provisional

Administrative Staff Analyst and served in

the in-house position of Deputy Personnel

Director of Examinations. See Piesco

February 24, 1986 Deposition, pp. 4-5; the

defendants’ Rule 3(g) Statement 7 1 and

Exhibit 1 to defendants’ motion for summary

‘ Plaintiff also does not dispute

judgment.

that, prior to her termination, she was a

provisional employee under New York Civil

Service Law § 65. Under New York State

law, defendants are free to _ terminate

provisional employees for any reason or for

no reason at all. See Preddice v. Callanan,

‘ Paragraph 1 of defendants’ Rule 3(g)

statement sets forth the provisional nature of

plaintiff's | employment. Plaintiff, as

required, submitted her own Rule 3(g)

statement in which she failed to take issue

with 7 1 of defendants’ Rule 3(g) statement.

-89-

69 N.Y.2d 812, 813-14, 513 N.Y.S.2d 958,

959, 506 N.E.2d 529 (1987) ("Appointments

made pursuant to Civil Service Law § 65 are

provisional in nature; provisional employees

have no expectation of tenure and rights

attendant thereto ... and therefore they may

be terminated at any time without charges

proffered, a statement of reasons given or a

hearing held").

Accordingly, since plaintiff possessed

no statutory property right in her position

and the record presents no evidence that

plaintiff possessed a property right based

upon the parties’ "mutually explicit

”

understanding," Perry v. Sindermann, 408

U.S. 593, 601, 92 S.Ct. 2694, 2699, 33

L.Ed.2d 570 (1972), defendants’ motion to

dismiss this portion of plaintiff's due process

claim is granted.

Plaintiff also appears to allege that

defendants deprived her of a constitutionally

-90-

protected liberty interest in her "good name,

reputation, honor or integrity." Wisconsin

v. Constantineau, 400 U.S. 433, 91 S.Ct.

507, 510, 27 L.Ed.2d 515 (1971). In

support of this claim, plaintiff alleges that

she received yearly evaluations that were

false and malicious and calculated to harm

plaintiff's reputation, see Amended

Complaint, W27(a), and that defendant Ortiz,

in a "non-privileged communication," stated

that plaintiff was "irresponsible and derelict

in the performance of her duties ..." Id. 9

27(d). Apparently, the "non-privileged

communication" to which plaintiff refers

without specification is Ortiz’ July 12, 1985

memorandum to the then-Mayor Koch in

which Ortiz stated that "to call any

successful candidate a ‘moron’ or a

‘functional illiterate’ is irresponsible because

it is without basis in fact." Plaintiff further

charges, in opposition to defendant's motion,

-91-

rr a ee eee, eee eee ee

that she was stigmatized by a newspaper

article in which then-Mayor Koch stated that

plaintiff had "an axe to grind" (July 13,

1985 New York Post) and by an article in

which defendant Ortiz is quoted as stating

that he refused to redo his performance

evaluations of plaintiff (January 4, 1986 The

New York Times).

A government employee's liberty

interest is implicated where the government

has dismissed an employee based on charges

"that might seriously damage [her] standing

and associations in [her] community" or that

might impose "on [her] a stigma or other

disability that foreclose[s] [her] freedom to

take advantage of other employment

opportunities." Brandt v. Board of

Cooperative Educational Services, Third

Supervisory Dist., 820 F.2d 41, 43 (2d Cir.

1987), quoting, Roth, 408 U.S. at 573, 92

S.Ct. at 2707. In addition, the charges

-99-

against the employee must be made "public"

by the government employer, Bishop, 426

U.S. at 348-49, 96 S.Ct. at 2079-80; Quinn,

613 F.2d at 446-47, and the employee must

allege that the charges are false. Brandt,

820 F.2d at 43, Codd v. Velger, 429 U.S.

624, 627, 97 S.Ct. 882, 883, 51 L.Ed.2d 92

(1977).

An essential element of a deprivation of

liberty claims is that the stigmatization

results from the _ termination. Gentile v.

Wallen, 562 F.2d 193, 197 (2d Cir. 1977);

Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155,

47 L.Ed.2d 405 (1976), reh. denied, 425

U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811

(1976). In other words, it is not sufficient

for a liberty claim "that there simply be a

defamation by a state official; the defamation

had to occur in the course of the termination

of employment." 424 U.S. at 710, 96 S.Ct.

at 1165; see also Neu v. Corcoran, 869 F.2d

-93-

662, 667 (2d Cir. 1989), cert. denied,

U.S. _, 110 S.Ct. 66, 107 L.Ed.2d 33

(1989).

In the present case, plaintiff cannot

rely on either the Ortiz’ performance

evaluations or on Ortiz’ memorandum to Koch

since the allegedly stigmatizing statements

contained in these documents were not

published in the course of plaintiff's

termination. ° Moreover, without reaching

5 The court recognizes that the Second

Circuit has held that the _ publication

requirement may be satisfied if the employee

shows that the stigmatizing material was

placed in her personnel file and_ that

prospective employers are likely to gain

access to it. Brandt, 820 F.2d at 45;

Velger v. Cawley, 525 F.2d 334, 336 (2d

Cir. 1975), rev'd on other grounds, Codd v.

Velger, 429 U.S. 624, 97 S.Ct. 882, 51

L.Ed.2d 92 (1977). In the present case,

however, plaintiff does not allege that any

prospective employer has even attempted to

gain access to her file, if it still exists, in

the more than five years that have elapsed

since the performance’ evaluations were

prepared.

-94-

the issue of falsity and even assuming that

the "publication" requirement has_ been

satisfied with respect to any or all of the

materials upon which plaintiff relies, the

court finds that the statements were not

sufficiently stigmatizing to support a due

process claim. First, plaintiff has not shown

that her reputation, good name, honor or

integrity has been stigmatized by her

discharge. "It is well settled that for a

discharge to create a ‘stigma,’ ‘it must be

something considerably graver than a charge

of failing to perform a_ particular job."

Petrozza v. Freeport, 602 F. Supp. 137, 144

(E.D.N.Y. 1984), quoting, Russell v.

Hodges, 470 F.2d 212, 217 (2d Cir. 1972).

Here, while defendants’ statements may have

amounted to a shade more than simply that

plaintiff could not adequately fulfill her

responsibilities, the statements nevertheless

fall far short of the type found stigmatizing

by courts in this Circuit. - a

Brandt v. Board of Cooperative Educational

Services, Third Supervisory District, 820

F.2d 41, 43 (2d Cir. 1987) (in action in

which teacher terminated due to his alleged

sexual misconduct involving | autistic

students, court recognized that "charges

that the employee is guilty of dishonesty or

immorality are stigmatizing") and Saraceno v.

Utica, 733 F. Supp. 538, 543 (N.D. N.Y.

1990) (allegations of insubordination,

incompetence and misconduct insufficient).

Second, plaintiff has not alleged, let alone

demonstrated, that, in the five years since

she was terminated, her future employment

opportunities have been irreparably damaged

by the "publication" of the allegedly

stigmatizing materials. Roth, 408 U.S. at

574, 92 S.Ct. at 2708. Accordingly, the

court finds that there is no genuine issue of

-96-

fact as to plaintiff's assertion of a

deprivation of a liberty interest.

The court eee grants defendants’

motion to dismiss plaintiff's pendent state law

claims. Plaintiff asserts claims for wrongful

discharge, intentional infliction of emotional

distress and prima facie tort. However,

these claims were foreclosed by the New

York court of Appeals’ holding in Murphy v.

American Home Products Corp., 58 N.Y.2d

293, 461 N.Y.S.2d 232, 448 N.E.2d 86

(1983). In this action, the court declined

the plaintiff's invitation to alter New York's

"long settied rule that where an employment

is for an indefinite term it is presumed to be

a hiring at will which may be freely

terminated by either party at any time for

any reason or even for no reason at all."

58 N.Y.2d at 301-302, 461 N.Y.S.2d at 235.

The court, thus, refused to recognize the

tort of abusive or wrongful discharge of an

-97-

at-will employee. Id.; see also Gorrill v.

Icelandair/Flugeidir, 761 F.2d 847, 851 (2d

Cir. 1985); Mounayer v. Brown & Williamson

Tobacco Corp., 89 Civ. 7476, 1990 U.S.

Dist. LEXIS 6285, 5 BNA IER Cas. 892

(S.D.N.Y. May 24, 1990).°

In addition, the Murphy court also held

that, in light of its holding "that there is

now no cause of action in tort in New York

for abusive or wrongful discharge of an

at-will employee, plaintiff should not be

. The court of Appeals in Murphy also

reaffirmed that an employer could _ not

terminate its employee based on a

“constitutionally impermissible purpose, a

statutory proscription, or an express

limitation in the individual contract of

employment." 58 N.Y.2d at 305, 461

N.Y.S.2d at 237. Here, the court has

already decided that plaintiff's termination

was not for a constitutionally impermissible

purpose or in _ violation of a_ statutory

proscription. In addition, the record is

devoid of any evidence that plaintiff was

employed pursuant to a contract which

precluded his termination under the

circumstances of this or any case.

-98-

allowed _ to eee that conclusion or to

subvert the traditional at-will contract rule

casting his cause of action in terms of a tort

of intentional infliction of emotional

distress." Murphy, 58 N.Y.2d at 303, 461

N.Y.S.2d at 236. The court then reached

the same conclusion with respect to a claim

of prima facie tort. 58 N.Y.2d at 304, 461

N.Y.S.2d at 237. See also Mounayer, at p.

11; D'Avino v. Trachtenburg, 149 A.D.2d

399, 539 N.Y.S.2d 755, 757 (2d Dep't), app.

denied, 74 N.Y.2d 611, 546 N.Y.S.2d_ 556,

545 N.E.2d 870 (1989).

Moreover, even assuming that plaintiff's

intentional infliction of emotional distress and

prima facie tort claims are not foreclosed by

Murphy, plaintiff has failed to satisfy the

elements of these claims. For instance, the

tort of intentional infliction of emotional

distress "predicates liability on the basis of

extreme and outrageous conduct, which so

-99-

transcends the bounds of decency as to be

regarded as atrocious and intolerable in a

civilized society." Freihofer v. Hearst

Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d

735, 741, 480 N.E.2d 349 (1985), citing,

Fischer v. Maloney, 43 N.Y.2d 553, 557, 402

N.Y.S.2d 991, 993, 373 N.E.2d 1215, 1217

(1978). Under the facts as alleged by

plaintiff, defendants’ conduct falls far short

of meeting the above standard.

Prima facie tort permits recovery for

the intentional infliction of harm, without

any excuse or justification, by an act or

series of acts which would otherwise be

lawful. Freihofer, 65 N.Y.2d at 142-43, 490

N.Y.S.2d at 741; Backus v. Planned

Parenthocd of Finger Lakes, A.D.2d _,

555 N.Y.S.2d 494, 495 (4th Dep't 1990);

Dalton v. Union Bank of Switzerland, 134

A.D.2d 174, 520 N.Y.S.2d 764, 767 (ist

Dep't 1987). In addition, "[a] critical

element of the cause of action is_ that

plaintiff suffered specific and measurable

loss, which requives an allegation of special

damages." Freihofer, 65 N.Y.2d at 143, 490

N.Y.S.2d at 741. In the present action,

even assuming that defendants' sole

motivation in terminating plaintiff was

“disinterested malevolence," Backus, 555

N.Y.S.2d at 495, Dr. Piesco's prima facie

"

tort claim must be dismissed since "no

special damages are alleged and apparently

none exist." Freihofer, 65 N.Y.2d at 143,

490 N.Y.S.2d at 741; see also Loudon, at

pp. 6-9; Dalton, 520 N.Y.S.2d at 767;

Alexander & Alexander, Inc. v. Fritzen, 114

A.D.2d 814, 495 N.Y.S.2d 386, 389 (1st

Dep't 1985).

-101-

CONCLUSION

For the reasons expressed. above,

defendants’ motion for summary judgment is

granted in its entirety. Accordingly, each

and every cause of action is dismissed as

against each defendant.

Dated: New York, New York

December 18, 1990

JOHN S. MARTIN, JR.,

U.S.D.J.

-102-

“

ORDER OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND’ CIRCUIT,

ENTERED JUNE 3, 1991

At a stated Term of the United States

Court of Appeals for the Second Circuit,

held at the United States Courthouse in the

City of New York, on the 3rd day of June,

one thousand nine hundred and ninety-one.

Present: HON. WILLIAM H. TIMBERS,

HON. THOMAS J. MESKILL,

HON. GEORGE C. PRATT,

Circuit Judges,

DR. JUDITH PIESCO,

Appellant,

ov. *

THE CITY OF NEW YORK, DEPARTMENT OF

PERSONNEL, JUAN ORTIZ, and NICHOLAS

LaPORTE, JR.,

Appellees.

Appeal from the United States District

Court for the Southern District of New

York.

This cause came on to be heard on the

transcript of record from the United States

District Court for the Southern District of

New York and was argued by counsel.

ON CONSIDERATION WHEREOF, it is

now hereby ordered, adjudged and decreed

-103-

that the judgment of said District Court be

and it hereby is reversed and remanded in

part; affirmed in part in accordance with the

opinion of this Court.

Elaine B. Goldsmith,

Clerk

by: Edward J. Guardaro,

Deputy Clerk

-104-

JUDGMENT OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF NEW YORK, ENTERED

DECEMBER 26, 1990

DR. JUDITH PIESCO,

Plaintiff ,

-against-

THE CITY OF NEW YORK, DEPARTMENT OF

PERSONNEL, JUAN ORTIZ, NICHOLAS

LaPORTE, JR., and EDWARD I. KOCH,

Defendants.

Defendants having moved for summary

judgment and the said motion having come

before the Honorable JOHN S. MARTIN,

U.S.D.J., and the court thereafter’ on

December 19, 1990, having handed down its

memorandum opinion (#67198); granting in its

entirety defendants' motion for summary

judgment, and dismissing each and every

cause of action as against each defendant, it

is,

-105-

ORDERED, ADJUDGED AND DECREED:

That defendants’ motion for summary

judgment be and it is hereby granted in its

entirety, and it is further,

ORDERED, that each and every cause

of action be and it is hereby dismissed as

against each defendant.

DATED: NEW YORK«&, NEW YORK

December 26, 1990

Raymond F. Bughart 7

Clerk