$ 20,016 from amounts owed to Progressive, claiming that it had overpaid Progressive as a result of the combination of the two routes.
On October 24, 1996, Progressive filed the instant Complaint which asserts the County's refusal to award certain routes was done in retaliation for the exercise of Progressive's First Amendment rights. Progressive also brings a pendant state law claim for breach of contract. Presently before the Court is Plaintiff's Motion for Partial Summary Judgment and Defendants' Motion for Summary Judgment.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a court may grant summary judgment if it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The substantive law will determine what facts are material to the outcome of a case. See Anderson, 477 U.S. at 250.
Initially, the moving party has the burden of informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party satisfies its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court must then resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The non-moving party, however, must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when the Court concludes that no rational finder of fact can find in favor of the non-moving party should summary judgment be granted. Gallo v. Prudential Residential. Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).
A. Progressive's First Amendment Claim
Progressive asserts that the County's refusal to award certain routes was done in retaliation for the exercise of its First Amendment rights. Defendant argues that the speech at issue here is, as a matter of law, not the type of speech that implicates the First Amendment.
The government "may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech" even if he has no entitlement to that benefit. Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 2697, 33 L. Ed. 2d 570 (1972). Accordingly, the Supreme Court has held that government employees are constitutionally protected from dismissal for publicly or privately criticizing their employer's policies, see, e.g., Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979), for refusing to take an oath regarding their political affiliation, see, e.g., Keyishian v. Board of Regents of Univ. of State of N.Y., 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967), for expressing hostility to prominent political figures, see Rankin v. McPherson, 483 U.S. 378, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987), or, except where political affiliation may reasonably be considered an appropriate job qualification, for supporting or affiliating with a particular political party, see, e.g., United States v. National Treasury Employees Union, 514 U.S. 1002, 115 S. Ct. 1310, 131 L. Ed. 2d 193 (1995). The Supreme Court recently extended these protections to independent contractors. Board of County Comm'rs v. Umbehr, 518 U.S. 668, 116 S. Ct. 2342, 2346, 135 L. Ed. 2d 843 (1996)
The First Amendment, however, does not create property or tenure rights, and does not guarantee absolute freedom of speech. 116 S. Ct. at 2347. The First Amendment's guarantee of freedom of speech only protects government employees and contractors from termination because of their speech on matters of public concern. Id. (citing Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 1689, 75 L. Ed. 2d 708 (1983) (holding speech on merely private employment matters is unprotected)). To prevail, an employee must prove that the conduct at issue was constitutionally protected and that it was a substantial or motivating factor in the challenged conduct. Id.
Here, the pivotal issue is whether Progressive's speech involved matters of public concern. "When . . . expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Connick, 103 S. Ct. at 1690. In Board of County Com'rs v. Umbehr, for example, the Supreme Court stated that "to prevail, Umbehr must show that the termination of his contract was motivated by his speech on a matter of public concern, an initial showing that requires him to prove more than the mere fact that he criticized the Board members before they terminated him." 116 S. Ct. at 2352.
Admittedly, this inquiry is not always an easy one. Whether speech addresses a matter of public concern "must be determined by the content, form, and context of a given statement" Connick, 103 S. Ct. at 1690.
Here, the context is that of government contractor attempting to collect what it considers to be agreed upon compensation for transportation services. Progressive argues that its speech is a matter of public concern because it involves governmental waste and efficiency, specifically "maximizing the effectiveness of taxpayer's dollars and reducing energy consumption through lower fuel usage." (Bradley Aff., Ex. F). These are laudable objectives and certainly within the realm of public concern.
A careful review of the record reveals, however, that Progressive's speech was merely an issue of economic concern to Progressive. Progressive wrote a letter to the County Purchasing Agent, dated May 24, 1996, explaining Progressive's position. The letter asserts that "the coordination maximizes the effectiveness of taxpayer's dollars and reduces energy consumption through lower fuel usage. . . . As our cost analysis clearly illustrates, separating these runs would have resulted in a certain loss." (Bradley Aff., Ex. F). Progressive's June 27, 1996 letter to the County Manager explains:
During the 1995/96 school year we did coordinate our services for maximum efficiency and lowest cost. While we apparently failed to make this clear to the County this was the basis for putting together our prices. The County did receive the benefit of high quality/safe service at a reasonable price.
(Bradley Aff., Ex. H). Similarly, Progressive's July 16, 1996 letter to the Board of Supervisors states:
As a private company unencumbered by redundant rules and regulations, we were able to carry some students from one route on another bus that was in their general area. This reduction in expenses for us was reflected in the prices we bid. We saved the County substantial funds by doing this.