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June 17, 2004.

CHARLES J. HYNES, individually and in his capacity as District Attorney for the County of Kings, New York, Defendant.

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Plaintiff Robert Charles Reuland, a former Assistant District Attorney in Kings County, New York, brings this civil rights suit under 42 U.S.C. § 1983 against defendant Charles J. Hynes, the Kings County District Attorney,*fn1 seeking damages and equitable relief. Reuland claims that Hynes demoted and discharged him in violation of his First Amendment rights. Hynes now moves for summary judgment, arguing that (1) Reuland's speech was not a matter of public concern, (2) Reuland cannot establish a causal connection between his speech and Hynes's decision to discharge him, and (3) he is entitled to qualified immunity. Alternatively, Hynes seeks partial summary judgment on the issue of back pay. For the following reasons, the motion is denied.


  The facts of this case, viewed in the light most favorable to Reuland, are as follows. During the summer of 1998, while he was employed as an Assistant District Attorney in the "Red Zone" of the Kings County District Attorney's Office,*fn2 Reuland began writing Hollowpoint,*fn3 a novel about a prosecutor employed in that District Attorney's Office and his investigation and prosecution of a homicide.*fn4 In March 2000, Reuland secured a $500,000 contract, dated May 22, 2000, with Random House, Inc. ("Random House"), to publish Hollowpoint and a second, unwritten novel. Under this contract, Reuland would receive premium payments if either or both of the books appeared on The New York Times hardcover bestseller list.*fn5 In May 2000, a position opened in the Homicide Bureau ("Homicide"). Reuland, very interested in the post, sought the advice of his supervisor and friend, Sheryl Anania. Anania recommended that Reuland speak with Hynes directly regarding his desire to be assigned to Homicide. Reuland requested a meeting with Hynes, which occurred on May 31, 2000. During this meeting, the two discussed, among other things, the upcoming publication of Hollowpoint. Reuland told Hynes that the book was a fictionalized account of a prosecutor in a fictionalized Kings County District Attorney's Office. He also said that nothing in the novel would hurt the office. Hynes responded that he had also published a book, which had met with only mild success, and that he was seeking a publisher for a current manuscript he had written. As to the promotion, Hynes told Reuland that he would look into it. He promoted Reuland to Homicide within the week.

  In January and/or February 2001, advance copies of Hollowpoint were distributed by Reuland and Random House, a number of which were read by members of Hynes's office, though Hynes himself did not read the book. The reaction among Reuland's colleagues and supervisors was generally favorable. Sometime in that same two-month period, and in connection with the presale publicity of Hollowpoint, Reuland was interviewed by New York magazine as part of a collection of profiles of lawyers in New York City. Reuland's profile was entitled, "The Novelist." The interview was published in the February 26, 2001 edition of the magazine and quoted Reuland as saying, "Brooklyn is the best place to be a homicide prosecutor. . . . We've got more dead bodies per square inch than anyplace else." (Foley Decl. Ex. P.) Within days, Amy Feinstein, Hynes's First Assistant District Attorney, told Reuland that Hynes and several local politicians were upset by the article,*fn6 though she believed that Reuland had meant no harm by his remark. Hynes, through Feinstein, directed Reuland to write a letter to the editor of New York magazine to set the record straight. Specifically, Reuland was told to write that Brooklyn did not literally have more dead bodies per square inch than anywhere else and that, in fact, crime rates in the borough were at an historic low. Reuland did so, and the letter was reviewed and edited by Feinstein and Hynes before it was sent. The letter, published in the April 2, 2001 issue of New York, read as follows:
Thanks to Cameron Stracher for making the most of a rather dull subject: New York's "young legal guns," a category in which I was included ["Raising the Bar," February 26]. While Mr. Stracher correctly quotes me as referring to Brooklyn, where I live and work as a homicide prosecutor, as having "more dead bodies per square inch than anyplace else," this was not intended to be, nor is it, literally true. In fact, Brooklyn's murder rate has declined more than 66 percent over the past decade. Even with the remarkable reduction, the loss of life remains high and still keeps a homicide prosecutor busy — the point of my hyperbolic remark.
(Foley Decl. Ex. R (alteration in original).)

  On March 9, 2001, Hynes met with Reuland alone in Hynes's office. Hynes began the meeting by describing the increase in crime Brooklyn had experienced during Hynes's adolescence and early adulthood. This increase in crime, Hynes said, was the reason he had run for District Attorney. Hynes described Reuland's comments to New York magazine as "hurtful" because Hynes had promised the borough's residents that he would reduce crime, and he had succeeded in doing so. (Reuland Dep. at 220.) Reuland responded as follows: I said that, um, I could appreciate everything that — that you're saying, um, but from my — from my perspective as a homicide prosecutor, as somebody who has spent the last few years dealing with families of homicide victims, victims of violent crime, going out literally to their homes, to their neighborhoods, speaking with them, their supervisors, their families, speaking for them, on trial. Um, from my perspective there's — there's a fair amount of work to be done. And, you know, I was concerned. And this was the motivating factors [sic] behind my remark.

 (Id. at 220-21.)

  At that point, Hynes became angry and Reuland tried to defuse the situation, telling him:
[L]ook, no, it wasn't like that. I was — I was explaining why I love being a homicide prosecutor. You can do things in this job that you can't do in any other job. You can make a difference. . . . I was saying, you know, I'd rather be in this — in this job than in any other job in the legal profession. I would rather be in this office than any other prosecutor's office.
(Id. at 222-23.) Hynes responded that Reuland should not be talking to the press or outsiders about office business. Hynes also said, "You sat there, you sat there in — in a chair and you told me that nothing in that book was going to hurt the office." (Id. at 224.) Hynes then asked Reuland whether he had sought the promotion to Homicide only to better promote Hollowpoint. Though Reuland denied this, Hynes expressed his disbelief*fn7 and informed Reuland that he was being transferred to the "Orange Zone."*fn8 When, the next day, Reuland refused to accept the transfer, Hynes informed Reuland, through an intermediary, that Reuland would either accept the transfer or submit his resignation. After about four months in the Orange Zone,*fn9 Reuland requested, in a memorandum to Feinstein dated July 16, 2001, transfer back to Homicide.*fn10 When Feinstein informed Hynes of the memorandum, Hynes told her that Reuland was not going back to Homicide; rather, "it was time for him to go." (Feinstein Dep. at 15.) Feinstein therefore demanded Reuland's immediate resignation, and his employment was terminated on July 20, 2001.


  A. The Rule 56 Standard

  Under Rule 56 of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case identifies the facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Id.

  Moreover, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks omitted); see also, e.g., Michalski v. Home Depot, Inc., 225 F.3d 113, 116 (2d Cir. 2000) ("[W]e . . . view [the facts] in the light most favorable to, and draw inferences in favor of, the non-moving party. . . ." (quotation marks omitted)). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 586-87 (quoting Fed.R.Civ.P. 56(e)).

  B. First Amendment Retaliation

  The First Amendment to the United States Constitution provides, inter alia, that "Congress shall make no law . . . abridging the freedom of speech." "The mere fact of government employment does not result in the evisceration of an employee's First Amendment rights." Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003); see also, e.g., Connick v. Myers, 461 U.S. 138 (1983) ("[A] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." (citing Pickering v. Bd. of Educ., 391 U.S. 563 (1968))). "Few values are more carefully and thoroughly protected than the citizen's right to speak his mind on matters of public concern without interference by the government," Johnson, 342 F.3d at 112 (quotation marks omitted), and therefore "`[v]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech,'" Lewis v. Cowen, 165 F.3d 154, 161 (2d Cir. 1999) (quoting Rankin v. McPherson, 483 U.S. 378, 384 (1987)).

  On the other hand, the Supreme Court has also recognized that "the state has an interest as an employer in regulating speech by employees so as to promote the efficiency of public services performed by its employees." Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999) (citing Connick, 461 U.S. at 140). In determining whether an adverse employment action based on a government employee's speech was a constitutional violation in a given case, the court "must balance `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.'" Id. at 109-10 (quoting Pickering, 391 U.S. at 568).

  However, a court will not engage in this balancing test unless the plaintiff first demonstrates by a preponderance of the evidence that "(1) the speech at issue was made as a citizen on matters of public concern rather than as an employee on matters of personal interest; (2) he or she suffered an adverse employment action; and (3) the speech was at least a substantial or motivating factor in the adverse employment action." Johnson, 342 F.3d at 112 (quotation marks, citations, and alteration omitted); see also, e.g., Morris, 196 F.3d at 110 (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). "If a plaintiff establishes these three factors, the defendant has the opportunity to show by a preponderance of the evidence that it would have taken the same adverse employment action `even in the absence of the protected conduct.'" Id. (quoting Mount Healthy, 429 U.S. at 287). I address each element below.

  1. Matters of Public Concern

  "Speech by a public employee is on a matter of public concern if it relates `to any matter of political, social, or other concern to the community.'" Johnson, 342 F.3d at 112 (quoting Connick, 461 U.S. at 146). When the speech at issue cannot fairly be considered as relating to any of these matters, "government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Connick, 461 U.S. at 146; see also id. (noting that Pickering and its progeny's repeated use of the "public concern" language reflects "the common sense realization that government offices could not function if every employment decision became a constitutional matter"). "`Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a ...

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