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SCHALLOP v. NEW YORK STATE DEP'T OF LAW

September 14, 1998

AMY SCHALLOP, Plaintiff, -v.- NEW YORK STATE DEPARTMENT OF LAW; DENNIS C. VACCO; DONALD P. BERENS; TRICIA TROY ALDEN; WILLIAM M. FLYNN; JOHN DOE; and JANE ROE, All Individually and in their Official Capacities, Defendants.


The opinion of the court was delivered by: HOMER

MEMORANDUM-DECISION AND ORDER

 Plaintiff Amy Schallop ("Schallop"), a former New York State Assistant Attorney General ("AAG"), brought this action against the New York State Department of Law ("DoL") and certain of its officials alleging that her employment was wrongfully terminated in violation of her First Amendment right to free speech and on the basis of her gender. *fn1" Schallop seeks monetary damages and injunctive relief in the form of reinstatement to her position. Presently pending is defendants' motion for summary judgment on all claims pursuant to Fed. R. Civ. P. 56. Docket No. 61. Also pending is Schallop's cross-motion for partial summary judgment against defendant William M. Flynn. Docket No. 65. For the reasons which follow, defendants' motion is granted in part and denied in part, and Schallop's cross-motion is denied.

 I. Background

 The DoL is headed by the Attorney General. N.Y. Const. art. V., § 4; N.Y. Exec. Law § 60. The Attorney General is vested with a full range of authority and responsibilities beginning with the duty to prosecute and defend all legal actions in which New York has an interest. See N.Y. Exec. Law § 63. The Attorney General is empowered to appoint AAGs to assist him in the performance of his duties. Id. at § 62. In November 1994, defendant Dennis C. Vacco ("Vacco") was elected Attorney General. Snitow Decl. (Docket No. 61), P 7. When he assumed office on January 1, 1995, Vacco became the first Republican to serve as Attorney General in fifteen years. Id.

 Defendant Donald P. Berens ("Berens") is the Deputy Attorney General for the DoL's Division of State Counsel. Berens Decl. (Docket No. 61), P 1. Defendant William M. Flynn ("Flynn") is the First Deputy Attorney General. Flynn Reply Decl. (Docket No. 74), P 1. Defendant Tricia Troy Alden ("Alden") is the AAG in charge of Legal Personnel Recruitment and Staff Development. Berens Decl., PP 33-34. *fn2" Schallop was appointed as an AAG by then Attorney General Robert Abrams on February 23, 1990. She began work in the DoL's Albany Litigation Bureau effective March 12, 1990. Cunningham Decl. (Docket No. 63), Ex. C.

 After taking office, Vacco commenced a complete review of the DoL's professional staff. He invited those interested in retaining their employment to reapply for their positions. Berens Decl., P 31. Those interested in continuing their employment were told to submit to Flynn a resume and a brief outline of their current responsibilities. Id. at P 32. Berens, Flynn, and Alden, among others, comprised an informal "Vacancy Committee" which managed the evaluation process. Id. at PP 33 & 40. Once applications were received, interviews were generally conducted by a panel of Vacancy Committee members. Interview evaluations were memorialized for some but not all applicants on Legal Recruitment Evaluation ("LRE") forms. See Cunningham Decl., Ex. M. Vacco delegated to Flynn the authority to make reappointment decisions. Flynn Dep. (Docket No. 69), pp. 54-57.

 Schallop had taken a maternity leave in December 1994 and was scheduled to return to work in June 1995. Cunningham Decl., Ex. O. Her leave was later extended to August 1995. *fn3" Id. at Ex. P. In January 1995, upon learning of Vacco's reapplication process, Schallop submitted to Flynn a letter stating her desire for reappointment, a resume and a statement of her duties at DoL. Id. at Ex. K. Schallop was interviewed for reappointment on June 28, 1995. Berens Decl., P 50. The panel which conducted the interview consisted of Berens, Alden and AAGs Lisa B. Elovich and Susan Marie Tatro. Id. Each interviewer completed an LRE form for Schallop. Berens and Alden recommended that Schallop be reappointed while Tatro and Elovich were undecided. Cunningham Decl., Ex. Q.

 In late August 1995, as a result of the reappointment process, the employment of six AAGs from Schallop's office was terminated. Am. Compl., P 30; Answer to Am. Compl., P 14. In an August 29, 1995 newspaper article, a DoL spokesperson responding to charges that the AAGs were fired for political reasons stated that the qualifications of the fired employees was "not up to the level we expect. We can't afford to have dead wood on board." Cunningham Dec., Ex. BB. In response to that article, Schallop contacted a reporter to discuss the recent firings. Schallop Dep. (Cunningham Decl., Ex. F.), pp. 41-44. In a newspaper article published September 1, 1995, Schallop was quoted as follows: "The quality of the people who were fired was outstanding, and anyone who knows anything about their work couldn't possibly say otherwise." Cunningham Decl., Ex. EE.

 Schallop thereafter inquired on several occasions whether a decision had been made on her reappointment. She eventually sent a letter dated December 11, 1995, to Tatro requesting a "definitive answer." Id. at Ex. W. Finally, in a letter from Salvatore Page dated December 27, 1995, Schallop was informed that her employment was terminated effective January 10, 1996. Id. at Ex. D. This action followed.

 II. Discussion

 In her amended complaint Schallop asserts seven causes of action. The first two assert violations of her free speech rights under the First Amendment and 42 U.S.C. § 1983. The third and seventh have been dismissed. See note 1 supra. The fourth, fifth and sixth causes of action assert gender discrimination respectively in violation of Title VII, 42 U.S.C. § 2000e et seq.; the Equal Protection Clause and section 1983; and the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. (McKinney 1993 & Supp. 1998).

 A. Summary Judgment Standard

 Under Fed. R. Civ. P. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to 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." See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The moving party bears the burden of demonstrating that no genuine issue of material fact exists. FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994); see also Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). Once the movant has come forward with sufficient evidence in support of the motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed. R. Civ. P. 56(e); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994).

 The trial court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. American Cas. Co. of Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see also Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985). "Furthermore, the non-movant 'will have his allegations taken as true, and will receive the benefit of the doubt when his assertions conflict with those of the movant.'" Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. 1996) (citations omitted). However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 B. Eleventh Amendment Immunity

 Schallop's claims here include those under section 1983 in her first, second and fifth causes of action against the DoL and against the other defendants in their official capacities. As a threshold matter, the defendants assert that those claims are barred by the Eleventh Amendment. The Eleventh Amendment provides that "the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. *fn4" Rather than an absolute bar to federal court jurisdiction, the Eleventh Amendment establishes a sovereign immunity from suit which may only be waived by a state or abrogated by Congress. Idaho v. Coeur d' Alene Tribe of Idaho, 521 U.S. 261, 117 S. Ct. 2028, 2033, 138 L. Ed. 2d 438 (1997). It is well settled that Congress did not abrogate the immunity provision in adopting section 1983, Quern v. Jordan, 440 U.S. 332, 340-42, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979), and there is no contention here that New York has waived its immunity by consenting to be sued in these circumstances.

 Claims brought against state agencies, like those against the DoL here, constitute direct claims against the state and are barred by the Eleventh Amendment. Komlosi v. New York State Office of Mental Retardation & Developmental Disabilities, 64 F.3d 810, 815 (2d Cir. 1995); see also Seminole Tribe, 517 U.S. at 58 ("the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment."). Claims for damages brought against state employees in their official capacities are likewise construed as claims against the state and fall to the same Eleventh Amendment bar. Kentucky v. Graham, 473 U.S. 159, 165-66, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). Thus, the section 1983 claims in the first, second and fifth causes of action against the DoL must be dismissed as barred by the Eleventh Amendment. The damages claims asserted in those causes of action against the other defendants in their official capacities must also be dismissed on the ground of Eleventh Amendment immunity. *fn5"

 Schallop's official capacity claims in the first, second and fifth causes of action seeking the prospective injunctive relief of reinstatement, however, are governed by a different standard. Official capacity suits "generally represent only another way of pleading an action against an entity of which [a state actor] is an agent." Monell v. Department of Social Servs. of City of New York, 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). An important exception to this general rule provides that suits challenging the constitutionality of a state official's action which seek an injunctive remedy are not considered claims against the state. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). *fn6" These claims, therefore, are not barred by the Eleventh Amendment. Dube v. State Univ. of N.Y., 900 F.2d 587, 595 (2d Cir. 1990); TM Park Ave. Assocs. v. Pataki, 986 F. Supp. 96, 106-07 (N.D.N.Y. 1997) (McAvoy, C.J.).

 This exception only applies in circumstances where the state official has the authority to perform the required act. The required act here is the reinstatement of Schallop to her former position. As Attorney General, Vacco possesses such authority. See N.Y. Exec. Law § 62. It also appears that Flynn has been delegated the authority to reinstate Schallop. See Vacco Dep. (Docket No. 63, Ex. II), p. 44 (authority delegated in August 1995); Flynn Dep., p. 54 (authority not delegated until 1996). There is no evidence that either Berens or Alden possessed the authority to reinstate Schallop even were she to prevail at trial. Therefore, the reinstatement claims must be dismissed as to those defendants. Klein v. University of Kan. Med. Ctr., 975 F. Supp. 1408, 1417 (D. Kan. 1997).

 Finally, as to Schallop's claim against the DoL under the New York Human Rights Act in the sixth cause of action, nothing in that statute provides for a waiver of the state's Eleventh Amendment immunity. Mete v. New York State Office of Mental Retardation & Developmental Disabilities, 984 F. Supp. 125, 134 (N.D.N.Y. 1997) (McCurn, J.); Pazamickas v. New York State Office of Mental Retardation & Developmental Disabilities, 963 F. Supp. 190, 196-97 (N.D.N.Y. 1997) (McAvoy, C.J.). That cause of action must be dismissed as to the DoL and the other defendants in their official capacities because the Ex parte Young exception is unavailable when the alleged violation is one of state law. Chinn v. City Univ. College of New Sch. of Law at Queens College, 963 F. Supp. 218, 227 (E.D.N.Y. 1997) (citing Pennhurst, 465 U.S. at 106).

 Accordingly, defendants' motion is granted on this ground as to Schallop's first, second and fifth causes of action against the DoL, defendants Berens and Alden in all respects in their official capacities, and defendants Vacco and Flynn in their official capacities for damages. Defendants' motion on this ground as to those three causes of action is denied as to Schallop's claim for reinstatement against Vacco and Flynn in their official capacities. Defendants' motion on this ground as to the sixth cause of action is granted as to the DoL and as to all the other defendants in their official capacities.

 C. Free Speech Claim

 In her first two causes of action, Schallop alleges that defendants infringed her right to freedom of speech under the First Amendment and retaliated against her for the exercise of that right in violation of section 1983. Am. Compl., PP 49-58.

 1. Personal Involvement

 Defendants contend first that Schallop has failed to demonstrate the personal involvement of Vacco, Berens or Alden in the alleged violations. *fn7" Personal involvement constitutes an essential prerequisite for section 1983 liability. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). *fn8" A party may be personally involved for purposes of section 1983 in several ways. First, of course, a party may have directly participated in the alleged constitutional deprivation. Absent such direct involvement, supervisory personnel will be considered personally involved if they failed to remedy a wrong after learning of the violation. Supervisors also may be liable if they created the policy or custom under which unconstitutional practices occurred or failed to end such a policy or custom if already in existence. Finally, supervisors may be liable if they were grossly negligent in managing subordinates who committed the constitutional violation. Id. A section 1983 defendant, however, cannot be liable "merely because he held a high position of authority." Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Personal involvement is a question of fact. Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986).

 The parties contest what the record demonstrates concerning Vacco's personal involvement. Viewed in the light most favorable to Schallop, the record establishes that as Attorney General, Vacco possessed the authority to hire or fire Schallop, he undertook the reevaluation of the DoL's professional staff and he established a procedure by which this evaluation was to occur. These facts suffice to create a triable question as to Vacco's personal involvement. Summary judgment for Vacco on this ground must be denied.

 Berens and Alden were personally involved in the reappointment process. The question here, however, is whether they were personally involved in the decision to terminate Schallop's employment. As to Berens and Alden, Schallop points first to a statement by Flynn during his deposition. During his deposition, Flynn was referred to a paragraph of the answer to the amended complaint which asserts as a defense that Schallop's injuries were caused by others. Cunningham Decl., Ex. B, P 34. When asked the identities of those individuals, Flynn stated they were the other defendants in this action. Flynn Dep., pp. 490-91. Even viewed in the light most favorable to Schallop, that answer falls short of establishing the personal involvement of Berens or Alden in the termination decision.

 Schallop cites several other sources in the record to support her claim of Berens' personal involvement. These portions of the record establish that Berens participated in general discussions concerning Schallop's employment. Berens Decl. (Pl.'s Exs. Vol. I (Docket No. 70), Ex. D), pp. 204-05; Flynn Dep., pp. 373-75. None of these portions of the record, however, demonstrate what is necessary to establish Berens' liability under section 1983 -- his personal involvement in the actual decision to terminate Schallop's employment. Viewed in the light most favorable to Schallop, the record here establishes only that Berens participated in discussions leading to the decision on Schallop's employment. Without more, this fails to establish personal involvement under section 1983.

 Schallop asserts a second basis for Alden's personal involvement. In her deposition Alden stated that she received notice of a decision concerning Schallop in October or November, 1995. Alden Dep. (Pl.'s Exs. Vol. I (Docket No. 70), Ex. G), pp. 66-70. However, none of Alden's testimony indicates her personal involvement in the decision. In fact, her testimony indicates that she was being informed of a decision that had been made without her involvement. Id. at p. 67 ("Mr. Flynn was telling me to advise Don Berens that the decision had been made"). Taken in the light most favorable to Schallop, this testimony raises no question of fact concerning Alden's involvement in the actual decision to terminate Schallop's employment. *fn9"

 Absent evidence of the personal involvement of Berens and Alden, neither can be liable under section 1983. Each, therefore, is entitled to summary judgment on this ground in his or her individual capacity on the first, second and fifth causes of action.

 2. Merits of First Amendment Claims

 Defendants next contend that they are entitled to summary judgment on the first two causes of action because the speech at issue here was not protected by the First Amendment and, even if it was, Schallop's public comment was not the reason for the termination of her employment. In addition, Schallop contends that she is entitled to partial summary judgment against Flynn on the ground that his decision to terminate her employment was impermissibly motivated by her constitutionally protected speech.

 The rights protected by the First Amendment are not surrendered as a condition of government employment. O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 717, 135 L. Ed. 2d 874, 116 S. Ct. 2353 (1996); Luck v. Mazzone, 52 F.3d 475, 476 (2d Cir. 1995). The government, however, maintains a greater interest in regulating the speech of its employees than it does for the citizenry at large. Board of County Comm'rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 675-76, 135 L. Ed. 2d 843, 116 S. Ct. 2342 (1996) (differences exist for regulating speech between government as sovereign and government as employer). Nevertheless, the First Amendment protects government employees from adverse employment action because of their speech on matters of public concern. Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). To prevail on her claim, then, Schallop must show first that the speech in question related to a matter ...


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