The opinion of the court was delivered by: Charles L. Brieant, United States District Judge.
By motion heard June 14, 2002, defendants seek an order pursuant to
F.R.Civ.P. 56 granting summary judgment in this civil rights action
alleging violations of Plaintiff's First Amendment rights.
The following facts are undisputed, or assumed for purposes of the
motion. On September 19, 2001, Mr. Theodore Catletti, a former employee
of the County of Orange, filed his Complaint in this lawsuit. On November
2, 2001, Mr. Catletti died and on February 22, 2002, this Court granted
the motion of Antoinette Catletti, widow and Administratrix of the Estate
of Theodore J. Catletti, permitting her substitution as Plaintiff
pursuant to F.R.Civ.P. 25(a).
From 1992 until his termination on July 24, 2001, Mr. Catletti was the
Jail Administrator, at the Orange County Correctional Facility ("the
jail"). In this capacity, Mr. Catletti was responsible for the general
management and oversight of the everyday operations of the jail. The
position is not classified under New York's civil service laws and the
occupant serves at the pleasure of the Sheriff.
Defendant the County of Orange is a municipality organized pursuant to
the laws of the State of New York. Defendant Mr. Joseph Rampe, sued in
his individual capacity, was the Orange County Executive and the chief
operating officer of the County. Defendant Mr. H. Frank Bigger, sued in
his individual capacity, was the Orange County Sheriff and Mr. Catletti's
supervisor during the relevant period in this Complaint. Defendant Mr.
John E. Thompson, sued in his individual capacity, was the Undersheriff
for the County of Orange.
On June 7, 2001, Mr. Catletti testified under oath as a fact witness in
the United States District Court for the Southern District of New York,
in litigation concerning the termination of two nurses employed at the
jail, Lurana Berweger, R.N. and Susan Menon, R.N., ("the Nurses") who
claimed that they were discharged from their employment unlawfully. See
Berweger v. County of Orange, 99 Civ. 4717 (CM). Mr. Catletti testified
that Mr. Rampe played a substantial part in the decision by the County to
terminate the nurses' employment. On June 11, 2001, the jury awarded the
nurses $2.2 million in damages, including one million dollars in punitive
damages against Rampe.
One day after Mr. Catletti testified in Federal court, a consulting
firm hired by the County to investigate the Sheriff's Department told
Catletti that he was being investigated for his receipt in 1997 of
personal blood tests performed on him without charge by the jail's medical
staff. In a memorandum dated July 8, 1998, the Nurses at the jail told
Defendants that as directed by the jail's medical contractors and as a
goodwill gesture, medical staff had routinely provided jail personnel,
including Mr. Catletti with blood tests, vaccinations, medications, and
other minor first aid treatment. On July 12, 2001, Ms. Berweger told
Defendant Bigger that the jail's medical contractors had performed these
procedures for jail staff and family members and that Ms. Menon had
permission to do so without billing the County or the staff members for
them. On July 23, 2001, Defendant Thompson served Mr. Catletti with
formal discipline terminating him from his employment as Jail
Administrator. This initial termination letter stated that in February
and March 1997, Mr. and Mrs. Catletti had inappropriately received
medical services from a company with which the County had contracted to
service inmates, and such acts constituted the basis for Mr. Catletti's
On July 24, 2001, Mr. Catletti received a revised termination letter
which set forth no reason for his termination.
In the Complaint, Plaintiff alleges that Defendants sought to terminate
Mr. Catletti in bad faith, intending to retaliate against him for having
testified truthfully in the Berweger case that Rampe was responsible for
firing unconstitutionally two County employees. Plaintiff alleges that
Defendants singled out Mr. Catletti for punishment although they knew
that numerous other County employees and their spouses had received the
same free medical services over the years.
Plaintiff's Complaint states one claim: by retaliating against Mr.
Catletti for testifying truthfully in federal court, Defendants violated
Mr. Catletti's right to free speech as protected by the First Amendment
of the United States Constitution, made actionable through
42 U.S.C. § 1983. Plaintiff seeks a jury trial, compensatory and
punitive damages and fees and costs.
The standards for granting summary judgment are so well known that no
citation is necessary. The movants' burden will be satisfied if they can
point to the absence of evidence to support an essential element of the
non-moving party's claim. Goenaga v. March of Dimes Birth Defects Fund,
51 F.3d 14, 18 (2d Cir. 1995). In evaluating the record to determine
whether there is a genuine issue as to any material fact, "the evidence
of the non-movant is to be believed and all justifiable inferences are to
be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106
S.Ct. 2505, 2513 (1986); see also Allen v. Coughlin, 64 F.3d 77, 80 (2d
As to the first contention, Defendants are mistaken, perhaps because of
the unnecessary reference in the complaint to the First Amendment, which
imports caselaw to the effect that the speech of a policymaker employed
in local government is subject to a balancing test under Pickering v.
Bd. of Educ. of Township High School 391 U.S. 563, 568 (1968) and its
extensive progeny. Pickering and the First Amendment are both
inapplicable to this case, although were this Court to apply that test,
we would find that the sworn testimony did as a matter of law address a
matter of public concern. The Nurses who prevailed in the Berweger case
were fired for speaking out publicly about, among other things,
inadequate care and treatment of mentally ill inmates at the jail. This
is clearly a matter of public concern. Catletti contended he was fired
for testifying that the Nurses were fired for their whistle blowing
activity, and that in itself is also a matter of public concern, that the
Defendants attempt to retaliate against loyal employees (the Nurses) who
speak out on matters of public concern. But we need not ...