Cavanaugh v. Doherty

• Decision Date: 04 June 1998
• Citation: 675 N.Y.S.2d 143,243 A.D.2d 92
• Parties: , 1998 N.Y. Slip Op. 5350 Erin CAVANAUGH, Respondent-Appellant, v. Thomas DOHERTY, Individually and as Appointment Secretary in the New York State Executive Department, et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 143

675 N.Y.S.2d 143

243 A.D.2d 92, 1998 N.Y. Slip Op. 5350

Erin CAVANAUGH, Respondent-Appellant, v. Thomas DOHERTY, Individually and as Appointment Secretary in the New York State Executive Department, et al Appellants-Respondents.

Supreme Court, Appellate Division Third Department.

June 4, 1998.

Jerome K. Frost P.C. (Jerome K. Frost, of counsel), Troy, for Thomas Doherty and another, appellants-respondents.

Gleason, Dunn, Walsh & O'Shea (Mark T. Walsh, of counsel), Albany, for James Flateau, appellant-respondent.

Bloomberg & Magguilli (Michael C. Magguilli, of counsel), Albany, for respondent-appellant.

Before MIKOLL, J.P., and CREW, YESAWICH and SPAIN, JJ.

SPAIN, Justice.

Cross appeals from an order of the Supreme Court (Teresi, J.), entered April 16, 1997 in Albany County, which, inter alia, partially granted defendants' motions to dismiss the second amended complaint for lack of jurisdiction.

Plaintiff was hired by the Department of Correctional Services (hereinafter DOCS) in March 1996; although she alleges that she was provided a job description detailing the position of a Public Relations Aide and performed the duties of such, she was actually employed under the title of Assistant Public Relations Officer in the Office of Public Relations. In June 1996, plaintiff's employment was terminated by her supervisor, defendant James Flateau, Director of Public Relations for DOCS. Plaintiff was fired allegedly after defendant John Patterson, the Deputy Commissioner of DOCS, had been induced or ordered to fire her as a result of a political argument in an Albany restaurant between plaintiff and defendant Thomas Doherty, a high-ranking official in the Executive Department. It is alleged that the argument was precipitated by Doherty's derogatory remarks concerning plaintiff's supervisors and their political affiliations. The verbal exchange culminated in plaintiff calling Doherty an "asshole", to which he allegedly responded that "he would 'have her job in the morning' ".

Plaintiff's termination within the next 48 hours is the subject of the instant action against defendants, both individually and in their respective official capacities. Specifically, plaintiff has alleged the following: (1) breach of employment contract, (2) abusive discharge and prima facie tort, (3) intentional interference with contract, (4) breach of implied covenant to terminate plaintiff only for good cause, (5) breach of implied covenant of good faith and fair dealing, (6) violation of civil rights pursuant to 42 U.S.C. § 1983, (7) intentional infliction of emotional distress, and (8) violation of Labor Law § 201-d.

Doherty and Patterson moved to dismiss pursuant to CPLR 3211 for failure to state a cause of action, lack of jurisdiction and failure to join necessary parties. ¹ Flateau also moved to dismiss on these grounds, as well as to dismiss the claim pursuant to 42 U.S.C. § 1983 raising the defense of qualified immunity. Plaintiff cross-moved for leave to amend for a second time seeking to add the State and DOCS as additional defendants, as well as to convert this action into a CPLR article 78 proceeding, if necessary.

Supreme Court determined that it did not have jurisdiction to hear five of the claims, to wit: breach of employment contract (first), breach of implied covenant to terminate only for good cause (fourth), breach of implied covenant of good faith/fair dealing (fifth), violation of civil rights (sixth) and violation of Labor Law § 201-d (eighth). Concluding that the Court of Claims had exclusive jurisdiction over these claims, Supreme Court dismissed these five causes of action without prejudice to pursue them in the Court of Claims. Additionally, Supreme Court retained jurisdiction over defendants in their individual capacities with regard to the claims for abusive discharge/prima facie tort (second), intentional interference with contract (third), and intentional infliction of emotional distress (seventh); granted plaintiff's cross motion for leave to amend these causes of action; denied plaintiff's motion to convert the action into a CPLR article 78 proceeding; and denied defendants' motions to dismiss for failure to state a cause of action as to said three surviving causes of action. Supreme Court also directed that no further dispositive motions would be accepted until the completion of discovery. All parties have appealed.

Initially, we conclude that Supreme Court erred in dismissing the Federal civil rights (sixth) cause of action. The proper subject of an action pursuant to 42 U.S.C. § 1983 is a State official acting in excess of his or her authority and is "cognizable in the Supreme Court and not in the Court of Claims" (Teddy's Drive In v. Cohen, 54 A.D.2d 898, 900, 388 N.Y.S.2d 20, aff'd 47 N.Y.2d 79, 416 N.Y.S.2d 782, 390 N.E.2d 290; see, Al-Jundi v. Estate of Rockefeller, 2nd Cir., 885 F.2d 1060, 1065). The State is not a proper party to such claims because the State is not a "person" within the meaning of 42 U.S.C. § 1983 (see, Ferrick v. State of New York, 198 A.D.2d 822, 823, 605 N.Y.S.2d 716; see also, Will v. Michigan Dept. of State Police, 491 U.S. 58, 62-71, 109 S.Ct. 2304, 105 L.Ed.2d 45; cf., Monell v. Department of Social Servs. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611). Accordingly, the Court of Claims is not the proper forum for said cause of action.

Next, we reject the contention of each of the three defendants that Supreme Court erred in failing to completely dismiss plaintiff's 42 U.S.C. § 1983 claim on the merits. Defendants argue that plaintiff was employed in a policy-making position for which her political affiliation provided a lawful basis for termination and, as such, they are qualifiedly immune from suit. We disagree.

"A government official performing a discretionary function is entitled to qualified immunity provided his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known * * * " (Liu v. New York City Police Dept., 216 A.D.2d 67, 68, 627 N.Y.S.2d 683, lv. denied 87 N.Y.2d 802, 638 N.Y.S.2d 425, 661 N.E.2d 999, cert. denied 517 U.S. 1167, 116 S.Ct. 1566, 134 L.Ed.2d 666 [citation omitted]; see, Butz v. Economou, 438 U.S. 478, 506-507, 98 S.Ct. 2894, 57 L.Ed.2d 895). In order for the burden to shift to the plaintiff to disprove qualified immunity, the public official must prove that the conduct complained of falls within the scope of his or her official duties (see, Rich v. Dollar, 11th Cir., 841 F.2d 1558, 1563-1564; Zeigler v. Jackson, 11th Cir., 716 F.2d 847, 849; see generally, Butz v. Economou, supra, at 495, 98 S.Ct. 2894) and, further, that the alleged conduct did not violate one of the plaintiff's constitutional or statutory rights (see, Young v. Selsky, 2nd Cir., 41 F.3d 47, 54, cert. denied 514 U.S. 1102, 115 S.Ct. 1837, 131 L.Ed.2d 756). "The defendant must establish that he [or she] had an objectively reasonable belief that his [or her] act violated no clearly established rights * * * " (id., at 54 [citation omitted]; see, McEvoy v. Spencer, 2nd Cir., 124 F.3d 92, 96-97; cf., Rich v. Dollar, supra, at 1562-1563). Moreover, as such immunity is not absolute, a public official acting outside of his or her authority will not be entitled to such a defense (see generally, Teddy's Drive In v. Cohen, 47 N.Y.2d 79, 82, 416 N.Y.S.2d 782, 390 N.E.2d 290).

Doherty and Patterson have not established that their actions were within the ambit of their official capacities and that such actions did not violate plaintiff's constitutional right to free speech and political affiliation. Although they contend that plaintiff was employed in a policy-making position for which her political affiliation would be an appropriate ground for termination (see, Vezzetti v. Pellegrini, 2nd Cir., 22 F.3d 483, 486-488), there is a legitimate question of fact as to plaintiff's actual employment status. There is also a question as to whether this case falls within the classification of free speech cases or those involving terminations which are motivated by political affiliations (see, McEvoy v. Spencer,supra, at 97-105). Although, in our view, Flateau was acting within the ambit of his official duties, as he was instructed to fire plaintiff, none of the defendants has established that they had an objectively reasonable belief that their actions did not violate clearly established rights of plaintiff (see, Young v. Selsky, supra, at 54), particularly as it appears that plaintiff's termination was retributive in nature for the personal affront to Doherty (see, Vezzetti v. Pellegrini, supra, at 488) and because each was aware of or should have been aware of plaintiff's 1st Amendment rights.

Moreover, "[i]t is axiomatic that on a motion to dismiss the complaint for failure to state a cause of action, the court is required to view every allegation of the complaint as true and resolve all inferences in favor of the plaintiff regardless of whether the plaintiff will ultimately prevail on the merits" (Grand Realty Co. v. City of White Plains, 125 A.D.2d 639, 510 N.Y.S.2d 172; see, Sanders v. Winship, 57 N.Y.2d 391, 394, 456 N.Y.S.2d 720, 442 N.E.2d 1231). As such, accepting plaintiff's allegations as true for purposes of the motions to dismiss (see, McEvoy v. Spencer, supra, at 95), we conclude that defendants have not established entitlement to qualified immunity. In view of the foregoing, the sixth cause of action should be reinstated against all defendants.

Next, we conclude that Supreme Court properly determined that it lacked jurisdiction over the first (breach of employment contract), fourth (breach of an implied covenant to terminate only for good cause), fifth (breach of an implied covenant of good faith and fair dealing) and eighth (violation of Labor Law § 201-d) causes of action. In this instance, plaintiff was provided with an employee manual which provides, in relevant part,...