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CAMACHO v. BRANDON

July 16, 1999

MARTIN CAMACHO, PLAINTIFF,
v.
SYMRA D. BRANDON, INDIVIDUALLY, GORDON BURROWS, INDIVIDUALLY, JOHN SPENCER, INDIVIDUALLY, AND THE CITY OF YONKERS, NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: William C. Conner, Senior District Judge.

  OPINION AND ORDER

This action under 42 U.S.C. § 1983 is before the Court on defendants' motion for summary judgment. Fed.R.Civ.P. 56. For the reasons stated hereinafter, the motion is granted in part and denied in part.

BACKGROUND

Until June 24, 1998, Martin Camacho ("plaintiff") was a full-time Senior Aid to the City Council for the City of Yonkers ("the City"). While plaintiff worked for multiple members of the City Council, he, because of his Spanish language skills, worked particularly closely with Councilman Fernando Fuentes, a Yonkers council member who represented a predominantly Hispanic-populated district. Fuentes joined with other members of the City Council to form the so-called "Minority Coalition." As part of this coalition, Fuentes took controversial positions on a variety of political issues, primarily related to city budgetary issues. Plaintiff alleges that Councilwoman Symra D. Brandon, Councilman Gordon Burrows, and Mayor John Spencer advised both plaintiff and Fuentes that, because of Fuentes' position on various political issues, plaintiff was in danger of losing his job. Plaintiff further contends that the defendants ultimately acted on this threat by firing him.

More specifically, plaintiff alleges that prior to the City Council's vote on the proposed budget for the Capital Improvement Projects, James Surdoval, whom plaintiff claims is a representative of Spencer, advised Fuentes that if Fuentes did not vote for the budget, plaintiff would be fired. Complaint ¶ 9; Rule 56.1 Statement ¶ 13. In fact, Fuentes specifically testified that Surdoval told Fuentes that because of his voting record on various issues, "Martin Camacho would be terminated." Fuentes Deposition Testimony at 6. Fuentes also testified that he believed Surdoval was acting at the direction of Spencer. Fuentes Deposition Testimony at 15-16. Plaintiff also alleges that defendant Burrows warned plaintiff directly that if Fuentes remained active as a member of the so-called Minority Coalition, plaintiff would be fired, and further advised him that Spencer advocated such termination. Complaint ¶ 10; Rule 56.1 Statement ¶ 14; Plaintiff's Affidavit ¶ 2. Plaintiff further contends that defendant Brandon told him that as a result of Fuentes' stance on a proposed Business Improvement District, Fuentes had put plaintiff in a "very difficult situation" with respect to his continued employment with the City of Yonkers. Complaint ¶ 12; Rule 56.1 Statement ¶ 16; Plaintiff's Affidavit ¶ 4. Moreover, plaintiff alleges that when Brandon handed him his notice of termination, she stated that he could "thank Fernando [Fuentes] who didn't vote for the CIP [Capital Improvement Projects]." Complaint ¶ 18; Rule 56.1 Statement ¶ 21; Plaintiff's Affidavit ¶ 5. This termination was announced a mere twelve hours after a disputed vote in which Fuentes and the Minority Coalition clashed with Spencer, Brandon, and Burrows. Fuentes' Deposition Testimony at 13. Finally, plaintiff alleges that Kathy Spring, Mayor Spencer's Chief of Staff, arranged to have plaintiff barred from access to the computer system at City Hall, requiring that plaintiff first request permission through Spencer's office to use these databases. Complaint ¶¶ 18-19; Rule 56.1 Statement ¶ 19; Plaintiff's Affidavit ¶ 6.

Thus, plaintiff filed this action against Brandon, Burrows, Spencer, and the City of Yonkers for: 1) deprivation of First Amendment rights in violation of 42 U.S.C. § 1983; 2) deprivation of his Fourteenth Amendment right to equal protection in violation of 42 U.S.C. § 1983; 3) impairment of his right to make and enforce contracts as guaranteed by 42 U.S.C. § 1981; and 4) unlawful termination in violation of Article 78 of the New York State Civil Practice Law and Rules, interposed in accordance with the Court's supplemental jurisdiction under 28 U.S.C. § 1367. Defendants timely filed a motion pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss each allegation made by plaintiff for failure to state a claim upon which relief could be granted. Because defendants relied on documentary evidence outside the pleadings in making this motion, the Court converted defendants' Rule 12(b)(6) motion to a motion for summary judgment in a conference with all parties on September 11, 1998. The parties were allowed over two months from the date of this conference to conduct discovery so they might supplement their respective opposition and reply papers accordingly. For the reasons stated hereinafter, the Court denies defendants' motion to the extent it seeks to dismiss plaintiff's § 1983 First Amendment claim, but grants defendants' motion as to plaintiff's § 1983 equal protection claim, his § 1981 impairment of contract claim, and his claim under Article 78 of the New York State Civil Practice Law and Rules.

DISCUSSION

I. First Amendment Claim Under Section 1983

A. Introduction

In order to prevail on this § 1983 freedom of speech claim, plaintiff must demonstrate by a preponderance of the evidence that: 1) the speech at issue is protected; 2) that he suffered an adverse employment action; and 3) there was a causal connection between the protected speech and the adverse employment action. Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994). There is no debate amongst the parties as to whether the speech at issue is protected, since the ability of a city council member to cast an unfettered vote on major issues impacting the City of Yonkers, such as approving the budget and making capital improvements, is clearly a matter of public concern. See White Plains Towing Corp. v. Patterson, 991 F.2d 1049 (2d Cir. 1993). Similarly, there is no dispute as to whether a harmful employment action was taken, since plaintiff was fired from his job. Id.

Instead, defendants have taken a different tack, arguing, first, that since plaintiff himself has not engaged in protected speech, he has no standing to bring a civil rights action to assert the First Amendment rights of Councilman Fuentes. Second, defendants argue that because plaintiff was a "policymaker," defendants were entitled to seek his termination even if his firing was based upon the exercise of First Amendment speech, because that speech had the potential to disrupt plaintiff's ability to perform his job effectively. See, e.g., Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998); McEvoy v. Spencer, 124 F.3d 92, 105 (2d Cir. 1997). We reject each argument for the reasons stated below.

B. Third-Party Standing

We concede that plaintiff's claim raises a somewhat complex legal issue. Plaintiff has brought suit for a violation of the First Amendment freedom of speech clause even though, by his admission, his termination had nothing to do with any protected speech by the plaintiff himself. Instead, plaintiff's § 1983 First Amendment claim is based entirely on the speech of another, namely that he was fired because defendants were angered by various political decisions made by Councilman Fuentes. Defendants are misguided, however, in their bald assertion that plaintiff has no cause of action under § 1983 because his "claims are not based on his own First Amendment rights." Defendants' Memorandum of Law at 10. While a plaintiff typically lacks standing to assert the rights of others, Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953), this rule is "not constitutionally mandated, but rather stem[s] from a salutary `rule of self-restraint' designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative." Craig v. Boren, 429 U.S. 190, 193, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Sometimes, however, the constitutional question is not speculative, and allowing for a third party to assert the constitutional claim of another is the only way to adequately protect the constitutional rights of another. Id. In these instances, the Supreme Court has instructed that district courts may ...


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