Morin v. Tormey

09-2960-cv
Morin v. Tormey

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2010

Heard: October 18, 2010 Decided: November 15, 2010

Docket No. 09-2960-cv

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BOBETTE J. MORIN,
Plaintiff-Appellee,

v.

JAMES TORMEY, individually and in his official
capacity as District Administrative Judge of
the Fifth Judicial District, BRYAN R. HEDGES,
individually and in his official capacity as
Judge of the Onondaga Family Court, JOHN R. VONINSKI,
individually and in his official capacity as
Executive Assistant to the District Administra-
tive Judge, WILLIAM F. DOWLING, individually
and in his official capacities as Law Clerk to
Family Court Judge Bryan Hedges and as Fifth
District Court Attorney Referee,
Defendants-Appellants.
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Before: FEINBERG, NEWMAN, and LYNCH, Circuit Judges.

Appeal from the June 3, 2009, order of the United States District

Court for the Northern District of New York (David N. Hurd, District

Judge), denying Defendants-Appellants motion for summary judgment

sought on the ground of qualified immunity. The Plaintiff alleges

that she was subjected to adverse employment actions in violation of

the First Amendment because of her refusal to assist the Defendants in
gathering adverse information about a Family Court judge to aid their

efforts to prevent the judge’s election to a higher judicial office.

Affirmed.

Victor Paladino, Asst. Solicitor General,
Albany, N.Y. (Andrew M. Cuomo, N.Y.
State Atty. General, Barbara D.
Underwood, Solicitor General, Andrew D.
Bing, Deputy Solicitor General, Office
of the Atty. General, Albany, N.Y., on
the brief), for Defendants-Appellants.

William D. Frumkin, White Plains, N.Y.
(Elizabeth E. Hunter, Sujan H.
Vasavada, on the brief), for Plaintiff-
Appellee.

JON O. NEWMAN, Circuit Judge.

This interlocutory appeal from the denial of a motion to dismiss

primarily concerns an allegation of retaliatory action taken against

a state court employee because of her refusal to engage in partisan

political activity. Defendants-Appellants James C. Tormey, State

Supreme Court Justice and District Administrative Judge for the Fifth

Judicial District; Bryan R. Hedges, Judge of the Onondaga Family

Court; John R. Voninski, the former Executive Assistant to Judge

Tormey; and William F. Dowling, former law clerk to Judge Hedges and

currently a Court Attorney Referee in the Onondaga Family Court

(collectively, “the Defendants”), appeal from the June 3, 2009, order

of the United States District Court for the Northern District of New

York, David N. Hurd, Judge, denying their motion for summary judgment.

The Appellants asserted the defense of qualified immunity to a suit by

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Plaintiff-Appellee Bobette J. Morin, formerly the Chief Clerk of the

Onondaga County Family Court (“OCFC”). The Appellants also alleged

that Morin was a policymaker exempt from First Amendment protection in

her job. Morin’s suit, grounded on 42 U.S.C. § 1983, claimed

reinstatement and damages for the Defendants’ alleged acts of

retaliation and creation of a hostile work environment in violation of

the First Amendment.

Accepting Morin’s allegations as true for the purposes of this

appeal, we agree with the District Court that neither the defense of

qualified immunity nor Morin’s alleged status as a policymaker has

been established as a matter of law at this stage of the litigation.

We therefore affirm.

Background

Morin’s affidavit alleged the following facts. She has been an

employee of the New York State Unified Court System since 1983, became

Deputy Chief Clerk of the OCFC in 1986, and became Chief Clerk in

1994. In the summer of 2002, Voninski, then Executive Assistant to

District Administrative Judge Tormey, escorted Morin to Tormey’s

chambers. Tormey greeted Morin with a kiss and a hug and commended

her for the “great job” she was doing. Tormey then told Morin that

OCFC Judge David G. Klim was running for State Supreme Court Justice

on the Democratic ticket against “good Republican friends of mine” and

asked Morin if she “was a good Republican” and whether she “wanted to

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be a ‘team player.’” Tormey and Voninski demanded that Morin “provide

negative information about Judge Klim with respect to his upcoming

judicial election for Supreme Court” and “ordered [her] to ‘dish dirt’

on Judge Klim.” They requested her “to monitor Judge Klim’s

activities and to report his ‘comings and goings.’” Morin replied

that it was not her position “to spy on judges during a judicial

election” and that “it was repeatedly emphasized to me that I was not

to engage in political activity involving the courts.” She added that

her only monitoring task was to maintain a list of each judge’s cases

that were approaching the 180-day deadline for disposing of cases.

Hearing her response, Tormey and Voninski “became visibly angry,” and

Tormey “directed [her] to ‘get out of [his] office!’”.

Shortly thereafter and continuing until 2006, Morin was subjected

to various adverse employment actions taken in retaliation for her

refusal to assist Tormey and Voninski in their political objectives.

These actions included denial of her requests for resources and

supplies, reassignment for temporary employment requiring four hours

of commuting time, reassignment to a “cold, dank” basement office into

which water leaked. In February 2006, Dowling told Morin that she had

“pissed off the wrong person,” that she “would be sorry [she] ever

crossed his path,” and that “he was going directly to Defendants

Voninski and Tormey who ‘want to get rid of you.’” In March 2007

Morin was subjected to “involuntary removal” from her position as

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Chief Clerk and a “forced demotion.”

The District Court denied the Defendants’ motion for summary

judgment, which was based on qualified immunity, concluding that,

viewed in the light most favorable to the Plaintiff, her evidence

showed a violation of her “constitutional right to free speech” and

precluded summary judgment as a matter of law, and that she had

“presented evidence of genuine issues of material fact relating to

each of the elements of her First Amendment retaliation and hostile

work environment claims.”1

The Defendants took this interlocutory appeal to seek review of

the denial of their motion for summary judgment based on qualified

immunity. Morin moved to dismiss the interlocutory appeal, arguing

that we lack jurisdiction to entertain such an appeal where the denial

of the defense turns on the resolution of disputed facts, see O'Bert

ex rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 38 (2d Cir. 2003). A

motions panel referred the motion to dismiss to the merits panel.

Discussion

A. Jurisdiction

1
The District Court granted the Defendants’ motion to the extent

that it sought dismissal, on statute of limitations grounds, of the

Plaintiff’s claims based on retaliation that occurred prior to May 14,

2004.

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 “[T]he denial of a qualified-immunity-based motion for summary

judgment is immediately appealable to the extent that the district

court has denied the motion as a matter of law, although not to the

extent that the defense turns solely on the resolution of questions of

fact.” Vargo, 331 F.3d at 38; see Salim v. Proulx, 93 F.3d 86, 89-91

(2d Cir. 1996).

Had the District Court denied the Defendants’ motion for summary

judgment solely on the ground that their defense of qualified immunity

turned on disputed issues of fact, we would have to dismiss the

appeal, but since the Court ruled that on the Plaintiff’s version of

the facts, the Defendants are not entitled to summary judgment as a

matter of law, we have jurisdiction to consider their appeal. Vargo,

331 F.3d at 38 (“[A] defendant may pursue an immediate appeal if he

adopts the plaintiff's version of the facts, contending that the facts

asserted by the plaintiff entitle the defendant to the defense of

qualified immunity as a matter of law.” (internal quotation marks and

alterations omitted)); see Salim, 93 F.3d at 89.

II. The Merits

(a) Retaliation in violation of the First Amendment. The parties

challenge and defend the District Court’s ruling as if this case

concerned a public employee’s expression of views. They debate the

significance of Supreme Court decisions in Garcetti v. Ceballos, 547

U.S. 410 (2006), Connick v. Myers, 461 U.S. 138 (1983), and Pickering

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v. Board of Education, 391 U.S. 563 (1968). In these decisions, the

Court ruled that whether adverse action could be taken against a

public employee for expression of views turned on whether the employee

expressed her views in the performance of her official duties or as a

private citizen. But for the Pickering line of cases to apply, there

must be an expression of views. In Pickering and Garcetti, the

employee had expressed what unquestionably were views. The plaintiff

in Pickering wrote a letter to a local newspaper concerning a proposed

tax increase. 391 U.S. at 564. The plaintiff in Garcetti authored a

memorandum to his superiors expressing his view about irregularities

in an affidavit supporting a search warrant. 547 U.S. at 413-14.

Connick does not precisely involve the expression of a view, but the

questionnaire prepared and circulated to co-workers soliciting their

views on office management practices, 461 U.S. at 141, could fairly be

considered an attempt by the employee to precipitate an exchange of

views.

By contrast, Morin is suing to assert her First Amendment right

not to be pressed into participating in partisan political activities.

That right draws its decisional basis not from the

Garcetti/Connick/Pickering trilogy, but from decisions such as Rutan

v. Republican Party of Illinois, 497 U.S. 62 (1990), Branti v. Finkel,

445 U.S. 507 (1980), and Elrod v. Burns, 427 U.S. 347 (1976). As the

Court stated in Rutan, Elrod and Branti “decided that the First

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Amendment forbids government officials to discharge or threaten to

discharge public employees solely for not being supporters of the

political party in power, unless party affiliation is an appropriate

requirement for the position involved.” Rutan, 497 U.S. at 64.

Morin did not initiate the expression of any views, nor did she

volunteer comments on any issues, whether of public or private citizen

concern. She just said, “No.” Although the Defendants contend that

Morin expressed a “view” that what she was asked to do did not fall

within her official duties, her refusal cannot fairly be characterized

as a “view” within the meaning of Pickering. To call her “No” answer

to the demand that she engage in partisan political activities the

expression of a “view” is to trifle with the viewpoint protection

doctrine of the Garcetti/Connick/Pickering trilogy and to disregard

the more fundamental and equally well-established protection of the

Elrod/Branti/Rutan trilogy. Plaintiff expressed no political opinion;

she simply asserted her right not to be pressed into political

activity. The right to be free from retaliation based on political

affiliation is not limited to members of an opposing political party,

but extends to those who are perceived by those retaliating to be

apolitical or insufficiently politically loyal.

Unlike a case such as McEvoy v. Spencer, 124 F.3d 92 (2d Cir.

1997), which we noted presented issues “at the intersection of the

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doctrines set forth in” Pickering and Elrod, McEvoy, 124 F.3d at 94;

see id. at 99-100 n.4, this case is plainly governed by the

Elrod/Branti/Rutan trilogy. In short, the issue in this case is

whether the Plaintiff could be retaliated against based on her

political affiliation (or non-affiliation), not whether she could be

retaliated against based on any protected speech.

On the facts alleged by Morin, which the Defendants acknowledge

they are accepting as true for purposes of this attempt to have the

case dismissed as a matter of law on the ground of qualified immunity,

Morin is clearly entitled to proceed to trial at which the Defendants

will have an opportunity to challenge her claim that the Defendants

unlawfully retaliated against her for exercising her right to decline

to participate in political activity.

(b) Policymaker exception. The Defendants also challenge the

District Court’s ruling on the ground that Morin was a policymaker.

The Supreme Court has recognized that there is a “policymaker”

exception to the Elrod/Branti/Rutan trilogy,2 but has also made it

2
We have recognized that “the policymaking status of the

discharged or demoted employee is very significant to the Pickering

balance” of the employee’s right to speak versus the employer’s

interest in the effective operation of the workplace,” McEvoy, 124

F.3d at 103. However, since Morin’s “No” answer was not an expression

of her “views” within the meaning of Pickering, the Pickering

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clear that “the ultimate inquiry is not whether the label

‘policymaker’ or ‘confidential’ fits a particular position.” Branti,

445 U.S. 518. The exception applies if “the hiring authority can

demonstrate that party affiliation is an appropriate requirement for

the effective performance of the public office involved.” Id.; see

Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988) (“[P]olitical

affiliation is an appropriate requirement when there is a rational

connection between shared ideology and job performance . . . .”).

This inquiry generally requires consideration of the duties of the

office as set forth in the job description, see Gordon v. County of

Rockland, 110 F.3d 886, 888 (2d Cir. 1997), as well as applicable

regulations, see McEvoy, 124 F.3d at 105 (duties outlined in city

charter). Our Court has identified several non-exclusive factors

relevant to the inquiry. See Vezzetti v. Pellegrini, 22 F.3d 483 (2d

Cir. 1994). These are that the employee is (1) exempt from civil

service protection,3 has some technical competence or expertise, (3)

controls others, (4) is authorized to speak in the name of

policymakers, (5) is perceived as a policymaker by the public, (6)

influences government programs, (7) has contact with elected

officials, and (8) is responsive to partisan politics and political

balancing of interests has no relevance to this case.
3
We have noted that this factor is not conclusive. See Gordon, 110

F.3d at 890 n.5.

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leaders. See id. at 486.

Morin is exempt from civil service protection, has some technical

competence (although she is not required to be an attorney), and has

contact with elected judges, but she has only two employees working

for her and has no hiring authority,4 is not authorized to speak in the

name of the Defendants or other policymakers, cannot reasonably be

perceived as a policymaker, does not influence government programs,

and is not responsive to partisan politics. Although her job

description includes consulting with judges and administrators “to

4
In Adler v. Pataki, we noted that the plaintiff “supervised at

least two employees,” 185 F.3d 35, 46 (2d Cir. 1999), in support of

our conclusion that he was a policymaker. However, the plaintiff in

Adler, a deputy counsel for litigation in New York State’s Office of

Mental Retardation and Developmental Disabilities, was an attorney who

conceded that he “oversaw a major environmental litigation with

potentially serious repercussions for state government.” Id. The fact

that he supervised “at least two employees” was not central to our

conclusion in that case, and we have previously weighed this factor

against policymaker status where the employee was not in charge of a

large group of employees. See Gordon, 110 F.3d at 890; cf. Vezzetti,

22 F.3d at 486 (noting, in support of a policymaker ruling, that

plaintiff “managed about sixty employees and had broad authority to

make hiring decisions.”).

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develop court policy,” her primary duties are managing court

operations.5 We note that New York’s Rules Governing Conduct of Non-

5
We recognize that “[b]ecause the policymaker question is one of

law for the court, it is not a disputed issue of fact which we are

required . . . to construe in favor of the plaintiffs for whom we have

official or statutory job descriptions.” Danahy v. Buscaglia, 134 F.3d

1185, 1191 (2d Cir. 1998); see also id. (Whether someone is a

policymaker “presents a question of law informed solely by the job

description and the powers of the office.”). However, “this court’s

challenge is to discern the duties inherent in the office[] held by

the plaintiff[].” Gordon, 110 F.3d at 888 (emphasis omitted). Even if

there is an official job description in the record, there can be

underlying factual questions about the actual powers of the job that

would be relevant to answering this question, at least when the job

description does not, by itself, conclusively establish whether the

employee is a policymaker. The job description in the instant case

contains a disclaimer that the “[t]ypical duties,” and “distinguishing

features of work it contains “describe the general nature and level of

work being performed by persons assigned to [the title of Chief

Clerk]. [But] [t]hey do not include all job duties performed by

employees in this title and every position does not necessarily

require these duties.” (Emphasis added). In the instant case, we

cannot determine, on the basis of this official job description alone,

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Judicial Employees, of which the Defendants were surely aware,

explicitly states, “Court employees shall not engage in political

activity during scheduled work hours or at the workplace.” N.Y. Comp.

Codes R. & Regs. tit. 22, § 50.1(III)(B). While the fact that an

employee is prohibited from engaging in political activity on the job

might not be dispositive of whether she is a policymaker, the fact

that Morin was barred from any political activity on the job cuts

against any claim that political affiliation was an appropriate

requirement for her job.

Thus, the Vezzetti factors, which are non-exclusive, see

Vezzetti, 22 F.3d at 486, tilt on balance against a policymaker role.

More significantly, as the Defendants recognize, “[t]he ultimate

question is whether party affiliation is an appropriate requirement

for the effective performance of the public offic[e] involved,” Brief

for Defendants-Appellants at 24 (citing Gronowski v. Spencer, 424 F.3d

285, 292 (2d Cir. 2005)) Nothing in the record indicates that

political activity or ideology was necessary to the effective

whether Morin was a policymaker, and, Morin disputes the inherent

duties of her particular job as Chief Clerk at the OCFC. As the

Defendants have necessarily accepted Morin’s factual assertions as

true in order to invoke our jurisdiction to hear this appeal, we have

accepted Morin’s description of her inherent job duties in analyzing

whether the Defendants have shown that she is a policymaker.

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performance of Morin’s position as Chief Clerk of the OCFC, and the

Defendants have not argued that political loyalty to Voninski and

Tormey was an appropriate job requirement.

While there may be circumstances in which a judge elected on a

platform of institutional reform may require a politically compatible

chief clerk, nothing in the record before us indicates that this was

true at the OCFC. Thus, the District Court did not err in concluding

as a matter of law that, on the record thus far developed, Morin was

not a policymaker exempt from First Amendment protection.

The Defendants have also failed to establish that it was

objectively reasonable for them to believe that Morin was a

policymaker such that they would be entitled to qualified immunity.

See Danahy v. Buscaglia, 134 F.3d 1185, 1189 (2d Cir. 1998). While,

as we have noted, a few of the factors relevant to determining

policymaker status pointed toward that status, the Defendants have

failed to present any evidence to establish a reasonable belief in the

fundamental point: that Morin’s job legitimately required political

affiliation, that is, that there was a “rational connection” between

her “shared ideology” with the Defendants and her job performance, see

Savage, 850 F.2d at 68. On the present record, the District Judge did

not err in concluding as a matter of law that the Defendants could not

reasonably have believed that Morin was a policymaker.6

6
We express no view on whether, on a fuller record developed at

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 Conclusion

The order of the District Court is affirmed.

trial, the Defendants would be able to establish that political

loyalty is a requirement for Morin’s position, or at least that they

were entitled reasonably to have so believed.

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