Lieberman v. Reisman
| Citation | 857 F.2d 896 |
| Decision Date | 15 September 1988 |
| Docket Number | D,No. 845,845 |
| Parties | , 3 Indiv.Empl.Rts.Cas. 1253 Nikki LIEBERMAN, Plaintiff-Appellant, v. Herbert REISMAN, Supervisor, George Conklin, former Supervisor, Isaac Goodfriend, Maxwell Wortman, Emanuel Weldler and David Stein, Councilmen, and Debra Chiat and Hyman Jatoff, Former Councilmen, constituting the Town Board of the Town of Ramapo, Defendants-Appellees. ocket 87-7993. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
David M. Wagner, New City, N.Y. (Freedman, Wagner, Tabakman, Weiss & Insler, New City, N.Y., of counsel), for plaintiff-appellant.
William R. Sichol, Suffern, N.Y. (Sichol & Hicks, Suffern, N.Y., of counsel), for defendants-appellees.
Before FEINBERG, Chief Judge, and CARDAMONE and PIERCE, Circuit Judges.
This appeal from a dismissal of plaintiff's complaint in the Southern District of New York presents a single issue: whether unfavorable action not rising to the level of a discharge taken against a town employee based on her political affiliation may give rise to a constitutional claim cognizable under 42 U.S.C. Sec. 1983 (1982)? We hold that it may and therefore reverse the district court's contrary conclusion respecting Count II of plaintiff's complaint.
The facts may be stated briefly. In January 1982 appellant Nikki Lieberman was appointed as his confidential assistant by Frederick Rella, a Republican then serving as Town Supervisor of the Town of Ramapo, Rockland County, New York. Mr. Rella died on December 25, 1984 during his term of office. George Conklin, a Democrat, was appointed to succeed him for the balance of his unexpired term. Conklin did not discharge Nikki Lieberman, permitting her instead to continue as his confidential assistant until the expiration of his appointive term on December 31, 1985.
Appellant held her position pursuant to N.Y. Town Law Sec. 29(15) (McKinney 1985 & Supp.1987), which grants a Town Supervisor authority to appoint a confidential assistant to serve at his pleasure at a salary fixed by the Town Board. The position is a non-competitive appointment and those appointed perform such duties as the Supervisor may determine. In this case appellant's salary was fixed by the Town Board of Ramapo at $26,424.59 per year. The position of confidential assistant was not covered under the terms of the collective bargaining agreement between the Town and the Civil Service Employees Association, but the Town Board voted confidential assistants vacation pay and other benefits equivalent to those provided under the collective bargaining agreement.
In the fall of 1985 Nikki Lieberman ran unsuccessfully as the Republican candidate for the position of Legislator on the Rockland County Board of Legislators. She asserts that because she chose to run for public office as a Republican, the appellees, members of the Town Board of Ramapo (all of whom except for Emanuel Weldler are Democrats), retaliated politically against her. As a result of their alleged actions against her, appellant instituted the instant Sec. 1983 action in the United States District Court for the Southern District of New York (Goettel, J.). She makes no claim of actual discharge from her position as confidential assistant.
In her complaint appellant asserts that appellees harassed and discriminated against her because of her Republican affiliation and her campaign for public office. These allegations are set forth in six counts of her civil rights complaint: Count I claims $26,238.08 in compensation for 39 weeks of accrued "compensatory time" and nine weeks of unused vacation time; Count II asserts that other "similarly situated" town employees were treated more favorably with respect to compensatory and vacation Appellees moved to dismiss the complaint and, after discussing each of the above counts, Judge Goettel granted the motion. He granted the defendants' motion to dismiss the Count II cause of action because he considered the leading Supreme Court decisions on unfavorable political patronage actions to be limited to dismissals, and he refused to extend constitutional protection to a denial of compensatory and vacation time payments. For similar reasons the district judge dismissed the claims in Counts IV and V. The district court further held that the sexual harassment charged in Count III failed to allege any deprivation of a federal right and therefore did not state a cognizable Sec. 1983 claim. The first and sixth counts of the complaint were dismissed without prejudice because Judge Goettel believed that those counts raised (except for possible interference with the U.S. mails) essentially questions of state contract and tort law. Having dismissed the other four counts, the district judge declined to exercise pendent jurisdiction over these two state law claims.
time than she was and that the difference in treatment is attributable to retaliation for her political activities; Count III alleges sexual harassment; Count IV contends that appellee Conklin harassed her regarding her political campaign; Count V asserts a deprivation of information concerning continuing her health insurance coverage; and Count VI contends that appellees used various tactics against her in retaliation for her political activities, including verbal threats, ransacking her office, taking personal documents, vandalizing her automobile in the Town Hall parking lot, and interfering with her personal mail.
We affirm Judge Goettel's dismissal of Counts III, IV and V, for substantially the reasons stated in his opinion. The dismissal of Count II, alleging that Lieberman was denied certain compensation in retaliation for her political activities, must be reversed and, upon remand, it and Counts I and VI must also be reconsidered. Of course, if Count II does not survive a motion for summary judgment on remand, the district court need not further consider Counts I and VI.
Despite the vague and conclusory nature of plaintiff's pleading, in appraising the sufficiency of her Count II claim a court must follow "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Accordingly, plaintiff's allegations that her demands for payment relating to compensatory time and vacation time were denied solely because of her political affiliation are accepted as true.
The single question on appeal then is whether this sort of claimed political retaliation not amounting to actual discharge of a public employee is actionable under 42 U.S.C. Sec. 1983 (1982). Section 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Analysis of the political retaliation question must begin with Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), in which the Supreme Court held that dismissing a public employee for political patronage reasons violates the employee's First Amendment right. The Elrod plaintiffs--Republicans working as non-civil service Sheriff's office employees--alleged that they were discharged or threatened with discharge after a Democrat was elected to replace a Republican sheriff solely because they were not affiliated with or The plurality opinion, authored by Justice Brennan and joined by Justices White and Marshall, advanced two rationales for affording plaintiffs relief. The first rationale was that the practice of political patronage tends to constrain an employee's "ability to act according to his beliefs and to associate with others of his political persuasion." Id. at 356, 96 S.Ct. at 2681. This view did not garner the vote of any of the remaining five justices taking part in the case. The second reason for the Court's holding drew, in part, upon Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), an earlier...
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