The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Gail Caraccilo, commenced this action against her former employer, the Village of Seneca Falls, New York ("Village"), the Village Board of Trustees ("Board"), the Village mayor, and the four individual Board members. Plaintiff alleges that defendants violated her constitutional rights in several respects in connection with the termination of her employment in 2002.
On January 14, 2005, the Court issued a Decision and Order (Dkt. #14) granting in part and denying in part defendants' pre-discovery motion for summary judgment. The Court dismissed plaintiff's third and fourth causes of action, which asserted claims under 42 U.S.C. § 1985, but denied defendants' motion insofar as it sought to dismiss plaintiff's first and second causes of action, which respectively assert a Fourteenth Amendment due process claim and a First Amendment retaliation claim under 42 U.S.C. § 1983. I found that there were factual issues regarding both of those claims, which could not be resolved on the undeveloped record then before me.
Discovery is now complete. Defendants have renewed their summary judgment motion as to the two § 1983 claims, asserting that the undisputed evidence conclusively demonstrates that they are entitled to judgment as a matter of law, on a number of grounds.
The facts concerning the events giving rise to this case were set forth in the Court's prior summary judgment decision, familiarity with which is presumed, and will not be repeated at length here. In short, plaintiff was hired by the Village in 1989 as a planning assistant (also referred to as "planning clerk"), hereinafter "planning assistant," which was a permanent "competitive class" position under the New York Civil Service Law. As such, the position carried with it certain due process protections, such as the right to a pretermination hearing.
In October 1999, the Board appointed plaintiff to serve for the remaining portion of a two-year term as deputy village clerk ("deputy clerk"), which had become vacant when the previous deputy clerk resigned in mid-term. It does not appear to be disputed that as deputy clerk, plaintiff continued to perform some of the duties that she had performed as planning assistant, Dkt. #34-7 at 1, and that no one else was hired to fill the planning assistant position. Dkt. #32 at 4.
Although plaintiff received a pay increase with the new position, the deputy clerk position was not a competitive-class position, and therefore did not carry with it the same due process protections as the planning assistant position. The parties do not dispute that upon the expiration of a deputy clerk's two-year term, there is no statutory right to continued employment in that position, unless the person holding it is reappointed to another term.
When plaintiff's first term as deputy clerk expired on April 1, 2000, the Board reappointed her to a second two-year term. At the end of that second term, however, the Board did not reappoint plaintiff, nor was she reinstated to the planning assistant position. Thus, plaintiff's employment with the Village came to an end as of April 1, 2002. These actions form the bases for this lawsuit.
Plaintiff's due process claim is based on her contention that she retained due process rights in her position as planning assistant even after she became deputy clerk. According to plaintiff, she effectively served simultaneously as both planning assistant and deputy clerk, and when her term as deputy clerk expired, she should have been returned to her position as planning assistant. Plaintiff further contends that she was entitled to prior notice and a hearing before her employment in that position was terminated.
Plaintiff's retaliation claim is based on her allegation that defendants' decision not to reappoint her as deputy clerk was made in retaliation for plaintiff's exercise of her First Amendment rights in speaking out about certain matters of public concern. Those matters included certain practices of the mayor and the Board that plaintiff believed exceeded their authority under, or were contrary to, New York law.
Defendants contend that plaintiff did not retain any rights in connection with her planning assistant position after she became deputy clerk. They contend that the planning assistant position was simply eliminated at that time, and that there was thus no planning assistant position for plaintiff to return to when her term as deputy clerk ended.
Defendants also argue that plaintiff's due process claim fails as a matter of law because plaintiff did not avail herself of all that process that was available to her. Specifically, defendants argue that plaintiff could have challenged her termination by filing a petition under Article 78 of the New York Civil Practice Laws and Rules, or by filing a grievance under the controlling collective bargaining agreement, but that she did neither.
With respect to plaintiff's First Amendment claim, defendants contend that most of plaintiff's speech at issue was not protected under the First Amendment because it was made pursuant to plaintiff's job duties. In support of that argument, defendants principally rely upon the Supreme Court's decision in Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), in which the Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."
To the extent that plaintiff alleges that she spoke outside the context of her job, as a private citizen (such as statements she made in connection with her participation in a local group, "Concerned Citizens for Good Government"), defendants contend that there is no evidence that they were even aware that plaintiff had engaged in that speech, and that there is thus no evidence that plaintiff's speech could have been a motivating factor in defendants' decision not to continue her employment with the Village.
To prevail on a procedural due process claim, plaintiff first must identify a property or liberty interest that is entitled to due process protection. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985). "Property interests protected by due process . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Martz v. Village of Valley Stream, 22 F.3d 26, 29 (2d Cir. 1994) (internal quotes omitted); see also Flood v. County of Suffolk, 820 F. Supp. 709, 712 (E.D.N.Y. 1993) (state law determines whether there is a property interest in employment).
With respect to due process claims arising out of a termination from public employment, the Court of Appeals for the Second Circuit has explained that
[t]he Fourteenth Amendment prohibits the discharge of a public employee with a property interest in continued employment in the absence of a pre-termination hearing. This circuit looks to New York Civil Service Law and the statutes which create a particular position or the authority to appoint or remove an individual to or from the position to determine whether a New York public employee has a property interest in his position requiring that he be afforded a hearing before termination.
Catone v. Spielmann, 149 F.3d 156, 160 (2d Cir. 1998) (quotation marks and citations omitted).
The Court of Appeals has also made clear that a public employee's subjective expectation of continued employment, if unsupported by state law or an understanding among the parties, is insufficient to give rise to a protected property interest: "To state a deprivation of property claim under the Fifth and Fourteenth Amendments, a plaintiff 'must have more than a unilateral expectation ... . He must, instead, have a legitimate claim of entitlement ... ." McPherson v. New York City Dep't of Educ., 457 F.3d 211, 216 (2006) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). See also Preddice v. Callanan, 92 A.D.2d 1040, 1041 (3d Dep't 1983) ("In our view, petitioner's allegations demonstrate a mere unilateral expectation of continued employment insufficient to trigger a due process guarantee to a pretermination hearing").
As the party asserting due process rights, plaintiff bears the burden of establishing that she had a legitimate property interest in her employment. Crull v. Sunderman, 384 F.2d 453, 465 (7th Cir. 2004); Watson v. University of Utah Med. Ctr., 75 F.3d 569, 578 (10th Cir. 1996); see also Voorhis v. Warwick Valley Central School Dist., 92 A.D.2d 571, 571 (2d Dep't 1981) ("To establish a constitutionally protected property interest in a public employment position, a person must show more than a mere unilateral expectation of such an interest. He must establish a legitimate claim of entitlement to such position").
B. Whether Plaintiff Retained a Property Interest in the Planning Assistant Position
The central issue regarding plaintiff's due process claim in the case at bar is whether she retained any interest in her planning assistant position after she was appointed deputy clerk. Defendants do not dispute that the position of planning assistant does give rise to a property interest with respect to the person holding that position; they simply argue that plaintiff voluntarily gave up that position and any due process rights associated with it. See N.Y. Civ. Serv. L. § 75(1) (competitive-class employee may be discharged only "for incompetency or misconduct shown after a hearing upon stated charges"); Ciambriello v. County of Nassau, 292 F.3d 307, 314 (2d Cir. 2002) (§ 75 "'gives covered employees a property interest in their employment, so that they may not be terminated without notice and hearing'") (quoting O'Neill v. City of Auburn, 23 F.3d 685, 688 (2d Cir. 1994)).
Defendants contend that once plaintiff became deputy clerk, she ceased to be planning assistant and lost whatever interest she may have had in that position.*fn1 Viewing the evidence in the light most favorable to plaintiff, however, and drawing all reasonable inferences in her favor, as I must on this motion, see Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.), cert. denied, 540 U.S. 823 (2003), I conclude that there are genuine issues of material fact in this regard, which preclude the entry of summary judgment.
It is not clear whether the parties had a mutual understanding concerning whether plaintiff's acceptance of the deputy clerk position would necessarily mean her relinquishing any interest in, or rights associated with, the planning assistant position. It does not appear that the parties ever spelled out, in writing or otherwise, exactly what their intentions or expectations were in this regard.
When asked at her deposition whether anyone on the Board had told her anything about her "rights or ... status [as] to the planning clerk position" when she was offered the deputy clerkship, plaintiff replied that Brad Jones, the then-mayor, told her that she "would continue to work as [she] had been." Dkt. #29-6 at 10. She testified that she believed that statement to have been made in reference to both her job duties and her job title, but that Jones had not stated whether he was referring to her duties, title, or both. Id.
Plaintiff also testified that she had been told by Janet Enos, who was the village clerk until sometime in May 2000, that when plaintiff took the deputy clerk job, "the duties of the planning clerk would be folded into the duties of the deputy clerk[,]" which plaintiff took to mean that she "would have additional duties in addition to the ones that [she] already had" as planning assistant. Id. She stated that Enos had not "give[n her] any indication as to what would become of [plaintiff's] prior job, or the job title of planning clerk[.]" Id. at 11. Plaintiff also stated that no one else within the Village administration gave her any indication what would happen to the title of planning clerk" after she became deputy clerk. Id.
The minutes of the October 18, 1999 Board meeting at which plaintiff's appointment as deputy clerk was approved say nothing about the planning assistant position. The minutes state only that a motion made by the mayor "to appoint Gail M. Caraccilo, to the position of Deputy Village Clerk of the Village of Seneca Falls, to fill the unexpired portion of a two-year term" was unanimously approved by the Board. Dkt. #34-4 at 2.
Defendant Antonio Constantino, who was a Board member at the time of that meeting, and who was elected mayor in 2000 (Dkt. #29-8 at 3), states in an affidavit that a "packet of information ... was distributed to the Trustees at the October 18, 1999 meeting, prior to the vote on the appointment of the Plaintiff to the Deputy Clerk position." Dkt. #34-3 ¶ 3. Among the materials contained in that packet was an undated memorandum, by an unknown author stating that "[w]ith the resignation of the person who formerly held the titles of ... Deputy Village Clerk [and two other titles] a vacancy resulted." Dkt. #34-4 at 5. The memo states, "We have determined that a reconfiguration of these duties would serve the public better by improving customer service and controlling costs," and that [w]e have decided to eliminate the titles of Planning Assistant and Sewer Billing Account Clerk. ... The revised duties of the Deputy Village Clerk include the responsibilities of the Planning Assistant while also expanding into other areas such as grant writing, and writing of press releases and speeches." Id.
An attachment to that memo summarizing the proposed reconfiguration stated that the proposal would "[e]liminate the 'Clerk' position that the Planning Assistant (Gail) now holds and replace [it] with a non-union, exempt title of Deputy Village Clerk." Id. at 8. According to defendants, some of these decisions concerning the revised duties of the deputy clerk and the elimination of the planning assistant position were read into the record at the meeting. Id. at 10.
At his deposition, Constantino testified that it was his recollection that when plaintiff accepted the deputy clerk position, she "agree[d] she would give up her union rights, civil service rights. She'll give up her rights to become deputy clerk and for more money." Dkt. #26-8 at 14-15. He also testified that at that time, the planning assistant job was "abolished." Dkt. #29-8 at 13.
When asked whether, at the Board meeting at which these changes were approved, the changes were explained to plaintiff, Constantino responded, "Right." Id. at 14. He also testified, however, that these events occurred in "February '99." Id. at 11. As stated, the undisputed evidence indicates that these changes were approved at a Board meeting in October 1999. Even aside from that one apparent lapse of memory, the Court could not simply accept the truth of Constantino's assertions in this regard, but this points up the fact that resolution of the relevant issues may turn to a great extent on the credibility of the parties, whose accounts of the pertinent events--particularly what plaintiff was told about the planning assistant position--are in sharp dispute.
There is other evidence supporting plaintiff's position, which need be recited only briefly here. For example, former Board member Phillip Dressing, who was also at the October 18, 1999 meeting, see Dkt. #34-4 at 2, testified at his deposition that he did not recall any discussion among the Board members concerning what plaintiff's rights, if any, would be if ...