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December 18, 1990


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 its entirety.


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 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.

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 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 prepared a 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 ...

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