A. First Amendment Claim - Objections and Contentions
Plaintiff first objects to Magistrate Judge Heckman's "mistaken impression of an ongoing Promotion and Tenure evaluation by erroneously stating that plaintiff distributed [his Personal Resolution] to all members of the Promotion and Tenure Committee." (pl. obj. at 8). Plaintiff argues that during his sixth year of teaching, he never consented to nor did he request that his promotion and tenure evaluation be postponed until the 1991-1992 academic year.
(Id.). Plaintiff argues that the Promotion and Tenure Committee never formally evaluated him thus they could not have denied and did not deny him tenure. However, defendants, particularly Dean Filvaroff, did deny plaintiff promotion and tenure, thus Magistrate Judge Heckman's "assertion that 'defendants never denied plaintiff tenure' confuses 'defendants' . . . with the law school's 'Promotion and Tenure Committee' . . .." (Id. at 11). Plaintiff contends that Magistrate Judge Heckman's "depiction of plaintiff as 'delaying and eventually withdrawing from the review process,' cannot have the legal significance she attributes to it because the would-be 'review process' of which she speaks was nothing more than a possible means of facilitating settlement of the action once the litigation had begun." (Id. at 12). Plaintiff argues that there "never was any seventh year Promotion and Tenure evaluation from which plaintiff could have withdrawn because plaintiff's seventh year was his post-terminal year . . .." (Id. at 13).
Plaintiff further asserts that "to the extent there was [sic] any serious legal issues involved in question of seventh-year promotion and tenure review, it was the one that was before Judge Skretny when he decided that the case was ripe for litigation and that discovery could go forward." Plaintiff argues that by determining that plaintiff consented to review in the seventh-year, Magistrate Judge Heckman is attempting to reverse this Court's determination. (Id. at 17). Plaintiff argues that by following the Report and Recommendation, this Court would be "acting in a highly erratic and arbitrary manner." Plaintiff states that this Court, by allowing discovery to go forward, "caused him to expend limited resources on eight depositions and incur the additional hostility that came from his litigating the case." (Id. at 18).
In addition, plaintiff argues that the seventh year review was essentially a sham and intended only as a litigation maneuver. (Id. at 20). Moreover, plaintiff asserts that he was treated differently than other promotion and tenure candidates because of his outspokenness on a number of controversial issues. (Id. at 5).
Plaintiff contends that the cases relied on by Magistrate Judge Heckman in support of the conclusion that plaintiff waived his right to review in his sixth year by agreeing to a review in the seventh year are factually distinguishable. (Id. (discussing Savage v. Gorski, 850 F.2d 64 (2d Cir. 1988) and Simmons v. Lyons, 746 F.2d 265 (5th Cir. 1984)). Those cases involved plaintiffs who never submitted applications and their claims were dismissed because the employer had no way of knowing that they wanted to be considered for the job and the distinction with his case lies in the fact that defendants Greiner, Levy and Filvaroff knew that plaintiff wanted Promotion and Tenure. (Id. at 15). "By blurring the distinction between plaintiff's sixth and seventh years and overlooking the university's rules regarding promotion and tenure Magistrate [Judge] Heckman managed to persuade herself that plaintiff had failed to apply for tenure or refused to let himself be considered for promotion and tenure." (Id. at 16).
Plaintiff contends that by mid-January 1991 it had become clear that any "consent plaintiff may have given to deferring review was clearly and consistently conditioned on the promise of such review being only for promotion and not for tenure." (Reply at 7). Plaintiff asserts that all of the evidence in the record supports his position that he did not consent to defer promotion and tenure review. (Id.)
Plaintiff argues that Magistrate Judge Heckman did not understand the nature of plaintiff's First Amendment claim. He claims that he was denied promotion and tenure during his sixth year without having the opportunity to bring his case before the Promotion and Tenure Committee because of his speech activity. (Id. at 19). Plaintiff contends that Magistrate Judge Heckman failed to apply the test for violation of First Amendment rights as set forth in Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). He asserts that the record is replete with evidence that he (1) was terminated during his sixth year and (2) that the termination was due to exercise of first amendment rights (Id. at 21 (citing Plaintiff's Affidavit and Supplementary Affidavit in Support of the Motion for Preliminary Injunction)). Further, defendants have failed to provide any evidence that his termination was for any reason other than his exercising of his First Amendment rights. (Id. at 22). Plaintiff acknowledges that defendants assert that his teaching ability and his scholarship were the reasons for his discharge but contends that the record contains "substantial evidence that plaintiff's performance both as effective teacher and productive scholar were far above average for persons receiving tenure on the law faculty" but that Magistrate Judge Heckman ignored this evidence. (Id. (citing plaintiff's Reply Affidavit in Support of the Motion for Preliminary Injunction)).
On the other hand, defendants maintain that Magistrate Judge Heckman correctly determined that plaintiff agreed to postpone promotion and tenure review and subsequently took "himself out of consideration through his 'Personal Resolution.'" (def. memo at 4). Defendants assert that not only is his withdrawal from consideration documented but his deferral of tenure until the fall of his seventh-year is also fully documented. (Id.).
Defendants argue that plaintiff's contention that he participated in a Spring 1992 review as a means of facilitating settlement is illogical in light of his admission that no stipulations were in place regarding his Promotion and Tenure review during the Spring of 1992. (def. memo at 6). Further, that this is an admission by plaintiff that the promotion and tenure review was ongoing in the Spring of 1992. (Id.).
Moreover, defendants contend that plaintiff's reference to the Orders of this Court determining that this case was ripe for litigation is mystifying because this Court has not ruled on any substantive issue in this case. (Id. at 8).
Defendants also contend that plaintiff has failed to show a probability of success on the merits. Plaintiff's assertion that defendants must show that he would have been denied tenure regardless of his claimed exercise of free speech is erroneous. Such a determination need not be made because plaintiff was not terminated. Defendants argue that plaintiff has failed to point to any contradictory evidence not of his own fabrication. Moreover, plaintiff was neither terminated nor denied tenure, he withdrew, according to defendants.
Finally, defendants maintain that plaintiff has not alleged that he was threatened with termination unless he altered or stifled his speech. Instead, plaintiff argues that he was terminated in retaliation for his exercise of free speech, like the allegations of the employees in Gorski and thus Elrod is inapplicable. (Id.).
To the extent practicable, the positions of the parties are subsumed in the ensuing discussion relating to preliminary injunction.
B. Preliminary Injunction
To obtain a preliminary injunction plaintiff must demonstrate
(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.
Wallace Int'l Silversmiths, Inc. v. Godinger Silver Art Co., Inc., 916 F.2d 76, 78 (2d Cir. 1990), cert. denied, U.S. , 113 L. Ed. 2d 720, 111 S. Ct. 1622 (1991) (citations omitted). The plaintiff has the burden of persuasion on each preliminary injunction element. United States v. Jefferson County, 720 F.2d 1511 (11th Cir. 1983). Moreover, the district court must keep in mind that "a preliminary injunction is an extraordinary remedy that should not be granted as a routine matter." JSG Trading Corp. v. Tray-Wrap, Inc, 917 F.2d 75, 80 (2d Cir. 1990).
In his effort to demonstrate irreparable harm, plaintiff presents arguments based on First Amendment, Eleventh Amendment/qualified immunity, and destruction of career. They will be addressed seriatim below.
1) Irreparable Harm
a) First Amendment
Plaintiff argues that "'the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'" (pl. obj. at 2 (quoting Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). Based on this quote, plaintiff concludes that he is entitled to a preliminary injunction as a matter of law if he can demonstrate a probability of success on the merits of his first amendment claim. (Id.).
When a plaintiff alleges that his right to free speech is being directly infringed upon, that is, the violation is ongoing at the time plaintiff files suit, the questions of irreparable harm and likelihood of success on the merits are necessarily subsumed into the whole First Amendment inquiry, Gannett Satellite Info. Network, Inc. v. Township of Pennsauken, 709 F. Supp. 530 (D.N.J. 1989), because the loss of such First Amendment freedoms for even minimal periods of time constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). Therefore, in cases where the plaintiff is given a choice of relinquishing his First Amendment rights in favor of retaining his employment, the issuance of a preliminary injunction turns on whether his First Amendment rights were violated by the defendant because the relinquishment of such rights cannot be remedied or compensated.
Here, plaintiff does not allege he was forced to choose between relinquishing his First Amendment rights or retaining his employment. Plaintiff alleges he was terminated outright and although he no longer holds a position at the Law School, he remains totally free to express his views on any topic he so chooses and has vigorously done so.
As Magistrate Judge Heckman correctly noted, when a plaintiff alleges that his First Amendment rights are being infringed upon indirectly, there must be a showing of irreparable harm. (Report and Recommendation at 33). Although plaintiff attempts to distinguish this case from Am. Postal Workers Union, AFL-CIO v. United States Postal Serv., 766 F.2d 715 (2d Cir. 1985), cert. denied, 475 U.S. 1046, 106 S. Ct. 1262, 89 L. Ed. 2d 572 (1986) and Savage v. Gorski, 850 F.2d 64 (2d Cir. 1988), it is clear that the plaintiffs in Am. Postal Workers Union and Savage, as well as plaintiff herein, allege that termination occurred in retaliation for the exercise of the right to free speech. The distinction is important because on the one hand a person has lost his First Amendment right and has retained his employment. On the other hand a person has lost his employment but retained his First Amendment rights. Therefore, in the latter case, the damage is the loss of income, not the loss of First Amendment rights. The Court in Am. Postal Workers reiterated the Supreme Court's position that "except in a 'genuinely extraordinary situation,' irreparable harm is not shown in employee discharge cases simply by a showing of financial distress or difficulties in obtaining other employment." Am. Postal Workers, 766 F.2d at 721 (quoting Sampson v. Murray, 415 U.S. 61, 92 n.68, 94 S. Ct. 937, 953, n.68, 39 L. Ed. 2d 166 (1974)).
The analysis then turns to a question of whether there has been a chilling of free speech because a chilling would constitute irreparable harm. A showing of a chilling effect must amount to "a clearcut infringement of first amendment rights which, absent preliminary injunctive relief, either has occurred or will occur in the future." Am. Postal Workers, 766 F.2d at 722. More importantly, there must be a showing that the chilling "of the right to speak . . . [will] be thawed by the entry of an interim injunction, since the theoretical chilling of protected speech . . . stems not from the interim discharge, but from the threat of permanent discharge, which is not vitiated by an interim injunction." Id. at 722. The opinion of the Second Circuit, as expressed in Am. Postal Workers was reiterated and strengthened in Savage, 850 F.2d 64.
In the case at hand, plaintiff has failed to allege that there was a chilling of the right to speak or that the issuance of an injunction would thaw that chill. Thus, this Court agrees with Magistrate Judge Heckman that plaintiff has failed to meet the burden of establishing irreparable injury as to his First Amendment claim so as to mandate injunctive relief. (Report and Recommendation at 33).
b) Eleventh Amendment Immunity/Qualified Immunity Argument
Plaintiff asserts that courts have repeatedly held that plaintiffs suing state agencies in federal court could show irreparable harm based on defendants' probable immunity from having to pay monetary damages retroactively. (Id. at 35 (citing Savage v. Commonwealth of Pa., 475 F. Supp. 524, 533 (E.D. Pa. 1979); Faulkner v. North Carolina Dep't of Corrections, 428 F. Supp. 100 (W.D.N.C. 1977); Jessen v. Village of Lyndon Station, 519 F. Supp. 1183 (W.D. Wis. 1981; Schrank v. Bliss, 412 F. Supp. 28 (M.D. Fla. 1976)). Plaintiff maintains that in each of these cases it was held that there was a question as to whether or not the defendants would be able to "invoke their good-faith qualified immunity against having to pay damages personally. (Id.). Plaintiff entitles this his "'irreparable harm because of Eleventh Amendment immunity' argument."
It appears that plaintiff is blurring Eleventh Amendment immunity with qualified Immunity. "The privilege . . . [of] qualified immunity [is] . . . entirely distinct from the immunity conferred by the Eleventh Amendment." Gan v. the City of New York, 996 F.2d 522, 1993 U.S. App. LEXIS 13086, at *15 (2d Cir. 1993).
The Eleventh Amendment, with few exceptions, bars federal courts from entertaining suits brought by a private party against a state in its own name. See, e.g., Edelman v. Jordan, 415 U.S. 651, 662-63, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). The availability of immunity under the Eleventh Amendment does not depend on the nature of the function performed by the state.