On the present record Lundgren's First Amendment interests appear to have outweighed the defendants' interest in the effective functioning of the Department. However, in view of the Court of Appeals' cautioning statement in Vasbinder v. Ambach, 926 F.2d at 1340, that there are some "cases in which the question of the degree to which the employee's speech could reasonably have been deemed to impede the employer's efficient operation would properly be regarded as a question of fact, to be answered by the jury prior to the court's application of the Pickering balancing test," a final decision on this point is deferred until trial.
The defendants' argument that no reasonable jury could find that Lundgren's allegations were a substantial factor in the defendants' actions against him is without merit. In fact, the reasons given by the defendants for their actions against Lundgren can be viewed as supporting his allegations. In effect, the defendants claim that Lundgren's allegations and their aftermath became so disruptive to the Department that Lundgren had to be fired. That claim -- unlike, for example, a claim that an employee was fired for his incompetence -- does nothing to disprove Lundgren's claim that his allegations were a substantial factor in his dismissal.
Cooper's involvement in the actions against Lundgren.
Nor is Cooper entitled to summary judgment on her contention that Lundgren has offered no evidence that she was personally involved with the alleged civil rights violations. Although, unlike Corcoran or Curiale, Cooper did not relieve Lundgren of any duties or dismiss him, the evidence establishes at least that Cooper was present in Corcoran's office during and immediately prior to Lundgren's removal from his responsibilities over health matters, and that Cooper met with Ellen Conovitz (variously described as "one of the Governor's appointments persons" and "the Governor's personal Secretary and, subsequently, his Appointments Secretary") at the Governor's office on her own initiative to discuss Lundgren's case the day before that event. While the cumulative effect of the evidence against Cooper is not overwhelming, it is sufficient for Lundgren at this time since "on summary judgment, the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)).
"Summary judgment is notoriously inappropriate for determination of claims in which issues of intent, good faith and other subjective feelings play dominant roles." Krishna v. Colgate Palmolive Company, 7 F.3d 11, 1993 U.S. App. LEXIS 23369, 1993 WL 380023 (2d Cir. Sep. 9, 1993) (collecting cases). For the reasons stated above, the defendants' general motion for summary judgment is denied.
The defendants argue in the alternative that they should be granted summary judgment on the basis of qualified immunity. Government officials performing discretionary functions are entitled to such immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).
The defendants maintain that each of them should be held to be immune because it was objectively reasonable for each of them to believe that their respective actions against Lundgren did not violate his rights. They maintain that Lundgren has not offered sufficient evidence that their actions against him were improperly motivated and that, even if they acted in part to retaliate against Lundgren, they are nevertheless qualifiedly immune under the "dual motive" test of Mt. Healthy because they were also motivated by "logical reasons for discharge." In addition, Corcoran contends that he is qualifiedly immune because his sole action was to remove Lundgren's duties, not to dismiss him.
The Court of Appeals has held that "even if the contours of the plaintiff's federal rights and the official's permissible actions were clearly delineated at the time of the acts complained, the defendant may enjoy qualified immunity if it was objectively reasonable for him to believe that his acts did not violate those rights." Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987). Although this route to exoneration has its principal focus on the particular facts of the case "it too may lead to summary judgment if the defendant 'adduce[s] sufficient facts [such] that no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant' to believe that he was acting in a fashion that did not clearly violate an established federally protected right." Id. (quoting Halperin v. Kissinger, 257 U.S. App. D.C. 35, 807 F.2d 180, 189 (D.C. Cir. 1986)).
The defendants here cannot make that showing. As discussed in Section II, a jury could reasonably conclude that the defendants' actions against Lundgren were retaliatory. Since there are open fact questions with regard to the defendants' motives in acting against Lundgren and the evidence must be seen in the light most favorable to Lundgren, the defendants' claim that it was objectively reasonable for them to believe that their actions did not violate Lundgren's rights must be rejected.
The defendants' "dual motive" argument is unpersuasive for the same reason. A reasonable jury could conclude that the defendants actions were retaliatory and that they would not "have reached the same decision as to [Lundgren's] employment even in the absence of the protected conduct." Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. at 287.
It is true that, as the defendants point out, some circuits have imposed a heightened evidentiary requirement on plaintiffs opposing a qualified immunity defense. See, e.g., Martin v. D.C. Metro. Police Dep't, 259 U.S. App. D.C. 31, 812 F.2d 1425, 1435 (D.C. Cir. 1987) ("Plaintiff . . . must come forward with something more than inferential or circumstantial support for his allegation of unconstitutional motive. That is, some direct evidence that the officials' actions were improperly motivated must be produced . . .").
However, the Second Circuit has not articulated such a rule. Moreover, the facts of Martin v. D.C. Metro. Police Dep't distinguish it from this case. The complaint in Martin set forth a convoluted claim that police officers, who admittedly had no connection to an incident in which Martin claimed he had been "shoved . . . through a glass window [and beaten] with nightsticks," had allegedly "conspired to develop an unlawful scheme to deflect attention from their actions and to deter plaintiff from seeking to vindicate his rights." Martin v. D.C. Metro. Police Dep't, 812 F.2d at 1427 (alteration in original). That claim was sufficiently unlikely to have merit on its face to justify requiring the plaintiff to come forward with "some direct evidence that the officials' actions were improperly motivated." Lundgren's case, in contrast, concerns a high level public official censured and ultimately discharged by his superiors for reasons that without question at least originated from his allegations of wrongdoing against one of his superiors in matters of public concern.
Corcoran's argument that he is qualifiedly immune because he merely removed Lundgren's duties without actually dismissing him is unpersuasive. The Supreme Court "has frequently reaffirmed that speech on public issues occupies the 'highest rung of the hierarchy of First Amendment values,' and is entitled to special protection [and] Pickering v. Board of Education followed from this understanding of the First Amendment." Connick v. Myers, 461 U.S. at 145 (citations omitted). Corcoran relieved Lundgren of all his duties in July 1989 and permitted that situation to continue until Corcoran himself resigned six months later. The sanctioning of a high public official such as Lundgren by publicly relieving him of all his duties can certainly chill the exercise of an employee's right to free expression. indeed, the Court of Appeals has specifically held that governmental action short of discharge may violate an employee's first amendment rights. Lieberman v. Reisman, 857 F.2d 896, 900 (2d Cir. 1988) (Unfavorable patronage actions not rising to the level of discharge may support a claim under 42 U.S.C. § 1983). In sum, Corcoran is not entitled to qualified immunity because it was not objectively reasonable to believe that removing all of Lundgren's duties fell outside the protective ambit of Pickering and its progeny.
* * *
The defendants' motion for summary judgment is denied. The determination of the merits of Lundgren's allegations must await the full development of the facts at trial.
It is so ordered.
Dated: New York, New York
November 10, 1993
Morris E. Lasker
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