McEvoy v. Spencer
| Decision Date | 11 August 1997 |
| Docket Number | D,No. 1306,1306 |
| Parties | 13 IER Cases 387 Albert R. McEVOY, Plaintiff-Appellee, v. John SPENCER, individually and as Mayor of the City of Yonkers; Donald Christopher, individually and as Commissioner of Police of the City of Yonkers, Defendants-Appellants. ocket 96-9333. |
| Court | U.S. Court of Appeals — Second Circuit |
Elisabeth A. Palladino, Deputy Corporation Counsel, Yonkers, NY (Philip A. Zisman, Corporation Counsel, Yonkers, NY, on the brief), for defendants-appellants.
Craig T. Dickinson, Lovett & Gould, White Plains, NY, for plaintiff-appellee.
Before: NEWMAN, McLAUGHLIN, and CUDAHY, * Circuit Judges.
This appeal presents several issues concerning a public employer's right to take adverse action against an employee for exercising his First Amendment speech and his First Amendment associational rights. The issues arise at the intersection of the doctrines set forth in two Supreme Court decisions, Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). In brief, Pickering accorded public employees some protection from adverse action taken because of their speech, while Elrod gave them some protection if they were discharged because of their political affiliation, unless they occupied "policymaking" positions. This appeal raises questions regarding (1) the nature of the distinction between the Pickering and the Elrod lines of Supreme Court decisions, (2) the proper method of analysis to be used when a public employer's adverse actions against an employee are motivated both by speech protected by Pickering and by political considerations that left the employee vulnerable under Elrod, and (3) the effect of an employee's policymaking status in the Pickering balancing test.
These issues arise on an appeal by defendants John Spencer and Donald Christopher from the September 12, 1996, order of the District Court for the Southern District of New York (Jed S. Rakoff, Judge), denying the defendants' motion to dismiss the complaint of plaintiff Albert McEvoy on the ground of, among other things, qualified immunity. We conclude (1) that employment action taken because of both speech protected under Pickering and political association unprotected under Elrod creates no liability and (2) that where employment action is taken solely because of speech, the employee's policymaking role weighs in favor of the employer in the Pickering balance, but does not provide automatic insulation from liability. Since the first ruling precludes all liability for plaintiff's first demotion, we dismiss the claim concerning that action, at least insofar as it concerns appellants Spencer and Christopher. Since the second ruling settles a point of law that was unsettled at the time of plaintiff's second demotion, we uphold defendants' claim of qualified immunity as to the second demotion and remand for further proceedings with respect to that action.
Because the defendants' claim to qualified immunity was presented in a Rule 12(b)(6) motion to dismiss, we accept as true all material facts alleged in the plaintiff's complaint and draw all reasonable inferences in his favor. See Hill v. City of New York, 45 F.3d 653, 657 (2d Cir.1995). The essential factual allegations, set forth in the plaintiff's supplemental complaint, are as follows.
In the Spring of 1995, McEvoy was appointed Police Commissioner of Yonkers by former Yonkers Mayor Terence Zaleski. McEvoy's appointment was subsequently approved by the Yonkers City Council.
After taking office as Police Commissioner, McEvoy "publicly and in-house" expressed his opinion that the prior Commissioner had permitted excessive and unnecessary overtime payments to police officers, that the police department had been grossly mismanaged, and that sworn members of the department, with the help of their union, defendant Police Benevolent Association of the City of Yonkers ("the Union"), had abused their control over police deployment and other important employment issues. McEvoy thereafter instituted substantial reforms in the administration of the police department. He cut overtime expenditures, enforced disciplinary rules, and attempted generally to regain control over the department from the Union and its members.
In response to McEvoy's criticisms and initiatives, Union membership commenced an orchestrated work slowdown, which reduced police protection in the City of Yonkers. McEvoy publicly decried this action as unlawful, and instituted a proceeding before the New York State Public Employment Relations Board ("PERB") to petition for redress against the striking officers and the Union. This action further aroused the rank and file of the department against McEvoy.
As these events were unfolding, defendant Spencer, then a member of the City Council, began campaigning for election as mayor of Yonkers against the incumbent Zaleski. With a view toward removing McEvoy from the office of the Commissioner, the Union and certain of its members approached candidate Spencer, who needed Union support, and "struck a deal" with him. Under the terms of this agreement, the Union would publicly endorse Spencer and offer him financial support in exchange for Spencer's promise, upon his election, to remove McEvoy from the Commissionership and replace him with defendant Christopher, preferred by the Union. Spencer agreed to this arrangement despite the fact that he had previously written to McEvoy to advise him that he would continue as Commissioner until the year 2000 if Spencer was elected mayor.
With the Union's assistance, Spencer won the mayoral election in November 1995. Shortly after he was sworn into office in January 1996, Spencer replaced McEvoy with Christopher and demoted McEvoy to the position of Deputy Chief.
In April 1996, McEvoy filed the present section 1983 suit against Spencer, Christopher, the Union, and the City of Yonkers, alleging that their conspiracy to demote him to Deputy Chief violated his First Amendment rights to free speech and to petition government for redress of grievances. The original complaint alleged, for instance, that Spencer "was aware of Plaintiff's said opinions ... [and intended to] punish[ ] Plaintiff for having advocated reform" in the police department by removing him as Commissioner. The complaint sought compensatory and punitive damages as well as the removal of Christopher and the reinstatement of McEvoy to the Commissionership.
As a proximate result of McEvoy's filing of the original complaint, defendants Spencer and Christopher entered into another agreement in which they determined to retaliate against McEvoy for suing them. Five days after the suit was filed, Christopher summoned McEvoy to his office and informed him that he was being further demoted to the rank of Captain because of the institution of the present suit. Christopher also ordered McEvoy to assume command, upon his demotion, of one of the most crime-ridden precincts in Yonkers.
The next day, McEvoy filed a supplemental complaint, adding a new claim that Spencer and Christopher violated his rights to free speech and to petition government for redress of grievances by demoting and reassigning him in retaliation for filing the initial complaint. In May 1996, all of the defendants moved to dismiss the complaint on several grounds, including qualified immunity for defendants Spencer and Christopher. The District Court denied the motion in its entirety and ruled, regarding the qualified immunity issue, that this defense was unavailable because the pertinent contours of the protections afforded by the First Amendment were sufficiently clear at the time of the complained-of employment decisions for a reasonable official to recognize that these actions violated McEvoy's constitutional rights.
"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." Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir.1995); see Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985). We therefore have jurisdiction to review the District Court's ruling that, because the applicable law was clearly established at the time of McEvoy's two demotions, Spencer and Christopher are not entitled to qualified immunity.
The immunity question turns on whether it was objectively reasonable for Spencer and Christopher to believe that their decisions to demote McEvoy did not violate his clearly established constitutional rights. The resolution of this question "entails an inquiry into the nature and extent of the rights that [McEvoy] can assert, and whether [his] entitlement is well-settled." Kaluczky, 57 F.3d at 207. Because these underlying issues are "inextricably intertwined" with the qualified immunity issue, or are "necessary to ensure meaningful review" of that issue, Swint v. Chambers County Commission, 514 U.S. 35, 51, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995), we have discretion, on this interlocutory appeal, to exercise pendent jurisdiction over these related questions. We believe that there is "sufficient overlap in the factors relevant to the appealable and nonappealable issues to warrant our exercising plenary authority over the appeal" insofar as it concerns defendants Spencer and Christopher. See San Filippo v. United States Trust Co. of New York, 737 F.2d 246, 255 (2d Cir.1984) (quotations and brackets omitted).
The defense of qualified immunity shields government agents "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S....
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