Opinion
99 Civ. 9025 (LAP)
September 26, 2002
MEMORANDUM AND ORDER
Plaintiffs Local 621, S.E.I.U., ALF-CIO, and Local 621's president, Joseph Giattino, (collectively, "Local 621") bring this action pursuant to 42 U.S.C. § 1983 on behalf of the members of Local 621 employed in the civil service title of Supervisor of Mechanics (Mechanical Equipment) ("SMME"). Plaintiffs challenge the defendant City of New York's (the "City") reclassification of the SMME title from a "prevailing wage" title to a `career and service' title and also sue William Diamond ("Diamond") and James Hanley ("Hanley") in their individual capacities as Commissioner of the New York City Department of Citywide Administrative Services and Labor Relations Commissioner of the City of New York, respectively. Plaintiffs allege that the reclassification and related actions violated the Equal Protection Clause and were undertaken in retaliation for their exercise of their First Amendment rights. Defendants now move for summary judgment on the First Amendment and Equal Protection claims and for summary judgment on the basis of qualified immunity with respect to the claims against Hanley and Diamond. For the reasons set forth below, the defendants' motion is granted with respect to the First Amendment claim and denied with respect to the equal protection claim. Additionally, defendants' motion for summary judgment on the grounds of qualified immunity is denied as to Commissioner Hanley and granted as to Commissioner Diamond.
BACKGROUND
New York Labor Law § 220 ("§ 220") governs the procedure for establishing a "prevailing rate of wage" for certain "laborers, workmen or mechanics" whom the City designates as § 220 employees. (Defendants' Local Rule 56.1 Statement of Undisputed Facts ("Defs.' 56.1 Statement") ¶ 1). Labor unions, the Office of Labor Relations ("OLR") and the New York City Office of the Comptroller ("Comptroller") participate in this procedure, negotiate, and a prevailing rate is established through an evidentiary hearing process. (Id.). The SMME title was created in late 1988 or early 1989 by merging and combining the job responsibilities of four predecessor titles, all of which were prevailing wage titles, i.e., subject to Labor Law § 220. (Affidavit of Joseph Giattino, sworn to on January 9, 2002 ("Giattino Aff.") ¶¶ 5, 8). From 1970 until the creation of the SMME title, Local 621 and the City negotiated the wages of the four predecessor titles, always based upon the pattern raises obtained by other City unions, and the raises were memorialized by Comptroller Determinations issued by the Comptroller that were always Consent Determinations. (Id. ¶ 6). During this time, Local 621 did not seek to determine a prevailing rate under Labor Law § 220, and the City did not contest the classification of the titles under § 220. (Id. ¶¶ 6-7). Presently, there are about 200 SMMEs citywide. (Id. ¶ 4).
In June 1990, the then-existing § 220 agreement between Local 621 and the City, which governed the period of July 1, 1987, through June 30, 1990, expired, and Local 621 and the City then began § 220 labor negotiations for the period beginning July 1, 1990. (Defs.' 56.1 Statement ¶¶ 1, 2). For the first time, Local 621 refused to accept pattern raises. In June of 1990, on behalf of all New York City supervising supervisors, Local 621 filed Labor Law complaints with the Comptroller's Bureau of Labor Law (the "Bureau"), stating that the supervising supervisors were receiving less than the prevailing wage under § 220 and requesting that the Bureau begin an investigation pursuant to § 220. (See Ex. E to Giattino Aff.; Giattino Aff. ¶¶ 10, 11). In 1994, when the City had not acted on the complaints, Local 621 informed the Bureau that negotiations for a wage increase for SMMEs hit an impasse. (Giattino Aff. ¶ 11). Between March of 1994 and December of 1996, the Bureau conducted an investigation and survey of the SMME title and comparable private sector collective bargaining agreements to determine a basis upon which to set the prevailing wage for the SMME title. (Defs.' 56.1 Statement ¶ 3).
On December 12, 1996, the Bureau issued the results of its investigation and found the Master Mechanics in Local 14 of the International Union of Operating Engineers ("IUOE") to be the best private sector match to the SMME title. (See Ex. F to Giattino Aff., Letter from Thomas Nodell, Director, Investigations Compliance, Bureau of Labor Law, to Dennis Steiner, Assistant Commissioner of the OLR dated December 12, 1996 (the "Nodell Ltr."), at 2). The Master Mechanic rate was higher than the pattern increases the City had offered to the SMMEs. (Giattino Aff. ¶ 13 Nodell Ltr. at 2-4). In his letter, Nodell also stated:
Although we question the inclusion of supervisory titles as within the ambit of § 220, the Municipal Civil Service Commission in 1938 [currently the Department of Citywide Administrative Services ("DCAS")], not this office, determined which titles are within § 220's reach. Therefore, our obligation is simply to set a rate based on the closest matching position we can find in the private sector.
(Nodell Ltr. at 1).
In late 1996 and early 1997, Local 621 and the City continued meetings in an attempt to settle the SMME wage rates. (Giattino Aff. ¶ 15). On February 6, 1997, Local 621 sent a letter to Nodell requesting a hearing pursuant to § 220 to determine a prevailing wage for SMMEs. (See Ex. G to Giattino Aff., Letter from Kenneth E. Gordon, counsel to Local 621, to Nodell dated February 6, 1997). On March 18, 1997, the Bureau initiated proceedings before the New York City Office of Administrative Trials and Hearings ("OATH"), and evidentiary hearings were held in July and August of 1997 before OATH Administrative Law Judge Suzanne Christen. (Giattino Aff. ¶¶ 17, 18; Defs.' 56.1 Statement ¶ 6).
Judge Christen issued a Report and Recommendation on November 5, 1997, finding that the Local 14 Master Mechanic wages and supplements "are the prevailing rates of wages and supplements to be paid to City-employed SMMEs." (Ex. A to Defs.' 56.1 Statement, Christen Report Recommendation (the "R R"), at 23). In so finding, Judge Christen endorsed the conclusion made by Mr. Helfman, a Claims Specialist in the Bureau who conducted the investigation, "that the written job descriptions for SMMEs match the work they actually perform" because "[h]is testimony on this point was echoed by OLR's City-employee witnesses, who confirmed that the written job duties and specifications for SMMEs are the duties that SMMEs actually perform." Id. at 5). Furthermore, Mr. Helfman's testimony that SMMEs are "Level II Supervisors" who supervise a wide variety of civil service journey level titles as well as other supervisors was supported by OLR's own witnesses and the unrebutted testimony of the union's witnesses and its exhibits. (Id. at 6-7). Helfman also found that SMMEs "perform very little or no hands-on repairs" and their duties are "supervisory in nature." (Id. at 8, 9). In conclusion, Judge Christen stated:
Finally, OLR asserts that the SMME title should not be a § 220 title at all, and should not be entitled to prevailing wages, because of the supervisory nature of the SMME job duties. OLR does not claim that the § 220 classification of the SMME title has ever been challenged, much less overturned, in a direct suit against the officials who adopted and approved it. Given the longstanding § 220 classification of the SMME and its predecessor titles, that classification is not properly before me in this administrative prevailing wage determination proceeding. Moreover, the unrebutted testimony of Mr. Autorino indicates that in previous years, OLR has insisted that the SMME title is a § 220 title, and, relied upon the § 220 status of the SMME title as the basis for refusing to add the SMME title to impasse proceedings conducted in the early 1990s.
(Id. at 23).
In an Order and Determination dated April 1, 1998 (the "OATH Order"), the Comptroller fully adopted Judge Christen's report and determined that the prevailing wages of SMMEs are those of Local 14 Master Mechanics. (See Ex. C to Defs.' 56.1 Statement, OATH Order at 2). The Comptroller also stated, "[a]lthough OLR correctly argues that employees who perform truly supervisory duties are not covered by Labor Law § 220 . . . it is precluded from raising that defense in this proceeding" because "the validity of such classification must be challenged in a direct suit against the Civil Service Commission." Id. at 3-4) (citations omitted). The Comptroller further noted that, because OLR previously had argued during the collective bargaining process for the period beginning July 1, 1990 that the SMME title could not participate in an impasse proceeding because it was a § 220 title, it could not now argue the opposite position "after inducing Local 621 to forego the impasse procedure and pursue a Labor Law § 220 proceeding." (Id. at 4). The Supreme Court of the State of New York, Appellate Division, First Department, affirmed the Comptroller's Order on September 10, 1998. (Ex. D to Defs.' 56.1 Statement).
In late September 1998, Local 621 commenced an action pursuant to Labor Law § 220(8) in the Supreme Court, New York County, to compel defendants to pay the wages set forth in the Comptroller's April 1, 1998 Order. (Giattino Aff. ¶ 27). The parties conducted negotiations between October and December 1998 to determine how to implement the Comptroller's April 1, 1998 Order and reached an agreement in principle in December 1998. (Id. ¶ 28).
On November 24, 1998, Commissioner Hanley wrote to Deputy Mayor Randy Levine, setting forth the findings of the OATH investigation, the Comptroller's April 1 Order, and the Appellate Division decision and stated, "[i]n light of the [OATH Order], it may be incumbent upon us to review the Civil Service status of [the SMME] title." (Ex. F to Defs.' 56.1 Statement, Memorandum from Hanley to Levine dated November 24, 1998, at 2). Hanley also requested a meeting to discuss the matter further. (Id.) In a Memorandum dated January 20, 1999, Hanley, after meeting with the Office of Management and Budget ("OMB") and DCAS representatives, again wrote to Levine requesting a review of the SMME title, stating that "[t]he legal rationale that militates for reconsidering the status of this title has been acknowledged by the Comptroller's Office which stated in its own Order and Determination that `OLR correctly argues that employees who perform truly supervisory duties are not covered by Labor Law § 220 . . . '" (Ex. G to Defs.' 56.1 Statement, Memorandum from Hanley to Levine dated January 20, 1999, at 1).
On January 22, 1999, the parties signed a Memorandum Agreement implementing the April 1, 1998 Order and a Stipulation and Order settling the compliance action that Local 621 brought in September 1998. (Giattino Aff. ¶ 31, Ex. K to Giattino Aff.). In June 1990, base level SMMEs made a salary of $49,402, based on an hourly rate of $23.66, which changed under the Memorandum Agreement to a base salary of $67,860, based on an hourly rate of $32.50, effective July 30, 1997. (Giattino Aff. ¶ 29). Further changes effective July 1, 1997 and July 1, 1998 raised the base level hourly rate to $33.87, resulting in an annual salary of $70,720. (Id.). Higher level SMMEs received similar increases. (Id.). For all of the SMMEs, the changed rates were higher than the coalition pattern increases offered by the City. (Id.)
On April 9, 1999, Sherry Schultz, DCAS Director of Classification and Compensation, wrote to DCAS Deputy Commissioner Joseph DeMarco, recommending that the SMME title be reclassified on the basis of the OATH findings, the Comptroller's statements that SMMEs are strictly supervisory employees, the Nodell Letter, and the Comptroller's Order. (Ex. I to Defs.' 56.1 Statement, Memorandum from Sherry Schultz to Joseph DeMarco dated April 9, 1999). DCAS proposed to place the title under the career and salary plan, with a proposed salary range that would provide "an appropriate differential above the subordinate journey level title and [would] appropriately compensate these supervisory employees for the work they perform. The proposed range is consistent with salaries currently paid by the City for comparable and higher titles." (Id. at 2).
In a Memorandum dated April 19, 1999, for the same reasons that Schulz articulated in her April 9, 1999 Memorandum, Commissioner Diamond stated that he had approved a Resolution deleting the SMME title from the prevailing wage category and that the SMME title would receive salary adjustments based on collective bargaining and "will be in a graded position subject to the Citywide Agreement and the Alternative Career and Salary Plan." (Ex. J to Defs.' 56.1 Statement, Memorandum from Diamond to Joseph Lhota, Deputy Mayor for Operations dated April 19, 1999, at 1). Diamond further recommended that Deputy Mayor Joseph Lhota approve the Mayor's Personnel Order reclassifying the SMME title. (Id. at 2). As a result of the reclassification, "[p]resent incumbents will continue to receive their current pay rate and assignment differentials," but "[t]his action will reduce the personnel costs for future hires in this title . . . [and] will properly include these positions in the usual collective bargaining process for future compensation rates and benefits." (Id.). On or about April 20, 1999, Diamond adopted DCAS classification Resolution No. 99-4, which reclassified the SMME title. (Ex. K to Defs.' 56.1 Statement). On April 21, 1999, Deputy Mayor Lhota approved Mayor's Personnel Order No. 99/2, which set the new wage for new SMME hires and which had been approved by DeMarco, Diamond, Hanley, the OMB Budget Director, and the Office of the Deputy Mayor for Operations. (Defs.' 56.1 Statement ¶ 24; Exs. N O thereto).
Career and Salary titles receive an annual salary rather than an hourly rate, which defendants set at $58,033 for base level SMMEs after the reclassification. (Giattino Aff. ¶ 34). The $58,033 salary did not apply to SMMEs who were appointed prior to April 21, 1999, but as set forth in a June 14, 1999, memorandum from the defendants, incumbent SMMEs are no longer eligible to receive Saturday or Sunday premiums, compensation for holidays will be dictated by the terms of the Citywide Agreement, and the SMME title will be subject to the overtime cap specified in the Citywide Agreement. (Id. ¶ 35; Ex. M to Giattino Aff., Memorandum from Cynthia Johnson, Office of Payroll Administration, to All Concerned PMS Agencies dated June 14, 1999).
In May of 1999, plaintiffs filed an improper practice proceeding with the New York City Office of Collective Bargaining ("OCB"), which was deferred until a second OCB proceeding, a grievance filed by Local 621, was completed. (See Letter from Kenneth E. Gordon to the Court dated June 10, 2002, at 1). Arbitration was held on January 28, 2002 in the second OCB proceeding and on June 7, 2002, an arbitrator sustained plaintiffs' grievance and granted some, but not all, of the relief plaintiffs' requested. (Id.) The arbitrator retained jurisdiction to address questions of relief for the period beginning January 1, 2000. (Id.).
Plaintiffs filed this action in August of 1999, in which they raised both federal and state law claims. On September 29, 2000, I dismissed plaintiffs' state law claims without prejudice to renewal because they raised novel or complex issues of state law. See Local 621 v. The City of New York, No. 99 Civ. 9025 (LAP), 2000 WL 1459844 (S.D.N.Y. Sept. 29, 2000). Plaintiffs thereafter commenced an Article 78 petition in the Supreme Court, New York County reasserting the three state law claims and on January 25, 2002, the parties filed a stipulation to hold the state court proceedings in abeyance pending completion of the instant action and the OCB proceedings. (See Letter from Kenneth E. Gordon to the Court dated April 9, 2002, at 2). In the instant action, plaintiffs allege that defendants violated their equal protection rights by singling out the SMME title for reclassification. Plaintiffs also argue that the reclassification violated their rights to free speech, petition, and association under the First Amendment. Defendants now move for summary judgment on both claims and argue that defendants Hanley and Diamond are entitled to qualified immunity. Oral argument was held on June 11, 2002.
DISCUSSION
I. Legal Standard for Summary Judgment
Under Rule 56(c), summary judgment shall be rendered forthwith if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. § 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248. "At the summary judgment stage, there is no issue unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id. at 243.
The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact."Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The substantive law determines the facts which are material to the outcome of a particular litigation. Anderson, 477 U.S. at 250; Heyman v. Commerce Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citingU.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita, 45 U.S. at 586. Only when it is apparent, however, that no rational finder of fact "could find in favor of the nonmoving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994).
II. Equal Protection Claim
To prevail on their equal protection claim, plaintiffs must show that: 1) compared to others similarly situated, they was selectively treated, and 2) that the selective treatment was based on impermissible considerations such as inhibiting the exercise of constitutional rights.Latrieste Rest. v. Village of Port Chester, 188 F.3d 65, 69 (2d Cir. 1999) (citation omitted). Defendants argue that Local 621 cannot satisfy either of these requirements. In order to be similarly situated for these purposes, the SMME title must be similarly situated to the other titles "in all material aspects," Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997), and "the test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonist similarly situated," Cruse v. G J USA Publ'g, 96 F. Supp.2d 320, 330 (S.D.N.Y. 2000) (quoting Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 17-19 (1st Cir. 1989)). As to the second element, plaintiffs must show specific evidence that the defendants acted with retaliatory intent and not simply in response to plaintiffs' conduct. Greenwich Citizens Comm., Inc. v. Counties of Warren Washington, 77 F.3d 26, 33 (2d Cir. 1996).
First, defendants argue that the SMME title was not similarly situated to other § 220 supervisory titles because of its "unique record" of § 220 proceedings. (Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Defs.' Mem.") at 14). Specifically, defendants refer to the "unique finding of fact" that OATH and the Comptroller made regarding SMMEs, namely, that the SMMEs are high "Level II Supervisors" who perform little to no hands-on repairs and that they supervise both other civil service titles and other supervisors. (Id. at 15). This finding, according to defendants, "was consistent with the OLR Commissioner's view that the SMME title is the highest level supervisor in the City." (Id.). Furthermore, the Comptroller, on two occasions, questioned whether supervisory titles should be included within § 220. (Id. at 15-16). According to the defendants, these findings set the SMME title apart from the other supervisory titles, and therefore no reasonable factfinder could find that they are similarly situated.
In opposition, plaintiffs point to a report by Dr. Judith Piesco, an expert witness and former New York City Director of Examinations, in which she concludes that the SMME title was not at the highest level of supervision at the time of the reclassification. (Ex. N to Gordon Aff., Letter from Dr. Judith Piesco to Kenneth Gordon dated August 7, 2001, at 3). Additionally, plaintiffs rely on the deposition testimony of Commissioner Hanley, where he stated that those in the Supervisor of Mechanics position — a position that remains a prevailing wage position and which the City has not sought to reclassify — supervise some SMMEs and therefore operate at a higher level than those SMMEs. (Hanley Dep. at 42-43) The foregoing evidence is sufficient to raise an issue of fact regarding how elevated the level of the SMME title truly was and whether the SMME title was in a unique position relative to other titles.
In addition, a comparison of the job description of the Supervisor of Mechanics, a title which, as noted above, was not reclassified, and that of the SMME title shows great similarities. (See Exs. K M to the Gordon Aff.; see also Letter from James M. Thayer, counsel to Local 621, to the Court dated January 15, 2002, attaching job descriptions of § 220 supervisory titles) Among other things, both positions include supervisory duties, the preparation of work schedules and assignments, inspection of job sites, decisionmaking regarding the purchase of equipment, and recordkeeping. Both also list prior supervisory experience as a job prerequisite and the equivalent of seven years of prior experience. On the basis of these job descriptions, a reasonable factfinder could find that the SMME title and the Supervisor of Mechanics titles are "roughly equivalent" and therefore similarly situated.
The fact that OATH and the Comptroller concluded that SMMEs are Level II supervisors does not alter this analysis. That finding was made in the context of an investigation into the SMME title specifically. (See R R at 4, 6-7) The Comptroller was not investigating any other § 220 supervisory titles, so there was no basis for any conclusion to be made about a comparison between the SMME title and any other title. Moreover, based on its job description, the Supervisor of Mechanics title also appears to perform few hands-on repairs and, as previously noted, its job description is quite similar to the SMME job description. As such, even with the Comptroller's finding that SMMEs are Level II supervisors, a reasonable factfinder still could find Supervisors of Mechanics to be similarly situated to SMMEs. Based on all of the foregoing, a reasonable factfinder could conclude that the SMMEs were similarly situated to other high-level supervisors, who are also governed by § 220.
Second, defendants contend that plaintiffs cannot show that the defendants' decision to reclassify the SMME title was based on an impermissible consideration, namely, inhibiting the plaintiffs' exercise of their constitutional rights. Defendants maintain that, because the undisputed SMME § 220 record indicates that high level supervisory titles should not be included under § 220, defendants had a legitimate, non-retaliatory reason for reclassifying the title. (Defs.' Mem. at 11-12) More specifically, defendants point to the OLR's conclusion that "supervisory titles" should not be governed by Section 220 and the Comptroller's statement "that employees who perform truly supervisory duties are not covered by Labor Law § 220." (OATH Order at 3) Furthermore, according to the defendants, the Comptroller's conclusion that SMMEs were Level II Supervisors provided a legitimate reason for reclassifying them because it meant that SMMEs were performing the highest level of supervisory duties of all the § 220 supervisory titles. (Defs.' Mem. at 12). The defendants also argue that the Comptroller's statement that the DCAS, not the Comptroller, is responsible for determining which titles should be reclassified "guided the City's course in its subsequent reclassification of the SMME title." (Id.) Finally, the defendants note that, before the reclassification was finalized, the defendants obtained authorization and the recommendation to reclassify from several City agencies and officials. (Id.).
While the defendants' characterization of the record of the SMME § 220 proceedings is correct, plaintiffs have submitted evidence from which a factfinder could infer that the defendants reclassified the SMME title in retaliation for plaintiffs' exercise of their constitutional rights. First, in the context of Local 621's request to set a prevailing wage for SMMEs, the Comptroller questioned the inclusion of "supervisory titles" within § 220, (Nodell Ltr. at 1), and the OATH Order confirmed that employees who perform "supervisory duties" are not covered by Section 220. (OATH Order at 3) When the reclassification occurred on April 21, 1991, however, there were approximately 30 New York City prevailing rate supervisory titles, but the SMME title was the only one reclassified. (Schulz Dep. at 92-97, 119, 171-72; Hanley Dep. at 109-10; Godiner Dep. at 73-74; DeMarco Dep. at 46-47; Yates Dep. at 103) Prior to the reclassification, the SMME title and its predecessor titles had been classified as prevailing rate titles for approximately 60 years. (Giattino Aff. ¶ 5) In 1990, Local 621 began efforts to obtain a prevailing wage for SMMEs, and nine years later, on January 22, 1999, the parties entered into the agreement that would implement the Comptroller's Order (affirmed by the Appellate Division) setting the wages for SMMEs at a prevailing rate. (See id. Ex. K) Only three months later, the SMME title was reclassified. Based on these facts, a juror could conclude that the reclassification occurred in retaliation for the union's exercise of its rights under Labor Law § 220. Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (stating that a causal connection between the protected activity and alleged retaliation can be established by showing that "the protected activity was followed by discriminatory treatment"); Dixit v. City of New York Dep't of Gen. Svcs., 972 F. Supp. 730, 738 (S.D.N.Y. 1997) (concluding that "a jury could infer a causal connection based on the proximity of time between plaintiff's complaint and his termination the next day")
In his deposition, Commissioner Hanley stated that OLR had long held the view, since the early `80s, that supervisory titles should not be included within Section 220. (Hanley Dep. at 15-18, 39-41, 51-52, 90, 98-102) In addition, Sherry Schultz testified that reclassification of supervisory jobs "was an issue long before 1995." (Schultz Dep. at 61). These statements, however, do not address why the SMME title was the only one reclassified in April of 1999, only three months after the settlement implementing a prevailing wage for SMMEs. Defendants argue that the SMME title was in a different league because it was at a higher level than the other supervisory titles, but, as previously noted, the plaintiffs have raised issues of fact with regard to how elevated the SMME title truly was, in light of Dr. Piesco's expert opinion and Commissioner Hanley's deposition testimony. Regardless of whether the SMME title was the most elevated title or not, the Supervisor of Mechanics job description indicates that there were other highly elevated, similar supervisory titles. The fact that the parties had been engaged in a nine-year legal battle about wages for SMMEs, that the plaintiffs prevailed a short time prior to the reclassification, and that none of the other "supervisory titles" was reclassified, reasonably could raise a question in the mind of a factfinder regarding the defendants' true intention in reclassifying the SMME title alone. While the City may not have been required to reclassify all of the supervisory titles at once, as defendants argue, it could not single out the SMME title for an improper reason.
In addition, plaintiffs have submitted several affidavits from members of Local 621 who were present at the OATH proceedings in 1997, who state that they heard Commissioner Hanley express his displeasure with the OATH proceedings and with members in the SMME title. (See Ex. O to Gordon Aff.) Specifically, one member of Local 621 states that he heard Commissioner Hanley say that he intended to drag out the SMME proceedings for years, (Esposito Aff., sworn to on August 17, 1999, ¶ 3), while two other members state that they heard him say that he intended to "tie [the proceedings] up for another seven years." (Kott Aff., sworn to on August 17, 1999, ¶ 4; Cunningham Aff., sworn to on August 18, 1999, ¶ 3). Moreover, plaintiff Giattino alleges that on January 28, 1998, when they met regarding the status of the SMME case, Commissioner Hanley indicated that "the § 220 proceedings might be dragged out until the time he retired (which he said could be another 20 years or so) and stated that by that time Local 621's attorney would have earned a lot of money while SMMEs would `not be able to afford to buy pencils.'" (Giattino Aff., sworn to on August 18, 1999, ¶ 19).
While defendants are correct that Hanley's statements did not refer to the reclassification proceedings and were made two years prior to the reclassification, such statements, if found by the factfinder to have been made, could support an inference that Hanley's frustration with the nine-year process led him to use reclassification as a means of retaliating against plaintiffs for pursuing a prevailing wage for SMMEs. Defendants cite to Danzer v. Norden Systems, Inc., 151 F.3d 50, 57 (2d Cir. 1998), for the proposition that "a single stray remark cannot give rise to an inference of retaliatory reclassification." (Defs.' Reply Mem. at 6). The Danzer Court, however, further explained that "such comments, without more, cannot get a discrimination suit to a jury [but when] other indicia of discrimination are properly presented, the remarks can no longer be deemed `stray,' and the jury has a right to conclude that they bear a more ominous significance." Danzer, 151 F.3d at 56 (emphasis in original) In fact, in Danzer, the Court of Appeals reversed the district court's grant of summary judgment to the plaintiff's employer, finding that plaintiff had introduced several pieces of evidence of age discrimination which, if viewed in isolation, would arguably be insufficient to survive summary judgment, but when "taken altogether as true — as they must be at summary judgment — they are more than enough to support a jury verdict." Id. at 57. Similarly, in this case, plaintiffs have provided several pieces of evidence, inter alia, the timing of the reclassification, Dr. Piesco's testimony, and Commissioner Hanley's alleged statements, that when considered together, raise an issue of fact regarding the defendants' intent behind the reclassification. Accordingly, defendants' motion for summary judgment as to the equal protection claim is denied.
III. First Amendment Claim
To prevail on their First Amendment retaliation claim, plaintiffs must establish that: 1) their conduct was protected by the First Amendment, and 2) such conduct prompted the defendants' retaliatory action. Brady v. Town of Colchester, 863 F.2d 205, 217 (2d Cir. 1988) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). To be protected, speech by public employees must relate to a matter of public concern, Connick v. Myers, 461 U.S. 138, 146 (1983), and whether speech involves a matter of public concern is a question of law for the court to decide, id. at 148 n. 7. Here, while plaintiffs agree that the public concern requirement applies to speech claims, they note that their First Amendment retaliation claim is based not only on their right to free speech, but also upon their rights to associate and to petition, and they dispute whether the public concern requirement must be met in the latter two types of cases. (See Plaintiffs' Memorandum in Opposition to Defendants' Motion Summary Judgment ("Opp'n Mem.") at 14).
A. Association
With regard to association claims, plaintiffs point to the Court of Appeals' decision in Clue v. Johnson, 179 F.3d 57 (2d Cir. 1999). Local 621 correctly points out that, in dicta, the Clue Court stated, "it is anything but clear whether the public concern requirement applies to associational claims made by government employees." Id. at 60 n. 2 (2d Cir. 1999) (noting the split among the circuit courts regarding the issue). The Court then stated, "[t]he most sophisticated opinion on this question carefully distinguishes between `hybrid' free speech/free association claims, to which it believes the public concern requirement should apply, and pure free association claims, to which it concludes the public concern does not and ought not to apply," id., citing to Judge Cudahy's concurrence in Balton v. City of Milwaukee, 133 F.3d 1036, 1041 (7th Cir. 1998). The Clue Court, however, ultimately declined to decide whether or not the public concern requirement applies to associational claims but assumed that it did and found the requirement to be satisfied. Id. ("[W]e assume arguendo that the public concern requirement applies in this case, and express no view as to whether the test encompasses associational claims.")
Later, in Knight v. Connecticut Department of Public Health, the Court of Appeals addressed the hybrid free speech/free exercise claim of two state employees, a nurse and a sign language interpreter, who were disciplined for delivering religious messages while working with state clients. 275 F.3d 156 (2d Cir. 2001). There, appellants argued that hybrid claims should be analyzed under a strict scrutiny test rather than the test set forth in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968), which requires a court to balance the interests of a public employee in commenting upon matters of public concern against those of the State as an employer, which must perform its public services efficiently. Knight, 275 F.3d at 163. The Court rejected appellants' argument and held:
I note that neither party argues that Pickering applies here. While cases in which the Pickering balancing test is applied usually involve disciplinary actions that were taken in response to an employee's job-related speech on matters of public concern, the test is "not limited to speech on matters of public concern at or about work; rather,Pickering balancing is triggered whenever a public employee's expressions on matters of public concern are sought to be circumscribed by governmental interdiction." Meizer v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 196 F. Supp.2d 229, 245 (E.D.N.Y. 2002) (citations omitted) In any event, a court first must determine that an employee's actions are of public concern prior to applying the Pickering test.
In this Circuit, we have not yet addressed generally whether hybrid claims require a greater governmental justification than each component of the hybrid claim taken separately and we need not do so here because appellants' comments are limited to the public employee context. [I]t is well settled that appellants' right to free speech as public employees is entitled to some First Amendment protection. However, due to the state's significant interest in regulating the expressive conduct of its employees while they are acting on behalf of the state, appellants' free speech claims are subject to the Pickering balancing test. . . . The allegation that a state action that regulates public conduct infringes more than one of a public employee's constitutional rights does not warrant more heightened scrutiny than each claim would warrant when viewed separately. In both situations, the employer's interest remains the same and is entitled to the same weight in the constitutional balance.Id. at 167 (emphasis added, citations omitted).
More recently, in Wheeler v. Natale, 137 F. Supp.2d 301 (S.D.N.Y. 2001), the district court applied the public concern requirement in a case involving a school district employee's termination allegedly for voicing opinions critical of the school district as co-host of a radio show. In so holding, Judge McMahon held:
Expressive association claims, such as the plaintiff's claim that she was retaliated against for her association with a group, are considered to be the equivalent of free speech claims, since the expressive conduct alleged is inextricably linked to protected speech.137 F. Supp.2d at 304 (citations omitted); see also Petrario v. Cutler, 187 F. Supp.2d 26, 32 (D. Conn. 2002) (noting that the Court of Appeals has not yet ruled on whether the public concern requirement applies to hybrid free speech/freedom of association claims but applying the requirement and finding it satisfied where plaintiff filed a union grievance alleging collusion between the union and the employer). Finally, in Melzer v. Board of Education of the City School District of the City of New York, 196 F. Supp.2d 229 (E.D.N.Y. 2002), the court considered a teacher's speech and association claims in his complaint that he had been terminated as a result of his membership in and advocacy of issues supported by the North American Man-Boy Love Association ("NAMBLA"). Upon its finding that the plaintiff was "engaged in protected constitutional activity" because the subject of his communication "clearly relate Ed] to matters of social concern to the community," the court concluded that "there is no purpose to engaging in a public concern analysis before embarking upon Pickering balancing." 196 F. Supp.2d at 250. Upon engaging in the Pickering balancing, the court found that Melzer's dismissal was warranted.
The plaintiffs' association claim here is properly categorized as a hybrid claim, implicating both associational and free speech rights. As the Knight court held, that claim may not be subjected to greater scrutiny than each claim considered separately, 275 F.3d at 167, but it may not and should not be subject to less scrutiny. While, as Judge Cudahy posited in his concurrence in Balton, a pure association claim might not be subject to the public concern requirement because such claims "generally do not interfere with work relationships," Balton, 133 F.3d at 1041, a hybrid speech/association claim does generally implicate the work relationship because of the speech component. See Wheeler, 137 F. Supp.2d at 304. In both a pure speech and a hybrid speech/association claim, "the employer's interest remains the same and is entitled to the same weight in the constitutional balance." See Knight, 275 F.3d at 167 (involving a free speech/free exercise claim). That interest must be weighed against the First Amendment values at issue. Thus, regardless of whether the process is termed the public concern requirement or the Pickering test, the employee's First Amendment interests must be evaluated. As the Court of Appeals summarized inKnight:
If the public employee speech does not touch on a matter of public concern, it is not entitled to First Amendment protection; if, however, it does touch upon a matter of public concern, we must balance the interests of the employer in providing effective and efficient public services against the employee's First Amendment right to free speech.Id. at 164 (citations and internal quotations omitted). As Judge Cudahy explained:
I note in passing that dispensing with the public concern requirement for pure association claims runs the danger of establishing a hierarchy of First Amendment values. See, e.g., Griffin v. Thomas, 929 F.2d 1210, 1213-14 (7th Cir. 1991) ("[T]he Supreme Court emphatically has eschewed establishing, among [F]irst [A]mendment expression rights, a hierarchy of labels.") (citing McDonald v. Smith, 472 U.S. 479 (1985)).
The Pickering/Connick test serves to simplify this balancing process [of the employer's interests and the employee's First Amendment interests] by eliminating liability where First Amendment concerns are weak (i.e., the speech in question is not of public concern).133 F.3d at 1041. Accordingly, I find that the public concern requirement should be applicable to plaintiffs' hybrid speech/association claim, and I so hold.
B. Petition
Plaintiffs also argue that the public concern requirement "does not apply to claims involving the exercise of the right to petition." (Opp'n Mem. at 14-15). Noting the circuit split on the issue, plaintiffs argue in favor of the Third Circuit's position, as articulated in San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994). In that case, the Court held that the public concern requirement should not apply to petition cases and distinguished them from speech claims. The Court reasoned that to discipline a party for filing a petition in good faith pursuant to a mechanism for the redress of grievances, which the government formally adopted and for which it is allegedly accountable, "would seem to undermine the Constitution's vital purposes." Id. at 442. Based on the law in this Circuit, however, I find that the public concern requirement does apply to right to petition cases.
In White Plains Towing Corp. v. Patterson, the defendants, who were state police officers, assigned exclusive highway towing rights to plaintiffs White Plains Towing Corporation and its president, Don Cherico (collectively "Cherico"). 991 F.2d 1049 (2d Cir. 1993). Cherico subsequently demanded a larger share of the towing assignments and filed a formal complaint against defendants, alleging that they had damaged plaintiffs' reputation by making disparaging comments and accusing Cherico of having ties to organized crime. Id. at 1053. After an official police investigation was conducted, Cherico withdrew the complaint. Id. When defendants terminated the towing assignment, plaintiffs commenced an action which alleged, inter alia, that defendants had violated plaintiffs' First Amendment rights to free speech and petition. Id. at 1054.
In its discussion, the Court of Appeals confirmed that, as an initial matter in speech cases, a public employee must establish that the speech was on a matter of public concern. 991 F.2d at 1058. It then went on to state, "[t]he First Amendment right to petition the government for a redress of grievances . . . is `generally subject to the same constitutional analysis' as the right to free speech." Id. at 1059 (citing McDonald v. Smith, 472 U.S. 479, 482 (1985); Wayte v. United States, 470 U.S. 598, 610 n. 11 (1985)). Accordingly, the Court analyzed whether the plaintiffs' complaints were a matter of public concern and concluded that, because the "vast majority" of the complaints were demands to increase towing referrals, they were "private commercial grievances that do not appear to relate to any matter of political, social, or other concern to the community and hence could not provide a basis for recovery." Id. at 1060. In contrast, Cherico's complaint that defendants mischaracterized him as dishonest and tied to organized crime involved the state police corps' performance of its duties, which the Court found to be a matter of public concern. Id.
The Court determined that Cherico's status was that of a public employee because it assumed, as the trial court had ruled, that "assignment to Cherico was tantamount to employment" even though plaintiff was not an employee of the state police and did not have a formal contract with the state. Id. at 1059.
Plaintiffs correctly point out that, subsequent to White Plains, the Court of Appeals has not applied the public concern requirement in certain right to petition cases. (Opp'n Mem. at 15). With no discussion of public concern, the Court in Gagliardi v. Village of Pawling simply explained that "[t]he rights to complain to public officials and to seek administrative and judicial relief are protected by the First Amendment" and found that plaintiffs had stated a claim for retaliation for the exercise of their right to petition. 18 F.3d 188, 194 (2d Cir. 1994);see also Dougherty v. Town of North Hempstead Board of Zoning Appeals, 282 F.3d 83, 91 (2d Cir. 2002) (same). Notably, however, the plaintiffs in Gagliardi and Dougherty were not public employees — theGagliardi plaintiffs were residential landowners, and Dougherty owned shares in a cooperative housing unit. Moreover, the Court did not expressly hold that the public concern requirement was not applicable; indeed, in neither case did it discuss that requirement at all.
Plaintiffs also cite to Friedl v. City of New York, in which the Court of Appeals explicitly held that "[t]he `public concern' requirement, developed in the context of public employee speech, has no place in the context of prisoner petitions for redress of grievances, which typically address matters of personal concern." 210 F.3d 79, 87 (2d Cir. 2000) (citing Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996), where the Court found that the filing of a grievance by a prisoner is constitutionally protected, without discussing public concern); see also Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) In Friedl, however, the Court was careful to state that the requirement has no applicability "in the context of prisoner petitions." In light of such a limitation,Friedl does not apply here.
Moreover, the more recent cases that plaintiffs cite, which expressly decline to apply the public concern requirement in right to petition cases, again do not involve plaintiffs who are public employees. InHampton Bays Connections, Inc. v. Duffy, plaintiffs were real estate developers who alleged that town board members violated their rights when they denied plaintiffs' applications for development. 127 F. Supp.2d 364, 372 (E.D.N.Y. 2001) (citing to Friedl and Gagliardi and stating that the public concern requirement "is inapplicable to cases in which the plaintiff alleges retaliation for protected speech in the form of a petition to government"). In another case cited by plaintiffs, Reckson Operating Partnership v. New York State Urban Development Corp., the court determined that the public concern requirement "developed in the context of . . . public employee speech and does not apply to this action, which involves the alleged retaliation for protected speech in the form of a petition to the Government." N.Y.L.J. Apr. 8, 2002, at 37, n. 6 (S.D.N.Y. 2002) (citing Friedl, 210 F.3d at 87; Hampton Bays, 127 F. Supp.2d at 372). There, however, plaintiff was the owner and operator of commercial rental properties who submitted a successful bid to purchase a 600-acre property from defendants and later sued when defendants conditioned the sale on the plaintiff's withdrawal of a lawsuit that he previously had filed against them. Id. at 37.
In addition, recent cases within this district expressly have applied the public concern requirement in right to petition cases where the plaintiff is a public employee. For example, in Bates v. Bigger, two deputy sheriffs filed a right to petition action against individuals within the sheriff's department, and the court, citing White Plains, 991 F.2d at 1059, stated that "[t]he Second Circuit has held that the right to petition the government for the redress of grievances is generally subjected to the same constitutional analysis as the right to free speech." 192 F. Supp.2d 160, 172 (S.D.N.Y. Mar. 12, 2002). The court granted defendants' motion for summary judgment because plaintiffs' grievances did not involve a matter of public concern and therefore were not protected under the First Amendment. Id. at 172-73. Similarly, inRivera v. Community School District Nine, a former New York City public school teacher filed a right to petition claim, which the court dismissed because it did not involve a matter of public concern. Nos. 00 Civ. 8208 (SHS), 01 Civ. 1976 (SHS), 2002 WL 1461407, at *4 (S.D.N.Y. July 8, 2002) (citing White Plains, 991 F.2d at 1049). Based on the foregoing, I cannot agree with the plaintiffs that "[s]ince the White Plains decision,Friedl, Gagliardi and Hampton Bays have clarified the issue," (Opp'n Mem. at 15 n. 6), and therefore I find that plaintiffs must fulfill the public concern requirement on that portion of their First Amendment claim based on their right to petition.
C. Public Concern
To determine whether Local 621's activities addressed a matter of public concern, I must consider "the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48. In addition, such a decision requires a "focus on the motive of the speaker . . . to determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose."Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir. 1999). "Speech on a purely private matter, such as an employee's dissatisfaction with the conditions of his employment, does not pertain to a matter of public concern." Id. at 164 (citing Connick, 461 U.S. at 147); Blum v. Schlegel, 18 F.3d 1005, 1012 (2d Cir. 1994) ("The determinative question is whether that interest arises from the speaker's status as a public citizen or from the speaker's status as a public employee."); see also Sacco v. Pataki, 982 F. Supp. 231, 240 (S.D.N.Y. 1997) ("Speech is more likely to be of public concern if the speaker is speaking as a citizen on matters of public interest, and not solely as an employee on matters only of personal interest."). Here, I find that Local 621 did not address a matter of public concern when it challenged the SMME wage.
Plaintiffs argue that, by contesting the inadequate pay of SMMEs, they "implicitly criticiz[ed] City management" and therefore raised a matter of public concern. (Opp'n Mem. at 18). Indeed, in Clue v. Johnson, the Court of Appeals held that "activities on behalf of a union faction that necessarily entail a substantial criticism of management raise matters of public concern under Connick." 179 F.3d at 61. The plaintiffs in Clue were employees of the New York City Transit Authority, union officers of Local 100 of the Transport Workers Union of America ("TWU"), which represented them in collective bargaining, and members of a minority faction within the TWU called "New Directions." The Clue plaintiffs, acting on behalf of New Directions, campaigned to oust the leaders of the TWU, alleging that the leaders were colluding with management. Id. at 59. After the Clue plaintiffs were suspended from their jobs, they brought an action against the Transit Authority for unlawful retaliation. Id. The Court reasoned that the dispute "did not merely involve internal union affairs" but instead "was a struggle over the labor policies of the Transit Authority and what role the [union] ought to play in changing those policies. Id. at 61. As such, it concluded that the plaintiffs' activities addressed a matter of public concern.
In this case, plaintiffs fail to articulate how they implicitly criticized" City management by contesting the SMME salary. Here, Local 621 merely opted not to set the SMMEs' wages the way they had been set in the past, namely, based on the pattern raises obtained by other City unions, but instead pursued a different, statutorily-provided route to setting wages. No explanation is proffered as to how Local 621's complaints that SMMEs were receiving less than the prevailing wage under § 220 and demands to set the prevailing wage for SMMEs based upon comparable private sector titles are tantamount to criticism of City management, rather than promoting its members' economic interests. UnlikeClue, in which the plaintiffs alleged improper management as a result of collusion, the plaintiffs here did not complain about improper management on the part of the City. Local 621 simply exercised its right within the statutory scheme to seek a higher wage for the SMME title.
Moreover, I find that Local 621's attempts to increase the wage for SMMEs were intended to address personal grievances rather than a broader public purpose. Lewis, 165 F.3d at 163-64. For example, in Tiltti v. Weise, customs patrol officers sued the Commissioner of Customs when they were reassigned to different geographical locations. 155 F.3d 596, 597 (2d Cir. 1998). Specifically, they argued that the reassignments were in retaliation for the officers' protests regarding the denial of certain job duties, the government's failure to promote them to a higher title and, most notably, "the rights to proper pay under a Fair Labor Standards Act law suit [sic] recently begun on behalf of the [plaintiffs] as well as other federal employees." Id. at 602. The Court concluded that all of the allegations related to the officers' working conditions, namely, the nature of their work and their pay, and were therefore matters of personal interest and not of public concern. Id. (citing Connick, 461 U.S. at 147). Similarly, Local 621 acted to improve a situation that was of personal interest to its members, not to the public in general.
Simply because the issues raised by the SMME proceedings could have an impact on all prevailing rate supervisory titles in the City does not make Local 621's activities a matter of public concern. See Pappas v. Giuliani, 118 F. Supp.2d 433, 444 (S.D.N.Y. 2000) ("Courts must look behind pretextual `public concern' rationales proffered by plaintiffs and attempt to discern whether their conduct, taken as a whole, was actually meant to address matters of public concern or was simply a vehicle for furthering private interests.") (citing, inter alia, Connick, 461 U.S. at 146-48). In Schlesinger v. New York City Transit Authority, the plaintiff complained about his inadequate job description, inadequate salary, fraud, his and his co-workers' workload, and his erroneous classification and Hay Point rating. No. 00 Civ. 4759 (SAS), 2001 U.S. Dist. LEXIS 632 (S.D.N.Y. Jan 26, 2001). The court, however, found that he had not raised a matter of public concern because his comments were personal and generally related to his own situation. Id. at *17 (citing Ezekwo v. New York City Health Hosps. Corp., 940 F.2d 775, 781 (2d Cir. 1991)). Although plaintiff's complaints addressed the workload of his co-workers and therefore could potentially affect them, his speech did not constitute a matter of public concern because it related to him personally and was motivated by self-interest. Id. at *18 (citing Stein v. County of Rockland, No. 95 Civ. 9204, 1997 WL 603826, at *2, 1997 U.S. Dist. LEXIS 13714, at *4 (S.D.N.Y. Sept. 11, 1997)). Similarly, Local 621 has provided no evidence from which a factfinder could conclude that its motive in pursuing a wage increase was anything other than to benefit their own members. See Blum, 18 F.3d at 1012 ("It is true that the fact that an employee's speech touches on matters of public concern will not render that speech protected where the employee's motive for the speech is private and personal."); see also Donahue v. Unisys Corp., 1991 U.S. Dist. LEXIS 21106, No. H-89-670 (JAC), at *8 (D. Conn. Feb. 15, 1991) ("In the employment context, it is indeed difficult to conceive of a matter that is more private than making inquiries about one's own salary.").
Finally, plaintiffs argue that all speech delivered as testimony at a judicial proceeding automatically becomes a matter of public concern, regardless of its content, (Opp'n Mem. at 17-18), but that argument is without merit. The cases cited involve public employees who testified at judicial proceedings in which they were not parties and subsequently alleged that they were retaliated against simply for providing that testimony in court. See Pro v. Donatucci, 81 F.3d 1283, 1290-91 (3d Cir. 1996) (finding that a public employee's truthful testimony before an adjudicatory body is inherently a matter of public concern, even when the employee appeared in court pursuant to a subpoena but was not called to testify); Benedict v. Town of Newburgh, 95 F. Supp.2d 136, 142-43 (S.D.N.Y. 2000) (adopting the Third Circuit's approach and finding that a state employee's testimony is a matter of public concern when he testifies in another employee's civil action against their mutual state employer); Benedict v. Town of Newburgh, 125 F. Supp.2d 675, 678 (S.D.N.Y. 2000) (same) Specifically, the court in Benedict found that "testifying truthfully is constitutionally protected from retaliation, and that it is a right existing wholly apart from the First Amendment protection of speech generally, and without the need to show that the testimony relates to a matter of public concern." 95 F. Supp.2d at 143;see also Benedict, 125 F. Supp.2d at 680 (finding that terminating a government employee for his testimony violates his constitutional rights). Here, however, plaintiffs argue that they were retaliated against for "prosecution of [their] Labor Law § 220 claims for SMMEs through the . . . administrative process and in the New York State Courts," (Opp'n Mem. at 3), that is, for pursuing a statutory route toward higher wages, not that their right to testify, per se, was violated.
Because I find that plaintiffs' conduct was not protected by the First Amendment, I need not address whether such conduct prompted defendants' decision to reclassify the SMME title. Accordingly, defendant's motion for summary judgment as to the First Amendment retaliation claim is granted.
IV. Qualified Immunity
Finally, defendants argue that the claims against individual defendants Commissioner Hanley and Commissioner Diamond should be dismissed under the doctrine of qualified immunity. A government official who performs discretionary functions is entitled to qualified immunity if either 1) his conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or 2) it was objectively reasonable for the official to believe that his conduct did not violate those rights. See Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982); McCullough v. Wvandanch Union Free Sch. Dist., 187 F.3d 272, 278 (2d Cir. 1999). A right is clearly established if its contours are sufficiently clear that a reasonable person in the defendant's position, not a lawyer researching case law, would understand that what he is doing violates that right. Id.
Because the First Amendment claim is dismissed, I need not address the defense of qualified immunity with regard to that issue. See Blue v. Koren, 72 F.3d 1075, 1080 (2d Cir. 1995) ("[A] threshold inquiry in analyzing an assertion of qualified immunity is whether the plaintiff has alleged a constitutional violation.") (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). With respect to the equal protection claim, plaintiffs' equal protection rights were clearly established by April 21, 1999, and I cannot find as a matter of law that it was objectively reasonable for Commissioner Hanley to believe that reclassifying the SMME title alone did not violate these constitutional rights. I find, however, that Commissioner Diamond is entitled to qualified immunity.
A. Commissioner Hanley
Defendants first argue that it was objectively reasonable for Commissioner Hanley to believe that the SMME title was not similarly situated to the other supervisory titles because 1) they were found by OATH and the Comptroller to be high Level II supervisors, and 2) they were unique because the Comptroller questioned the inclusion of supervisory titles within § 220. (Defs.' Mem. at 15, 18). However, as noted above, Commissioner Hanley himself stated that Supervisors of Mechanics supervise SMMEs and are therefore at a higher level than those SMMEs, (Hanley Dep. at 42-43), and the Comptroller referred to "supervisory titles" generally, not to the SMME title in particular. In addition, as also noted above, the Supervisors of Mechanics job description is quite similar to the SMME job description. As such, I cannot find as a matter of law that a reasonable person in Commissioner Hanley's position would conclude that the SMME title was not similarly situated to other supervisory titles.
Defendants also argue that it was objectively reasonable for Commissioner Hanley to believe that the reclassification was a legitimate response to the record established by the § 220 proceedings, "rather than motivated by a retaliatory intent." (Defs.' Mem. at 18). As previously noted, however, the reclassification occurred only with respect to the SMME title, only three months after the agreement setting the wages for SMMEs at a prevailing rate, and, most significantly, after a nine-year effort to obtain a prevailing wage. Cf. Blue, 72 F.3d at 1084 (finding that a long lapse of time between the conduct and alleged retaliatory action "undercut any causal relationship between the events"); see also McCullough, 187 F.3d at 180 (stating, in the context of a qualified immunity defense, that "the timing of a defendant's conduct may be circumstantial evidence of a retaliatory motive") (citingColon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
Even assuming Commissioner Hanley's actions were objectively reasonable, he is still not entitled to qualified immunity because the plaintiffs have set forth specific evidence from which a factfinder could infer an unconstitutional motive. In Blue v. Koren, the Court of Appeals held:
[U]pon a motion for summary judgment asserting a qualified immunity defense in an action in which an official's conduct is objectively reasonable but an unconstitutional subjective intent is alleged, the plaintiff must proffer particularized evidence of direct or circumstantial facts . . . supporting the claim of an improper motive in order to avoid summary judgment. In our view, the particularized evidence of improper motive may include expressions by the officials involved regarding their state of mind, circumstances suggesting in a substantial fashion that the plaintiff has been singled out, or the highly unusual nature of the actions taken.72 F.3d at 1084. Here, plaintiffs have offered Commissioner Hanley's alleged statements that he intended to drag out the SMME proceedings for years as evidence of his state of mind. If made, a factfinder could conclude that these statements suggest an unconstitutional motivation. Moreover, as previously discussed, the facts that 1) the SMME title was the only one of thirty supervisory titles that was reclassified even though there were other supervisory titles with similar job responsibilities and 2) the Comptroller's report referred to all "supervisory titles" generally suggest that the plaintiff was singled out here. Finally, as both Schultz and Hanley acknowledged in their depositions, the SMME title is the only title that has been reclassified since the early 1980s and it was the first time that the City reclassified a title out of the prevailing rate category into the Career and Salary plan. (Hanley Dep. at 109-10; Schulz Dep. at 96-97, 119, 171-72). Such testimony supports the notion that reclassifying the SMME title was highly unusual. Accordingly, I find that Commissioner Hanley is not entitled to qualified immunity, and the defendants' motion for summary judgment as to him is denied.
B. Commissioner Diamond
On January 8, 2001, plaintiffs sought to depose Commissioner Diamond. Defendants moved to quash the notice on the basis that the Commissioner was a high-ranking official. During a teleconference with counsel on March 16, 2001, I ruled that if Commissioner Diamond's deposition was not taken, he could not be called as a witness at trial. (See Letter from Kenneth E. Gordon to the Court dated January 3, 2002 ("Gordon Ltr."), at 1). By Order dated May 30, 2001, I granted defendants' motion, finding that plaintiff
has failed to meet the first prong of the requirements for deposing high-ranking government officials set forth in Marisol A. v. Giuliani, 1998 U.S. Dist. LEXIS 3719 (S.D.N.Y. 1998), that is, demonstrating that the deposition is necessary to obtain relevant information not available from other sources that is essential to the moving party's case, viz., unique personal knowledge that cannot be obtained elsewhere.
(Order dated May 30, 2001, at 1).
As part of their motion for summary judgment, defendants attached the Declaration of William J. Diamond, sworn to on May 1, 2001. (See Ex. K to Defs.' 56.1 Statement). By letter dated January 3, 2002, plaintiffs objected to the inclusion of this declaration, arguing that because Diamond could not be produced as a witness at trial, defendants cannot now rely on his affirmation because it provides testimony that would not be admissible at trial. (See Gordon Ltr. at 1-2). I find plaintiffs' argument persuasive. Under Rule 56(e), affidavits in support of summary judgment must set forth facts that would be admissible in evidence.Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997). Accordingly, I do not consider Commissioner Diamond's Declaration as part of the record on this motion.
Plaintiffs argue that it was not objectively reasonable for Commissioner Diamond to believe that the SMME title was not similarly situated to the other supervisory titles. Plaintiffs point out that, without Commissioner Diamond's approval, the reclassification of the SMME title would not have occurred and argue that he should have known that such a reclassification was a departure from normal practice. (Opp'n Mem. at 22-23). Finally, plaintiffs argue that, on the basis of the "strong circumstantial evidence of retaliation restated by the record," Commissioner Diamond is not entitled to qualified immunity. (Id. at 24).
Full discovery has been had in this case; documents have been produced, and numerous depositions taken of the participants in the events at issue. Plaintiffs, however, offer no evidence suggesting that Commissioner Diamond had any involvement or knowledge with respect to the reclassification other than signing Resolution No. (99-4) and related documents. (See Exs. J K to Defs.' 56.1 Statement). Even if Commissioner Diamond knew that the reclassification itself was unusual, nothing in the record suggests that he knew about the long-standing relations between Local 621 and the City, the legal proceedings between the parties regarding the SMME wage, the supervisory title job responsibilities, or that the SMME title was reclassified only three months after the parties agreed, after several years, to set the SMME wage at a prevailing rate. Because plaintiffs have proffered no evidence from which a factfinder could infer that Commissioner Diamond was aware of such circumstantial evidence, I find that, by signing Resolution (99-4), it was objectively reasonable for Commissioner Diamond to believe that his action did not violate plaintiffs' constitutional rights.Washington Square Post #1212 Am. Legion v. Maduro, 907 F.2d 1288, 1292 (2d Cir. 1990) ("[T]he relevant inquiry is whether . . . in light of clearly established law and the information possessed by the defendants, it was objectively reasonable for [the defendants] to believe that their [action] was lawful . . ."); cf. Emblen v. The Port Auth., No. 00 Civ. 8877 (AGS), 2002 WL 498634, at *11-12 (S.D.N.Y. Mar. 29, 2002) (finding that defendants who allegedly engaged in discrimination and harassment were not entitled to qualified immunity when their employer had informed them, prior to the time defendants acted, that discrimination and harassment would not be tolerated and violated federal law). Unlike Commissioner Hanley, there is no evidence that Commissioner Diamond had been deeply involved in the SMME negotiations over the course of several years, and plaintiffs also have failed to present evidence of a subjective retaliatory intent on his part. Finally, as the Court of Appeals noted, "qualified immunity `is an immunity from suit rather than a mere defense to liability . . . [and] is effectively lost if a case is erroneously permitted to go to trial.'" Washington Square Post, 907 F.2d at 1292 (emphasis in original) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Accordingly, defendants' motion for summary judgment on the basis of qualified immunity as to Commissioner Diamond is granted.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment as to the plaintiffs' First Amendment claim and as to Commissioner Diamond is granted. With respect to the plaintiffs' equal protection claim and Commissioner Hanley, the defendants' motion is denied.
The parties shall appear for a conference in courtroom 12A, 500 Pearl Street, on October 4, 2002 at 11:30 a.m.