dissenting:
I cannot agree that summary judgment was appropriate in this ease and, accordingly, respectfully dissent. This appeal presents a narrow question: whether summary judgment was properly granted on the issue of damages where the plaintiff had already established a violation of his Fourteenth Amendment procedural rights. Defendants have not appealed the district court’s ruling that Cifarelli was entitled to be notified in advance of his dismissal and to be provided a pre-termination hearing if he so requested. As a result, Cifarelli is entitled at the very least to an award of nominal damages for this constitutional violation, as were the plaintiffs in Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 1053-54, 55 L.Ed.2d 252 (1978).
Although the district court awarded nominal damages, it ruled that Cifarelli’s discharge was “justified” as a matter of law because defendants demonstrated that his position was abolished “in good faith” for economic reasons. The trial court found the motive and its validity under New York law relevant in calculating damages because the Village of Babylon (Village) — if it had been acting in good faith and for economic reasons — would have terminated Cifarelli even if a proper hearing had been held. To that extent, the district court’s reasoning was consistent with the rules governing damages awards under § 1983. See Zinermon v. Burch, 494 U.S. 113, 134 n. 19, 110 S.Ct. 975, *54987-88 n. 19, 108 L.Ed.2d 100 (1990); Carey, 435 U.S. at 266-67, 98 S.Ct. at 1053-54; Dwyer v. Regan, Til F.2d 825, 834 (2d Cir. 1985), modified, 793 F.2d 457 (1986); cf. Hogue v. Clinton, 791 F.2d 1318, 1326-29 (8th Cir.) (Lay, C.J., dissenting in part) (arguing that measure of damages should depend upon whether a property or liberty interest was implicated), cert. denied, 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 704 (1986).
But these principles do not support the view that New York law is dispositive of plaintiffs claims. State law, as just noted, is relevant to resolving the factual question of whether plaintiff suffered a compensable injury, Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985), but the measure of damages is defined in the first instance by federal law, see Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 238-40, 90 S.Ct. 400, 405-06, 24 L.Ed.2d 386 (1969). Moreover, the standard for evaluating a motion for summary judgment — whether or not federal law governs the substance of a claim — is undoubtedly defined by federal law. See Fed. R.Civ.P. 56; cf. Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1143-44, 14 L.Ed.2d 8 (1965) (where applicable federal rule is in effect, that rule governs unless it conflicts with federal statutory or constitutional law).
Cifarelli urges that we evaluate his claim in light of our precedents involving summary judgment motions in employment discrimination eases. The burden-shifting analysis used in such cases to determine if the employer’s motive was a discriminatory one, see, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 513-18, 113 S.Ct. 2742, 2750-53, 125 L.Ed.2d 407 (1993), concededly has no direct application to a procedural due process claim. But, because the employer’s motive is relevant in the present case, the same reasons that make us reluctant to grant summary judgment in discrimination cases should make us hesitant to do so here. Cifarelli is a former employee who was terminated without constitutionally-guaranteed process and his former employer asserts that the decision was motivated by good-faith fiscal reasons. Both types of cases require an analysis of the permissible inferences regarding the employer’s motive in terminating an employee.
We have often stated that “summary judgment is ordinarily inappropriate where intent and state of mind are at issue.” Montana v. First Fed. Sav. & Loan Ass’n, 869 F.2d 100, 103 (2d Cir.1989); see also Gallo v. Prudential Residential Sens., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir.1994); Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir.1991). This notion is not limited to Title VII cases, see, e.g., Gallo, 22 F.3d at 1224 (applying the rule to the Age Discrimination in Employment Act), nor is its logic limited to statutory discrimination claims.
The damages question in the present case requires an analysis of the employer’s intent and state of mind. Further, that question must be evaluated in light of the reality that an employer is rarely so careless as to note in its personnel file that its actions were motivated by factors forbidden by law. See, e.g., Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). Inferences about an employer’s motive therefore must ordinarily be drawn from circumstantial evidence and summary judgment is inappropriate where there is enough evidence to permit an inference in plaintiffs favor. In evaluating the evidence, a trial court is limited to identifying disputed questions of fact; it may not assume the role of factfinder and undertake to decide such issues. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir.1987). For these reasons, Cifarelli’s reliance on the discrimination cases is most apt.
In light of our usual reluctance to deny an aggrieved employee the opportunity to present evidence of motive to the factfinder, I would reverse so that plaintiff might have his day in court. In my view, the question of whether the Village acted in good faith was a disputed material issue of fact, one properly submitted to a jury. Cifarelli’s termination occurred under suspect circumstances. He was not told that he was about to lose his job until a few hours before the Village formally eliminated his position. There is record evidence — for example, an internal memorandum dated July 27, 1993 — indicating the Village was seeking advice from the county Civil *55Service Department (Department) about its obligations upon terminating Cifarelli long before he was formally fired. Given that the Board of Trustees decided in the course of a single meeting both to eliminate plaintiffs job and to hire Stephen Fellman to perform some of his former duties, a jury could infer that the plan to terminate Cifarelli was conceived well in advance. Yet the mayor notified plaintiff only a few hours before the vote. This strategy, undertaken by officials of a small municipality, suggests defendants wanted to get rid of plaintiff and acted in bad faith in doing so.
In addition, the available direct evidence of motive does not support the grant of summary judgment. Far from stating unequivocally that the termination was driven by fiscal considerations, the mayor at his deposition first offered the following explanation of the concerns that animated the decision: “We were trying to improve our standards in our offices. Times were changing. We had to address issues that were important in the Village and in the Department. And we were examining them. And as such, and in reflection, we reviewed again what was happening with the building permits. They were continuing to go down in numbers.” And, although he indicated that economics played a role, the mayor later stated that Cifarelli was not initially offered the new part-time job — which con-eededly replaced Cifarelli’s position in part — because he thought it was time to “take the office and revamp it” and “to proceed in another direction.” Such statements would allow a factfinder to find that the purported fiscal motive was not the real reason plaintiff was fired.
Nor do the Village’s budget figures support a grant of summary judgment. These documents suggest that the appropriation for “personal services,” which according to defendants included plaintiffs salary, was cut by $24,000 in the budget for fiscal year 1993-94. Plaintiff maintains in an affidavit, however, that this purported savings is illusory because (1) Fellman, his parttime replacement, is now drawing some $5,000 annually, (2) Fellman had already been hired in 1992 to assume some of plaintiffs other duties at a rate of $10,000 annually (a fact confirmed by the Village’s budget documents), and (3) additional personnel were also hired to perform his former duties, at a cost of some $15,000. Drawing all reasonable inferences in favor of Cifarelli, the non-movant, the budgetary information scarcely supports the proposition that the Village’s true motive was to save money.
The Village’s decision to hire substitute personnel to perform Cifarelli’s duties could support a finding that the Village acted in bad faith. The district court thought the Village’s immediate compliance with the Department’s direction to offer plaintiff the new part-time position showed it acted in good faith. But the Village’s action was not part of a good faith effort to give Cifarelli the job — the Village had already offered the position to Fellman. Instead, the Village finally offered the position to plaintiff because of the Department’s advice that it was required by law to do so. Such behavior hardly evinces a good faith motive. Cf. Switzer v. Sanitary Dist. No. 7, 59 A.D.2d 889, 890, 399 N.Y.S.2d 43 (2d Dep’t 1977) (employer’s “good faith” was disputed issue where position might have been eliminated “to discharge this petitioner from his position and permit the substitution of a newly hired employee to perform substantially the same, or similar, services”).
Other facts upon which the trial court relied also do not evidence good faith. It cited the Village’s swift compliance with the Department’s order to extend to Cifarelli a second and more detailed offer after the Village had finally extended the initial offer on September 30, 1993. An action taken to comply with the law is not evidence of good faith. The district court also relied on the Village’s decision to tailor Cifarelli’s part-time job offer to the terms imposed by the Department, and to let the Department decide whether his acceptance was too late to be valid. The majority today adheres to this reasoning. It does not strike me that the Village’s conformance with the various strictures imposed by the Department shows it acted in good faith, much less that conformance compels such a conclusion as a matter of law.
Moreover, I would reject defendants’ contention that plaintiff may not recover because *56he never alleged a bad faith reason for his termination. To prove damages in this sort of case, plaintiff need only show a lack of good faith. If this fact is established, a jury could conclude that the constitutional deprivation caused plaintiff actual harm because his termination would not have occurred were it not for the denial of a hearing. I recognize that if the case at hand involved a statutory claim of discrimination, plaintiff would need to demonstrate that the employer based its decision on a particular impermissible factor. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir.1995). But in this case plaintiff was only required to show a lack of good faith. Evidence establishing a specific non-economic motive was not required.
Finally, the termination decision from this record appears to have been essentially personal and political, one made behind closed doors when due process required that notice and a hearing be provided. Cifarelli may or may not have suffered a compensable injury from the conceded constitutional deprivation, but in any event that was a question properly “resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
In sum, the various affidavits, deposition testimony, and other documents presented were in my view sufficient to raise a triable issue of fact. Cifarelli should have been allowed to present to a jury the evidence tending to show the Village did not act in good faith. Several factors weigh in favor of trying the damages question: the timing and circumstances of the termination, ineluding the extremely short notice and the Village’s attempt surreptitiously to hire another person or persons to perform Cifarelli’s former duties; the ambiguity in the available budget information; and the defendants’ vague explanations of the reasons for eliminating the full-time building inspector position.
I vote to reverse the grant of summary judgment and to remand the case for trial.