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February 27, 1996

DEBORAH I. VOLBERG, Plaintiff, against GEORGE E. PATAKI, individually and as Governor of the State of New York, CONSTANCE KELLOG-BARRELLA, individually and as Deputy Commissioner of the New York State Department of Environmental Conservation, FRANK BIFERA, individually and as Acting General Counsel to the Department of Environmental Conservation, MICHAEL FINNEGAN, individually and in his capacity as Counsel to the Governor, and GAVIN DONOHUE, individually and in his capacity as Special Assistant to the Governor, Defendants.

The opinion of the court was delivered by: MCAVOY


 Plaintiff Deborah Volberg commenced this action by filing a complaint on February 27, 1995, in the Southern District of New York. On July 26, 1995, Southern District Judge Barrington Parker granted defendants' motion to transfer venue to this Court. Finally, on August 31, 1995, plaintiff filed an amended complaint wherein she alleges violations of Title VII, 42 U.S.C. § 2000e-3, the First Amendment pursuant to 42 U.S.C. § 1983, the New York State Constitution, and New York statutory law by defendants George Pataki, Constance Kellogg-Barrella, Frank Bifera, Michael Finnegan, and Gavin Donohue. Plaintiff generally alleges that she was terminated as Acting Deputy Commissioner and General Counsel of the New York State Department of Environmental Conservation ("DEC") for improper retaliatory reasons. Defendants now move for judgment on the pleadings and for summary judgment.


 DEC hired plaintiff in February, 1993, as Deputy Counsel and Director of Legal Affairs. In Early 1995, the DEC Commissioner appointed her as Acting Deputy Commissioner and General Counsel. Both these positions are classified as "exempt" such that employees in the positions do not obtain "tenure" and are not protected from termination by the Civil Service Law. See N.Y. Civ. Serv. Law §§ 41, 75. Furthermore, both these positions have been designated as "policy-making" by the Public Officers Law, so plaintiff was required to file annual financial disclosure forms with the New York State Ethics Commission and risked termination if the Governorship were to change hands. N.Y. Pub. Off. Law § 73-a. Finally, both jobs held by plaintiff were relatively high-paying; she began at an annual salary of $ 72,473 and was making $ 80,188 after her promotion.

 After the inauguration of defendant Pataki as Governor in January, 1995, plaintiff was directed by defendants to identify seven competitive-class *fn1" attorney positions at DEC to be eliminated. Plaintiff contends that, at least part of the basis for this instruction, defendants entered into a scheme whereby they would fire employees who were registered members of the Democratic Party or who had otherwise opposed the election of Governor Pataki. Plaintiff also alleges that she opposed the reduction in staff on the grounds that political firings were generally improper, and that the layoffs would weaken DEC's effectiveness and would expose DEC to liability under Titles VI and VII.

 In order to communicate her misgivings, plaintiff sent a memo to her supervisors on or about February 22, 1995, in regard to the plan to eliminate the seven competitive attorney positions. DEC recently had hired a group of minority lawyers, and plaintiff expressed her opinion that the effect of targeting competitive positions would be the termination of three of the five remaining minority lawyers. In plaintiff's view, such action would have a disparate impact on those lawyers and could lead to legal action against DEC. Thus she proposed two alternative plans in her memo for carrying out the layoffs that would lead to the loss of only two, rather than three, of the minority lawyers. Finally, plaintiff stated that "in my best professional judgment," such firings "would cripple [DEC's] ability to provide adequate services." (Pl.'s Mem. Opp. Dism. At 6.)

 Defendants now move for dismissal pursuant to Fed. R. Civ. P. 12(c) on plaintiff's claims related to Title VII, free speech, and the right to petition, and for summary judgment pursuant to Fed. R. Civ. P. 56 on plaintiff's right of association claim. Defendants generally assert that (1) plaintiff's action in writing the memo was not protected activity under Title VII; (2) the memo itself was not protected speech or petitioning under the First Amendment; (3) plaintiff was a "confidential policy-maker" who consequently was not protected against politically motivated discharges; and (4) defendants are qualifiedly immune from liability on plaintiff's First Amendment claims. The following constitutes the Court's adjudication of the issues raised.



 In her Memorandum of Law opposing defendants' motions, plaintiff withdraws her Third Cause of Action, under which she claimed that defendants' conduct violated her First Amendment right of association. Plaintiff emphasizes that she is not withdrawing any of her other claims. As a result, plaintiff's Third Cause of Action may be dismissed and defendants' summary judgment motion on that count pursuant to Fed. R. Civ. P. 56 may be denied as moot. Defendant's motions for dismissal of the other counts pursuant to Fed. R. Civ. P. 12(c) still remain to be addressed, however.


1. Legal Standard

 In deciding a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), a court should apply the same standard as that applicable to a Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994); 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 [that] would entitle him to relief."

 Sheppard, 18 F.3d at 150 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). Furthermore, this standard is applied with particular strictness where, as here, the plaintiff complains of civil rights ...

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