The opinion of the court was delivered by: McMahon, J.
DECISION AND ORDER DENYING PLAINTIFF AND DEFENDANT'S CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Daniel Jean-Gilles brought this action to enjoin the defendant County of Rockland from enforcing an allegedly unconstitutional County policy that prohibits County employees from speaking publicly on controversial matters. The existence of the purported policy came to light during the trial of plaintiff's last lawsuit against Rockland County and its County Executive, Scott Vanderhoef. In that case, Jean-Gilles was trying to prove that Vanderhoef had refused to promote plaintiff to the position of Commissioner of the County's Human Rights Commission (for which plaintiff worked and still works) because he was black and because he had protested the County's lack of commitment to advancing the careers of African-Americans like himself. Jean-Gilles v. County of Rockland, No. 00-CV-4861 (McMahon, J.) (hereinafter "Jean-Gilles I").
Plaintiff seeks only injunctive relief. He moves for summary judgment pursuant to Fed. R. Civ. P. 56, largely on the basis of the testimony adduced at the last trial.
The County has filed a cross-motion for summary judgment. It contends that (1) no such policy exists, (2) plaintiff lacks standing to file this claim, and (3) plaintiff's lawsuit is barred by res judicata.
For the reasons stated below, I conclude that plaintiff has standing to pursue this claim under Second Circuit precedent and plaintiff's lawsuit is not barred. Because there are disputed issues of fact, the matter will go to trial.
Plaintiff Daniel Jean-Gilles, a black Haitian-American, is a resident of defendant Rockland County (the "County") and an employee of the County government. (Compl. ¶ 3.) Since 1992, he has worked as an investigator for the Rockland County Human Rights Commission ("HRC"), the agency responsible for investigating claims of discrimination in the County. (Id.)
Mr. Jean-Gilles is active in local politics and community organizations: He served as Nyack village trustee from 1988-1991 (Declaration of John D. Winter in Support of Defendant's Summary Judgment Motion ("Winter Decl."), Ex. D) and as head of the Nyack Democratic Party (Winter Decl., Ex. C), participates in the Nyack chapter of the NAACP (Winter Decl., Ex. B), and is often quoted in the local press for his thoughts regarding Haitian political developments (Winter Decl., Ex. D-E). It is Jean-Gilles' local activism -- and the County's subsequent treatment of Jean-Gilles -- that sowed the seeds for both this lawsuit against the County and the lawsuit he brought six years ago. Testimony adduced at the trial of his earlier lawsuit caused plaintiff to conclude that the County maintained the illegal prior restraint that forms the basis of this action.
In 1996, Jean-Gilles -- acting in his capacity as an NAACP representative -- organized a community meeting to discuss the impact of a planned mall development and new ferry landing on the local black community. (Winter Decl., Ex. B.) Approximately twenty citizens attended the gathering, as did members of the local press who later interviewed Jean-Gilles about his opposition to the mall and ferry projects. (Id.) In the interview, Jean-Gilles said that the ferry project would increase housing prices, which could drive the mostly working-class black community out of Nyack. (Id.) He also noted his concerns regarding the local black community's lack of political cohesiveness, and the need for the community to "remain vigilant" over its interactions with the Nyack Police Department. (Id.) The article did not identify Jean-Gilles as a County employee.
In response to this article, the Mayor of Nyack and the County's Director of Tourism and Communications, Heather Duke, grew concerned with Jean-Gilles' attending "public events in high-profile positions [and] taking controversial positions on political . . . issues." (Bergstein Affirmation in Support of Plaintiff's Summary Judgment Motion ("Bergstein Aff."), Ex. 1 at 24.) The two community leaders approached the County Chief Executive, C. Scott Vanderhoef, who in turn asked his then-Director of Administration and Community Affairs, Susan Sherwood, "to find out more information." (Id. at 25.)
Ms. Sherwood agreed that these concerns were valid and a meeting was necessary: "It's very important the Human Rights Commission be above the political prey [sic]; that it's objective, apolitical, nonbiased, non-controversial; that people be able to know that when they come there, things are handled in a fair and impartial manner." (Id.) Moreover, Ms. Sherwood testified that, "It alarmed me that [Jean-Gilles] would be speaking to the press and implying that there were going to be changes that could so dramatically impact the village and that he had already been so involved with that it would be difficult for him to take a fair stance in solving whatever problems may come in the future." (Id. at 45.) While acknowledging that the HRC's jurisdiction did not extend to either the ferry or the mall projects, Sherwood maintained, "Different issues can come out of a major economic development.... Anything can happen, and it's important not to take a stand for or against something.... [Jean-Gilles] could take a position on the ferry. He should not do it publicly...." (Id. at 45-46.)
During Sherwood's meeting with plaintiff, Jean-Gilles questioned Sherwood's right to ask him "about his political speech that he engaged in outside of work," and indicated that he would not respond to Sherwood's questions unless she directed him to answer. (Id. at 49-50.) She declined to do so. However, Sherwood remained "concerned" that plaintiff "wouldn't be fair and impartial." (Id. at 50.)
On September 13, 1996, in a subsequent meeting with plaintiff about his public speaking, Sherwood, Vanderhoef, Chief of Staff Robert Winzinger, and Commissioner of Human Rights Cassandra McIntyre -- Jean-Gilles' supervisor -- "tri[ed] to tell him . . . that [his public activism] could well give the perception and impression that he was [biased and prejudiced] if he continued to get himself involved in highly controversial issues." (Id. at 52.) The "message, if not the exact words" of the meeting was that "it was important for [Jean-Gilles] not to get involved in anything political and controversial." (Id. at 56.) Vanderhoef told plaintiff that the HRC and "especially an investigator, had to be seen as absolutely neutral to all groups . . . and that to side with one side or another would have a chilling effect for others who might seek redress" from the Commission. (Bergstein Aff., Ex. 2 at 11.) However, Vanderhoef acknowledged that no evidence existed demonstrating that Jean-Gilles' political activism had actually chilled potential complaints. (Id. at 21.)
Plaintiff responded that "it was his right as an employee" to speak publicly on local social and political issues. (Id. at 21.) Vanderhoef disagreed: "Ordinarily, that's true, but in the human rights field, it's a very special field." (Id.)
Following this meeting, Vanderhoef sent plaintiff a letter explaining that the meeting was "neither a disciplinary session, nor a step in that direction." (Bergstein Aff., Ex. 6.) However, Vanderhoef reiterated that Commission representatives remained concerned about plaintiff's "recent activities in public" and enclosed copies of the newspaper articles that had given rise to those concerns. (Id.)
Vanderhoef and Sherwood encouraged Commissioner McIntyre "to try to work with [plaintiff] so that he would not get himself into the middle of political imbroglios." (Bergstein Aff., Ex. 1 at 53.) While Sherwood hoped that plaintiff "had learned something from our meeting and our letter," her concerns were heightened by plaintiff's "rebellious" attitude towards her and Vanderhoef. (Id. at 53-54.)
Almost one year later, in June 1997, the Clarkstown Courier reported that Jean-Gilles had sent a letter to the County Legislature, complaining of gross mismanagement and understaffing at the HRC. (Winter Decl., Ex. C.) Specifically, Jean-Gilles alleged that between two and five seats on the thirteen-member HRC board were unfilled; as a result, the HRC was unable to carry out its mission. (Id.) Jean-Gilles further alleged that this failure to fill the thirteen seats led to a lack of "'independent oversight'" of the HRC, which resulted in HRC employees being "'subjected to aggravated harassment, and a hostile and intimidating work environment and interrogation by the chief administrator of the County . . . without representation and without charge." (Id.)
Two years later -- after Commissioner McIntyre was suspended from the HRC in April 1999 and subsequently resigned in August 1999 (Vanderhoef Trial Test., Jul. 26, 2004 at 65) -- plaintiff applied for the position of HRC Commissioner. (Winter Decl., Ex. G at ¶¶ 9-11.) In February 2000, plaintiff learned that he had not been promoted to Commissioner, and that the position had been given instead to a "non-black" person. (Id. at ¶ 13.)
In June 2000, Jean-Gilles commenced Jean-Gilles I. In his complaint, plaintiff claimed that (1) Vanderhoef, acting on behalf of the County, "has carried out, and continues to implement, a policy and practice of failing to employ a reasonably proportionate number of African-Americans and other black persons to high-ranking county positions"; (2) Vanderhoef retaliated against plaintiff for repeatedly voicing his opposition to Vanderhoef's "failure to fairly consider and hire qualified black persons"; and (3) Vanderhoef refused to appoint Jean-Gilles as HRC Commissioner both because Jean-Gilles is black and because he opposed the County's racially discriminatory policy. (Id. at ¶¶ 17-21.)
At the Jean-Gilles I trial in July 2004, Ms. Sherwood -- then Vanderhoef's chief of staff -- testified as a defense witness. She had not been deposed during pre-trial discovery.
While being questioned about the September 13, 1996 meeting with Jean-Gilles, Sherwood disclosed the existence of an unwritten County policy that regulates County employees' public speech in order to further "the impression of the department as being impartial." (Bergstein Aff., Ex. 1 at 54, 57.) According to Sherwood, the County maintains a policy that requires "county employees and department heads [who] speak with the press . . . to check in with our office for guidance and so that we know how to respond if a question comes to us." (Id. at 48) (hereinafter, the "check-in policy.") Sherwood testified that this check-in policy did not apply to County employees speaking as private citizens "unless [the speech] connects, as it does in this case, I believe" with the employee's job. (Id. at 49.) Sherwood did not limit the applicability of this policy to commissioners and department heads; she clearly testified that it applied to "county employees" and she clearly indicated that it applied to Jean-Gilles because "in this case" his speech "connects" to his employment with county government.
Sherwood further stated that the County had no written regulations about when County employees could or could not express themselves on matters of public importance (id. at 48), but that she believed the policy to mean that employees should refrain from "controversial political activity." (Id. at 56.) Sherwood stated that she herself had "told an employee acting for Rockland County . . . that she should not be involved in controversial political activity" that "would be reported in the press" -- or otherwise "impact upon your job" -- and that Sherwood understood that so "instruct[ing] employees" was "the policy of the County." (Id. at 56-57.) Sherwood further testified that she heard Vanderhoef articulate this unwritten policy to "a number of employees in the County" -- other than Jean-Gilles -- "Numerous times." (Id. at 58.) Indeed, Sherwood stated that Vanderhoef reiterated this policy "Every year" at ". . . cabinet meetings in which commissioners and department heads would be reminded of press policy and public appearance policy." (Id.) Sherwood was not asked, and did not specify, whether the "number of county employees" to whom Vanderhoef articulated the unwritten policy included persons who would not have been present at cabinet meetings (attended by commissioners and department heads who, as policymakers, can lawfully be subjected to certain restraints on their political speech. See McEvoy v. Spencer, 124 F.3d 92, 102 (2d Cir. 1997)).
Sherwood testified that she had intervened after Jean-Gilles' 1996 public speech regarding the ferry and mall development issues. Sherwood testified that she "wanted the [HRC] Commissioner to tell [Jean-Gilles] not to get involved in controversial matters.... [Vanderhoef] and I spoke with the Commissioner and encouraged her to try to work with Daniel so that he would not get himself into the middle of political imbroglios." (Id. at 52-53.) If Jean-Gilles "curtail[ed] his public political activity" and did not "appear in the press about controversial events," such actions "would be consistent with what [Sherwood] understood to be the longstanding county policy." (Id. at 65.) Although Sherwood conceded that the newspaper article that raised concerns within the County Executive's office in 1996 did not identify Jean-Gilles as a County employee, she insisted, "Everyone knows his title." (Id. at 46-47.)
Jean-Gilles I did not mount any challenge to a prior restraint on county employees generally because, until Sherwood testified, no one representing plaintiff had any knowledge that the criticism to which he had been subjected in 1996 was part of anything larger than plaintiff's personal situation. Plaintiff's retaliation claim as articulated in the pre-trial order in Jean-Gilles I focused generally on his public speech advocating for Nyack's minority residents (see JeanGilles I Pre-Trial Order, Docket No. 25 at 4-5), and did not mention any County policy restricting employee speech.
Although counsel for Jean-Gilles spent considerable time on Sherwood's testimony during his summation, the court's jury instructions regarding plaintiff's First Amendment retaliation claim contains no mention of any County policy:
The plaintiff claims that he was . . . retaliated against because he has a right under the First Amendment of the Constitution to be able to exercise a right to free speech.... I have already ruled in pretrial motions that the plaintiff's speech on issues about the effective functioning of the Human Rights Commission and the race policy in county government falls squarely within the rubric of public-concerned speech. (Jean-Gilles I Jury Charge, July 29, 2004 at 13, 15.) Similarly, the court's jury charge regarding municipal liability contains no mention of any county policy:
For our purposes, the plaintiff is relying on what we refer to as Pembaur liability.... Under the Pembaur case, a municipality, like Rockland County, may be held liable for even a single unconstitutional act by a municipal employee if that employee . . . has final policymaking authority in the area in which the action was taken. I charge you that . . . the County Executive is the final policymaker with regard to personnel matters relating to county employment, which is the area in which the allegedly unconstitutional action was taken vis-a-vis Mr. Jean-Gilles. Therefore, as a matter of law, if you find Mr. Vanderhoef liable for violating Mr. Jean-Gilles' rights, the County of Rockland is also liable. (Id. at 20-21.)
Furthermore, the verdict sheet that was sent to the jury contained the following questions:
1. Do you find from a preponderance of the evidence that plaintiff's race was a substantial or motivating factor that prompted defendants not to promote him?
2. Do you find from a preponderance of the evidence that plaintiff's public speech was a substantial or motivating factor that prompted defendants not to promote him?
3. Do you find from a preponderance of the evidence that plaintiff would not have been promoted for other reasons even in the absence of consideration of plaintiff's public speech? (Verdict Sheet, Jean-Gilles v. County of Rockland, 00-CV-4861.) The verdict sheet did not specify any particular theory about why plaintiff's speech might have been a substantial or motivating factor in prompting defendants not to promote him -- because defendants were unhappy about Jean-Gilles' proselytizing on behalf of other blacks, or because he was speaking out on controversial matters without first clearing his speech with senior County officials.*fn1
On July 29, 2004, the jury returned a verdict for the County, concluding that Jean-Gilles had not proved by a preponderance of the evidence that he would have been promoted but for his criticism of the County's lack of interest in hiring black employees to high level jobs. The jury did not conclude that plaintiff's race was a factor in the decision. However, the jury concluded that plaintiff's public speech was a substantial or motivating factor in the ...