Jackson v. Jimino

506 F.Supp.2d 105

Jeffrey A. JACKSON, Plaintiff, v. Kathy JIMINO, individually and as Rensselaer County Executive, and Rensselaer County, Defendants.

Civ. No. 1:03-CV-722 (RFT).

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

April 17, 2007.

COPYRIGHT MATERIAL OMITTED

Office of Peter Henner (Peter Henner, Esq., of counsel), Clarksville, NY, for Plaintiff.

Kernan Professional Group, LLC (David A. Bagley, Esq., of counsel), Oriskany, NY, for Defendants.

MEMORANDUM-DECISION and ORDER

TREECE, United States Magistrate Judge.

It has been three and one-half years since Jackson initiated this lawsuit alleging that his First Amendment right to free speech was violated when Defendants failed to reappoint him as Director of the Bureau of Real Property Tax Services in retaliation for speaking out about Rensselaer County Local Law No. 6 and other matters. Dkt. No. 1, Compl., at ¶¶ 128-54. Subjecting the thorny legal issues of this case to careful scrutiny through a series of dispositive motions and then rendering decisions as comprehensive as possible so that this case may eventually advance to closure has consequentially protracted the case rather than judiciously resolve it. Reaching a final resolution of this case has been forestalled primarily due to attainment of a final disposition as to the appropriate applicability of Garcetti v. Ceballos, ___ U.S. ___, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) to the facts of his case.

Earlier in this litigation, and without the benefit of Garcetti, on May 20, 2005, the Honorable Gary L. Sharpe, United States District Judge, upon Oral Order, granted in part and denied in part Defendants' Motion for Summary Judgment. Dkt. Nos. 27, Min. Entry & 28, Transcript (Tr.) of Oral Order. As the matter was being set for trial before Judge Sharpe, the parties consented, pursuant to 28 U.S.C. § 636(c), to a disposition of the matter by this Court, and Judge Sharpe issued an Order referring the case to us. Dkt. No. 31, Order, dated Sept. 8, 2005. As this matter was being prepared to be tried before this Court, the parties requested, and this Court granted, a stay of the case while awaiting the United States Supreme Court's Garcetti decision, since it was presumed then that it may have an impact upon Jackson's case. Order, dated Oct. 14, 2005. The Stay was lifted on June 1, 2006, after the Supreme Court issued its decision in Garcetti.

A Second Motion for Summary Judgment was filed (Dkt. No. 38), presumptively to address exclusively the new issued raised by Garcetti, and this Court issued a Memorandum-Decision and Order (MDO), dated January 19, 2007, granting in part and denying in part said Motion.¹ Dkt. No. 43. This Order appraised the applicability of Garcetti to Jackson's claims and after such analysis we determined, inter alia, that there was a genuine issue of material fact as to whether Jackson, when speaking about Local Law No. 6, the tax bill fiasco, and public attacks upon him, was doing so as a part of his official duties or as a private citizen. See Jackson v. Jimino, 2007 WL 189311, at *16 (N.D.N.Y. Jan. 19, 2007).

Within a matter of weeks following the MDO, Defendants filed a Motion for Reconsideration of the MDO. Dkt. No. 46, Mot. for Recons., dated Feb. 12, 2007. Expectedly, Jackson opposes said Motion and filed a Memorandum of Law. Dkt. No. 48, Mem. of Law, dated Mar. 1, 2007. The grounds upon which Defendants ask this Court to reconsider the January 19, 2007 MDO are several fold:

1. The Court committed clear errors of law as to the summary judgment standards and the governing substantive law;

a. The denial of summary judgment was wrongly based upon speculation and conjecture; and

b. There is no basis in law in differentiating expressions otherwise unprotected based on media coverage.

2. The Court misapprehended that all of the Plaintiffs expressions were in fact unprotected under the rule of Garcetti v. Ceballos, media reportage notwithstanding;

3. The Court improperly based its decision on inadmissible evidence;

4. The Court improperly applied the law of the case doctrine; and

5. In the alternative, the Court should certify its decision for interlocutory appeal and stay.

Dkt. No. 46, Mem. of Law.

In sum, Defendants assert that this Court should have granted summary judgment as to all of the Plaintiffs expressions, in their entirety, because they were unprotected speech under Garcetti. We respectfully disagree. At this juncture of the litigation, based upon the record that is before us, Defendants have failed to establish that there is no genuine issue of material fact that Jackson always spoke within the scope of his official duties. For all of the reasons to follow, Defendants' Motion for Reconsideration is denied.

I. DISCUSSION

A. Standard for Motion for Reconsideration

Generally, reconsideration of a court's prior decision is warranted only where the moving party demonstrate§ "(1) an intervening change of controlling law; (2) the availability of new evidence; and/or (3) the need to correct a clear error or prevent manifest injustice." Bartz v. Agway, Inc., 849 F.Supp. 166, 167 (N.D.N.Y. 1994) (McAvoy, C.J.) (citing Wilson v. Consol. Rail Corp., 815 F.Supp. 585 (N.D.N.Y.1993) & McLaughlin v. New York Governor's Office of Employee Relations, 784 F.Supp. 961, 965 (N.D.N.Y. 1992)); see also Delaney v. Selsky, 899 F.Supp. 923, 925 (N.D.N.Y.1995) (citing Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983)). It is the reliance upon the third prong — to correct clear error or prevent manifest injustice — that Defendants ask this Court to reconsider the MDO. Although we do not find that Defendants have met the burden required for a reconsideration motion, we will nonetheless address the various contentions they raise.

B. Court Misapprehended the Law Concerning Summary Judgment and Substantive Law

Defendants submit that the Court committed clear error when denying Defendants' Motion for Summary Judgment on the basis of speculation and conjecture. Defendants further contend that this Court misapplied the substantive law. Refined to its unavoidable core, the underlying premise of Defendants' position is that this Court erroneously engrafted a "media coverage" rule onto the Garcetti ruling. Stated another way, Defendants charge this Court with creating an unreasonable demarcation of classifying speech as official or private citizen based upon the presence of media coverage.

Of course we would not disagree with the understanding that speculation and conjecture should not defeat a motion for summary judgment.² However, perhaps it is the Defendants who have fallen prey to speculation and conjecture as to the scope and reasoning of the Court in rendering the MDO in order to have this Court transform Garcetti into an impermeable rule that all speech by governmental officials, no matter the facts presented, is fully engulfed by their governmental duties and eschewing, under any circumstance, the possibility or the opportunity that on another given day they may speak as private citizens on matters that may be relatively close to their employment. If we were to adopt Defendants' argument, we would inextricably have find that Garcetti dictates a bright-line rule — an all or nothing determination — on an employee's speech even if it tangentially concerns the official's employment. We find that Garcetti does not stand for that proposition.

"The First Amendment protects some expressions related to the speaker's job." Garcetti, 126 S.Ct. at 1959. The fact that some of an official's speech may be "job related does not mean, a fortiori, that [the official's] claim is barred under Garcetti." McLaughlin v. Pezzolla, 2007 WL 676674, at *6 (N.D.N.Y. Feb.28, 2007).³ Garcetti made it evidently clear that "[m]any citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees like any member of the general public ... to hold that all speech within the office is automatically exposed to restriction." 126 S.Ct. at 1959 (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 573, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)); cf. Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir.2006) (providing examples of public employees speaking on matters of public concern that were not within their official duties).

When summarizing some of the more salient news coverage about the swirling context and events of the tax bill debacle, the prospect that the County Legislature, may amend Local Law No. 6, and Jackson's corresponding written and verbal statements throughout, the Court's primary focus upon Jackson's statements was always to determine whether he was speaking pursuant to his official duties or as a private citizen. We note that it was the parties that presented the record to the Court, not the converse. Based upon the record presented, we found that there was a genuine issue of material fact as to whether Jackson consistently spoke in his official capacity on matters related to his purportedly fragmented bureau or whether the maelstrom over the late filing of the tax bills and Jackson's efforts to amend Local Law No. 6, post 1999, shifted his speech from official duties to private citizen. We concluded that we could not state definitively whether these statements were made pursuant to his official duties, which as the moving party was Defendants' duty to meet.

Let us review the more salient pronouncements of this Court which invariably reflect that Defendants failed to establish that Jackson always spoke pursuant to his official duties:

Because of a confluence of a number of factors, our dilemma is determining whether Jackson was speaking pursuant to his employee responsibilities or as a private citizen. As observed in Garcetti, "conducting these inquires [have] prove[n] difficult [because] of the enormous variety of fact situations in which...