Rao v. New York City Health and Hospitals Corp.

• Decision Date: 16 August 1995
• Docket Number: No. 89 Civ. 2700 (JGK),89 Civ. 7060.,89 Civ. 2700 (JGK)
• Citation: 905 F. Supp. 1236
• Parties: Ramakrishna C.V. RAO, Plaintiff, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION; Jo Ivey Boufford, both individually and in her capacity as President of the New York City Health and Hospitals Corporation; Anthony Japha, both individually and in his capacity as Vice President of the New York City Health and Hospitals Corporation; Dennis Newman, both individually and in his capacity as Chief Engineer of the New York City Health and Hospitals Corporation; Robert Weigand, both individually and in his capacity as Deputy Chief Engineer of the New York City Health and Hospitals Corporation; and Paul Rozsypal, both individually and in his capacity as Group Director of the New York City Health and Hospitals Corporation, Defendants.
• Court: U.S. District Court — Southern District of New York

905 F. Supp. 1236

Ramakrishna C.V. RAO, Plaintiff, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION; Jo Ivey Boufford, both individually and in her capacity as President of the New York City Health and Hospitals Corporation; Anthony Japha, both individually and in his capacity as Vice President of the New York City Health and Hospitals Corporation; Dennis Newman, both individually and in his capacity as Chief Engineer of the New York City Health and Hospitals Corporation; Robert Weigand, both individually and in his capacity as Deputy Chief Engineer of the New York City Health and Hospitals Corporation; and Paul Rozsypal, both individually and in his capacity as Group Director of the New York City Health and Hospitals Corporation, Defendants.

Nos. 89 Civ. 2700 (JGK), 89 Civ. 7060.

United States District Court, S.D. New York.

August 16, 1995.

COPYRIGHT MATERIAL OMITTED

Michael H. Sussman, Sussman Law Offices, Goshen, NY, for plaintiff.

Paul A. Crotty, Corporation Counsel of City of New York, New York City, for defendants.

KOELTL, District Judge:

After a nine day trial of these consolidated cases, a jury returned a verdict, based on answers to special interrogatories, finding for the plaintiff, Ramakrishna Rao, against defendants Anthony Japha, Dennis Newman, and Robert Weigand on the plaintiff's claim that their termination of his employment at the New York City Health and Hospitals Corporation ("HHC") violated his First Amendment rights. The jury awarded compensatory damages of $100,000 under 42 U.S.C. § 1983. It found the remaining individual defendant, Paul Rozsypal, not to be liable for any violation of the plaintiff's First Amendment rights and found that none of the defendants terminated the plaintiff's employment on account of his national origin.¹ The jury also found that the wrongful actions of the liable defendants were not taken pursuant to an official policy, custom, or practice of HHC and thereby found HHC not to be liable to the plaintiff. See Monell v. Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In addition to his § 1983 claims for violation of First and Fourteenth Amendment rights, the plaintiff pleaded claims for violations of Title VII of the Civil Rights Act of 1964 which were not presented to the jury, because this action was filed prior to the 1991 amendments to the Act. See Postema v. Nat'l League of Professional Baseball Clubs, 998 F.2d 60, 61-62 (2d Cir.1993) (holding that 1991 Civil Rights Act amendments to Title VII providing for jury trials are not retroactive). After trial, the Court dismissed the Title VII claims in an opinion and order dated April 7, 1995 in accordance with the jury's finding that Rao had not been terminated on account of his national origin. See Rao v. New York City Health and Hosp. Corp., 882 F.Supp. 321 (S.D.N.Y.1995). The defendants now move for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b).

At trial, all of the defendants admitted to having participated in the termination of the plaintiff's employment with HHC in March, 1987. The jury was asked to determine: 1) whether the individual defendants' decisions to terminate Rao's employment were motivated by his national origin, and 2) whether Rao had engaged in various forms of speech that the Court found to be protected by the First Amendment and, if so, whether such speech was a substantial or motivating factor in the defendants' termination decisions. The jury found that for defendants Japha, Newman, and Weigand the following instances of protected speech were substantial or motivating factors in their decisions to terminate Rao: (1) Rao's verbal complaints about the failure of a contractor, Joseph L. Muscarelle, Inc., to comply with the terms of its contract with HHC for work to be done at the Cumberland Neighborhood Family Care Center in Brooklyn and (2) Rao's December 15, 1986 memorandum to defendant Weigand complaining about Muscarelle's alleged failings and alleged extortionate threats made by Free At Last, a community group allegedly demanding money and jobs at the project.² The jury also found the liable defendants did not prove by a preponderance of the evidence that they would have terminated Rao's employment even if they had not considered his protected speech. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (holding that once the finder of fact determines that protected speech was a substantial or motivating factor in a municipal defendant's adverse action against a municipal employee, the finder of fact must consider whether the defendant has established a defense by proving by a preponderance of the evidence that the defendant would have taken the same action in the absence of the protected speech). Thus, the jury's answers to the special interrogatories established that defendants Weigand, Japha, and Newman terminated Rao's employment in violation of 42 U.S.C. § 1983.³

The defendants have moved for judgment as a matter of law, arguing that the speech that the jury found to have been a substantial or motivating factor in Rao's termination was not protected by the First Amendment, or, alternatively, if it was protected, the defendants are entitled to qualified immunity, because they reasonably believed their actions were not violative of the plaintiff's rights. For the reasons stated below, the defendants' motion is denied.

I.

In the opinion dated April 7, 1995, the Court made the following findings of fact in dismissing the plaintiff's Title VII claim in conformance with the finding of the jury that he was not terminated on account of his national origin. See Rao, 882 F.Supp. 321. On July 21, 1986, HHC hired plaintiff Ramakrishna Rao as a Director, Engineering and Facilities Services, Capital Programs, on the recommendation of defendant Robert Weigand who was Senior Deputy and Chief Engineer, Capital Programs. During his tenure at HHC, Rao's superiors were defendants Weigand; Paul Rozsypal, Group Director, Construction Management, Capital Programs; Dennis Newman, Assistant Vice President and Chief Engineer, Capital Programs; and Anthony Japha, Senior Assistant Vice President, Capital Programs.

Rao was initially assigned as Director of HHC's North District, which encompassed the Bronx and Upper Manhattan. In the North District, Rao had encountered significant difficulties with a subordinate, Gary Yates, whom Rao considered to be insubordinate. In December, 1986, the defendants transferred Rao to a temporary assignment as the on-site project manager at the Cumberland Neighborhood Family Care Center in Brooklyn, which was undergoing extensive renovation in HHC's most expensive new construction project at the time. Rao authored a December 15, 1986 memo to defendant Weigand (attached hereto as Appendix A) complaining about numerous aspects of the Cumberland project, including alleged deficiencies in the performance of Joseph L. Muscarelle, Inc., a contractor, and of alleged extortion attempts by a community action group, Free At Last. Weigand was not pleased with the memo, alleging at trial that the reason for his dissatisfaction was that he was already aware of virtually everything reported in it. Rao testified:

Mr. Weigand was furious. He indicated that over the phone, he had no time to read my December 15th memorandum, Exhibit 21, and I should not be writing or sending such memoranda in the future without his approval. And he immediately said that is not why I sent you to Cumberland.

Tr. of Nov. 23, 1994 at 14. Rao also testified that after reading the memorandum Weigand said that Rao should look for another job. Id.

On December 23, 1986, Rao met with defendant Japha and they discussed some of Rao's concerns about his employment situation. Japha told Rao that if he could not get along with Weigand, he should find another job. On or about February 10, 1987, defendant Weigand informed Rao that his services were no longer required and offered him the option of resigning. Weigand had discussed the decision to terminate Rao with both Japha and Newman who concurred. On February 13, 1987, Rao was informed that he had been given an unsatisfactory performance evaluation. Rao received a copy of the evaluation on February 23, 1987. On or about March 6, 1987, Rao received a letter informing him that his employment with HHC would be terminated effective March 13, 1987.

II.

A public employee may not be terminated due to the exercise of the employee's First Amendment rights. See Luck v. Mazzone, 52 F.3d 475, 476 (2d Cir.1995) ("A public employee does not relinquish her First Amendment rights to comment on matters of public interest by virtue of government employment.") (citing Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 1686, 75 L.Ed.2d 708 (1983) and Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)). To prevail on a claim for wrongful termination in violation of First Amendment rights, a public employee must show (1) that the speech at issue was constitutionally protected and (2) that it was a substantial factor in the decision to terminate the employment. Mount Healthy, 429 U.S. at 286, 97 S.Ct. at 575; White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1057-59 (2d Cir.1993). If the plaintiff proves these elements, a public employer and its agents may avoid liability by proving by a preponderance of the evidence that they would have terminated the plaintiff even in the absence of protected conduct. Mount Healthy, 429 U.S. at 286, 97 S.Ct. at 575; White Plains Towing, 991 F.2d at 1059.

To be protected by the First Amendment and by judicial remedies, speech by a government employee must address a matter of public concern. Connick, 461 U.S. at 140-49, 103 S.Ct. at 1686-91. However, speech addressing a matter of public concern will only be protected if the interests of the employee, as a citizen, in commenting upon matters of public...