Caraccilo v. Village of Seneca Falls, N.Y.

582 F.Supp.2d 390

Gail CARACCILO, Plaintiff, v. THE VILLAGE OF SENECA FALLS, NEW YORK, the Board of Trustees of the Village of Seneca Falls, New York, Antonio Constantino, individually and/or in his capacity as Mayor, Carson Lankford, individually and/or in his capacity as Trustee, Louis Lorenzetti, individually and/or in his capacity as Trustee, Charles P. Barbay, III, individually and/or in his capacity as Trustee; jointly and severally, Defendants.

No. 04-CV-6110L.

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

September 17, 2008.

Order Granting Reconsideration September 30, 2008.

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Lawrence J. Andolina, Daniel P. Debolt, Trevett, Cristo, Salzer & Andolina P.C., Rochester, NY, for Plaintiff.

Charles E. Symons, Frank W. Miller, The Law Firm of Frank W. Miller, East Syracuse, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

INTRODUCTION

Plaintiff, Gail Caraccilo, commenced this action against her former employer, the Village of Seneca Falls, New York ("Village"), the Village Board of Trustees ("Board"), the Village mayor, and the four individual Board members. Plaintiff alleges that defendants violated her constitutional rights in several respects in connection with the termination of her employment in 2002.

On January 14, 2005, the Court issued a Decision and Order (Dkt.# 14) granting in part and denying in part defendants' pre-discovery motion for summary judgment. The Court dismissed plaintiff's third and fourth causes of action, which asserted claims under 42 U.S.C. § 1985, but denied defendants' motion insofar as it sought to dismiss plaintiff's first and second causes of action, which respectively assert a Fourteenth Amendment due process claim and a First Amendment retaliation claim under 42 U.S.C. § 1983. I found that there were factual issues regarding both of those claims, which could not be resolved on the undeveloped record then before me.

Discovery is now complete. Defendants have renewed their summary judgment motion as to the two § 1983 claims, asserting that the undisputed evidence conclusively demonstrates that they are entitled to judgment as a matter of law, on a number of grounds.

BACKGROUND

The facts concerning the events giving rise to this case were set forth in the Court's prior summary judgment decision, familiarity with which is presumed, and will not be repeated at length here. In short, plaintiff was hired by the Village in 1989 as a planning assistant (also referred to as "planning clerk"), hereinafter "planning assistant," which was a permanent "competitive class" position under the New York Civil Service Law. As such, the position carried with it certain due process protections, such as the right to a pretermination hearing.

In October 1999, the Board appointed plaintiff to serve for the remaining portion of a two-year term as deputy village clerk ("deputy clerk"), which had become vacant when the previous deputy clerk resigned in mid-term. It does not appear to be disputed that as deputy clerk, plaintiff continued to perform some of the duties that she had performed as planning assistant, Dkt. #34-7 at 1, and that no one else was hired to fill the planning assistant position. Dkt. #32 at 4.

Although plaintiff received a pay increase with the new position, the deputy clerk position was not a competitive-class position, and therefore did not carry with it the same due process protections as the planning assistant position. The parties do not dispute that upon the expiration of a deputy clerk's two-year term, there is no statutory right to continued employment in that position, unless the person holding it is reappointed to another term.

When plaintiff's first term as deputy clerk expired on April 1, 2000, the Board reappointed her to a second two-year term. At the end of that second term, however, the Board did not reappoint plaintiff, nor was she reinstated to the planning assistant position. Thus, plaintiff's employment with the Village came to an end as of April 1, 2002. These actions form the bases for this lawsuit.

Plaintiff's due process claim is based on her contention that she retained due process rights in her position as planning assistant even after she became deputy clerk. According to plaintiff, she effectively served simultaneously as both planning assistant and deputy clerk, and when her term as deputy clerk expired, she should have been returned to her position as planning assistant. Plaintiff further contends that she was entitled to prior notice and a hearing before her employment in that position was terminated.

Plaintiff's retaliation claim is based on her allegation that defendants' decision not to reappoint her as deputy clerk was made in retaliation for plaintiff's exercise of her First Amendment rights in speaking out about certain matters of public concern. Those matters included certain practices of the mayor and the Board that plaintiff believed exceeded their authority under, or were contrary to, New York law.

Defendants contend that plaintiff did not retain any rights in connection with her planning assistant position after she became deputy clerk. They contend that the planning assistant position was simply eliminated at that time, and that there was thus no planning assistant position for plaintiff to return to when her term as deputy clerk ended.

Defendants also argue that plaintiff's due process claim fails as a matter of law because plaintiff did not avail herself of all that process that was available to her. Specifically, defendants argue that plaintiff could have challenged her termination by filing a petition under Article 78 of the New York Civil Practice Laws and Rules, or by filing a grievance under the controlling collective bargaining agreement, but that she did neither.

With respect to plaintiff's First Amendment claim, defendants contend that most of plaintiff's speech at issue was not protected under the First Amendment because it was made pursuant to plaintiff's job duties. In support of that argument, defendants principally rely upon the Supreme Court's decision in Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), in which the Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

To the extent that plaintiff alleges that she spoke outside the context of her job, as a private citizen (such as statements she made in connection with her participation in a local group, "Concerned Citizens for Good Government"), defendants contend that there is no evidence that they were even aware that plaintiff had engaged in that speech, and that there is thus no evidence that plaintiff's speech could have been a motivating factor in defendants' decision not to continue her employment with the Village.

DISCUSSION

I. Due Process Claim

A. General Principles

To prevail on a procedural due process claim, plaintiff first must identify a property or liberty interest that is entitled to due process protection. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). "Property interests protected by due process ... are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Martz v. Village of Valley Stream, 22 F.3d 26, 29 (2d Cir.1994) (internal quotes omitted); see also Flood v. County of Suffolk, 820 F.Supp. 709, 712 (E.D.N.Y.1993) (state law determines whether there is a property interest in employment).

With respect to due process claims arising out of a termination from public employment, the Court of Appeals for the Second Circuit has explained that

[t]he Fourteenth Amendment prohibits the discharge of a public employee with a property interest in continued employment in the absence of a pre-termination hearing. This circuit looks to New York Civil Service Law and the statutes which create a particular position or the authority to appoint or remove an individual to or from the position to determine whether a New York public employee has a property interest in his position requiring that he be afforded a hearing before termination.

Catone v. Spielmann, 149 F.3d 156, 160 (2d Cir.1998) (quotation marks and citations omitted).

The Court of Appeals has also made clear that a public employee's subjective expectation of continued employment, if unsupported by state law or an understanding among the parties, is insufficient to give rise to a protected property interest: "To state a deprivation of property claim under the Fifth and Fourteenth Amendments, a plaintiff `must have more than a unilateral expectation .... He must, instead, have a legitimate claim of entitlement ...." McPherson v. New York City Dep't of Educ., 457 F.3d 211, 216 (2006) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). See also Preddice v. Callanan, 92 A.D.2d 1040, 1041, 461 N.Y.S.2d 554 (3d Dep't 1983) ("In our view, petitioner's allegations demonstrate a mere unilateral expectation of continued employment insufficient to trigger a due process guarantee to a pretermination hearing").

As the party asserting due process rights, plaintiff bears the burden of establishing that she had a legitimate property interest in her employment. Crull v. Sunderman, 384 F.3d 453, 465 (7th Cir.2004); Watson v. University of Utah Med. Ctr., 75 F.3d 569, 578 (10th Cir.1996); see also Voorhis v. Warwick Valley Central School Dist., 92 A.D.2d 571, 571, 459 N.Y.S.2d 325 (2d Dep't 1983) ("To establish a constitutionally protected property interest in a public employment position, a...