with Walsh while he was on-site and implied that employees should not talk with Walsh about departmental business while off-site. Becker copied the memorandum to defendants LaLonde and Malone, and Walsh alleges that LaLonde advised Becker to write the memorandum. Walsh makes no allegation that any other defendant deprived him of free speech. The municipal defendants argue that the First Amendment claims should be dismissed because (1) Walsh has not alleged his own right to free speech has been restricted; (2) the landfill is not a public forum; (3) the municipality has a right to regulate its employees' speech; and (4) the defendants enjoy qualified immunity. I consider each of these arguments in turn.
The municipal defendants first urge that I should dismiss Walsh's First Amendment claims because he has not claimed any deprivation of his own right to free speech but rather has claimed only that certain employees were forbidden to speak to him. This objection lacks merit because the recipient of speech has standing to protest a gag order under certain circumstances. See Virginia Pharmacy Bd. v. Virginia Consumer Council, Inc., 425 U.S. 748, 756, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976) (consumers of prescription drugs can attack on First Amendment grounds a statute that forbids pharmacists from advertising drug prices); Procunier v. Martinez, 416 U.S. 396, 408-409, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974) (proposed recipient of correspondence with a prisoner has a first amendment right to receipt of that correspondence), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 413-14, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989); Dow Jones & Co. v. Simon, 842 F.2d 603 (2d Cir.) cert. denied, 488 U.S. 946, 102 L. Ed. 2d 365, 109 S. Ct. 377 (1988) (news agencies have standing to challenge gag order). Although a listener's first amendment right presupposes a willing speaker, Virginia Consumer Council, 425 U.S. at 756, it is not clear at this juncture that the facility employees were unwilling to give Walsh information.
The municipal defendants next urge that they were free to limit speech at the landfill because the landfill is not a public forum. When the government seeks to limit speech on property that has traditionally been available for public expression or that has been designated as a public forum, it must show that its limitation is narrowly drawn to achieve a compelling state interest. International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 120 L. Ed. 2d 541, 112 S. Ct. 2701 (1992). However, the state may regulate speech on all other property it owns as long as the challenged regulation is reasonable and "not an effort to suppress the speaker's activity due to disagreement with the speaker's view." Id. at 678-679. Because this is a rule 12(b)(6) motion, the defendants have not submitted any proof in support of their assertion that the landfill is not a public forum. Moreover, the challenged policy can be read as limiting the speech of landfill employees -- and therefore Walsh's right to receive speech -- even off site. The memorandum states: "It would be in our best interest not to discuss the Department's business with him off site, either." Compl. Ex. 19.
Because Becker's memo can be read to limit off-site speech, defendants' characterization of the memo as limiting speech only on the job site cannot be accepted at this very early stage of this action.
The municipal defendants' third argument is that they had the right to regulate their employees' speech pursuant to the balancing test set forth in Pickering v. Board of Education, 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). Pickering and its progeny recognize that a public employer as employer has an interest in insuring the efficient function of its operations that may conflict with the interest of the employee as citizen to comment on matters of public concern. Id.; Rankin v. McPherson, 483 U.S. 378, 384, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987). Because of this conflict between important interests, the Supreme Court has established a framework for evaluating complaints by public employees of infringement of their right to free speech. Rankin. 483 U.S. at 384-389. First, the court must determine whether the employee has spoken on a matter of public concern. Id. at 384. Speech touching on purely personal matters is not wholly exempt from First Amendment scrutiny; however, where the speech is not of public concern, it is not ordinarily appropriate for the courts to examine a personnel decision made on account of that speech. Connick v. Myers, 461 U.S. 138, 147, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). The court must examine the entire record for the content, form and context of a given statement to determine whether it touches on a matter of public concern. Id. at 147-148. If speech is of public concern, the court must next balance the employee's interest in making the statement against the state's interest in promoting the efficiency of the work its employees perform for the public. Rankin, 483 U.S. at 388 (citing Pickering, 391 U.S. at 568).
Some of the forbidden topics addressed in the memo -- e. g. the departmental operations and personnel deployment -- arguably touch on matters of public concern. Defendants have submitted no proof to support their claim that Auburn's interests as an employer outweigh Walsh's interests in receiving speech from public employees. Instead, this motion seeks dismissal under Rule 12(b)(6) for failure to state a claim on which relief can be granted so the governing standard is whether "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (quotation omitted).
The memo indicates that it was written by Becker at the suggestion of LaLonde. At this juncture, Walsh's allegation that Becker -- at the instruction of LaLonde -- wrote a memo precluding city employees from talking to Walsh at a work site open to the public and arguably also when they were not at work about matters that might be of concern to the public suffices to allege a First Amendment violation against these two defendants. Moreover, the memo was copied to Malone who thus may be liable as a person who "allowed such an unconstitutional policy . . . to continue." Williams v. Smith, 781 F.2d 319, 323 (2d Cir 1986).
However, I must dismiss the First Amendment claims against the remaining individuals who bear no personal responsibility for the memo. Walsh makes no allegation that defendants Cosentino, Bunker, Hutchinson or Fandrich limited his First Amendment rights in any way.
In addition, Walsh cannot succeed against the City of Auburn on a respondeat superior theory. See Monell v. Dep't of Social Services, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). However, the city may be liable if any of the officials that participated in disseminating the memo can be considered a policy maker. See Pembaur v. Cincinnati, 475 U.S. 469, 480-81, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986). State law determines which officials have the ability to make policy. City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988) (plurality). The court determines whether a particular official is a policy making official prior to trial by reviewing "relevant legal materials, including state and local positive law, as well as custom or usage having the force of law." Jett v. Dallas Independent Sch. Dist., 491 U.S. 701, 737, 105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989) (internal citations and quotations omitted). Neither party has briefed the policy maker issue. I therefore leave its resolution for another day. See, e.g., Frank v. Relin, 1 F.3d 1317, 1325 (2d Cir.) (reversing dismissal of official capacity claim because district court failed to consider whether district attorney was a policy maker), cert. denied, 510 U.S. 1012, 126 L. Ed. 2d 569, 114 S. Ct. 604 (1993). Auburn may, of course, make a properly supported motion for summary judgment to establish that Becker, Malone, and LaLonde were not policy makers.
Finally, I consider the individual defendants' qualified immunity defense with respect to Walsh's First Amendment claim. This defense applies only to the claims for damages against the individual defendants and does not ordinarily bar injunctive relief. See Wood v. Strickland, 420 U.S. 308, 314-15 n.6, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975). Walsh has requested "equitable relief" and asserts that the August 1993 memo remains the official policy of the City. Compl. PP 4-5; Walsh Reply Aff. P 8. Qualified immunity will not bar this request for injunctive relief. Wood, 420 U.S. at 314-15, n.6. Moreover, qualified immunity does not bar Walsh's damages claims against the municipality itself. Owen v. City of Independence, Mo., 445 U.S. 622, 657, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980). Nor does qualified immunity protect a municipal employee sued in his official capacity from a claim for damages. Ying Jing Gan, 996 F.2d at 529 (2d Cir. 1993).
A defendant sued as an individual is entitled to qualified immunity from damages if he is performing a discretionary function and his conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Prue v. Hunt, 26 F.3d 14, 17 (2d Cir. 1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Anderson v. Creighton, 483 U.S. 635, 638, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)). The defendant must show either that his conduct did not violate clearly established rights or that it was objectively reasonable to believe that his actions did not violate clearly established rights. Soares v. State of Conn., 8 F.3d 917, 920 (2d Cir. 1993).
In determining whether the right was clearly established at the time a defendant acted, I must consider: "(1) whether the right in question was defined with reasonable specificity; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful." Kaluczky v. City of White Plains, 57 F.3d 202, 207 (2d Cir. 1995) (quoting Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 503 U.S. 962, 118 L. Ed. 2d 211, 112 S. Ct. 1565 (1992)).
Walsh's claim in this action is that he had a right to receive information from public employees both on and off the work site. The defendants argue that their policy was a reasonable response to a litigious ex-employee.
In addition, the August 23rd memo specifically permitted Walsh to seek information from certain city spokesmen.
It has long been clearly established that public employees have a right, albeit not an unqualified one, to speak on matters of public concern. Frank, 1 F.3d at 1328. The right of a recipient to receive speech without interference from the government has also long been clearly established. See Virginia Consumer Council, 425 U.S. at 756. It is also clear, however, that the government has discretion to limit the speech of its employees even on matters of public concern in certain instances. Rankin, 483 U.S. at 388. Moreover, the right Walsh claims - i.e. the right to receive speech from certain public employees after filing claims against the city -- has not been defined with specificity by this circuit or the Supreme Court. Plaintiff cited no case on this issue, and I found none. Thus under preexisting law, a reasonable public official would not have known the action of barring subordinates from talking with Walsh concerning the topics addressed in the memo was contrary to the Constitution. The individual defendants are therefore entitled to dismissal based on qualified immunity.
For the reasons discussed, the complaint in this action is dismissed against the General Counsel, New York State Division of Human Rights; the Auburn Civil Service Commission; Mayor Guy Cosentino; and Councillors Ann Bunker, James Hutchinson, and Mark Fandrich. All claims made pursuant to the ADEA are dismissed against all defendants except the City of Auburn. Walsh's First Amendment claims are also dismissed against all defendants except the City of Auburn and LaLonde, Becker and Malone in their official capacities.
IT IS SO ORDERED.
Dated: October 15, 1996
Syracuse, New York
ROSEMARY S. POOLER
District Court Judge