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November 10, 1993



The opinion of the court was delivered by: MORRIS E. LASKER


 Donald Lundgren brings this action for damages under 42 U.S.C. ยง 1983 against his former superiors at the New York State Department of Insurance. Lundgren alleges that he was relieved of his duties as Deputy Superintendent at the Department and ultimately dismissed in retaliation for exercising his constitutionally protected right to free speech.

 The defendants, Salvatore Curiale, Wendy Cooper, and James Corcoran move for summary judgment under Fed. R. Civ. P. 56(b) on the grounds that there are no genuine issues of material fact precluding summary judgment in their favor, or, in the alternative, because each of them is qualifiedly immune.


 Lundgren was a Deputy Superintendent in the Department of Insurance in charge of the Department's Property Companies Bureau from 1983 until he was dismissed on April 24, 1991. The Bureau regulates over 900 insurers including the various Blue Cross and Blue Shield health insurance plans which operate within the State of New York (the "Blues").

 The chain of events that culminated in Lundgren's termination began with the 1987 appointment of Wendy Cooper as First Deputy Superintendent and Lundgren's immediate superior. At that time, and for most of the remainder of Lundgren's employment at the Department, the highest position in the Department, that of Superintendent, was filled by James Corcoran. Salvatore Curiale succeeded Corcoran as Superintendent in June 1990.

 Almost immediately after her appointment as First Deputy, Lundgren and Cooper began to differ about the Department's regulatory decisions concerning three Blue Cross plans -- Rochester Blue Cross, Buffalo Blue Cross and Empire Blue Cross. According to Lundgren, he came to believe that Cooper's position in these disputes lacked cogency and instead reflected her desire to give favorable treatment to the clients of an Albany law firm, Hinman, Straub, Pigors & Manning, which represented the Blues before the Department.

 In his Affidavit in Opposition Lundgren states that he at first spoke privately to Corcoran about what he "suggested . . . was Cooper's willingness to accede to Hinman, Straub's wishes." Eventually, however, Lundgren wrote to the office of Governor Cuomo, asserting that Buffalo Blue Cross and Rochester Blue Cross "were engaged in predatory pricing of its HMO product[s]" and that "Hinman Straub was able to reach Wendy Cooper on [these] issue[s]."

 On April 1, 1988, Corcoran ordered an inquiry into Lundgren's allegations against Cooper and Deputy Inspector General Kevin Foley reported to Corcoran orally, some four months later, that they were unfounded. On August 23, 1988, Corcoran relieved Lundgren of his responsibilities over health matters. On July 17, 1989, and after Lundgren had written a memorandum to Corcoran to memorialize his concerns regarding Cooper's conduct in December 1988, Corcoran formally relieved Lundgren of his remaining duties.

 Thereafter, Corcoran ordered a second investigation into Lundgren's allegations which, like Foley's earlier inquiry, concluded that there was "insufficient evidence to support the allegations by Deputy Lundgren that First Deputy Cooper engaged in conduct designed to favor the clients of Hinman, Straub, Pigors and Manning." Finally, on April 24, 1991, Superintendent Curiale, who succeeded Corcoran in that position, discharged Lundgren because, as he avers, he had become convinced that Lundgren's working relationship with Cooper had been "irreparably damaged" and because the Department could no longer afford to pay Lundgren who, at this point, despite his $ 80,000 salary, had no remaining duties.


 The First Amendment protects government employees from discharge for speech upon matters of public concern, Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), unless the employer can show that its interest in the effective functioning of its enterprise outweighed the discharged employee's interest in free expression, Rankin v. McPherson, 483 U.S. 378, 388, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987); see also Pickering v. Board of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). To prevail on a claim under Section 1983, a plaintiff must also establish that the allegedly protected speech was a "substantial factor" or a "motivating factor" in the defendants' actions against him. Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). A defendant may, however, avoid liability if he can prove that he "would have reached the same decision as to [Lundgren's] employment even in the absence of the protected conduct." Id. at 287.

 In the case at hand, the defendants argue that Lundgren's speech was not constitutionally protected because the subject matter of his allegations was not of serious public concern and because the disruption his allegations caused to the effective functioning of the Department outweighed his interest in free expression. They contend further that Lundgren's allegations were not a substantial factor in their actions against him. They claim instead that Lundgren was relieved of his duties and ultimately discharged because Lundgren "campaigned unceasingly" against Cooper even though two investigations had shown his allegations against her to be meritless. Finally, ...

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