The following work day, Sheppard was out sick. When Sheppard returned to work on Tuesday, December 11, he was discharged and directed to leave the courthouse. Complaint P 22.
II. Procedural Background
Sheppard commenced this case in April 1991 under 42 U.S.C. § 1983, alleging that his former employer, Judge Beerman, violated various Constitutional rights in the events surrounding and subsequent to Sheppard's dismissal. Sheppard Brief at 2. Judge Beerman filed an answer on May 8, 1991.
Since the time for pleadings had already closed, the defendant made a motion under Federal Rule of Civil Procedure 12(c) ("Rule 12(c)") for a judgment on the pleadings. This court heard argument in April 1992 and granted Judge Beerman's motion, dismissing the complaint in its entirety. Sheppard v. Beerman, 822 F. Supp. 931 (E.D.N.Y. 1993).
The Court of Appeals affirmed this court's judgment on the pleadings in all respects except insofar as the complaint alleged a violation of Sheppard's First Amendment right to free speech. Sheppard v. Beerman, 18 F.3d 147 (2d Cir.), cert. denied, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994). In vacating and remanding that portion of the case, the Court of Appeals held that this court improperly made the factual finding that the cause of Sheppard's employment termination was insubordination, rather than the exercise of his right to free speech. Id. at 151. Therefore, the only claim before this court on remand is the allegation that Judge Beerman violated Shepard's First Amendment right to free speech.
Since this court did not consider the qualified immunity claim in its initial ruling, the Court of Appeals did not review that issue. This Court examines that issue for the first time here.
Sheppard's surviving claim alleges that Judge Beerman, acting under color of New York law, deprived him of his First Amendment right to freedom of speech. Complaint PP 5, 38. Sheppard alleges this deprivation took the form of a retaliatory dismissal for Sheppard's having accused Judge Beerman of judicial misconduct. Complaint PP 1, 18.
Judge Beerman argues in the alternative (1) that Sheppard's speech was not protected by the First Amendment because it was not on a matter of public concern;
and (2) that he is entitled to qualified immunity from liability for damages.
I. Rule 12(c) Standards
Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings. Fed. R. Civ. P. 12(c).
If the Court goes beyond the pleadings to decide an issue, the Rule 12(c) motion will be treated as one for summary judgment. Id.; Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Frerks by Frerks v. Shalala, 848 F. Supp. 340, 347 (E.D.N.Y. 1994), aff'd 52 F.3d 412 (2d Cir. 1995).
A motion for judgment on the pleadings may be granted when all material allegations of fact are admitted in the pleadings and only questions of law remain. See George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977); Burns International Security Services, Inc. v. International Union, 47 F.3d 14, 16 (2d Cir. 1995). In deciding a motion under Rule 12(c), the court applies the same standard as that applicable to a motion under 12(b)(6). See Ad-Hoc Comm. of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). Under that test, a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). This standard is "applied with particular strictness when the plaintiff complains of a civil rights violation." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (citations omitted).
There is no factual dispute as to the content of Sheppard's speech or the sequence of events leading up to his dismissal. Thus, this motion requires the Court to reach two issues of law not fully addressed in the initial consideration of this case: (1) whether Sheppard has raised a valid First Amendment claim under § 1983; and (2) whether Judge Beerman is entitled to qualified immunity from Sheppard's § 1983 damages claim.
II. Prima Facie Case Under § 1983
A suit against a public official in an individual, as opposed to official, capacity "seek[s] to impose individual liability upon a governmental officer for actions taken under color of state law." Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 362, 116 L. Ed. 2d 301 (1991). To raise a prima facie claim for relief under Section 1983, a claimant need allege only that some person acting under color of state law deprived the claimant of a federal right. Green v. Maraio, 722 F.2d 1013, 1016 (2d Cir. 1983) (citing Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980)); Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir. 1990).
In general, an employee who claims that his employment was terminated in violation of the First Amendment must establish that: (1) his speech can be "fairly characterized as constituting speech on a matter of public concern," Piesco v. Koch, 12 F.3d 332, 342 (2d Cir. 1993) (citing Connick v. Myers, 461 U.S. 138, 147-48 & n.7, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983)); and (2) the speech was at least a substantial or motivating factor in the discharge, id. (citing Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977)).
Whether an employee's speech addresses a matter of public concern is a question of law. See Luck v. Mazzone, 52 F.3d 475, 476 (2d Cir. 1995). The more serious the nature of the public concern expressed in the speech, the more protection the speech is accorded. See Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995) ("The closer the employee's speech reflects on matters of public concern, the greater must be the employer's showing that the speech is likely to be disruptive before it may be punished."); Vasbinder v. Ambach, 926 F.2d 1333, 1339 (2d Cir. 1991) ("An employee's charge of unlawful conduct . . . is given far greater weight . . . than is a complaint as to the fairness of internal office procedures.") Accusations of corruption do touch on matters of colorably public concern. See e.g., Rookard v. Health and Hospitals Corp., 710 F.2d 41, 46 (2d Cir. 1983) (allegation of "corrupt and wasteful practices obviously involves a matter of public concern").
Since Sheppard allegedly voiced concern that Judge Beerman was "corrupt," the Court holds that Sheppard's speech, as a matter of law, involved a matter of public concern. Therefore, Sheppard has properly pled that element of a prima facie case under Section 1983.
Whether the speech was a motivating factor in the discharge "presents a question of fact." See Piesco v. Koch, 12 F.3d at 342. "While a bald and uncorroborated allegation of retaliation might prove inadequate to withstand a motion to dismiss, it is sufficient to allege facts from which a retaliatory intent on the part of the defendants reasonably may be inferred." Gagliardi v. Village of Pawling, 18 F.3d 188, 195 (2d Cir. 1994).
Sheppard's complaint describes in detail the content of his speech and the events precipitating his dismissal. Giving due deference to the fact that Sheppard has alleged an injury to his civil rights, see Branum, 927 F.2d at 705, the Court concludes that Sheppard has alleged sufficient facts from which a retaliatory intent may be inferred.
The Court holds that Sheppard has raised a prima facie case under Section 1983. Therefore, Judge Beerman can prevail on this motion only if, as a matter of law, he is entitled to qualified immunity.
III. Qualified Immunity
Qualified immunity may be raised "as a defense to liability at any stage in the litigation." Alvarado v. Picur, 859 F.2d 448, 451 n.3 (7th Cir. 1988). Since it is an immunity from suit, and not just from liability, the Supreme Court "repeatedly [has] stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991).
Ordinarily, qualified immunity is resolved on a motion for summary judgment. See Harlow, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Mitchell v. Forsyth, 472 U.S. 511, 528, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). However, it is also proper to raise the defense of qualified immunity on a motion to dismiss, see Landstrom v. Ill. Department of Children & Family Services, 892 F.2d 670, 675 n.8 (7th Cir. 1990); Lundblad v. Celeste, 874 F.2d 1097, 1100 n.3 (6th Cir. 1989), modified, 924 F.2d 627, cert. denied, 501 U.S. 1250 (1991), or on motions for a directed verdict or judgment notwithstanding the verdict, see Krause v. Bennett, 887 F.2d 362, 368 n.3 (2d Cir. 1989) (citing Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988), cert. denied, 489 U.S. 1034, 109 S. Ct. 1095, 103 L. Ed. 2d 230 (1989)).
Furthermore, it is a defense that must be affirmatively pleaded by a defendant official. Siegert v. Gilley, 500 U.S. 226, 111 S. Ct. 1789, 1793, 114 L. Ed. 2d 277 (1991) (citing Gomez v. Toledo, 446 U.S. 635, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980)); Oliver Schools v. Foley, 930 F.2d 248, 253 (2d Cir. 1991); Castro v. United States, 34 F.3d 106, 111-12 (2d Cir. 1994). Since Judge Beerman has affirmatively pleaded the defense of qualified immunity, it is a proper subject for the Court's consideration.
Standards and Policy
The doctrine of qualified immunity provides that government officials, performing administrative and executive functions, generally are shielded from suits for civil damages in § 1983 actions 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); Ying Jing Gan v. City of New York, 996 F.2d 522, 531 (2d Cir. 1993). Qualified immunity even applies in cases "where the rights were clearly established, if it was objectively reasonable for the official to believe that his acts did not violate those rights." Frank v. Relin, 1 F.3d 1317, 1328 (2d Cir.), cert. denied, 126 L. Ed. 2d 569, 114 S. Ct. 604 (1993); Kaluczky v. City of White Plains, 57 F.3d 202, 207 (2d Cir. 1995).
The policy behind qualified immunity is to protect public officials from vexatious and unnecessary litigation. Harlow, 457 U.S. at 817-18 ("Bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery."). If the district court determines that the defendant's alleged actions were those a reasonable officer could have believed lawful, the defendant is entitled to dismissal prior to discovery. See 1 Schwartz & Kirklin, Section 1983 Litigation § 9.25, at 577 (1991) (citing Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3042 n.6, 97 L. Ed. 2d 523 (1987)).
Qualified Immunity Standards Applied
In the Second Circuit, a defendant may prevail on the defense of qualified immunity by showing that: (1) "it was not clear at the time of the official acts that the interest asserted by the plaintiff was protected by a federal statute or the Constitution"; (2) "it was not clear at the time of the acts that an exemption did not permit those acts"; or (3) "it was objectively reasonable for [the officer] to believe that his acts did not violate [the plaintiff]'s rights." Robison v. Via, 821 F.2d 913, 920-21 (2d Cir. 1987).
In evaluating a defense of qualified immunity, a court must analyze the specific federal right at issue in light of the specific facts of the case. Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987) ("The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."). The trial court "appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred." Harlow, 457 U.S. at 818. In doing so, the court "focuses on the objective legal reasonableness of an official's acts." Id. at 819.
When the factual record is not in serious dispute, "the application of qualified immunity is . . . ultimately a question of law for the court to decide." See Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995) (quoting Finnegan v. Fountain, 915 F.2d 817, 821 (2d Cir. 1990)). Thus, the Court must determine, as a matter of law: (1) the law defining the right alleged to be injured; (2) the clarity with which such law was established at the time of the alleged injury; and (3) the objective reasonableness of Judge Beerman's actions.
The Law Defining the Right
In general, government employees have "a right under the First Amendment, though not an unlimited right, to speak on matters of public concern." Frank v. Relin, 1 F.3d at 1328. A public employer, however, may escape liability by showing that the employee's conduct "threatened to interfere with government operations" and that this threat outweighed the employee's First Amendment rights. See Waters v. Churchill, 128 L. Ed. 2d 686, 511 U.S. , 114 S. Ct. 1878, 1887 (1994); Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995).
Courts have formulated a balancing test to measure the level of First Amendment protection a public employee's speech will receive within a given government context. If the employee's interest in speaking outweighs the government's interest in promoting the efficiency of the services it performs, the First Amendment prevents the government from discharging the employee for such speech. See Vasbinder v. Ambach, 926 F.2d 1333, 1341 (2d Cir. 1991) (citing Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968)). This weighing of competing interests is commonly referred to as the "Pickering balancing test."
Determining the proper balance under Pickering is a matter of law. See Connick, 461 U.S. at 150 & n.10. The recent Supreme Court opinion in Waters v. Churchill emphasized that speech by public employees receives somewhat less protection under the First Amendment than it does in general.
Many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees. The First Amendment demands a tolerance of "verbal tumult, discord, and even offensive utterance," as "necessary side effects of . . . the process of open debate," Cohen v. California, 403 U.S. 15, 24-25, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971). But we have never expressed doubt that a government employer may bar its employees from using Mr. Cohen's offensive utterance to members of the public, or to the people with whom they work.
Waters v. Churchill, 128 L. Ed. 2d 686, 511 U.S. , 114 S. Ct. 1878, 1886 (1994) The Supreme Court stressed that First Amendment protection is less extensive where the employer is the government because public agencies are charged, by law, with performing the services they render. See 144 S. Ct. at 1887.
The Second Circuit has interpreted Waters to mean that the discharge of a public employee because of his speech does not violate his constitutional rights if:
(1) the employer's prediction of disruption is reasonable; (2) the potential disruptiveness is enough to outweigh the value of the speech; and (3) the employer took action against the employee based on this disruption and not in retaliation for the speech.
Jeffries v. Harleston, 52 F.3d at 13 (citing Waters, 114 S. Ct. at 1887, 1889-91). Since the Second Circuit applied these criteria to events that occurred in 1991, see id., it is appropriate to consider them the "currently applicable law" for the qualified immunity inquiry in this case.
The Clarity of the Established Right
At first, it may appear that there is a paradox created by the factual issue of an employer's motive in discharging an employee and the Harlow test of "objective reasonableness." However, the qualified immunity analysis entails an important distinction between determining the underlying law governing a constitutional right and the clarity with which such a law is established. After carefully considering the issue, the Seventh Circuit, sitting en banc, ruled that
despite the apparent Harlow paradox, an objective analysis is applicable to situations involving a public official's state of mind. The objective determination in these cases requires that courts not consider intent when making the final determination at summary judgment of whether the law is clearly established. . . . Thus, when intent is crucial to a party's claim, . . . the court's consideration of intent is relevant to the determination of whether a constitutional violation exists but not in deciding if the constitutional standard was clearly established.