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LaFORGIA v. DAVIS

United States District Court, S.D. New York


December 10, 2004.

GERTRUDE LAFORGIA Plaintiff,
v.
ERNEST DAVIS, individually and officially as Mayor of the City of Mount Vernon, N.Y. and the CITY OF MOUNT VERNON, NEW YORK Defendants.

The opinion of the court was delivered by: GEORGE DANIELS, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Gertrude LaForgia, is the former Commissioner of the Department of Public Safety for the City of Mt. Vernon, New York. Plaintiff filed this action against Defendants, Ernest Davis, Mayor of the City of Mt. Vernon, New York ("the Mayor") and the City of Mt. Vernon, New York, alleging that she was terminated from her position in violation of her rights as guaranteed by the First and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. ยง 1983. Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff opposes the motion. For the following reasons defendants' motion is GRANTED.

BACKGROUND

  On December 13, 1998, the Mayor of the City of Mount Vernon, New York, Ernest Davis, appointed Plaintiff, Gertrude LaForgia, as Commissioner of the Department of Public Safety. At the time of her appointment, Plaintiff had recently retired from the New York City Police Force where she had an illustrious thirty-two year law enforcement career. As Police Commissioner, Plaintiff made significant achievements in lowering crime and improving the effectiveness of the Mount Vernon Police Department. Moreover, Plaintiff supervised 185 police officers and twenty-to-thirty civilians. She reported directly to the Mayor. According to Plaintiff, at no time prior to July of 2001 did the Mayor ever voice dissatisfaction with her performance as Police Commissioner. On the contrary, she alleges that the Mayor was quite pleased with her performance as he repeatedly expressed to her that "she was the best Commissioner the City ever had."

  Plaintiff claims that starting in July 2000, she repeatedly expressed her concerns to the Mayor on various issues which arose in the City, such as her concerns about certain budgetary matters and alleged improper departmental activities. Plaintiff suffered no adverse action as a result of these complaints, and these complaints to the Mayor played no role in her termination of employment.

  In November of 2000, over Plaintiff's objections, the Mayor appointed his personal chauffeur and bodyguard as First Deputy Commissioner ("First Deputy) of the Department. Prior to this appointment, the First Deputy served for twenty-eight years in the police department including service as a detective. With the exception of several undercover assignments in which he supervised three-to-five police officers on or before 1992, the First Deputy had no supervisory or management experience. Plaintiff believed that the First Deputy's lack of experience in a managerial role would have a demoralizing effect on the Department.

  Plaintiff also expressed her misgivings to the Mayor regarding the Deputy Commissioner of Technology and Special Projects ("Technology Commissioner"). Plaintiff requested that the Mayor terminate the Technology Commissioner because he was disruptive to departmental operations. Plaintiff asserts that the Mayor refused, contending that the Technology Commissioner was "valuable" to him.

  Further, around June 2001, Plaintiff expressed her concern that both the First Deputy and the Technology Commissioner were causing chaos within the Department by deliberately, routinely, and openly undermining her authority. She cites as examples the creation of duplicative work within the Department because they failed to communicate with her, bypassing her to give directions directly to the police chiefs and captains without informing her, and holding closed door meetings between the Mayor and these Deputy Commissioners without her presence, thereby keeping her uninformed about issues.

  On June 29, 2001, a regular weekly meeting with the Mayor was held. Plaintiff and both Deputy Commissioners were in attendance at this meeting. At the meeting, Plaintiff told the Mayor that the Technology Commissioner had made a gross miscalculation of the cost of purchasing mobile digital terminals for patrol cars. Plaintiff alleges that when she attempted to produce evidence of the miscalculation, The Technology Commissioner verbally attacked her, telling the Mayor that Plaintiff "didn't know what [she] was talking about." Plaintiff responded that she "was not going to listen to this," walked out of the meeting, and admits she may have slammed the door.

  Following this incident, Plaintiff went on a scheduled vacation. Upon her return, she was notified that the Mayor wanted to meet with her. In preparation for this meeting and because she anticipated the Mayor might fire her, Plaintiff drafted a statement to the Mayor recounting her achievements and listing work that still needed to be done in connection with law enforcement in the City. The purpose of the statement was to remind the Mayor of her numerous successes as Police Commissioner. On July 3, 2001, at the meeting with the Mayor, Plaintiff apologized for her conduct at the June 29th meeting, and agreed with the Mayor that her behavior was inappropriate. She further informed the Mayor that she could not manage the department unless the two Deputy Commissioners were removed from their positions. The Mayor informed her that if she could not work with her Deputy Commissioners, he thought it was "time [that they] parted company." At the end of this July 3rd meeting, Plaintiff advised her secretary and the Police Chief that the Mayor terminated her employment.

  On July 6, 2001, the local newspaper, The Journal News, quoted the Mayor stating that Plaintiff "handed him her resignation without prior notice." Likewise, at an interview with News 12 Westchester, the local cable station, the Mayor stated that Plaintiff had resigned. Plaintiff states that she contacted the Journal News reporter because she received telephone calls regarding the Mayor's statements. Plaintiff denies that she told the reporter that she resigned. However, on July 7, 2001, it was reported that she left because of "controversy and chaos" in the Department. Moreover, she was quoted as saying that the two Deputy Commissioners were unqualified and were obstacles to the smooth operation of the Department.

  On July 14, 2001, News 12 Westchester interviewed the Mayor and asked him about Plaintiff's statements in the paper. The Mayor claimed that Plaintiff lacked the requisite administrative skills to effectively supervise the two Deputy Commisioners. He further commented that Plaintiff was responsible for the chaos in the Department. He claimed at the interview that Plaintiff had informed him that she was incapable of performing her duties and responsibilities as Police Commissioner. The Mayor had appointed the First Deputy as the interim Acting Commissioner after Plaintiff's termination, and later at a subsequent interview stated that the First Deputy was "probably more qualified on paper than [Plaintiff]."

  After her termination, Plaintiff begun searching for employment at the end of August 2001. She applied for three positions. Additionally, she made some informal inquiries for positions with private security firms. She declined to apply for certain jobs because she believed she was overqualified.

  DISCUSSION

  Summary judgment is proper "if the pleadings, deposition, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(c); Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 1684 (1993). The burden of demonstrating that no factual dispute exists is on the moving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In deciding a motion for summary judgment, a court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Summary judgment should be granted only when no reasonable trier of fact could find in favor of the nonmoving party. Taggart v. Time Inc., 924 F.2d 43, 46 (2d Cir. 1991).

  I. First Amendment

  It is settled law that a state cannot discharge or retaliate against a public employee because the employee exercised her First Amendment right to freedom of speech. See Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972); Ezewko v. NYC Health & Hospitals Corp., 940 F.2d 775, 780 (2d Cir. 1991). An employee who claims retaliatory discharge in violation of her First Amendment right must establish that (1) the speech at issue was protected and (2) the speech was a motivating factor in the employer's adverse action. See Mount Healey City Sch. Dist. v. Doyle, 429 U.S. 274, 287, 98 S.Ct. 568, ___, 50 L.Ed.2d 471 (1977); Locurto v. Safir, 264 F.3d 154 (2d Cir. 2001).

  Once a court determines that adverse employment action taken against a public employee was in retaliation for speech on a matter of public concern, the court's task is to balance the competing interest involved between 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." Pickering v. Bd. of Educ., 391 U.S. 563, 571-72, 88 S.Ct. 1731, 1736, 20 L.Ed.2d 811 (1968). Only if the statements involved address a matter of public concern is it necessary for the court to balance the employee's interest against that of the State. See Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 2899, 97 L.Ed.2d 315 (1987).

  1. Plaintiff Did Not Engage in Protected Speech.

  The threshold question is whether the speech at issue can "be fairly characterized as constituting speech on a matter of public concern" or as speech addressing matters of personal interest Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 1685, 75 L.Ed.2d 708 (1983). Generally, speech on "any matter of political, social or other concern to the community" upon which a "free and open debate is vital to informed decision making by the electorate" is protected by the First Amendment. See id; Pickering, 391 U.S. at 571-72. The federal courts take various approaches in determining whether the employee engaged in speech involving matters of public concern. Some courts adopt a content-based analysis concentrating on "which information is needed or appropriate to enable members of society to make informed decisions" about governmental operations. McKinley v. City of Eloy, 705 F.2d 1110, 1113-14 (9th Cir. 1983) (quoting Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940)). The effect of such an approach is to provide per se protection to employee speech on topics of inherent public interest, such as official malfeasance or abuse of office. See Koch v. City of Hutchinson, 847 F.2d 1436, 1446 n. 17 (10th Cir. 1988). Other courts adopt an analysis that turns entirely or in part on the employee's subjective intent. That is, on whether the employee's speech was calculated to disclose misconduct or to inspire public debate on some issue of significant public interest. See Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir. 1987); Terrell v. Univ. of Texas System Police, 792 F.2d 1360, 1362 (5th Cir. 1986). The Second Circuit adheres to this latter view and examines the employee's motive "to determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose." Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir. 1999); see also Harman v. New York, 140 F.3d 111, 119 (2d Cir. 1998) (examining whether the speech criticizing policies and practices of a social service agency was motivated by desire to contribute to the public debate).

  Plaintiff contends that her remarks to the Mayor on budgetary matters and improper departmental activities, and comments about the two Deputy Commissioners' disruptive influence within the department are all matters of public concern protected under the First Amendment. Defendant counters that Plaintiff was merely airing out her personal grievances because her complaints were made in private meetings with the Mayor. During her employment, Plaintiff never took her complaints to the public, the press, or to a variety of outside agencies within the jurisdiction.

  However, the mere fact that an employee chooses to discuss privately her concerns with her employer, as opposed to expressing her views publicly, does not render the speech unprotected. See Givan v. Western Line Consol. School Dist., 439 U.S. 410, 414, 99 S.Ct. 693, 695-96, 58 L.Ed.2d 619 (1979); Rookard v. Health and Hospitals Corp., 710 F.2d 41, 46 (2d Cir. 1983). The Supreme Court notes "that certain private remarks, such as negative comments about the President of the United States, touch on matters of public concern. . . ." City of San Diego v. Roe, No. 03-1669, 2004 WL 2775950, at * 4 (Dec. 6, 2004) (citing Rankin v. McPherson, 483 U.S. 378 (1987)). Public concern is "a subject of general interest and of value and concern to the public at the time of publication." Id.

  As the Second Circuit has noted, in "examin[ing] the form, content, and contexts of the statements" revealed by the record, the court must determine whether Plaintiff's speech "contributed to debate on public issues[,]" see Bieluch v. Sullivan, 999 F.2d 666, 670-71 (2d Cir. 1993), or was the speech addressing routine administrative challenges that arise in the daily management of a department. See Mishk v. Destefano, 5 F.Supp. 2d 194, 201 (S.D.N.Y. 1998). Precedent makes clear that the focus is on plaintiff's motivation for the speech. See Pappas v. Guilliani, 290 F.3d 143, 152 (2d Cir. 2002) (McMahon, J., concurring) (noting that even though a police officer's racist speech touched on matters of public concern, he engaged in purely personal speech as the goal was to remove his name from direct mail solicitation lists); Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 143 (2d Cir. 1993) (plaintiff's complaints about sexual harassment were not matters of public concern because they were personal in nature and related to her own employment).

  Similarly here, the analysis involves Plaintiff's motivation for her grievances to the Mayor. Her conflicts with the two Deputy Commissioners, such as their holding meetings behind closed doors, having lunch together and circumventing her authority to access the Mayor, are purely interpersonal issues Plaintiff had with her subordinates. Plaintiff was not attempting to bring these matters to the public's attention nor was it for the benefit of the public debate. Her primary goal was to have an efficient and smoothly run department. In short, she thought she was doing her job, and by raising these issues to the Mayor she sought his assistance in reaching her goal. Merely because Plaintiff's speech touched on matters of public concern does not mean it is protected if her motive was private and personal. See Blum v. Schlegel, 18 F.3d 1005, 1012 (2d Cir. 1994). Thus, Plaintiff did not engage in protected speech.

  2. Plaintiff's Speech Was Not a Motivating Factor in Her Termination.

  Even if the court were to conclude that Plaintiff engaged in protected speech, she nonetheless failed to establish causation between her speech and her discharge. On the record before the Court, she does not demonstrate that her speech was a "substantial" or a "motivating" factor in her termination. See Mount Healthy City School Dist. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Locurto v. Safir, 264 F.3d 154 (2d Cir. 2001). Plaintiff argues that the timing of her termination, which occurred approximately seven days after the June 29th meeting where she raised her concern about the Technology Commissioner's budget miscalculation, establishes that the Mayor was motivated by her speech to end her employment. Yet, Plaintiff testified that she walked out on the meeting because she was not willing to listen to the Technology Commissioner's refutation of her allegations. She further conceded that her behavior in abruptly leaving the weekly meeting with the Mayor was inappropriate and she acknowledged that it was sufficient grounds for her dismissal. Moreover, by her own admission, she testified that she had never suffered any adverse action for her speech, even when she declined to follow a directive from the Mayor she believed to be improper. Thus, there is no evidence suggesting that Plaintiff's speech was a motivating factor in her firing.

  3. Plaintiff Fails the Pickering Test.

  Even if Plaintiff's speech had involved matters of public concern, her claim of retaliatory discharge cannot survive the Pickering analysis. "Under the Pickering test, a government employer may fire an employee for speaking on a matter of public concern, if `(1) the employer's prediction of disruption is reasonable; (2) the potential disruptiveness is enough to outweigh the value of the speech; and (3) the employer took action against the employee based on this disruption and not in retaliation for the speech." Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001) (quoting Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995)); see also Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Again, by Plaintiff's own admission, her conduct during the meeting on June 29, 2001, could reasonably be disruptive and she expected the Mayor to terminate her employment.

  Further, in balancing these interests, a court must consider whether the statement sought to be protected "impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships . . . or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." See Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 2899, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 151-52, 103 S.Ct. 1684, 1685, 75 L.Ed.2d 708 (1983). The defendant bears the burden of demonstrating that the speech threatens to interfere with government operations. See Jeffries, 52 F.3d at 13.

  The Court of Appeals has held that the Pickering balancing is affected by the nature of the disciplined employee's responsibilities. "The more the employee's job requires confidentiality, policymaking, or public contact, the greater the state's interest in firing her for expression that offends her employer." McEnvoy v. Spencer, 124 F.3d 92, 103 (2d Cir. 1997) (internal quotation marks omitted); see also Rankin, 483 U.S. at 390-91 (taking into account the policymaking status of the discharged employee in performing the Pickering balancing test). As a high-level, high-profile employee in a key role, and by her own testimony, Plaintiff's abrupt departure from the meeting indicated she was refusing to work cooperatively with her two deputies, whom the Mayor had informed her were valuable members of his administration. Thus, her speech and behavior at the June 29th meeting was disruptive to the functioning of the department and is sufficient to outweigh any alleged First Amendment value of her speech. Locurto, 264 F.3d at 166.

  II. Fourteenth Amendment

  The Fourteenth Amendment protects an individual's liberty interest from a government employer who disseminates falsified and defamatory information about an at-will employee in connection with the employee's termination. See Goetz v. Windsor Central School Dist., 698 F.2d 606, 610 (2d Cir. 1983); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). While the liberty interest at stake is the employee's reputation, injury to one's reputation by itself is insufficient to invoke due process protections. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976); Walentas v. Lipper, 862 F.2d 414, 420 (2d Cir. 1988). If in terminating the employee, the employer imposes a stigma that restricts the employee's ability to obtain future employment, the employee's liberty interest is implicated and due process requires the government to provide the employee a name-clearing hearing. See Baden v. Koch, 799 F.2d 825, 830-31 (2d Cir. 1986); Esposito v. Metro-North Commuter R.R. Co., 856 F. Supp. 799, 807-08 (S.D.N.Y. 1994).

  To establish a liberty deprivation, the plaintiff-employee must satisfy the "stigma plus" test. See Valmonte v. Bane, 18 F.3d 992, 1001 (2d Cir. 1994) ("defamation in conjunction with termination of government employment is the clear situation that satisfies the `stigma plus' test"). In clarifying the "plus" requirement, the Second Circuit states that the "dismissal from [the] government employment or termination [is] of some other right or status" than reputation. Id. at 1000. To prevail, plaintiff must prove (1) that she was defamed (2) that the defamation took placed in the course of her termination of employment and (3) and the stigma foreclosed her from any future employment. See Abramson v. Pataki, 278 F.3d 93, 100 (2d Cir. 2002); O'Neill v. City of Auburn, 23 F.3d 685, 691 (2d Cir. 1994); Baden v. Koch, 799 F.2d 825, 830-31 (2d Cir. 1986). Once plaintiff has met the initial burden of demonstrating stigma plus, it must also be shown that the government's failure to provide a removal hearing violated plaintiff's constitutional due process rights. That is, plaintiff must show harm by the denial of a hearing. See Codd v. Velger, 429 U.S. 624 (1977).

  1. Plaintiff Was Not Stigmatized.

  Defamation is established if the defendant's statements at issue were false and publicly stigmatized the plaintiff. See Abramson, 278 F.3d at 101-02. Meaning, the statements "must denigrate the employee's competence as a professional and impugn the employee's professional reputation in such a fashion as to effectively put a significant roadblock in that employee's continued ability to practice [her] profession." Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630-31 (2d Cir. 1996) (citation omitted).

  According to Plaintiff, the Mayor falsely announced to the local newspaper that she resigned without notice, when he in fact fired her. He later at a local cable television interview, blamed her for the department's chaotic environment by stating that Plaintiff was incapable of performing her duties and responsibilities as Police Commissioner. Specifically, the Mayor stated, "anybody with skills should be able to negotiate people who work under them," and asserted that "when someone decides that they no longer can carry out the functions of that department, it is time for them to go." Plaintiff avers that the Mayor erroneously intimated that she lacked the requisite managerial skills and competence to run the department.

  However, Plaintiff's allegations must go to the heart of her professional competence, threaten to damage her professional reputation and significantly impair her ability to practice her profession. O'Neill, 23 F.3d at 691-92. "An employee charged with derelictions largely within her power to correct is not deprived of [a liberty] interest." Donato, 96 F.3d at 630; Russell v. Hodges, 470 F.2d 212, 217 (2d Cir. 1972). For example, charges of dishonesty, immorality or illegality are statements beyond plaintiff's power to correct and are necessary plus factors establishing stigmatization. See Schlesinger v. New York City Transit Auth., No. 00-CV-4759, 2001 WL 62868, at *7 (S.D.N.Y. Jan. 24, 2001); Brito v. Diamond, 796 F. Supp. 754, 757 (S.D.N.Y 1992) (analyzing deprivation of liberty interest under the Fifth Amendment).

  Plaintiff's charges of stigmatizing statements by the Mayor are not actionable. None of the Mayor's comments implicated Plaintiff's honesty, morality or any other trait beyond her power to correct. See Golub v. Enquirer/Star Group, Inc., 89 N.Y.2d 1074, 1076, 681 N.E. 2d 1282, 1283, 659 N.Y.S.2d 836, 837 (1997) (stating that actionable defamation is found when the statement "tends to expose a person to hatred, contempt or . . . aversion, or induce an evil or unsavory opinion of [Plaintiff] in the minds of a substantial number of the community). While Plaintiff cites Donato for the proposition that an accusation by a government official that the employee can no longer do the job is "considerably graver" than a comment on Plaintiff's poor job performance, see 93 F.3d at 630, every defamatory remark made by a government official does not translate into a constitutional deprivation of liberty. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976). The Mayor's comments amount to nothing more than his impressions of Plaintiff's overall job performance within his administration, and neither impugns nor denigrates her entire thirty-two year career in law enforcement. A statement that an employee poorly performed her duties or acted in an improper manner is insufficient to establish defamation. See O'Neill, 23 F.3d at 692; Esposito, 856 F. Supp. at 804; Schlesinger v. New York City Transit Auth., No. 00-CV-4759, 2001 WL 62868, at *6 (S.D.N.Y. Jan. 24, 2001). Thus, the Mayor's remarks did not stigmatize Plaintiff.*fn1 2. The Defamation Did Not Take Place in the Course of Plaintiff's Termination.

  In establishing stigma plus, it is well established that "defamation coupled with the termination of government employment is a deprivation of a liberty interest." Morris v. Lindau, 196 F.3d 102, 114 (2d Cir. 1999). That is, the defamation must occur "in the course of dismissal" or is concurrent with Plaintiff's termination. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976); see also Morris, 196 F.3d at 114 (stating that plaintiff "need to furnish proof that the alleged critical statements were both defamatory and concurrent with [plaintiff's] termination"); Martz v. Inc. Vill. of Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994) (finding statements made five months after dismissal were not concurrent); Gentile v. Wallen, 562 F.2d 193, 198 (2d Cir. 1977) (holding that defamatory comments made after plaintiff was terminated was insufficient to trigger due process rights). But see Huntley v. Community Sch. Bd., 543 F.2d 979, 985-986 (2d Cir. 1976) (finding that the defamatory statements plus the inclusion of those statements in plaintiff's employment record at the time of termination sufficient to establish a due process claim).

  Plaintiff was terminated on July 3, 2001. On July 6, 2001, it was reported that she resigned from her position in the local paper, the Journal News. She was subsequently interviewed and it was reported on July 7, 2001, that she resigned because of the two Deputy Commissioners, and the chaotic environment they created. Plaintiff denies that she told the Journal News reporter she resigned.*fn2 On July 14, 2001, during an interview by News 12 Westchester, a local cable program, the Mayor, reacting to Plaintiff's statements to the Journal News, allegedly made his remarks. Thus, Plaintiff contends because the Mayor's comments were made within a matters of days following her termination they were "close in time" with her dismissal. See Morris v. Lindau, 196 F.3d 102, 114 (2d Cir. 1999).

  The Mayor's statements were not concurrent with plaintiff's termination. They were after. While the Mayor's critical remarks at the News 12 Westchester interview relate to Plaintiff's termination, they were in direct response to questions pertaining to her Journal News interview. The Mayor's comments to News 12 did not occur in the course of Plaintiff's termination because there is no "nexus between the defamation and the time of termination" necessary to succeed on a deprivation of liberty claim. See Martz, 22 F.3d at 32.

  3. Plaintiff Is Not Foreclosed From Any Future Employment.

  Plaintiff argues that the evidence sufficiently raises an issue of fact that the Mayor's comments were so stigmatizing as to foreclose her future employment opportunities. To prevail on her due process claim, Plaintiff must show a causal connection between difficulty in finding employment and that this difficulty is directly attributable to the Mayor's statements. See Esposito, 856 F.Supp. at 806; Nauta v. City of Poughkeepsie, N.Y., 610 F. Supp. 980, 985 n. 24 (S.D.N.Y. 1985). The undisputed evidence indicates that since her termination on July 3, 2001, Plaintiff made three pre-litigation attempts to secure employment at the end of August 2001, and informally inquired about some positions with private security firms. Moreover, Plaintiff conceded that the Mayor's statements did not cause potential employers to refrain from considering her for employment. She fails to establish a deprivation of her liberty interest on this ground because the record presents no genuine issue of material fact suggesting a causal connection between the Mayor's statements and Plaintiff's inability to find employment. 4. Plaintiff Is Not Entitled to a Removal Hearing.

  To have a viable due process claim, Plaintiff must also demonstrate that she did not have a meaningful opportunity to clear her name. See Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977). The failure of the government to provide a plaintiff with due process requires the court to "weigh the strength of the individual's interest, the risk of erroneous deprivation, the probable value, if any, of requested additional procedures and the state's interest in providing (or not providing) those procedures." Baden v. Koch, 799 F.2d 825, 831 (2d Cir. 1986); Esposito v. Metro-North Commuter R.R. Co., 856 F. Supp. 799, 807-08 (S.D.N.Y. 1994). The Court of Appeals has observed that a public figure with a high degree of access to the news media does not need a formal hearing to clear her name. See Baden, 799 F.2d at 832-33. As already noted above, Plaintiff not only had access to the media to present her version of the circumstances surrounding her termination, but in fact took advantage of the opportunity to do so. Moreover, she did not request a name-clearing hearing before bringing this lawsuit, and it is unclear from the record whether she even seeks that as a remedy. Nonetheless, the court finds that Plaintiff is not entitled to a pre- or post-termination hearing as she had access to and made use of the local media to refute the Mayor's statements.

  III. Qualified Immunity

  The Mayor also raises qualified immunity as a defense to Plaintiff's claims. Qualified immunity shields "government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Lewis v. Cowen, 165 F.3d 154, 166 (2d Cir. 1999). In evaluating whether a government official is protected by qualified immunity, courts must engage in a two-part inquiry. First, a court should consider whether a constitutional or statutory right has been violated. If a right has been violated, then the court should determine whether the right violated was clearly established so that a reasonable government official would know of its existence. See Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 1699, 143 L.Ed.2d 818 (1999).

  The relevant qualified immunity question in this case is whether the Mayor should have known that terminating Plaintiff for her behavior at the June 29, 2001, meeting violated her First Amendment rights. The answer is no. The Mayor, in this instance, is, therefore entitled to qualified immunity.

  CONCLUSION

  For the foregoing reasons, Defendant's motion for summary judgment is granted, and Plaintiff's action is dismissed in its entirety.

  SO ORDERED.


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