Schallop v. New York State Dept. of Law

• Citation: 20 F.Supp.2d 384
• Decision Date: 14 September 1998
• Docket Number: No. 96-CV-1059(DRH).,96-CV-1059(DRH).
• Parties: Amy SCHALLOP, Plaintiff, v. NEW YORK STATE DEPARTMENT OF LAW; Dennis C. Vacco; Donald P. Berens; Tricia Troy Alden; William M. Flynn; John Doe; and Jane Roe, All Individually and in their Official Capacities, Defendants.
• Court: U.S. District Court — Northern District of New York

20 F.Supp.2d 384

Amy SCHALLOP, Plaintiff, v. NEW YORK STATE DEPARTMENT OF LAW; Dennis C. Vacco; Donald P. Berens; Tricia Troy Alden; William M. Flynn; John Doe; and Jane Roe, All Individually and in their Official Capacities, Defendants.

No. 96-CV-1059(DRH).

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

September 14, 1998.

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Gleason, Dunn, Walsh & O'Shea, Albany, NY (Mark T. Walsh, of counsel), for Plaintiff.

Snitow & Pauley, New York City (Franklyn H. Snitow, Charles D. Cunningham, of counsel), for Defendants.

MEMORANDUM-DECISION AND ORDER

HOMER, United States Magistrate Judge.

Plaintiff Amy Schallop ("Schallop"), a former New York State Assistant Attorney General ("AAG"), brought this action against the New York State Department of Law ("DoL") and certain of its officials alleging that her employment was wrongfully terminated in violation of her First Amendment right to free speech and on the basis of her gender.¹ Schallop seeks monetary damages and injunctive relief in the form of reinstatement to her position. Presently pending is defendants' motion for summary judgment on all claims pursuant to Fed.R.Civ.P. 56. Docket No. 61. Also pending is Schallop's cross-motion for partial summary judgment against defendant William M. Flynn. Docket No. 65. For the reasons which follow, defendants' motion is granted in part and denied in part, and Schallop's cross-motion is denied.

I. Background

The DoL is headed by the Attorney General. N.Y. Const. art. V., § 4; N.Y.Exec.Law § 60. The Attorney General is vested with a full range of authority and responsibilities beginning with the duty to prosecute and defend all legal actions in which New York has an interest. See N.Y.Exec.Law § 63. The Attorney General is empowered to appoint AAGs to assist him in the performance of his duties. Id. at § 62. In November 1994, defendant Dennis C. Vacco ("Vacco") was elected Attorney General. Snitow Decl. (Docket No. 61), ¶ 7. When he assumed office on January 1, 1995, Vacco became the first Republican to serve as Attorney General in fifteen years. Id.

Defendant Donald P. Berens ("Berens") is the Deputy Attorney General for the Dol's Division of State Counsel. Berens Decl. (Docket No. 61), ¶ 1. Defendant William M. Flynn ("Flynn") is the First Deputy Attorney General. Flynn Reply Decl. (Docket No. 74), ¶ 1. Defendant Tricia Troy Alden ("Alden") is the AAG in charge of Legal Personnel Recruitment and Staff Development. Berens Decl., ¶¶ 33-34.² Schallop was appointed as an AAG by then Attorney General Robert Abrams on February 23, 1990. She began work in the Dol's Albany Litigation Bureau effective March 12, 1990. Cunningham Decl. (Docket No. 63), Ex. C.

After taking office, Vacco commenced a complete review of the Dol's professional staff. He invited those interested in retaining their employment to reapply for their positions. Berens Decl., ¶ 31. Those interested in continuing their employment were told to submit to Flynn a resume and a brief outline of their current responsibilities. Id. at ¶ 32. Berens, Flynn, and Alden, among others, comprised an informal "Vacancy Committee" which managed the evaluation process. Id. at ¶¶ 33 & 40. Once applications were received, interviews were generally conducted by a panel of Vacancy Committee members. Interview evaluations were memorialized for some but not all applicants on Legal Recruitment Evaluation ("LRE") forms. See Cunningham Decl., Ex. M. Vacco delegated to Flynn the authority to make reappointment decisions. Flynn Dep. (Docket No. 69), pp. 54-57.

Schallop had taken a maternity leave in December 1994 and was scheduled to return to work in June 1995. Cunningham Decl., Ex. O. Her leave was later extended to August 1995.³ Id. at Ex. P. In January 1995, upon learning of Vacco's reapplication process, Schallop submitted to Flynn a letter stating her desire for reappointment, a resume and a statement of her duties at DoL. Id. at Ex. K. Schallop was interviewed for reappointment on June 28, 1995. Berens Decl., ¶. 50. The panel which conducted the interview consisted of Berens, Alden and AAGs Lisa B. Elovich and Susan Marie Tatro. Id. Each interviewer completed an LRE form for Schallop. Berens and Alden recommended that Schallop be reappointed while Tatro and Elovich were undecided. Cunningham Decl., Ex. Q.

In late August 1995, as a result of the reappointment process, the employment of six AAGs from Schallop's office was terminated. Am.Compl., ¶ 30; Answer to Am. Compl., ¶ 14. In an August 29, 1995 newspaper article, a DoL spokesperson responding to charges that the AAGs were fired for political reasons stated that the qualifications of the fired employees was "not up to the level we expect. We can't afford to have dead wood on board." Cunningham Dec., Ex. BB. In response to that article, Schallop contacted a reporter to discuss the recent firings. Schallop Dep. (Cunningham Decl., Ex. F.), pp. 41-44. In a newspaper article published September 1, 1995, Schallop was quoted as follows: "[T]he quality of the people who were fired was outstanding, and anyone who knows anything about their work couldn't possibly say otherwise." Cunningham Decl., Ex. EE.

Schallop thereafter inquired on several occasions whether a decision had been made on her reappointment. She eventually sent a letter dated December 11, 1995, to Tatro requesting a "definitive answer." Id. at Ex. W. Finally, in a letter from Salvatore Page dated December 27, 1995, Schallop was informed that her employment was terminated effective January 10, 1996. Id. at Ex. D. This action followed.

II. Discussion

In her amended complaint Schallop asserts seven causes of action. The first two assert violations of her free speech rights under the First Amendment and 42 U.S.C. § 1983. The third and seventh have been dismissed. See note 1 supra. The fourth, fifth and sixth causes of action assert gender discrimination respectively in violation of Title VII, 42 U.S.C. § 2000e et seq.; the Equal Protection Clause and section 1983; and the New York Human Rights Law, N.Y.Exec.Law § 290 et seq. (McKinney 1993 & Supp.1998).

A. Summary Judgment Standard

Under Fed.R.Civ.P. 56(c), if there is "no genuine issue as to any material fact ... the moving party is entitled to judgment as a matter of law, ... where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party bears the burden of demonstrating that no genuine issue of material fact exists. FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994); see also Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975). Once the movant has come forward with sufficient evidence in support of the motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed.R.Civ.P. 56(e); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994).

The trial court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. American Cas. Co. of Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir.1994); see also Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985). "Furthermore, the non-movant `will have his allegations taken as true, and will receive the benefit of the doubt when his assertions conflict with those of the movant.'" Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir.1996) (citations omitted). However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Eleventh Amendment Immunity

Schallop's claims here include those under section 1983 in her first, second and fifth causes of action against the DoL and against the other defendants in their official capacities. As a threshold matter, the defendants assert that those claims are barred by the Eleventh Amendment. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI.⁴ Rather than an absolute bar to federal court jurisdiction, the Eleventh Amendment establishes a sovereign immunity from suit which may only be waived by a state or abrogated by Congress. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 2033, 138 L.Ed.2d 438 (1997). It is well settled that Congress did not abrogate the immunity provision in adopting section 1983, Quern v. Jordan, 440 U.S. 332, 340-42, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), and there is no contention here that New York has waived its immunity by consenting to be sued in these circumstances.

Claims brought against state agencies, like those against the DoL here, constitute direct claims against the state and are barred by the Eleventh Amendment. Komlosi v. New York State Office of Mental Retardation & Developmental Disabilities, 64 F.3d 810, 815 (2d Cir.1995); see also Seminole Tribe, 517 U.S. at 58, 116 S.Ct. 1114 ("the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment."). Claims for damages brought against state employees in their official capacities are likewise construed as claims against the state and fall to the same Eleventh Amendment bar. Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Thus, the section 1983 claim...