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March 2, 2001


The opinion of the court was delivered by: Garaufis, District Judge.


I. Procedural and Factual Background

McCullough initiated this claim pursuant to 42 U.S.C. § 1983 claiming that (1) he was terminated from his position as Assistant to the Superintendent for Curriculum and Instruction in retaliation for comments he made on matters of public concern at various School District meetings, in violation of his First Amendment rights; and (2) that the placement of negative written evaluations in his personnel file at the time of his termination stigmatized him in violation of his Due Process rights.

At the close of discovery, Defendant moved for summary judgment on all of Plaintiffs claims. On January 21, 1998, the Hon. Thomas C. Platt dismissed McCullough's claim for punitive damages against the School District and the Board of Education, but otherwise denied Defendants' motion (the "January 21 Order").

Defendants then filed an interlocutory appeal to the Second Circuit in which defendant Dr. Pecorale (interim Superintendent at the time of the events at issue) sought review of the district court's denial of his request for qualified immunity, and in which the School District and Board of Education defendants sought pendant review of their motion for summary judgment dismissing both claims. Pending its decision, the Second Circuit granted a stay of trial. The Second Circuit reversed the January 21 Order in part, and remanded the matter to the district court. The Second Circuit concluded that Dr. Pecorale was entitled to qualified immunity and dismissed Plaintiffs Due Process claim. The Court of Appeals declined, however, to exercise pendent jurisdiction over Defendants' motion for summary judgment on the First Amendment claim, on the grounds that there was insufficient overlap between the First Amendment claim and the appealable qualified immunity request. See McCullough v. Wyandanch, 187 F.3d 272, 277-78 (2d Cir. 1999).

Defendants now argue that this court should reconsider Plaintiffs surviving First Amendment claim in light of the Second Circuit's discussion of the relevant legal standard in its consideration of the qualified immunity issue. Defendant requests in the alternative that we certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). For the following reasons, Defendant's motion for reconsideration is granted, and Plaintiffs remaining claims are dismissed.

The factual background is set forth in detail in both the opinion and order of the district court and in the Second Circuit opinion. Familiarity with those documents is assumed for the purposes of this memorandum and order.

II. Discussion

A. Motion for Reconsideration

Neither party disputes that interlocutory orders remain subject to modification or adjustment prior to the entry of a final judgment adjudicating the claims to which they pertain. See, e.g., Parmar v. Jeetish Imports, Inc., 180 F.3d 401 (1999). Upon a thorough review of the opinion of the Second Circuit rendered in connection with this case on July 30, 1999 and after careful scrutiny of the entire record, this court is of the opinion that reconsideration and modification of the memorandum and order entered in this case on January 21, 1998 is warranted. Accordingly, that order is modified as indicated below.

B. Pickering Balancing Test

To prevail on a Section 1983 claim based on a termination of employment in violation of First Amendment speech rights, a plaintiff must establish (1) that his or her speech "can be fairly characterized as speech on a matter of public concern," Connick v. Myers, 461 U.S. at 146, 103 S.Ct. 1684, and (2) that the speech was "at least a `substantial' or `motivating' factor in the discharge." White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1058 (2d Cir. 1993) (internal quotations and citations omitted).

A governmental defendant may escape liability, however, by showing that otherwise protected speech "would potentially interfere with or disrupt the government's activities" and that "the potential disruptiveness . . . outweigh[s] the First Amendment value of that speech." See, e.g., Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998) (citing Waters v. Churchill, 511 U.S. 661, 681, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion)). In deciding whether or not to impose liability upon a state employer on facts such as these, this court must weigh the employee's interest, as a citizen, in commenting upon matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Pickering v. Board of Education of Township High, School District 205, Will County, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Factors important to the Pickering balancing test include: the time, place, and manner of the speech, the content of the speech and the extent to which it touches on matters of significant public concern, and, the nature of the disciplined employee's responsibilities. Lewis v. Cowen. 165 F.3d 154, 162 (2d Cir. 1999).

It is assumed for the purposes of the following analysis that Plaintiffs speech touched on important matters of public concern, and would therefore ordinarily be protected under the First Amendment. This assumption comports with Judge Platt's observation that "plaintiffs speeches unquestionably implicate matters of great public concern. . . . Dr. McCullough ...

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