The opinion of the court was delivered by: Martin, 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 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 constituted 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
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 an in-house position which plaintiff held on a
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.
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 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 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 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 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 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.
SENATOR GOODMAN: Would a functional illiterate
pass the functional portion in the police
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 exam which was written above the
tenth-grade reading level. It is obvious,
therefore, that to call any successful candidate a
`moron' or `functional illiterate,' is
irresponsible because it is without basis in fact.
The following day, 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
memorandum to plaintiff setting forth what occurred at that
meeting, which plaintiff 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
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 that ...