Lewis v. Cowen

• Decision Date: 15 January 1999
• Docket Number: No. 97-7895,97-7895
• Citation: 165 F.3d 154
• Parties: 14 IER Cases 1281 J. Blaine LEWIS, Plaintiff-Appellee, v. Bruce D. COWEN, Roland H. Lange, and William V. Hickey, Individually, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 154

165 F.3d 154

14 IER Cases 1281

J. Blaine LEWIS, Plaintiff-Appellee, v. Bruce D. COWEN, Roland H. Lange, and William V. Hickey Individually, Defendants-Appellants.

No. 97-7895.

United States Court of Appeals Second Circuit.

Argued Feb. 2, 1998.

Decided Jan. 15, 1999.

Aaron S. Bayer, Assistant Attorney General (Robert F. Vacchelli, on the brief), Richard Blumenthal, Attorney General, Hartford, Connecticut, for Defendants-Appellants.

William S. Rogers, Tyler, Cooper & Alcorn (William H. Champlin III, on the brief), Hartford, Connecticut, for Plaintiff-Appellee.

Before: KEARSE and WALKER, Circuit Judges, and WEINSTEIN, District Judge. ^*

WALKER, Circuit Judge:

Plaintiff-appellee J. Blaine Lewis, the person in charge of Connecticut's lottery, was fired by his supervisors for refusing to publicly support a change in the lottery. Claiming a deprivation of his First Amendment rights, he won a substantial jury verdict in the United States District Court for the District of Connecticut (Alfred V. Covello, Chief District Judge ). The defendants-appellants, all Connecticut state public officials, now appeal from several district court judgments that: (1) ordered defendant-appellant William V. Hickey to pay Lewis compensatory and punitive damages for wrongfully terminating his public employment in violation of the First Amendment; (2) ordered all the defendants-appellants to pay compensatory damages for wrongful termination under state law; and (3) awarded attorney's fees to Lewis. On appeal, the defendants-appellants respond primarily that they were entitled to terminate Lewis pursuant to the standard announced in cases such as Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and in the alternative, that their decision to terminate Lewis is shielded by qualified immunity.

It is by now well established that public employees do not check all of their First Amendment rights at the door upon accepting public employment. See, e.g., United States v. National Treasury Employees Union, 513 U.S. 454, 465, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). Frequently, courts must decide whether a public employer acted properly in disciplining an employee for speaking out on some matter. Here, however, the question is presented with a slight twist: when may a public employer discipline an employee for refusing to speak? In the present case, we conclude that the termination was justified, and that in any event it was error for the district court to deny the defendants' motion for judgment as a matter of law on the ground of qualified immunity. We also hold that, as a matter of state law, the defendants are immune from liability on Lewis's state law wrongful discharge claim. We therefore reverse the district court's judgments on the First Amendment and state law claims. Finally, because Lewis is no longer a "prevailing party," within the meaning of 42 U.S.C. § 1988, we reverse the district court's award of attorney's fees.

BACKGROUND

On May 23, 1980, Lewis was appointed Chief of the Lottery Unit of the Connecticut Division of Special Revenue ("the Division") by the Division's then-Executive Director. His appointment was approved by the Gaming Policy Board ("the Board"), a five-member body appointed by the governor of Connecticut and confirmed by the legislature, that oversees all Division operations. See Conn. Gen.Stat. §§ 12-557c-e. ¹ Lewis was an unclassified employee and therefore served at the pleasure of the Executive Director and the Board. See Conn. Gen.Stat. § 12-559. ²

Through its seven units, the Division administers legalized gaming activities in the state. The Lottery Unit administers the Connecticut State Lottery. As Lottery Unit Chief, Lewis managed over thirty employees and reported directly to the Division's Executive Director. Lewis was responsible for designing lottery games and for maintaining the security of and public confidence in the Lottery. Part of his job was to communicate with the media and the public as, in his own words, "the official lottery spokesman."

Lewis also enjoyed national prominence in the public gaming community. He served as Secretary, Vice President, and President of the National Association of State and Provincial Lotteries, an association of public gaming executives in the United States and Canada, and published several articles in Public Gaming International, a trade magazine on whose cover he had been featured. Every year that Lewis ran the Unit, lottery sales increased and in his nine years as Lottery Chief, sales quadrupled.

In 1988 and 1989, a series of events eventually led to Lewis's termination. Over the objections of Lewis and other officials, in early 1988 the State Department of Administrative Services, with the approval of the Board, awarded General Instrument Corporation ("GIC") the contract to install an on-line computer system for the sale of lottery tickets at terminals located throughout the state. GIC's on-line system malfunctioned resulting in a system-wide breakdown of on-line sales and the imposition of a substantial fine on GIC. Lewis criticized GIC to the press. Because Lewis's superiors believed that this public criticism generated negative publicity for the Lottery, they directed all Unit heads to refrain from speaking with the media and hired a full-time public information officer. The directive was eventually withdrawn, although the Division's public information officer remained.

By December 1988, GIC had suggested to the Board that sales of the Lotto game would increase if winners were required to correctly choose 6 of 44 numbers rather than 6 of 40 numbers. In this way, the odds of winning would be significantly reduced, but the jackpot probably would be greater. Lewis opposed the change. He believed that revenues would decrease and suspected that GIC had recommended the change merely to cover up problems with on-line ticketing. Lewis made his concerns clear to the Board at meetings and in written memoranda throughout the spring of 1989.

By early May 1989, defendant Hickey, now the Executive Director of the Division, had decided to propose to the Board that the Lotto game's field of numbers be changed from 40 to 44. Before May 15, Hickey met with Lewis and then-Division Deputy Director William T. Drakeley to discuss the change. Lewis persisted in his objections.

Despite Lewis's unwavering opposition, at a May 15 meeting, Hickey directed Lewis to serve as project manager for the change and, according to Lewis, told him to present the change to the Board "in a positive way." Lewis understood this instruction to be an order "to lie to [the Board] because [Hickey] knew" of Lewis's opposition to the change. Lewis believed that Hickey wanted him to present "all positives and no negatives," and thereby promote the change to the Board without presenting the risks involved. Because Board meetings were open to the public, this also would result in the public not learning of Lewis's negative opinion of the change.

On May 16, 1989, at Lewis's request, Hickey reiterated his order in writing. The written order indicated that the Division would be changing the Lotto game subject to "ultimate approval" by the Board. The memorandum continued "I am ordering you to assume the role of Project Manager for this transition" and concluded "I expect all your efforts will be expended toward a successful Lotto game transition." Although the letter did not explicitly require Lewis to present the change to the Board in a positive manner, Lewis testified that Hickey repeated this order verbally. Lewis's written response expressed his opposition to changing Lotto, and asked Hickey to rescind his order. Lewis also criticized the timing of the change because there were three vacancies on the Board. The reduced Board consisted of Hickey and defendants Cowen and Lange.

Hickey testified that prior to May 18, he simply asked Lewis to keep the matter confidential until Lewis made his decision as to whether he would follow Hickey's order. According to Hickey, Lewis refused to remain silent and Hickey let the matter drop. At a May 18 meeting, Hickey reiterated his order that Lewis serve as the project manager for the Lotto change. At trial, Hickey conceded that at this meeting he ordered Lewis "to present [the change] to the Gaming Policy Board and go forward in a positive fashion," but insisted that he did not order Lewis to lie. Lewis refused to comply, and told Hickey that his order "put him in a box" and "ma[de him] into a prostitute." Lewis testified that at the same meeting, Hickey ordered him not to publicly discuss his opposition to the change. According to Hickey, Lewis stated at the May 18 meeting that Lewis "was playing hard ball" and that he had discussed the matter with "all of his friends and colleagues." Because Lewis refused to follow Hickey's order, Hickey relieved Lewis of his duties as Chief of the Lottery Unit and placed him on a paid leave of absence.

On May 22, Hickey notified Lewis that a pre-disciplinary hearing had been scheduled for May 24. At the May 24 hearing, Lewis stated that he would "obey all lawful orders" and that he would "design a new game and present it in a balanced manner before a duly constituted Board." After the hearing, Hickey decided to recommend that the Board terminate Lewis. On May 25, the Board unanimously approved the change in the Lotto game; but because Lewis failed to attend the meeting, the Board postponed consideration of his termination. The following day, the Board voted to terminate Lewis, and on June 1, Lewis received notice of his termination, effective as of May 26. Lewis appealed his termination to the Connecticut Superior Court claiming a violation of Connecticut's Uniform Administrative Procedure Act ("UAPA"), Conn. Gen.Stat. § 4-183(a). That court dismissed his appeal, and the Connecticut Supreme...