Kaluczky v. City of White Plains

Decision Date08 June 1995
Docket NumberD,No. 1177,1177
Citation57 F.3d 202
PartiesStephen KALUCZKY, Plaintiff-Appellee, v. CITY OF WHITE PLAINS, and the City of White Plains, New York, Defendant, Kevin D. Fish, individually and as Executive Officer for the City of White Plains, Sy Schulman, individually and as Mayor of the City of White Plains, and Timothy Dolph, individually and as Senior Personnel Assistant, Defendants-Appellants. ocket 94-7827.
CourtU.S. Court of Appeals — Second Circuit

Bertrand B. Pogrebin, Rains & Pogrebin, P.C., Mineola, NY, (Richard G. Kass, of counsel), for defendants-appellants.

Jonathan Lovett, Lovett & Gould, White Plains, NY, for plaintiff-appellee.

Before: McLAUGHLIN and JACOBS, Circuit Judges, and KAUFMAN, Senior District Judge. *

JACOBS, Circuit Judge:

Stephen Kaluczky is the Personnel Officer for the City of White Plains ("the City"), a six-year appointive post. A registered Republican, Kaluczky was re-appointed for a second six-year term in 1992, the last year of a Republican administration. Defendants are three White Plains officials who came into power on the Democratic ticket in 1993. Kaluczky alleges that these Democratic office-holders have retaliated against Kaluczky for his political views, his party affiliation, and certain testimony that Kaluczky gave (during his first term) at a disciplinary hearing that ended in the dismissal of a Democrat, all in violation of Kaluczky's First and Fourteenth Amendment rights protected by 42 U.S.C. Sec. 1983. Defendants Kevin Fish, who is the Executive Officer of White Plains Mayor Sy Schulman, and Timothy Dolph, the City's Senior Personnel Assistant, moved to dismiss the complaint on the grounds that they have qualified immunity; that plaintiff, as a confidential, policymaking employee, enjoys no First Amendment protection from adverse treatment by political adversaries; and that the district court should not exercise its discretion to hear the allegedly meritless pendent state claims. These defendants appeal from an oral order of the District Court for the Southern District of New York (Brieant, J.) denying their motion. The City of White Plains appears to have moved for dismissal; however, the City's claim is not before us because we have jurisdiction only to consider the individual defendants' motion for qualified immunity.

I. Background

Stephen Kaluczky was first appointed Personnel Officer for the City of White Plains by Republican Mayor Alfred Del Vecchio in 1986. The position of Personnel Officer carries a statutory six-year term of office. See N.Y.Civ.Serv.Law Sec. 15; see also White Plains City Charter Sec. 238-g. Since the mayoralty is a four-year elective post, a Personnel Officer will sometimes serve with the mayor of a rival party.

The following recitation of facts is drawn from plaintiff's complaint and is assumed to be factually true for purposes of this appeal.

On November 13, 1990, Mayor Del Vecchio was assaulted at a collective bargaining session by Joseph Roche, who was then President of the local chapter of the Civil Service Employees Association's bargaining unit. Kaluczky witnessed the incident. Del Vecchio brought disciplinary charges against Roche, a Democrat active in city politics. Roche was subsequently brought before a disciplinary hearing. Kaluczky, who testified in part as an eye witness, went on to opine that Roche could be discharged for his misconduct and that Roche's prior partisan political activity had been improper. Kaluczky characterizes all of his testimony as "truthful". As a result of the hearings, Roche was fired.

In September 1992, Mayor Del Vecchio re-appointed Kaluczky subject to confirmation by the White Plains Common Council. At the time, the Common Council was controlled by the Democrats who hoped to delay Kaluczky's confirmation proceedings until after the 1993 mayoral elections. However, Kaluczky was automatically confirmed as Personnel Officer in October 1992, because of a technical procedural rule that the Democrats had overlooked.

Defendant Sy Schulman, a long-time Democratic member of the Common Council, opposed Del Vecchio in the 1993 mayoral election. Kaluczky, a registered Republican who had not previously been active in local elections, actively endorsed Del Vecchio's candidacy, stuffing envelopes with campaign literature and writing personal notes urging voters to re-elect the mayor.

Schulman defeated Del Vecchio in the November election, and took office in January 1994. Roche, who remained active in Democratic politics after being fired by the Del Vecchio administration, was given a job in the Schulman administration.

Soon after the 1993 election, Mayor Schulman requested that Kaluczky resign so that Schulman could appoint one of his political colleagues as Personnel Officer. When Kaluczky refused, Schulman and the other defendants took measures to induce his resignation. Specifically, Kaluczky alleges that the defendants curtailed many of his professional responsibilities: by threatening to transfer his duties to other departments; by actually transferring many of his responsibilities to defendant Dolph, one of Schulman's loyal subordinates; and by excluding him from "making personnel decisions", "attending cabinet level meetings", conducting city labor negotiations, and "determining personnel practices and policies". Second, Kaluczky alleges that the defendants humiliated him and isolated him politically by denying Kaluczky access to the mayor; refusing to speak with him in public; turning away when Kaluczky addressed them; refusing to return Kaluczky's phone calls; excluding Kaluczky from various strategy meetings, high level committees, and weekend retreats; and verbally assaulting him for his political affiliation and his political support for Del Vecchio. Fish threatened to make Kaluczky "go through hell" if he refused to resign. Last, the defendants threatened to freeze Kaluczky's pay.

Notwithstanding all this, Kaluczky has retained his statutory position and the perquisites of his office. In May 1994, after this lawsuit was commenced, he was given a 2.54% raise.

Kaluczky's complaint, filed on April 24, 1994, asserts five federal claims: (1) that defendants retaliated against plaintiff for his political affiliation in violation of the First and Fourteenth Amendments; (2) that defendants retaliated against plaintiff for the exercise of his right to associate with Del Vecchio in violation of the First and Fourteenth Amendments; (3) that defendants retaliated against plaintiff for his political support of Del Vecchio's campaign in violation of the First and Fourteenth Amendments; (4) that defendants retaliated against plaintiff for having given "truthful" testimony (at the Roche hearing) on matters of a public concern, in violation of the First and Fourteenth Amendments; and (5) that defendants unlawfully "chilled" plaintiff's exercise of his First and Fourteenth Amendment rights. Kaluczky also pleaded a pendent state claim alleging that the defendants' retaliatory conduct violated the "rights and obligations" of his office in violation of Sec. 238-g of the White Plains City Charter, the New York State Civil Service Law and Article V, Sec. 6 of the New York State Constitution. The complaint seeks compensatory and punitive damages as well as declaratory and injunctive relief.

On June 23, 1994, defendants moved to dismiss the complaint on the ground that policymaking employees (such as Kaluczky) are not protected from rough treatment when they exercise their First Amendment rights; that the defendants have qualified immunity from personal liability; and that the state law claims, being meritless, do not justify the exercise of discretion required to hear them. On July 29, following oral argument, Judge Brieant denied the motion without issuing a written opinion. The defendants took a timely appeal of the district court's denial of their claim of qualified immunity.

II. Discussion

The motion for qualified immunity was presented under Rule 12(b)(6). In reviewing a complaint under that Rule, we accept as true the material facts alleged in the complaint and draw all reasonable inferences in plaintiff's favor. See Hill v. City of New York, 45 F.3d 653, 657 (2d Cir.1995). To prevail on appeal, defendants must carry the burden of showing that "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see Ragin v. New York Times Co., 923 F.2d 995, 999 (2d Cir.), cert. denied, 502 U.S. 821, 112 S.Ct. 81, 116 L.Ed.2d 54 (1991). This cautionary standard applies with greater force where the plaintiff alleges civil rights violations. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 117, 130 L.Ed.2d 63 (1994); Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2749, 129 L.Ed.2d 867 (1994).

A. Subject Matter Jurisdiction

An order denying a motion to dismiss on the ground of qualified immunity is immediately appealable where the district court has rejected that defense as a matter of law. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985); Hill, 45 F.3d at 659-60. If defendants' immunity defense depends on disputed factual issues, appellate review must await the resolution of those issues at trial. See Hill, 45 F.3d at 660; DiMarco v. Rome Hosp., 952 F.2d 661, 665 (2d Cir.1992). Thus, we have appellate jurisdiction to consider the immunity defense only to the extent that the issue can be decided as a matter of law.

An appellate court having jurisdiction over some questions on appeal may exercise its discretion to take pendent jurisdiction over independent nonappealable, but related questions. See Golino v. City of New Haven, 950 F.2d 864, 868-69 (2d Cir.1991), cert. denied Y--- U.S. ----, 112 S.Ct....

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