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
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.
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.
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
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 ...