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June 14, 1997

GARY SPIELMANN, Individually and in his capacity as Acting Executive Deputy Commissioner of the New York State Department of Environmental Conservation, JAMES DOE, individually and officially, MICHAEL ROE, individually and officially, MICHAEL DOE, individually and officially, GEORGE ROE, individually and officially, and the STATE OF NEW YORK, Defendants.

The opinion of the court was delivered by: MCAVOY

 This § 1983 action focuses upon plaintiff's discharge from her position with the New York State Department of Environmental Conservation ("DEC"). Plaintiff claims, inter alia, that such discharge was in violation of her rights of due process and free speech under the First and Fourteenth Amendments to the United States Constitution. Defendants now move for summary judgment dismissing the Complaint.


 A. Facts:

 Plaintiff Bonnie Catone is an honorably discharged veteran, having served in the United States Air Force during the Vietnam War. (Catone Aff. Ex. A). In September of 1986, plaintiff was appointed to the permanent position of Special Assistant to the General Counsel ("Special Assistant") of the New York State Department of Environmental Conservation ("DEC"). *fn1" The position was classified as exempt under the New York Civil Service Law. (Spielmann Aff. P 9; Catone Aff. P 5).

 Plaintiff worked on a part-time basis, sharing her duties with Susan Zucker. (Catone Aff. P 6 and Ex. D; Spielmann Aff. P 12). Her salary of $ 39,336.00 was pro-rated from the full-time salary of $ 66,342.00, since plaintiff worked 60% of the full-time position. (Spielmann Aff. P 12). The General Counsel of the DEC during plaintiff's tenure was Marc Gerstman.

 The position of Special Assistant *fn2" encompassed three primary areas of responsibility: (1) tracking legislation and coordinating preparation of legislative comments on issues before Congress; (2) coordinating preparation and delivery of testimony before Congressional committees; and (3) administering an information services program to keep DEC staff abreast of all Congressional developments. (Spielmann Aff. Ex. 4; Catone Aff. Ex.D). *fn3" What these responsibilities entail and imply are at the heart of this motion, and will be discussed in more detail in the discussion section infra.

 During the period leading up to her termination, plaintiff was a supporter of former New York Governor Mario Cuomo and of the Democratic Party, having solicited assistance from the national Democratic Party in obtaining the Special Assistant position in 1986. (Catone Aff. P 41). Cuomo was defeated by George Pataki in the November 1994 gubernatorial race. Soon thereafter, in March of 1995, Gov. Pataki appointed defendant Gary L. Spielmann to the position of Executive Deputy Commissioner of the DEC. Between Pataki's election in November of 1994 and his inauguration in January of 1995, Spielmann was a member of Governor Pataki's transition team, working with the DEC and the Department of Parks and Recreation. (Spielmann Dep. [Catone Aff. Ex 4] at 11-12). On January 26, 1995, Spielmann began work at the DEC. (Id. at 12). He was officially appointed Executive Deputy Commissioner in March of that year. (Spielmann Aff. P 1).

 Sometime in early March of 1995, Spielmann and two other DEC officials began consideration of a plan to reorganize the DEC. (Spielmann Dep. at 17-20). The reorganization was based in part on Governor Pataki's overall campaign theme of less government (Spielmann Aff. P 2) and in particular on the feeling that "there were far too many attorneys working at DEC, that they were much too aggressive in their demeanor and their philosophy . . . [and] that they weren't getting the job done for all of the heavy handedness." (Spielmann Dep. at 22). Some of the new administration were of the opinion that the DEC was contributing to New York's loss of businesses and jobs. (Spielmann Aff. P 3; Spielmann Dep. at 22).

 As part of the reorganization process, Spielmann was to determine "what talent was [at DEC] . . . and what was the full range of appointment opportunities for the new administration" (Spielmann Dep. at 21), with an eye toward who might be retained and who might be let go. (Id. at 35). As to the latter, Spielmann asserts that it was the new administration's sense that "a lot of people appointed in policy making positions were very much identified with the previous administration and that might make it very difficult for them to do an effective job working for a new governor and the new leadership of the agency." Id.

 The reorganization team wanted to downsize the DEC General Counsel's office. (Spielmann Dep. at 39). Thus, Spielmann, along with two other members of the new DEC leadership, Connie Barella and Gavin Donohue, transferred the LFLU from the General Counsel's office to the Office of the Assistant Commissioner for External Affairs. (Spielmann Aff. P 7; Spielmann Dep. at 41). As part of this transfer, Spielmann decided that plaintiff's job should be "abolished." (Spielmann Dep. at 42). The decision was Spielmann's alone; when he made it, he was aware of plaintiff's status as a veteran. (Spielmann Dep. at 71).

 Spielmann informed plaintiff of his decision in person on March 10, 1995. Plaintiff also received a letter from Spielmann, dated March 10, 1995. That letter stated, in pertinent part, as follows:

I have been directed to formally notify you that your services as Special Assistant to General Counsel will no longer be required.
The effective date of your termination of employment will be the close of business today, March 10, 1995.

 (Catone Aff. Ex. E). On March 16, 1995, plaintiff received a letter from Acting General Counsel Frank V. Bifera inviting plaintiff to reapply for her position. (Id. Ex. F). Plaintiff did so on March 22, 1995 (id. Ex. G), but was not selected to continue in her position. (Id. Ex. 1).

 B. Procedural History:

 Plaintiff filed her Complaint on August 2, 1995. The Complaint contains four counts: two under 42 U.S.C. § 1983 alleging violations of her free speech and procedural due process rights under the First and Fourteenth Amendments, and two for violations of her speech and due process rights under the New York State Constitution. Defendants answered on October 2, 1995.

 After serving their motion for summary judgment on plaintiff, defendants moved for a stay of discovery during the pendency of the motion. Magistrate Judge Ralph W. Smith granted the stay on December 30, 1996. On January 21, 1997, plaintiff moved, pursuant to Fed.R.Civ.P. 56(f), for further discovery. In the meantime, defendants filed their summary judgment motion on January 28, 1997. On February 18, 1997, this Court denied plaintiff's request for further discovery and directed plaintiff to respond to the summary judgment motion.

 All papers were filed and the motion was set for a return date of April 14, 1997. The motion was taken on the parties submissions alone; oral argument was not heard.


 A. The Standard for Summary Judgment.

 Under Fed. R. Civ. P. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975), and the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989); Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985) cert. denied 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987).

 Once the moving party has met its burden, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita, 475 U.S. at 585-86. A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). The motion will not be defeated by a non-movant who raises merely a "metaphysical doubt" concerning the facts or who only offers ...

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