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August 6, 1998


The opinion of the court was delivered by: GERSHON


 GERSHON, United States District Judge:

 This case centers around a note that plaintiff Raymond Hagemann sent on July 15, 1994, to two of his co-workers, Lee Covino and Marilyn Blohm, accusing them of racial insensitivity while all three were working for Staten Island Borough President Guy Molinari. Molinari read a copy of the note and allegedly fired Hagemann because of it. Plaintiff filed this action under 42 U.S.C. §§ 1981, 1983, and 1985(3) against Molinari, Covino, Blohm *fn1" and the City of New York in 1995, claiming that they violated his rights under the First and Fourteenth Amendments to the United States Constitution. Plaintiff also asserts state law defamation and whistleblower claims under the doctrine of supplemental jurisdiction. Defendants have moved for summary judgment on all claims. Plaintiff claims there are issues of fact requiring a trial.


 Unless otherwise indicated, the following facts are undisputed or reflect evidence submitted by plaintiff which, at least for purposes of this motion, defendants do not dispute. Plaintiff Raymond Hagemann ("Hagemann") was employed as Project Planner to defendant Staten Island Borough President Guy Molinari ("Molinari") from 1990 to 1994. Hagemann's primary role was to assist Molinari in investigating matters of concern to the Staten Island Community. Defendant Lee Covino ("Covino") was Molinari's Director of Contract Oversight. Marilyn Blohm ("Blohm"), who joined Molinari's staff in 1990, became Chief of Staff in late 1991.

 In July 1993, Hagemann began serving as Molinari's liaison to the Rising Stars, an interracial youth basketball program run by Ed Watkins, an African-American. Molinari's office (the "Office") provided funding on a yearly basis to the Rising Stars from 1993 through 1995. Because the Rising Stars was not incorporated, funding was provided via contract between the Office and certain not-for-profit organizations acting as conduits for the funds.

 As liaison to the Rising Stars, Hagemann had many conversations with Watkins in 1993 and 1994. Hagemann states that Watkins reported to him on "numerous occasions" that Covino and Blohm were unwilling to meet with him or to return his telephone messages, that they appeared irritated and impatient with him, and that they neglected to provide him with any substantial assistance in completing funding applications. Hagemann also states that Covino was unhelpful when Hagemann requested assistance with matters relating to the Rising Stars, once referring to Watkins as a "dinge," and that Blohm disparaged Watkins personally in meetings with Molinari, exclaiming "Oh no, not him!" when Watkins was suggested for service on an advisory committee. Also, according to Hagemann, in July 1993, Blohm and Covino blamed Watkins for a critical editorial in the New York Daily News, and Blohm told Hagemann, "I don't care if he [Watkins] is black, he has to conform to our rules." On another occasion, Blohm told Molinari's receptionist that she did not want "the big black guy" (Watkins) in the reception area when Molinari was receiving visitors.

 Finally, on July 13, 1994, Watkins reported that he had been "ejected" from Borough Hall at Blohm's direction and that he believed his "ejection" was racially motivated. According to Hagemann, Watkins advised him that he had a scheduled appointment with Covino; that Covino was not there when Watkins arrived; that Blohm kept Watkins waiting for ten minutes when he asked to see her; and that, ultimately, Blohm instructed her receptionist to have Watkins escorted out. (Defendants do not respond as to whether Watkins had a scheduled appointment with Covino or whether Blohm kept Watkins waiting, but they acknowledge that neither Covino nor Blohm met with Watkins that afternoon.)

 On July 15, 1994, after talking with Watkins, Hagemann sent Blohm and Covino handwritten notes accusing each of them of "exhibiting unprofessional, racially insensitive attitudes" toward Watkins on several occasions in their "official capacities" as Molinari's employees; demanding that they apologize in order to "preserve good relations with the black community"; and stating that, in the absence of an apology, he would file a formal complaint with the Commission on Human Rights. Hagemann forwarded copies of the notes to Molinari.

 It is undisputed that, upon reading the notes, Molinari told several people that, if Hagemann's allegations proved true, he would fire Blohm and Covino and that, if the allegations proved false, he would fire Hagemann. Molinari asked John O'Hara, a consultant, and Daniel Master, counsel to the Office, to investigate Hagemann's allegations. O'Hara states that Molinari told him that he did not believe Covino and Blohm were racially insensitive or that Hagemann could prove his charges. O'Hara also states that he warned Molinari that it would be "wrongful termination" to fire Hagemann for expressing an opinion.

 On the weekend of July 16-17, 1994, Hagemann went to Borough Hall and took certain documents from Covino's office. Covino contends he never gave Hagemann permission to take the documents. Hagemann claims that he was indirectly authorized to gather the documents because Molinari put no limits on the Investigation Unit's methods for pursuing information.

 On July 18, 1994, Hagemann wrote Molinari a letter, describing the events of July 13, 1994, offering to apologize to Blohm and Covino if his understanding proved incorrect, and proposing a meeting between himself, Blohm, Covino and Watkins as a means of achieving an amicable resolution. Molinari did not respond to Hagemann's letter. On July 25, 1994, Hagemann gave O'Hara a detailed memorandum setting forth his allegations against Covino and Blohm.

 O'Hara and Masters conducted interviews throughout July and August. On August 15, 1994, prior to interviewing Watkins, Masters wrote Molinari a status report stating that, thus far, the allegations of racial insensitivity had been unsubstantiated. According to O'Hara, Molinari responded by stating that it would be a waste of time to interview Watkins. O'Hara and Masters interviewed Watkins nonetheless on August 25, 1994.

 It is undisputed that Molinari met separately with Covino and Blohm, prior to the completion of the investigation, to inform them that Hagemann's charges had not been substantiated. Hagemann alleges that Covino and Molinari conspired to terminate him. Covino admits asking Molinari to discipline Hagemann and to place a report regarding the investigation in Hagemann's file. However, neither Covino nor Blohm acknowledge asking Molinari to fire Hagemann. In fact, Blohm states that she told Molinari she believed Hagemann had acted in good faith.

 Masters and O'Hara issued separate written reports to Molinari on August 29, 1994, and September 8, 1994, respectively. Masters concluded that Hagemann's charges were unsubstantiated. O'Hara found that Watkins was dissatisfied with the treatment accorded him by Covino and Blohm, that Covino and Blohm had been insensitive toward Watkins, and that their insensitivity was not racially motivated. O'Hara concluded that Hagemann's allegations were "partially sustained."

 According to O'Hara, Molinari stated on September 7, 1998, prior to receiving O'Hara's report, that he was going to fire Hagemann. Molinari fired Hagemann on September 9, 1998, after Hagemann declined the opportunity to resign.

 Hagemann's termination and the events surrounding it received widespread news coverage. Molinari granted interviews to several news agencies, during which he repeatedly stated that Hagemann had performed his job exceptionally well. On October 2, 1994, Molinari broadcast his position regarding Hagemann's allegations of racial insensitivity on the "Borough Hall News & Views" program. Molinari claimed Hagemann's actions were "irresponsible". He described Molinari's accusations as "malicious", "baseless" and "ill-tempered", and he stated that "there was absolutely no substantiation of racial charges." Molinari ...

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