42 U.S.C. § 1983. Defendants now move for summary judgment.
In November of 1987, plaintiff was hired by the Authority as a secretary in its New York Office. In May of 1991, plaintiff was promoted to the position of secretary to defendant Beedle and transferred to the Authority's White Plains office.
In April of 1992, plaintiff received a memorandum scheduling her for a Values Program training session. The Values Program was an internal program instituted by the Authority in January of 1992 to emphasize excellence, teamwork, integrity, and innovation. All employees were scheduled to attend a meeting to introduce the program.
Plaintiff did not attend her scheduled session on April 21, 1992 and left early from a session on Friday, April 24. She claims that she was not feeling well and that the other employees in attendance were laughing and making fun of the presentation. When Beedle saw her at her desk, he told her she should return to the session. Plaintiff refused, saying she had a headache.
Promotional buttons were made and distributed at the end of each training session along with literature which described the Values Program. The buttons, which were two inch square pins with the four values written on them, were given to employees to wear as a sign of support for the program.
Because she left her training session early, plaintiff did not receive a Values button. However, on April 27 or 28, 1992, she called Norah Holt, an employee in the Authority's Public Affairs Department and asked if she could have three promotional buttons. Holt dropped three buttons off on the 29th or 30th of April.
On April 30, 1992, when Salvatore Zulla, Vice President, Nuclear Engineering walked by plaintiff's desk, plaintiff told him that she had Values buttons. When Zulla said that he did not see the buttons, plaintiff pinned one button on each lapel and one button in the area of her stomach. At her deposition, plaintiff stated whether or not the top two buttons were placed over her breasts was a "matter [of] interpretation."
For approximately a half an hour, plaintiff walked around her floor and displayed the buttons to several Authority employees. According to plaintiff, as she walked around she made comments such as, "Here are my Values buttons," "What do you think of my Values buttons," "Check out my Values buttons," "Look I have my Values buttons," "Nice buttons, here's my buttons," and "I got my Values buttons on." According to plaintiff, her actions were meant to express her criticism of the Values Program which she felt was a waste of employee time and Authority money. During this time period, Authority employees gathered in the hallways discussing plaintiff's antics.
Beedle, who had been assigned to work at the James A. Fitzpatrick power plant ("JAF") for a few days, was not in the office when plaintiff "made her statement." However, he was told of her actions at JAF by William Josiger, Vice President, Nuclear Operations on the afternoon of April 30th.
On May 1, 1992, Zulla and Beedle attended a previously scheduled meeting at JAF, and Zulla told Beedle that plaintiff had placed two Values buttons over her breasts and one over her pelvic area and stated "How do you like my values" and that plaintiff had also stated if she had more buttons, she would place them on her posterior. Later that day, Beedle spoke with Alan Weiser, Senior Vice President, Human Resources and told him that he was thinking of terminating plaintiff for inappropriate behavior.
On Monday, May 4, 1992, Beedle spoke with John Kelly, Director, Radiological Health and Chemical, who repeated Zulla's account of plaintiff's actions. Beedle than contacted Karen Caruso, Director of Employment and told her that he intended to terminate plaintiff due to her improper and offensive conduct. That morning, Beedle convened a meeting with plaintiff and Caruso at which he told plaintiff she was being terminated for inappropriate behavior.
On March 5, 1992 plaintiff wrote a statement for her personnel file which she also provided to Caruso and defendant Brons. In the statement, plaintiff wrote that she possessed a "joie de vivre, vitality, energy, sensuality, and sexuality that the Authority was not equipped to handle or deal with." In regard to her actions on April 30, she stated that she "always went out of her way to cheer up someone who was down or try to lighten up a dull or depressing situation" and "that [was] sort of what was going on . . . during the 'button incident.'"
She explained her:
actions and words were extremely exaggerated by those who were not witnesses to the event or saw the buttons. Nothing I did was done to offend or intimidate any one person or Authority figure, nor done in any way to ridicule the Values Program. It was a bunch of people teasing and playing with each other. None of the persons I was laughing with seemed at all offended but instead seemed to be enjoying the whole thing. The incident was then taken out of context and viciously exaggerated by others.
Plaintiff met with Brons and his assistant Barbara Taggart during the week of May 4 but was not reinstated.
Plaintiff subsequently filed this civil rights case claiming that her First Amendment rights had been violated in two ways. First, she protests the requirement that she "subscribe to, profess concurrence with, and physically display her support for a publicly funded program with respect to which she disagreed," namely the Values Program. Second, she claims that she was wrongfully terminated for expressing her opinion about the Values Program.
Defendants argue that they are entitled to summary judgment because plaintiff's speech is not entitled to protection under the First Amendment. They also argue that Beedle and Brons are entitled to summary judgment because they are entitled to qualified immunity and because they were never properly served process. We note that summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. F. R. Civ. P. 56(c).
A. Harris's termination
It is well settled that a state cannot condition public employment in a manner which infringes on an employee's First Amendment rights. Branti v. Finkel, 445 U.S. 507, 515-16, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980). (For purposes of this decision, we will treat the Power Authority as being an arm of the state without reference to any Eleventh Amendment considerations.) However, the Supreme Court has sought to "balance the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). This "reflects both the historical evolvement of the rights of public employees, and the common-sense realization that government office could not function if every employment decision became a constitutional matter." Connick v. Myers, 461 U.S. 138, 143, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983).
Applying its test in Connick v. Myers, the Supreme Court held, as a threshold matter, that it is unnecessary to scrutinize the reason for an employee's discharge if the employee speech which spurred the discharge could not be characterized as touching upon a matter of public concern. Id. at 146. Myers, the plaintiff in Connick, was a former Assistant District Attorney who circulated a questionnaire to fellow employees concerning office procedures in response to a job transfer. Although the district court found that Myers was terminated because of the questionnaire, the Supreme Court held that the questionnaire did not touch upon a matters of public concern except for one question which inquired if the assistant district attorneys felt pressured to work on political campaigns. Id. at 149.
Defendants argue that plaintiff's speech similarly did not touch upon public matters. In support of their position, they cite several cases holding that speech does not touch upon public matters when it reflects concern over policies solely affecting public workers. Ezekwo v. New York City Health & Hosp. Corp., 940 F.2d 775, 781 (2d Cir. 1991), cert. denied, 116 L. Ed. 2d 749, 112 S. Ct. 657 (1991); Knowlton v. Greenwood Indep. School Dist., 957 F.2d 1172, 1178 (5th Cir. 1992).
Plaintiff contends that she was speaking on a matter of public concern because she claims the Values Program, which allegedly cost over $ 200,000, was a colossal waste of public money. She attempts to tie the Values Program to several newspaper articles documenting waste and mismanagement at the Authority. These articles discuss Authority abuses such as lavish parties and executive raises and expense accounts. In her memorandum of law, plaintiff contends that she was "very much aware of" Authority mismanagement at its nuclear facilities and felt that the money spent on the Values Program could be better spent on maintenance and safety.
Whether employee speech addresses a matter of public concern is a question of law for the court to decide based upon "the content, form, and context of a given statement." Connick, 461 U.S. at 147-48; Sheppard v. Beerman, 18 F.3d 147, 1994 U.S. App. LEXIS 3985 (2d Cir. 1994); Ezekwo, 940 F.2d at 781. While we find that plaintiff was indeed expressing her disapproval of the Values Program by her actions, we do not find that her critical "speech" touched upon matters of public concern. Plaintiff attempts to tie her criticism of the program into a general critique of Authority mismanagement and waste. However, such "abstract concern about a particular subject carries no weight if the employee chooses not to articulate it." Giacalone v. Abrams, 850 F.2d 79, 87 (2d Cir. 1988). Similarly, plaintiff's after the fact efforts to expand her grievance into a public issue is insufficient to make the subject of her speech a matter of public concern.
While there is some merit to plaintiff's claim that, implicit in her criticism of the Values Program was an allegation that it was a waste of taxpayer money, she succeeds in proving too much for every public employee's complaint about his or her work conditions is an indirect charge that the governmental employer is wasting money. Because plaintiff's approach would eradicate Connick's distinction between speech touching upon employment issues and speech regarding public matters, we decline to adopt her reasoning.
Plaintiff's papers assert that foul language was common at the Authority and that the conduct of her superiors often bordered upon sexual harassment. As such, she claims that it is disingenuous and hypocritical for defendants to claim that her conduct was deemed offensive. That may well be true. However, we reiterate, even if defendants' asserted reasons for terminating her are pretextual, plaintiff still fails to make out a civil rights claim because she was not fired for speech relating to a public concern.
While defendants actions may have been somewhat harsh, as the Supreme Court noted in Connick,
when employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.