Mansour v. Abrams

• Decision Date: 22 May 1991
• Parties: John MANSOUR and Helga-Roswitha Mansour, Plaintiffs, v. Robert ABRAMS, Ronald Goldstock and Martin Marcus, Defendants.
• Court: New York Supreme Court

Page 364

573 N.Y.S.2d 364

151 Misc.2d 121

John MANSOUR and Helga-Roswitha Mansour, Plaintiffs, v. Robert ABRAMS, Ronald Goldstock and Martin Marcus, Defendants.

Supreme Court, Monroe County.

May 22, 1991.

John Mansour, Rochester, pro se, and for Helga-Roswitha mansour.

Robert Abrams, Atty. Gen., pro se (Diane M. Cecero and Eugene Welch, Asst. Attys. Gen., of counsel), Rochester, for defendants.

DAVID O. BOEHM, Justice.

The plaintiff, John Mansour, joined the New York State Organized Crime Task Force (Task Force) as an Assistant Attorney General in 1970. In 1981, defendant, Ronald Goldstock, was appointed by the Governor and the Attorney General, defendant Robert Abrams, to head the Task Force, and a year later, defendant, Martin Marcus, was hired as First Assistant in charge of Field Operations.

The Task Force had been without a permanent director for eight years before Goldstock was appointed. After his appointment, Goldstock implemented a major reorganization involving the formation of investigative teams comprised of investigators, accountants, analysts and lawyers. Under the team structure, decisions involving investigations and prosecutions were to be made by consensus. Although deferred to on legal matters, the attorney team member no longer had line authority over non-legal professional staff.

Prior to Goldstock's appointment, the plaintiff had been the de facto supervisor of the staff at the Rochester regional office. However, after the reorganization, he was assigned as a team attorney with the Financial Crimes Team for the Task Force's western region, headquartered in Buffalo. Performance evaluations prepared by Marcus make it appear that the plaintiff did not perform well within the team structure. On October 26, 1983, during a performance evaluation meeting with plaintiff, Marcus told him to find a new job.

Following his termination, plaintiff commenced this action seeking damages for defamation, interference with contractual rights and, under 42 U.S.C. § 1983, violation of his civil rights. Defendants move for summary judgment dismissing the complaint, and plaintiff cross-moved for partial summary judgment and for leave to amend his complaint.

In support of his Section 1983 claim, the amended complaint and plaintiff's affidavit allege that plaintiff expressed himself on a number of occasions on matters of public concern, and that such expressions were a substantial factor in defendants' decision to discharge him. Specifically, plaintiff alleges that he refused instructions from Marcus and Goldstock to present a matter to a Grand Jury because the Grand Jury had no power to consider the matter; that he disagreed with Marcus whether there was sufficient evidence to obtain an indictment in Monroe County for criminal possession of stolen property against a suspect because there was no proof of possession in Monroe County; that he accepted an attorney's offer to surrender his client for arraignment, despite protests from a Task Force investigator who wanted to arrest the individual late on a Friday so that he would have to remain in jail over the weekend as a means of pressuring him into cooperating with an ongoing investigation; that he recommended the return of items seized pursuant to a search warrant when they were later found to have no evidentiary value, despite the wishes of other Task Force members who wanted to retain the items indefinitely to put pressure on the owner; that he objected to the use of subpoenas to compel individuals to travel to the Task Force office in Buffalo for informal interviews; that he advised against initiating an investigation proposed by Marcus involving wiretaps and requiring extensive manpower, where the subject of the investigation was already awaiting imminent trial in Federal Court; that he disagreed with Marcus' instruction that interviews disclosing potentially exculpatory information should not be preserved; and, that he suggested an allegedly stolen truck engine be inspected by an expert to determine its value and condition to test the owner's claim that it was damaged and to ascertain the difference between its value and the amount the owner paid.

Defendants' motion to dismiss raises the objection that plaintiff's allegations reveal only areas of disagreement and dissatisfaction which do not constitute protected First Amendment speech.

Although, generally, an employer has an unfettered right to terminate an at-will employee, the employee may not be terminated for a constitutionally impermissible reason (see, Mt. Healthy City School District Board of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 305, 461 N.Y.S.2d 232, 448 N.E.2d 86). It is well settled that public employment may not be made subject to conditions which infringe upon an employee's constitutionally protected right of freedom of expression (Keyishian v. Board of Regents, 385 U.S. 589, 605-606, 87 S.Ct. 675, 684-685, 17 L.Ed.2d 629). To determine whether such a right has been violated, it is necessary to balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees" (Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811).

Before such balancing is required, however, the court must initially decide whether the speech at issue touches upon a matter of public concern. If it does not, it is not entitled to First Amendment protection (see, Giacalone v. Abrams, 2nd Cir., 850 F.2d 79, 86). When an employee's expression does not relate to a "political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment" (Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708).

Whether speech involves a matter of public concern is determined by its content, form and context (Id. at 147-148, 103 S.Ct. at 1690-1691). The inquiry focuses on the extent to which the employee speech "was calculated to disclose wrongdoing or inefficiency or other malfeasance on the part of governmental officials in the conduct of their official duties" (Koch v. City of Hutchinson, 10th Cir., 847 F.2d 1436, 1445, cert. den. 488 U.S. 909, 109 S.Ct. 262, 102 L.Ed.2d 250), and whether the employee was speaking as "a concerned public citizen, informing the public that the state institution is not properly discharging its duties ... or merely as an employee, concerned only with internal policies or practices which are of relevance only to the employees of that institution" (Cox v. Dardanelle Pub. School Dist., 8th Cir., 790 F.2d 668, 672).

Initially, the burden is on plaintiff to show that his speech was constitutionally protected, and that it was a substantial or motivating factor in the defendants' decision to terminate him. If plaintiff meets that burden, defendants must then show by a preponderance of the evidence that they would have reached the same decision even in the absence of the protected speech (Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50...