933 F.2d 1149 (2nd Cir. 1991), 1352, Piesco v. City of New York, Dept. of Personnel

Docket Nº:1352, Docket 91-7037.
Citation:933 F.2d 1149
Party Name:Dr. Judith PIESCO, Appellant, v. The CITY OF NEW YORK, DEPT. OF PERSONNEL, Juan Ortiz and Nicholas LaPorte, Jr., Appellees.
Case Date:June 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1149

933 F.2d 1149 (2nd Cir. 1991)

Dr. Judith PIESCO, Appellant,



Nicholas LaPorte, Jr., Appellees.

No. 1352, Docket 91-7037.

United States Court of Appeals, Second Circuit

June 3, 1991

        Argued April 16, 1991.

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        Ronald Podolsky, New York City, for appellant Dr. Judith Piesco.

        Fay S. Ng, New York City (Victor A. Kovner, Corp. Counsel of the City of New York, Pamela Seider Dolgow and Paul Marks, New York City, on the brief), for appellees City of New York, Dept. of Personnel, Juan Ortiz and Nicholas LaPorte, Jr.

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        Before TIMBERS, MESKILL and PRATT, Circuit Judges.

        TIMBERS, Circuit Judge:

        Appellant Dr. Judith Piesco appeals from a summary judgment in favor of appellees the City of New York, Department of Personnel (DOP or the City), Juan Ortiz and Nicholas LaPorte, Jr. entered December 26, 1990 in the Southern District of New York, John S. Martin Jr., District Judge, dismissing appellant's civil rights action and pendent state law claims. 753 F.Supp. 468.

        The chief issue pressed on appeal is whether the district court erred in dismissing appellant's first amendment claim. In asserting her claims of error, Dr. Piesco advances two principal contentions: (1) the district court improperly concluded that DOP's interest as an employer outweighed Dr. Piesco's first amendment interest in truthfully testifying before a legislative committee; and (2) since certain factual issues were unresolved, it was neither appropriate to consider conduct, other than her testimony before the committee, as a basis for the alleged retaliation, nor proper to conclude that her testimony was irresponsible as a matter of law.

        A subordinate issue pressed on appeal by appellant is that appellees Ortiz and LaPorte are not immune from suit under 42 U.S.C. Sec. 1983 (1988).

        For the reasons which follow, we reverse that part of the judgment dismissing Dr. Piesco's first amendment claim. We affirm the dismissal of the pendent state law claims and the constitutional claims other than the first amendment claim.


        We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. Since this is an appeal from a summary judgment, we review the facts in the light most favorable to the non-movant, Dr. Piesco.

        In September 1982, Dr. Piesco was appointed on a provisional basis to the position of Deputy Personnel Director for Examinations in the New York City Department of Personnel. In that capacity, she was responsible for the administration of the Bureau of Examinations, the largest bureau within DOP. The Bureau of Examinations is charged with the preparation, evaluation and administration of all civil service tests for the City of New York. During Dr. Piesco's tenure at DOP, the size of her staff fluctuated between 175-200 employees.

        In December 1984, New York City administered examination no. 4061 for the position of police officer. Thereafter, in February 1985, Dr. Piesco and other administrators met to establish a passing grade for examination no. 4061. At that meeting, Police Department personnel advocated adopting a passing grade of 82, while Dr. Piesco urged that the passing grade be set at 89. Ortiz, then Personnel Director, ultimately decided to set the passing grade at 85. By setting the passing grade at that level, each successful candidate was required to answer correctly 119 of the exam's 140 questions. By contrast, had the passing grade been set at 89, successful candidates would have been required to answer at least 125 questions correctly.

        In June 1985, Dr. Piesco and appellees Ortiz and LaPorte (the latter then being First Deputy Personnel Director) met with members of the New York State Senate Committee on Investigations, Taxation, and Government Operations (Committee). The Committee was conducting a review of the management of the New York City Police Department. While it is unclear who first used the word "moron", Dr. Piesco responded affirmatively when asked by a staff member whether it was possible for a moron to pass the police examination with the passing grade set at 85.

        On July 11, 1985, Dr. Piesco and Ortiz appeared at a public hearing held by the Committee. Although not subpoenaed, the record indicates that the Deputy Chief Investigative Counsel for the Committee contacted Ortiz and informed him that if Dr. Piesco did not appear she would be subpoenaed. The transcript of the hearing reveals that Senator Goodman, Chairman of

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the Committee, rejected Ortiz' request to be the sole spokesperson for DOP. Senator Goodman specifically requested that Dr. Piesco "testify directly". After she was duly sworn, the following colloquy ensued between Senator Goodman and Dr. Piesco:

        SENATOR GOODMAN: Is it not a fact that under questioning by this Commission['s] staff you indicated that the written exam was so easy "that a moron could pass"?

        DR. PIESCO: The conversation that we had was a very informal conversation, and if I used it as [a] characterization, I think it was rather unfortunate[.] I was not obviously aware of the [sic] that the conversation which was informal was in the way of cross examination.

        I certainly would have modified my statement merely because the term "moron" is rather offensive and has certain technical meanings.

        The answer to your question is yes.


        SENATOR GOODMAN: Would a functional illiterate pass the functional portion in the police academy?

[Although there exists some confusion concerning whether this question was correctly transcribed, it apparently is not disputed that the question posed to Dr. Piesco was "[w]ould a functional illiterate pass the entrance examination to the police academy?"]

        DR. PIESCO: At the pass mark that is set, I would say that it is possible.

        On July 12, 1985, one day following Dr. Piesco's testimony before the Committee, Ortiz wrote a memorandum to Mayor Koch detailing events leading up to Dr. Piesco's appearance before the Committee. Ortiz enumerated factors that were considered in setting the passing grade for examination no. 4061: (1) insuring the quality of police officers; (2) providing the Police Department, over the life of the eligible list, with a sufficient number of candidates to fulfill its hiring needs; (3) recognition that the test was only the first of several screening devices in the process of recruiting and training police officers, i.e., all candidates who passed the test also would have to pass the rigorous curriculum at the Police Academy and the Department's 18-month probationary period, as well as psychological, character, physical and medical screening; and (4) the mandate of Title VII, 42 U.S.C. Sec. 2000e, et seq. (1988), to minimize disparate impact on minority candidates. Ortiz explained to the mayor that the difference between the passing score advocated by Dr. Piesco and that ultimately established is "six items out of a 140 question test". In a misleading characterization of Dr. Piesco's testimony before the Committee, Ortiz stated that "to call any successful candidate a 'moron' or a 'functional illiterate', is irresponsible because it is without basis in fact".

        On July 13, 1985, just two days after Dr. Piesco's testimony, the New York Post carried an article quoting Ortiz as stating that "I believe her statement is irresponsible. Whether that merits any action at this point--I haven't addressed the issue." The New York Post reported that Ortiz "hinted [that] he may fire [Dr. Piesco]." Dr. Piesco refused the request of the New York Post to respond to Ortiz' statements.

        On July 31, 1985, a meeting was held at DOP concerning examination no. 4061. Dr. Piesco, Ortiz, LaPorte, DOP's General Counsel Arthur Friedman, and its Deputy General Counsel Michael Rabin attended this meeting. On August 2, 1985, Ortiz in an intradepartmental memorandum reprimanded Dr. Piesco for her actions at this meeting. The memorandum reflected that during the course of the meeting Ortiz asked Dr. Piesco why she had not reviewed the test before it was administered. Dr. Piesco responded by standing up, pointing her finger at Ortiz in an aggressive manner and yelling, "you don't know a fucking thing about testing. I am fed up with your bullshit and inaptitude." Ortiz then asked appellant to calm down and conduct herself in a civil manner, to which she replied, "I don't have to do a fucking thing, why don't you fire me?".

        On August 13, 1985, appellant received two performance evaluations from LaPorte.

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For the period July 1, 1983 through June 30, 1984, appellant received a "very good" overall rating. For the period July 1, 1984 through June 30, 1985, she received a "marginal" overall rating. These evaluations were in marked contrast to earlier evaluations and statements from her superiors. For the period 1982-83, Dr. Piesco received an overall evaluation of "outstanding". In a memorandum to Dr. Piesco dated March 21, 1983, Ortiz congratulated Dr. Piesco on her "outstanding performance". He noted that Dr. Piesco was one of a small number of DOP managers who received a 10 percent salary adjustment and was "indeed an asset to the agency". In a letter dated July 15, 1983, Ortiz authorized another salary increase for Dr. Piesco "[i]n recognition of [her] tireless efforts towards excellence and [her] professional dedication". After receiving the evaluations of August 13, 1985, Dr. Piesco claimed that Ortiz and LaPorte had retaliated against her for making statements to the Committee. Specifically, Dr. Piesco asserted various acts of retaliation: (1) she received...

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