Flynn v. Menino

• Citation: 944 F.Supp. 81
• Decision Date: 05 November 1996
• Docket Number: Civil Action No. 94-11743-RGS.
• Parties: Kevin N. FLYNN and Randy Wolfson v. Thomas MENINO, City of Boston (Boston Community Centers), and Evelyn Riesenberg.
• Court: U.S. District Court — District of Massachusetts

944 F.Supp. 81

Kevin N. FLYNN and Randy Wolfson v. Thomas MENINO, City of Boston (Boston Community Centers), and Evelyn Riesenberg.

Civil Action No. 94-11743-RGS.

United States District Court, D. Massachusetts.

November 5, 1996.

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Mark S. Bourbeau, Boston, MA, for Kevin N. Flynn, Wolfson Randy.

Susan M. Weise, City of Boston Law Department, Boston, MA, Mary Jo Harris, Kopelman & Paige, P.C., Boston, MA, for City of Boston, Thomas Menino, and Evelyn Riesenberg.

MEMORANDUM AND DECISION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

STEARNS, District Judge.

Plaintiffs Kevin Flynn and Randy Wolfson are suing the City of Boston, its Mayor, Thomas Menino,¹ and Evelyn Riesenberg, the Executive Director of Boston Community Centers (BCC), a City agency. Flynn and Wolfson allege that they were fired from senior positions at BCC for want of dedication to the Mayor's political interests. Flynn and Wolfson claim that defendants violated their First Amendment rights to free speech and association. They seek declaratory and injunctive relief, money damages, and attorney's fees.

Before the court are defendants' motions for summary judgment on the surviving counts of the Amended Complaint.² The defendants claim, in individual motions, that the plaintiffs are unable to demonstrate that protected speech played a determining part in their terminations or that their jobs were protected by the First Amendment.

FACTS

The material facts, construed in the light most flattering to the plaintiffs, are these. Flynn and Wolfson were senior employees of BCC. Flynn served as the Associate Director for Administration and Finance. Flynn's responsibilities included oversight of BCC financial and personnel matters. Wolfson served as Associate Director of Field Services. Wolfson oversaw the operations of twenty community centers. Both Flynn and Wolfson reported directly to BCC's Executive Director. Flynn and Wolfson did not endorse or campaign for any candidate for Mayor during the 1993 mayoral campaign.

In January, 1994, after winning election as Mayor, Menino appointed Riesenberg, one of his special assistants, as Executive Director of BCC. Upon assuming her new duties, Riesenberg asked Wolfson to gather information on the political loyalties of BCC employees. Amended Complaint, ¶ 19; Wolfson Dep., at 238-241. Riesenberg also asked Flynn how she could fire the entire staff and replace them with her own or the Mayor's people.³ Flynn Dep., at 231. One of Riesenberg's first acts as Executive Director was to hire Charles Clabaugh, a Menino precinct captain, as her Special Assistant. Riesenberg hired Clabaugh without requiring him to submit a resume or a City of Boston employment application. Riesenberg Dep. I, at 56-59.⁴ Riesenberg became angry when Wolfson and an interview committee rejected an applicant for an athletic director's position backed by the Mayor. Wolfson Dep., at 152-157.⁵ Riesenberg hired the candidate nonetheless, although for a position with less responsibility. Wolfson Dep., at 158. Wolfson states that she overheard Riesenberg order Clabaugh not to interview an applicant who might have supported one of the Mayor's opponents. Wolfson Dep., at 250-251.⁶

Shortly after Riesenberg arrived at BCC, Flynn and Wolfson briefed her on a sexual harassment complaint previously filed by a female employee against her supervisor. Wolfson Dep., at 326-327. According to Flynn, the alleged offender had served as a ward coordinator in Menino's mayoral campaign. Flynn Dep., at 173. Wolfson recommended that the complainant be supervised by someone else. According to Wolfson, Riesenberg replied that the "woman couldn't have [her] position if she couldn't be supervised by him" and "suggested that [she] be moved into a different position." Wolfson Dep., at 327-328. Plaintiffs told Riesenberg that the supervisor had failed to reveal on his employment application that he was on probation for selling drugs, and that Riesenberg's predecessor had not handled the case "appropriately."⁷ Wolfson Dep., at 330. The plaintiffs also informed Riesenberg of an allegation that the same supervisor had been observed using drugs in a city vehicle, a matter they thought should be investigated. Riesenberg's response was "noncommittal." Wolfson Dep., at 331. Riesenberg suggested that Wolfson might have a "personality conflict" with the man. Id. Wolfson states that Riesenberg "effectively excluded her from [further] involvement in the matter." Plaintiff's Opposition at 8. Some time thereafter, Riesenberg relieved Flynn of oversight of sexual harassment matters.⁸ Clabaugh assumed Flynn's duties in this regard. Clabaugh Dep., at 148.

One month after Riesenberg's appointment, she ordered Flynn to process a pay raise for a union employee. Flynn objected on grounds that to do so would contravene the terms of a collective bargaining agreement. Flynn Dep., at 149-153. Flynn also objected to Riesenberg's decision to hire a second person on a federal grant when Flynn believed that only one was authorized. Flynn Dep., at 133.

In late July of 1994, Riesenberg gave both Flynn and Wolfson termination notices, citing plans to reorganize BCC. On August 12, 1994, the plaintiffs, through counsel, delivered a letter to Mayor Menino notifying him of Riesenberg's actions and demanding that he countermand their impending dismissal. The Mayor referred the letter to the City's Corporation Counsel, who, in a reply dated August 19, 1994, rejected the plaintiffs' demand. In his letter, the Corporation Counsel attributed plaintiffs' discharge to a "reorganization within the Boston Community Centers and an evaluation of their performance." The letter was, plaintiffs allege, a "cover-up" for the unconstitutional actions taken against them and an affirmation of the policy of the Mayor and the City "to make political service a condition of employment." Amended Complaint, ¶ 35. The plaintiffs were fired on August 19, 1994, and filed this lawsuit on August 30, 1994.

DISCUSSION

Summary judgment is appropriate when, based upon pleadings, affidavits, and depositions, "there is no genuine issue as to any material fact and [where] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Gaskell v. Harvard Co-op. Soc., 3 F.3d 495, 497 (1st Cir.1993). A material fact is one which has "the potential to affect the outcome of the suit under the applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993). In considering the admissible evidence provided to the court, the non-moving party is indulged with all favorable inferences. Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988).

PART A

Counts I and II of the Amended Complaint are based on alleged violations of the First and Fourteenth Amendments to the United States Constitution. In these counts, plaintiffs seek declaratory and injunctive relief (specifically reinstatement to their jobs and a court declaration of their right to be free from retaliation for protected activity). The First Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment, prohibits the dismissal of a public employee based solely upon his or her refusal to give support to the political party in power, unless political affiliation is an appropriate requirement of the employee's job. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689-2690, 49 L.Ed.2d 547 (1976). The First Amendment also enjoins the dismissal of a public employee in a non-policy making position solely because of his or her political affiliation or lack of political sponsorship. Branti v. Finkel, 445 U.S. 507, 516-517, 100 S.Ct. 1287, 1293-1294, 63 L.Ed.2d 574 (1980). See also Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (extending the Elrod-Branti rule to applicants for public employment). And finally, the First Amendment forbids the discharge of a public employee solely for the exercise of his or her right to criticize, publicly or privately, the policies of the party in power. Perry v. Sindermann, 408 U.S. 593, 597-598, 92 S.Ct. 2694, 2697-2698, 33 L.Ed.2d 570 (1972).

The plaintiffs, to prevail on these counts, must produce sufficient evidence of a direct or circumstantial nature that either partisanship or retaliation for protected speech (or both) was a substantial or motivating factor in their dismissals. See Jirau-Bernal v. Agrait, 37 F.3d 1, 3 (1st Cir.1994); Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir.1991). If plaintiffs surmount this threshold, the burden then shifts to defendants to prove by a preponderance of the evidence that plaintiffs either held positions for which partisan affiliation was an appropriate requirement, or that plaintiffs would have been dismissed in any event for permissible reasons. Mt. Healthy City School District Board of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Wytrwal v. Saco School Bd., 70 F.3d 165, 170 (1st Cir.1995); Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir.1993).⁹

As for the political affiliation contention, the partisan statements attributed by the plaintiffs to Riesenberg are sufficient for present purposes to support an inference that they were fired because they were perceived as insufficiently loyal to the Menino regime. Without conceding the ultimate point, defendants offer evidence that plaintiffs' positions in City government were at a sufficiently high level to make political loyalty a legitimate criterion of their tenure.¹⁰

Although fact-intensive, the determination whether a government position is "political" is a matter of law to be decided by the court. Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 12 (1st Cir.1996). A common consideration is to ask whether an employee occupies a position of trust, although the answer to that question is not dispositive. "Under some circumstances, a position may be appropriately...