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June 30, 1983

Clarence A. PHELAN, Plaintiff,
Erastus CORNING, II, Individually and as Mayor of the City of Albany, Harry F. Maikels, Individually and as Commissioner of Public Works of the City of Albany and The City of Albany, Defendants.

The opinion of the court was delivered by: MINER


MINER, District Judge.


 Plaintiff brought this civil rights action pursuant to the provisions of 42 U.S.C. §§ 1983 and 1985, claiming that he was discharged from the position of Deputy Commissioner of the Department of Public Works of the City of Albany in violation of rights guaranteed to him by the first, ninth and fourteenth amendments to the United States Constitution. At trial, plaintiff asserted only the first amendment violation as a basis for the relief sought -- compensatory damages for lost pay and mental anguish in the sum of $250,000; punitive damages in the sum of $1 million dollars (as against the individual defendants only); and attorney's fees to be fixed by the Court. Jurisdiction is predicated upon 28 U.S.C. § 1343. The action was tried to the Coaurt on March 29, 1983, *fn1" and final submissions were filed on April 12, 1983. There follow the findings of fact (including as part hereof the "Stipulated Facts" submitted by the parties) and the conclusions of law mandated by Fed.R.Civ.P. 52(a). [See Appendix.]


 Clarence A. Phelan, the plaintiff, served in various capacities in the City of Albany Public Works Department from July 15, 1968, when he began his employment as a chauffeur, until January 27, 1978, when he was discharged as Deputy Commissioner of Public Works. Plaintiff was appointed to the position of Deputy Commissioner by defendant Harry F. Maikels, Commissioner of Public Works, on January 10, 1974, approximately ten days after Maikels became Commissioner. The appointment was approved by the Mayor of the City of Albany, defendant Erastus Corning II. *fn2"

 By letter dated October 21, 1974, the Executive Director of Council 66, American Federation of State, County and Municipal Employees, notified the Mayor of Albany that certain named city employees were engaged in organizing an employees' union. Among those named in the letter were George Strokes and Willard Van Valkenburg, equipment operators in the Department of Public Works. Prior to that time, Strokes had been observed soliciting employees at the Bureau of Streets garage.On or about November 12, 1974, Strokes was discharged from his employment and, soon thereafter, challenged his discharge in an improper practice proceeding before the New York State Public Employment Relations Board and in a proceeding pursuant to N.Y.Civ.Prac.Law Art. 78 before the New York Supreme Court. Both proceedings were settled by a stipulation permitting Strokes to return to work with back pay and pension and seniority rights.

 Willard Van Valkenburg was absent from his employment from January 20-January 31, 1975. During his absence, Strokes was ordered, but refused, to operate the backhoe equipment assigned to Van Valkenburg. Department policy called for the submission of a doctor's certificate after the third day of absence. Plaintiff notified Maikels after Van Valkenburg's third day of absence without a certificate and was told to keep a "running record" on Van Valkenburg. Accordingly, plaintiff reported to Maikels regarding the absences by letters dated January 23, 24, 27, 28, 29, 30, 31 and February 3, 1975. In the letter of January 27, plaintiff advised the commissioner as follows: "Mr. Van Valkenburg reported for duty this date, Monday, January 27th, 1975, advising that he had been sick. In-as-much [sic] as Mr. Van Valkenburg had been absent since January 20th, 1975, I sent him home until such time as he produces a Doctor's certificate that he is able to resume work." Van Valkenburg did not report for work thereafter until February 3, 1975, at which time he produced a doctor's certificate attesting to his treatment on January 27 and his ability to return to work on January 29. These facts were reported in plaintiff's letter of February 3.

 Based on the information furnished to the Commissioner by plaintiff, the Corporation Counsel's office prepared charges against Van Valkenburg for a disciplinary hearing pursuant to New York Civil Service Law § 75. This was the only disciplinary hearing ever brought against a Public Works Department employee for absence due to a claim of illness. Plaintiff testified at the hearing on February 26, 1975 that he had not in fact seen Van Valkenburg on January 27, 1975 and that the charges were incorrect in that respect.It was plaintiff's belief, according to the testimony, that Van Valkenburg had spoken by telephone on January 27 with the timekeeper, Mr. Ridgway, who advised Van Valkenburg that a doctor's certificate was required. At the hearing, plaintiff testified that he did not read the charges carefully, although at trial he testified that he was directed to sign the charges without having any opportunity to read them. Apparently, no disciplinary action ever was taken against Van Valkenburg.

 Plaintiff traces the diminution of his authority in the Public Works Department and his eventual discharge in January of 1978 to his testimony at the Van Valkenburg hearing. However, Michael Manning was appointed Deputy Field Commissioner on January 21, 1975 at a salary in excess of that of plaintiff. Manning had extensive experience in the private sector in excavation, paving and sewer installation.He was hired originally as a field investigator in the Public Works Department on December 9, 1974. His hiring came about as the result of the desire of the Commissioner to expand the Department's capacity to perform public works projects and to reduce the need for retaining private contractors. During his eighteen months tenure in the Department, Manning trained and personally supervised city employees in attending to broken sewer lines, drainage problems and major pavement failures, substantially improving the Department's capability for specialized work and reducing its reliance on private contractors. Although plaintiff continued to hold the title of Deputy Commissioner, his responsibilities were diminished gradually after Manning arrived. Commencing in September and October of 1974, Commissioner Maikels had become increasingly dissatisfied with plaintiff's job performance and lack of expertise, reprimanding him on several occasions for failing to coordinate the work of the street crews properly and for neglecting to give proper direction to supervisors. *fn3"

 At the end of October, 1975, plaintiff was placed in charge of setting up reviewing stands at Memorial Park for the Veterans Day Parade. When Commissioner Maikels found that the stands were not placed in the proper location, he ordered plaintiff to return to his desk at the Bureau of Streets garage and to remain there. Plaintiff's department automobile was taken away from him, but he continued to perform administrative duties such as ordering supplies, keeping payroll records, executing vouchers and assigning some work crews. These administrative duties gradually were taken over by George Nealon. Nealon had begun his career with the Department by working at the city golf course as a summer season laborer during his high school and college years. The golf course manager recognized him as bright and capable and recommended that he be employed at the Bureau of Streets. In the fall of 1974, Nealon came under the supervision and training of Manning, who was impressed with his abilities and recommended him for promotion to foreman about a year later. On December 31, 1976, with the consent of Mayor Corning, Nealon was promoted to the position of Acting Deputy Commissioner at a salary of $9,000 per annum, $1,000 in excess of plaintiff's annual salary. He has been an important asset to the Department, having established programs for street cleaning, sidewalk repairs, street surfacing and sewer work. He served as liaison with the Bureau of Engineering, assisted in code revisions, handled labor negotiations and worked with consulting engineers. During his employment with the Department, Nealon undertook various engineering courses and qualified for a master plumber's license. His salary was increased to $16,000 per annum on December 16, 1977.

 On July 29, 1976, plaintiff was assigned to City Hall to supervise the cleaning crew there, although a cleaning crew supervisor remained on the job after plaintiff arrived. Phelan shared a basement office with the Superintendent of Buildings and had little contact with the Commissioner in this capacity. Dissatisfied with plaintiff's lack of initiative and competence and his absences from the job at City Hall, Commissioner Maikels terminated plaintiff's employment in January of 1978.


 Plaintiff contends that his eventual discharge from employment constituted retaliation for the testimony he gave at the Van Valkenburg hearing. This testimony, he claims, is protected by the first amendment, although plaintiff's attorney concedes that his "[r]esearch has revealed no reported case on point on the issue of whether testimony is protected by the First Amendment." (Post-Trial Memorandum on Behalf of Plaintiff, p. 9). However, plaintiff asserts that it "appears" in Brule v. Southworth, 611 F.2d 406 (1st Cir.1979), that the unreported district court decision subject of appeal included an opinion that certain testimony given by plaintiffs was protected by the first amendment. This Court finds no such implication in the court of appeals decision. The plaintiffs in Brule were correction officials who were suspended from employment by their superiors at the Rhode Island Correctional Institution after making remarks critical of a lock-up policy instituted after a prison disturbance. These remarks were made in "public statements" as well as in testimony before a state senate committee, a gubernatorial commission and the court where the inmates brought suit.Although the district court found that the plaintiffs' "public statements" were protected, and this finding was not challenged on appeal, there is no indication that the testimony given by plaintiffs was included within the ambit of constitutional protection, and the court of appeals declined to address the issue. *fn4"

 In the opinion of this Court, the testimony given by plaintiff at the administrative hearing did not invoke first amendment protection. "It is the purpose of the First Amendment to preserve an uninhibited market place of ideas in which truth will ultimately prevail. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S. Ct. 1794, 1807, 23 L. Ed. 2d 371 (1969). The freedom to advocate ideas is the basic guarantee of the first amendment, Kingsley Int'l Pictures Corp. v. Regents of the University of the State of New York, 360 U.S. 684, 688, 79 S. Ct. 1362, 1365, 3 L. Ed. 2d 1512 (1959), and the free and unfettered interchange of ideas is considered essential to bring about desired changes in our society. Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957); see Abrams v. United States, 250 U.S. 616, 630, 40 S. Ct. 17, 22, 63 L. Ed. 1173 (1919) (Holmes, J., dissenting). The "core value" of the first amendment's Free Speech Clause is the public's interest in unhindered debate on those matters considered important by the people, Pickering v. Board of Education, 391 U.S. 563, 573, 88 S. Ct. 1731, 1737, 20 L. Ed. 2d 811 (1968), and there is a "profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open. . . ." N.Y. Times v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 721, 11 L. Ed. 2d 686 (1964).

 The plaintiff's response to questions asked of him at the Van Valkenburg hearing were not part of any ongoing debate on a public issue. Plaintiff put forth no ideas or opinions during his testimony. He was called upon only to state truthfully specific facts concerning the work of a subordinate. No inquiry was made of plaintiff regarding his associations, memberships, opinions or beliefs. It is the duty of every person to testify before a duly constituted tribunal unless a valid legal exemption is involved. Ullmann v. United States, 350 U.S. 422, 439, n. 15, 76 S. Ct. 497, 507, n. 15, 100 L. Ed. 511 (1956). Plaintiff's duty was to testify under oath as to factual matters relating to Van Valkenburg's job performance. *fn5" That testimony was not protected by a first amendment privilege.


 Even assuming that plaintiff's testimony was constitutionally protected, it is necessary that plaintiff show that the protected conduct was a substantial or motivating factor in his discharge from employment; if so, it is incumbent on the Court then to determine by a preponderance of the evidence whether Commissioner Maikels would have reached the decision to discharge plaintiff even in the absence of the protected conduct. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). This Court finds and concludes that plaintiff's testimony at the Van Valkenburg hearing was not a substantial or motivating factor in his discharge and that the same decision would have been made in the absence of the assumed protected conduct.

 Commissioner Maikels apparently was displeased with the initial union organizing effort at the Department of Public Works.He testified at the trial of this action that he thought that unions "interfered with the ability to do the job" and that he "should have the ultimate authority to hire and fire." Because Van Valkenburg was one of the first union organizers, Maikels directed plaintiff to keep a record of Van Valkenburg's absences. The record kept by plaintiff formed the basis for the charges made in the disciplinary hearing. Plaintiff's claim that he was not afforded the opportunity to read the charges is of little significance, since the charges reflected only the information originally furnished by plaintiff. Although plaintiff, at the hearing, disavowed certain of the information he had furnished to the Commissioner, it is not clear that plaintiff's testimony was the reason why no disciplinary action ever was taken against Van Valkenburg.

 There is no question that Commissioner Maikels was disturbed by the testimony given by plaintiff. In June of 1975, some four months after the hearing, the Commissioner accused plaintiff of "stabbing him in the back" relative to the Van Valkenburg case. It is also clear from the record, however, that plaintiff's testimony at the hearing was not a substantial or motivating factor in his discharge. It was apparent to Commissioner Maikels and others in the Department, before the union organizing began, that plaintiff lacked the education and expertise to fulfill the duties required of a Deputy Commissioner. Approximately one month before the hearing, Michael Manning was hired at a salary in excess of plaintiff's because additional specialized assistance was required in the Department. George Nealon was brought up from the ranks because of his demonstrated ability. Plaintiff literally was a man "in over his head," unable to direct the functions of a modern public works department. Even as his duties were taken over by others, he had difficulty with the remaining tasks assigned to him. Finally, he was relegated to the City Hall cleaning crew and eventually discharged almost three years after the Van Valkenburg hearing. The decision to fire plaintiff was based on his inability to do the job, and that decision would have been made even in the absence of his testimony at the disciplinary hearing.

 The action must be dismissed as against the late Mayor Corning in any event. Although the Mayor approved plaintiff's hiring, he had nothing to do with plaintiff's dismissal. The action also must be dismissed as against the City of Albany, since the doctrine of respondeat superior is not available in § 1983 actions, Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981), and there is no indication that any constitutional violation took place with the City's authorization, approval or encouragement, Turpin v. Mailet, 619 F.2d 196 (2d Cir.1980), cert. denied 449 U.S. 1016, 101 S. Ct. 577, 66 L. Ed. 2d 475 (1980). Plaintiff's § 1985 action is not maintainable in any event, since he has failed to demonstrate that he was the victim of a racial or other class-based animus. See Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971).


 I direct the entry of judgment for the defendants in accordance with the foregoing. The motions made at the close of plaintiff's evidence, upon which decision was reserved, are denied in all respects.



 Unless otherwise stated, all stipulations apply at all times relevant to this action.

 1. The transcript of testimony at the hearing on charges against Willard Van Valkenburg (Plaintiff's Exhibit 6) is a true, complete and accurate transcript of the questions asked and answers given at that hearing.

 2. The transcript of testimony appearing as Plaintiff's Exhibit 15 for identification is a true, complete and accurate transcript of the questions asked and answers given before the Public Employment Relations Board on December 2, 1975 in Case No. U-1758.

 3. Between 1942 and the present, the defendant Erastus Corning, II has been Mayor of the City of Albany.

 4. Erastus Corning, II is presently unavailable as a witness as that term is defined in FRCP 32(a)(3) and FRE 804(a)(4) and the testimony given by him at a deposition held on December 3, 1981 qualifies as former testimony as that term is defined in FRE 804(b)(1).

 5. The Commissioner of Public Works of the City of Albany reports directly to the Mayor.

 6. From January 1, 1974 to the present, the defendant Harry F. Maikels has been Commissioner of Public Works of the City of Albany.

 7. Between January 1, 1974 and 1978, the Department of Public Works had Bureaus of Streets, Parks, Sanitation, Pumping Station, Landfill, Golf Course, Central Garage and Engineering (* * * Maikels, 68-84).

 8. The Bureaus of Sanitation, Parks, Landfill and Golf Course each had a superintendent (* * * Maikels, 44).

 9. The superintendents of the Bureaus of Sanitation, Parks, Landfill and Golf Course reported directly to the Commissioner of Public Works (* * * Maikels, 44).

 10. The Superintendents of the Sanitation, Parks, Landfill and Golf Course were responsible within their bureaus for assigning and supervising work being performed by crews ...

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