Whether an employee's speech addresses a matter of public concern must be "determined by [its] content, form and context." Connick, 461 U.S. at 147-148; Ezekwo, 940 F.2d at 781. Speech will be characterized as implicating a matter of public concern if it relates to "any matter of political, social or other concern to the community." Connick, 461 U.S. at 146. In contrast, issues of merely personal importance to the employee are not matters of public concern. Connick, 461 U.S. at 149.
Here, Stanley's complaints about the financial and management practices and policies of the Town clearly qualify as speech relating to matters of public concern. Stanley directed his criticisms to expenditures of public funds that might constitute a breach of the public trust, which courts have repeatedly identified as a matter of public concern. See, e.g., Bernheim v. Litt, 79 F.3d 318, 325 (2d Cir. 1996); Bieluch v. Sullivan, 999 F.2d 666, 671 (2d Cir. 1993).
Plaintiff has also sufficiently alleged that the defendants sought to retaliate against him on the basis of his constitutionally protected speech. Moreover, there is no evidence that plaintiff's speech unduly disrupted the work environment.
Defendants argue that because Stanley was a policymaker (a characterization that plaintiff disputes) he was not constitutionally protected from adverse action on the basis of his speech. While it is true that an "employee's policymaking role weighs in favor of the employer in the Pickering balance, [it] does not provide automatic insulation from liability. McEvoy v. Spencer, 124 F.3d 92, 95 (2d Cir. 1997.) There is thus no blanket policymaker exception to the constitutional protection afforded governmental employees in the exercise of their First Amendment rights. Even assuming, arguendo, that Stanley occupied a policymaking role, the defendants may have violated his constitutional rights if they either declined to reappoint him as Comptroller or refused to consider him for the position, due to his exercise of his First Amendment rights. The Town's motion for summary judgment on Stanley's § 1983 claim for violations of his First Amendment rights is therefore denied.
The doctrine of qualified immunity entitles public officers to be shielded from liability for damages unless their conduct violates clearly established 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); Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996); Lennon v. Miller, 66 F.3d 416 (2d Cir. 1995), or unless it was objectively unreasonable for them to believe that their acts did not violate those rights. Anderson v. Creighton, 483 U.S. 635, 638-639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir. 1994).
The right alleged to have been violated must be clearly established at a level of specificity such that "a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640. To be deprived of the defense of qualified immunity, a public official must not simply violate plaintiff's rights; rather, the violation of plaintiff's rights must be so clear that no reasonable public official could have believed that his actions did not violate such rights. Id.
Cooper's removal of Stanley from the payroll, her refusal to accept his application for the Comptroller position without his executing a release of liability, and the decision not to reappoint him may have violated plaintiff's First Amendment rights. But such actions did not so clearly violate Stanley's rights that defendant Cooper should be deprived of the defense of qualified immunity. Because governmental entities have an interest in not hiring individuals who plan litigation against the municipality that could unduly disrupt the work environment, Cooper's request that Stanley execute a release of liability could have been thought lawful by a reasonable public official. Similarly, because Cooper's removal of plaintiff from the payroll occurred after the end of his term, there was a basis for Cooper to reasonably believe that her action was lawful. Additionally, at the time that Cooper took the actions that plaintiff now challenges, the lack of a policymaker exception to the Pickering test was not clearly established. See McEvoy, 124 F.3d at 103. Therefore, Cooper could have reasonably believed that Stanley's policymaker status permitted her to take adverse action against him based on his speech without violating his constitutional rights. For all of these reasons, defendant Linda Cooper is entitled to the defense of qualified immunity with respect to plaintiff's § 1983 claims.
AGE DISCRIMINATION CLAIM
Section 296 of the New York State Executive Law makes it unlawful for an employer to discriminate against an individual on the basis of age. The analytical framework for this state law claim is substantially the same as under the federal Age Discrimination in Employment Act, 29 U.S.C. § 623 et seq. The plaintiff must first make a prima facie showing of unlawful discrimination on the basis of age. Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995). In order to resist defendants' motion, the allegations of plaintiff's complaint must assert a cognizable claim for age discrimination.
Plaintiff Stanley alleges sufficient facts to state a claim for age discrimination. He states that he was 51 years old at the expiration of his term, and that his replacement was 20 years his junior. Therefore, defendants' motion to dismiss Stanley's age discrimination claim is denied.
For the reasons stated, defendants' motions to dismiss the complaint are granted in part and denied in part. Defendant Linda Cooper is entitled to the defense of qualified immunity and the complaint is therefore dismissed as to her. Defendant Town of Yorktown's motion is denied in all respects.
Barrington D. Parker, Jr.
Dated: White Plains, New York
March 10, 1998
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