Adler v. Pataki
| Decision Date | 20 July 1999 |
| Docket Number | Docket No. 98-9022 |
| Citation | 185 F.3d 35 |
| Parties | (2nd Cir. 1999) ALAN M. ADLER, Plaintiff-Appellant, v. GEORGE PATAKI, in his official and individual capacity, THOMAS F. DOHERTY, in his official and individual capacity, JAMES NATOLI, in his official and individual capacity, MICHAEL FINNEGAN, in his official and individual capacity, DENNIS C. VACCO, in his official and individual capacity, WILLIAM FLYNN, in his official and individual capacity, DONALD P. BERENS, in his official and individual capacity, THOMAS A. MAUL, in his official and individual capacity, Defendants-Appellees. August Term 1998 |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from the June 23, 1998, judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., District Judge), granting summary judgment to defendant state officials and dismissing claims of former state employee who alleged that his First Amendment right of intimate association was violated when he was discharged in retaliation for a lawsuit filed against state officials by his wife.
Reversed and remanded.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Sue H. R. Adler, Albany, N.Y., for plaintiff-appellant.
Fredric S. Newman, New York, N.Y. (Melissa L. Weiss, Hoguet Newman & Regal, New York, N.Y., on the brief), for defendants-appellees Pataki, Doherty, Natoli, Finnegan and Maul.
Charles D. Cunningham, New York, N.Y. (Franklyn H. Snitow, Snitow & Cunningham, New York, N.Y., on the brief), for defendants-appellees Vacco, Flynn and Berens.
Before: NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges.
This appeal concerns the authority of a state to discharge an employee in unusual circumstances. The employee, alleged to have held a policy-making position, making him vulnerable to discharge because of political affiliation, contends that he was unlawfully fired, not because of his political affiliation, but in retaliation for a lawsuit filed against state officials by his wife. Alan Adler, a former Deputy Counsel in the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), appeals from the June 23, 1998, judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., District Judge) granting summary judgment to the defendant state officials,1 dismissing his federal First Amendment claims, and declining to exercise jurisdiction over his pendent state law claims. The District Court ruled that, as a policy-maker, Adler had no First Amendment protection against termination solely because of his political affiliation, and that, to the extent that his claim was based on the state officials' alleged mixed motives--his political affiliation and his wife's litigation against the state, this claim was foreclosed by our decision in McEvoy v. Spencer, 124 F.3d 92 (2d Cir. 1997).
We reach the following conclusions. First, in disagreement with the decision of the District Court, we conclude that Adler can proceed with his claim that he was fired solely in retaliation for his wife's lawsuit, and not at all for reasons of political patronage. Second, we conclude that Adler qualifies as a policy-maker, and the defendants will therefore prevail in this action if they can ultimately demonstrate that he was in fact fired solely for reasons of political patronage. Finally, to the extent that the defendants acted with a mixed motive, i.e., if they fired the plaintiff both in retaliation for his wife's activities and for reasons of political patronage, we conclude that McEvoy does not control and that the defendants will bear the burden of demonstrating that they would have removed the plaintiff from his position even if his wife had not been involved in litigation against the State. We therefore reverse and remand.
From 1981 until December 6, 1996, Adler held the position of deputy counsel for litigation at OMRDD. This position is one of the three associate counsel positions serving directly under the general counsel of OMRDD. In 1996, Adler's annual salary was $90,600. It is undisputed that Adler's work performance was satisfactory or better. Politically, Adler characterizes himself as an Independent with Republican ties.
As an associate counsel in the OMRDD, Adler's duties included: (i) formulating the agency's response to all federal and state litigation, (ii) supervising litigation in federal and state courts, (iii) representing the agency in administrative and interdepartmental proceedings, (iv) serving as trial counsel in cooperation with the Attorney General's office, (v) providing general legal advice to senior staff on litigation-related issues, (vi) reviewing judicial decisions and recommending appeal where appropriate, and (vii) identifying agency policy affected by litigation and recommending action or solutions to problems. Adler's position is classified by the State as exempt from civil service protection. In February 1993, OMRDD notified Adler that his position was a "policy-making position" under guidelines issued pursuant to the New York Public Officers Law.
Between November 29 and December 9, 1996, six high-ranking OMRDD employees, including Adler, were discharged. Adler was told that the decision to terminate his employment was not made by his supervisors at OMRDD, but by the Governor's office. All three of the attorneys working as associate counsel in the OMRDD were terminated. On December 2, 1996--four days before Adler was terminated--the general counsel of OMRDD, Paul R. Kietzman, sent a memorandum to his staff, stating: Adler's eventual replacement--Richard Wolfe, a registered Democrat--was not identified until after Adler's termination.
Prior to October 1995, Adler's wife, Sue, worked as a New York State assistant attorney general in the Albany Litigation Bureau. In December 1995, a year before Adler's discharge, Sue Adler commenced a wrongful termination action against the Attorney General's office, alleging that she was fired because she was not a Republican. She also claimed that her firing was partly in retaliation for her representation of Meredith Savitt in another wrongful termination action based on similar allegations against the Attorney General. On or about March 6, 1996, Sue Adler met with Assistant Attorney General Belinda Wagner, defense counsel for the Attorney General's office in the Sue Adler/Savitt cases. During that meeting, Sue Adler said to Wagner, "You know my husband," and reminded her that Wagner and Alan Adler had worked together on OMRDD litigation. Wagner reported this conversation to her superiors, who allegedly perceived a potential for disclosure of confidential information. Kietzman, the General Counsel of OMRDD, was notified of these concerns. When Kietzman spoke to Alan Adler, Adler assured him that he would maintain OMRDD's confidences. In the last week of November 1996, about a week before Alan Adler's termination, a New York state court ordered three lawyers defending Sue Adler's lawsuit, including the former state attorney general, to pay sanctions to Sue Adler and another attorney in the course of their litigation.
Two days after his termination, Alan Adler filed this action, alleging that he had been wrongfully discharged; he sought reinstatement and damages. Adler alleged that the defendants violated his First Amendment rights of freedom of expression and association by retaliating against him both because he did not share the same political philosophy as Governor Pataki and because his wife had brought a lawsuit against the Attorney General. In addition, he brought several pendent state law claims.2. Adler sought a preliminary injunction directing his reinstatement. The District Court denied his motion, finding that Adler had failed to demonstrate that he was likely to succeed on the merits.
Prior to discovery, the defendants filed a motion for summary judgment. Adler opposed the motion, arguing both that it failed on the merits and that he should be allowed to conduct discovery. The District Court granted the defendants' motion, ruling that Adler's position at the OMRDD was a "policy-making position" and, therefore, outside the purview of the First Amendment's prohibition against patronage dismissals. This ruling disposed of Adler's retaliation claim based on his political affiliation.
The District Court then considered Adler's "mixed motive" claim that he was dismissed in part in retaliation for his wife's litigation activities. The District Court noted that this Court had held in McEvoy, 124 F.3d at 101, that where a public employer's dismissal of a policy-making employee is motivated in part by the employee's political affiliation and in part by the employee's exercise of his First Amendment right to speak out on controversial matters, the employer is nevertheless insulated from liability. Relying on McEvoy, the District Court held that "even if the Defendant[s'] termination of the Plaintiff was based on his political affiliation and his wife's exercise of her First Amendment rights to bring a suit against the State, the Plaintiff has still failed to state a claim for First Amendment retaliation." Adler v. Pataki, No. 96-CV-1950, 1998 WL 326748, at *3 (N.D.N.Y. June 19, 1998) (emphasis in original). The District Court further noted that "even assuming arguendo that the only reason for the Plaintiff's termination was his wife's lawsuit, the individual Defendants would still be entitled to qualified immunity in their individual capacities based on the holding of McEvoy." Id. n.6. Having dismissed Adler's federal claims, the Court declined to...
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