all information in the unit. In any event, this type of a
complaint does not constitute an adverse employment action
relating to a significant aspect of an employment relationship.
Valvo also contends that he was given assignments that were
beneath his seniority in the unit, such as overseeing copying of
a report and performing a urine test. Valvo states, however, that
it was not unheard of for inspectors of his status to have such
assignments. In any event, these complaints to not rise to the
level of adverse employment action and, furthermore, he has
failed to adduce any evidence tending to show a causal connection
between these assignments and protected speech.
Finally, Valvo contends that, as retaliation, he was replaced
as head of the Onondaga investigation. The admissible evidence
demonstrates that he was replaced due to the conflict between his
investigatory style and the objectives of the investigation
imposed by his superior. In any event, this decision was part of
the day-to-day administration of a department, and on these
facts, does not constitute adverse employment action. See
Although Valvo's speech involving the various investigations
and his requests to McMahon for support do not constitute speech
on a matter of public concern, he was transferred after he filed
a lawsuit against the State Police. Valvo claims that this
transfer is evidence of retaliation. The defendants, on the other
hand, claim this transfer was justified under the Pickering
As stated previously, the First Amendment rights of public
employees are not absolute, as the government has a
countervailing interest in efficiently managing its affairs.
Kaluczky v. City of White Plains, 57 F.3d 202, 210 (2d Cir.
1995). The Supreme Court stated in Pickering v. Board of
Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811
(1968), a balance must be struck "between the interests of the
[employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees." Thus, the ultimate question when a public
employee alleges unlawful retaliation for exercising his First
Amendment rights is "whether the employee's right to speak is
outweighed by the public employer's interest in the effective
operation of the workplace." McEvoy v. Spencer, 124 F.3d 92, 98
(2d Cir. 1997).
When performing the Pickering balancing test, courts must
assess the extent of the disruption caused by the employee's
speech on (1) workplace discipline; (2) harmony among co-workers;
(3) working relationships; and (4) the employee's job
performance. Id. Courts should also assess the responsibilities
of the employee within the agency, as "[c]ommon sense tells us
that the expressive activities of a highly placed supervisory,
confidential, policy-making, or advisory employee will be more
disruptive to the operation of the workplace than similar
activity by a low level employee with little authority or
discretion." Id. at 103. Our Circuit has held that in the law
enforcement context an individual may be considered a
confidential employee if he has access to confidential
information and if his job responsibilities require him to use
confidential information. Danahy v. Buscaglia, 134 F.3d 1185,
1191-1192 (2d Cir. 1998).
Once the court has assessed the volume of disruption, the court
must determine whether the disruption justifies the abridgement
of what might otherwise constitute the employee's First Amendment
rights. McEvoy, 124 F.3d at 98. "Indeed, where the employee
holds an extremely confidential or highly placed advisory
position, it would be unlikely if the Pickering balance were to
be struck in his favor." Id. at 103. Furthermore, "regardless
of the content of the speech, the responsibilities of the
employee, or the context in which the speech was made, an
employer is never required `to allow events to unfold to the
extent that the disruption of the
office and the destruction of working relationships is manifest
before taking actions.'" Lewis v. Cowen, 165 F.3d 154, 163 (2d
Cir. 1999) (quoting Connick, 461 U.S. at 152, 103 S.Ct. 1684).
Shortly after Valvo filed this lawsuit, Fitzgerald told McMahon
that Valvo's presence in Internal Affairs was having a
demoralizing effect on the unit and compromising its work.
Fitzgerald was particularly concerned that Valvo would no longer
follow his direction and that his presence would adversely affect
the discipline of other officers. Valvo was the most senior staff
inspector and worked closely with State Police counsel and
prosecutors on highly sensitive matters. Further, Staff Inspector
was a "management confidential" position.
Once McMahon became aware of Fitzgerald's concerns about
Valvo's presence in Internal Affairs he consulted with legal
counsel, who advised him that, under Pickering, he could
reassign Valvo. Consequently, Valvo was reassigned to the newly
created position of Staff Inspector Central Records
Administration, a position that entailed no reduction in salary,
benefits or rank. The central responsibility of the position was
to oversee the state-wide pistol permit registry. Valvo
considered this reassignment degrading and instead of taking it
chose to resign.
Considering the legal standards outlined above, McMahon's
decision to transfer Valvo was, under Pickering, a reasonable
response to threatened disruption in the unit. Thus, the
defendants are granted summary judgment on claims four, five and
six. In any event, McMahon is entitled to qualified immunity
because, as discussed more fully infra, his belief that Valvo
was a confidential employee and could be transferred in
accordance with the law was objectively reasonable. See Harlow
v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982); See Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996);
Anderson v. Creighton, 483 U.S. 635, 638-639, 107 S.Ct. 3034,
97 L.Ed.2d 523 (1987). In other words, it was objectively
reasonable for McMahon to believe that the transfer of Valvo
would not violate any constitutionally protected right.
Morse contends that he was precluded from seeking a promotion
to lieutenant by reason of Fitzgerald's refusal to provide him
with job performance evaluations. The factual record, however, is
clear that Morse voluntarily decided not to take the lieutenant's
test. Such a decision does not constitute adverse employment
action. Morse also seems to contend that, after his October 1998
testimony, he was stripped of a prestigious position he had
received in 1996. Morse has adduced no admissible evidence
detailing how this new position is inferior or tending to show a
causal connection between protected speech in 1995 and 1996 and a
transfer in 1998.
Notwithstanding the absence of speech on a public concern, or
any adverse employment action, the defendants would nonetheless
be entitled to qualified immunity. Qualified immunity entitles
public officers to be shielded from liability unless their
conduct violates clearly established constitutional rights of
which a reasonable person would have known, or unless it was
objectively unreasonable for them to believe that their acts did
not violate those rights. See Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); See Weyant v.
Okst, 101 F.3d 845, 857 (2d Cir. 1996); Anderson v. Creighton,
483 U.S. 635, 638-639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). 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, 107 S.Ct. 3034. To be deprived of
qualified immunity, the violation must be sufficiently clear that
no reasonable public official could have believed that his
actions did not violate the law. Id.
Thus, the doctrine of qualified immunity "shields government
officials from liability for damages on account of
their performance of discretionary official functions `insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'" Rodriguez v. Phillips, 66 F.3d 470, 475 (2d Cir. 1995)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982)). In determining whether a particular
legal principle was "clearly established" for purposes of
qualified immunity, our Circuit has considered three factors:
whether the right was defined with reasonable specificity;
whether the decisional law of the Supreme Court and the
applicable circuit court supports its existence; and whether,
under preexisting law, a defendant official would have reasonably
understood that his acts were unlawful. Powell v. Schriver,
175 F.3d 107, 113 (2d Cir. 1999) (internal quotations omitted).
With respect to each defendant, qualified immunity is to be
evaluated, of course, solely on the basis of that defendant's
conduct. First, however, the Court must decide whether the
plaintiffs have alleged a deprivation of a constitutional right.
Id. at 110. It was, of course, clearly established in 1995 that
a public employee is not required to relinquish their First
Amendment rights in order to obtain employment in a public
agency. See Connick, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d
708. The plaintiffs specifically allege that "they had a
constitutionally protected right to express opposition to
corruption in the Division of State Police without being subject
to either actionable adverse employment action or being forced by
threats and objectively provable adverse actions into silence."
The plaintiffs, however, have adduced no evidence such that a
reasonable juror could conclude that any of the defendants were
involved in a conspiracy or that the plaintiffs were retaliated
against for protected speech, save for McMahon's transfer of
Valvo discussed above. "Where there is a total absence of
retaliation, there is no basis on which to conclude that the
defendant seeking qualified immunity violated clearly established
law." McCullough v. Wyandanch Union Free School District,
187 F.3d 272, 280 (2d Cir. 1999).
McMahon is entitled to qualified immunity on the plaintiffs'
complaints concerning his lack of verbal support in the face of
PBA complaints and his administrative decisions. A public
employee has no clearly established constitutional right to
public support by his supervisor in the wake of complaints and
verbal attacks by others. Further, it was objectively reasonable
for McMahon to believe that his decisions on how to react to the
PBA's accusations and how to pursue the charges against Cerrone
did not violate clearly established constitutional rights.
The plaintiffs have adduced no admissible facts tending to show
that Fitzgerald or O'Donnell retaliated against them because of
protected speech. Fitzgerald's decision to remove Valvo from the
Onondaga investigation is protected by qualified immunity since
there is no clearly established constitutional right to head an
investigation in the face of a superior officer's decision that
the conduct of the investigation was inconsistent with its
objectives. Further, there is no clearly established
constitutional right preventing a superior from directing that an
investigation be conducted in a particular — e.g. non-adversarial
— manner. With respect to O'Donnell, it was objectively
reasonable for him to believe that he did not violate Cahill's
constitutional rights by performing the investigation into gender
discrimination charges at the request of his superior or by
reporting to Fitzgerald Valvo's conduct during the Onondaga
3. Constructive Discharge
Valvo alleges that he was constructively discharged from the
police department. He asserts that his re-assignment "was the
consummate public humiliation and embarrassment," which made
for him "so intolerable that he reluctantly was constrained to
A constructive discharge occurs when the employer, rather than
directly terminating the employee, "`deliberately makes an
employee's working conditions so intolerable that the employee is
forced into an involuntary resignation.'" Pena v. Brattleboro
Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (quoting Young v.
Southwestern Sav. & Loan Ass'n, 509 F.2d 140, 144 (5th Cir.
1975)). The standard is not easily met. A plaintiff is not
entitled to a remedy by simply showing that his working
conditions were difficult or unpleasant. See Spence v. Maryland
Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993). The evidence must
establish that the "employer deliberately created working
conditions that were `so difficult or unpleasant that a
reasonable person in the employee's shoes would have felt
compelled to resign.'" Id. (quoting Pena, 702 F.2d at 325)
(internal quotations omitted).
Here, a reasonable person in Valvo's position would not have
felt compelled to resign. Further, he has adduced no sufficient
triable facts upon which a reasonable juror could find that the
defendants deliberately created intolerable working conditions in
order to force his resignation. Accordingly, the defendants'
motion for summary judgment on this claim is granted.
Further, the defendants are granted summary judgment on Valvo's
14th amendment due process allegation, claim seven, premised on
his transfer because there is no property right to a particular
assignment in the State Police, especially where, as here, no
loss of rank or pay is involved. See Board of Regents v. Roth,
408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972);
Oladeinde v. City of Birmingham, 963 F.2d 1481, 1486 (11th Cir.
4. Under Color of Law
McCormack claims he is entitled to summary judgment because he
was not acting under color of law as the president of the PBA. To
recover under 42 U.S.C. § 1983, a plaintiff must prove that the
conduct complained of was committed by a person "under color of
state law" and deprived the plaintiff of a right under the
Constitution or a federal statute. See Gomez v. Toledo,
446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). "`Misuse of
power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law
is action taken `under color of' state law.'" Monroe v. Pape,
365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (quoting
United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85
L.Ed. 1368 (1941)). Mere employment by a state or municipality
does not automatically mean that a defendant's actions are taken
under the color of state law. See Polk County v. Dodson,
454 U.S. 312, 319-20, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).
The acts complained of by the plaintiffs and attributed to
McCormack, namely (1) inflammatory letters in the PBA newsletter,
(2) denial of counsel in Cerrone litigation, and (3) invoking of
the unionized members of the State Police's right to
representation during the Onondaga investigation, were undertaken
by McCormack in his capacity as president of the PBA. He did not
hold his position as president by virtue of action by the state
and he performed functions for the union, not for the government.
See Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996)
(holding president of firefighter union was not acting under
color of law when undertaking activities in his union capacity).
Thus, McCormack is entitled to summary judgment on the
plaintiffs' § 1983 claim.
5. Leave to amend
Plaintiffs' counsel, in his brief in opposition to summary
judgment, seeks leave to file a second amended complaint alleging
that the defendants "chilled" the plaintiffs' exercise of their
First Amendment rights. This is not a proper application for
leave. Notwithstanding this serious procedural flaw, leave to
be freely given unless undue delay, bad faith or dilatory motive
on the part of the movant or undue prejudice to the opposing
party. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d
222 (1962). Plaintiffs' counsel has proffered no reason for his
long delay in seeking to amend the complaint. Discovery was
completed in December 1998. The summary judgment motions were
filed in May 1999. Our Circuit has consistently found prejudice
and denied amendments where discovery has already been completed
and summary judgment motions have been filed. See e.g. Ansam
Assoc., Inc. v. Cola Petroleum Ltd., 760 F.2d 442 (2d Cir.
1985). Accordingly, this motion is denied due to undue delay and
For the reasons stated above, all defendants are granted
summary judgment on plaintiffs' First Amendment retaliation
claims. McMahon, Fitzgerald and O'Donnell are entitled to
qualified immunity. McCormack is entitled to summary judgment
because he was not acting under color of law. Plaintiffs' leave
to amend is denied. The Clerk of the Court is directed to enter
judgment for the defendants and to close the case.