that ritualistic incantation of the business records exception to the hearsay rule does not meet problems of multi-tiered hearsay in such documents.
The central issue in this case, as the Attorney General concedes, is the defendants' motives. Memorandum of Law in Opposition to Plaintiff's Motion For Summary Judgment and in Support of Defendants' Cross-Motion For Summary Judgment, dated February 11, 1993, 10-11 ("Defendants' Memo").
Claims involving First Amendment rights of public employees are governed by Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), and its progeny, which require, first, that the speech at issue "be fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 145, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983); Ezekwo v. New York City Health and Hospitals Corp., 940 F.2d 775, 781 (2d Cir. 1991).
Second, the employee must prove that the speech was a substantial or motivating factor in the adverse employment decision. Mount Healthy City Board of Education v. Doyle, 429 U.S. at 287; Ollman v. Toll, 518 F. Supp. 1196 (D. Md. 1981), aff'd, 704 F.2d 139 (4th Cir. 1983).
Third, the court must balance the interests of the employee, "as a citizen, in commenting upon matters of public interest and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, supra, 391 U.S. at 568. See also Rankin v. McPherson, 483 U.S. 378, 388, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987); Ezekwo, supra, 940 F.2d at 780.
Fourth, the government employer must be given an opportunity to prove that it would have reached the same decision even without considering the protected conduct. Id.
Cases requiring a Pickering analysis are, as the Attorney General concedes, ill-suited for summary judgment. Defendants' Memo, 1. See, Aebisher v. Ryan, 622 F.2d 651, 654-55 (2d Cir. 1980). Furthermore, as the underlying facts are quite unsettled and even contradictory in the Attorney General's own submission, we are not satisfied that a showing that defendants' are entitled to a finding of qualified immunity at this stage of the proceedings has been made.
Nor are we satisfied that the record supports Plaintiff's motion for summary judgment, given the factual dispute over motive that is at the heart of the case.
Accordingly, the cross-motions for summary judgment are in all respects denied. The case will proceed to trial on April 20, 1993. This is a final and irrevocable trial date, and no adjournment will be granted.
Dated: New York, New York
March 31, 1993
KENNETH CONBOY, U.S.D.J.
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