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June 24, 2002


The opinion of the court was delivered by: Charles L. Brieant, United States District Judge.

Memorandum and Order

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.

Factual Background

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 termination.

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 Cir. 1995).

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 ...

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