ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

October 20, 2010

Policy-maker's terminated after spouse sues State alleges violation of a Constitutional right to associate with others in intimate relationships

Policy-maker's terminated after spouse sues State alleges violation of a Constitutional right to associate with others in intimate relationships
Adler v Pataki, 2nd Circ., 185 F.3d 35

Although the Second Circuit U.S. Court of Appeals has allowed a public employer to terminate a “policy-maker” solely for reasons of patronage, the Adler decision indicates that there is at least one possible exception to this general rule -- when the termination is alleged to involve “mixed-motives.” This case involved allegations that the policy-maker’s termination was not based on political considerations but was in retaliation because the policy-maker’s spouse had sued the State.

Alan Adler, a former deputy counsel with the State’s Office of Mental Retardation and Developmental Disabilities [OMRDD], sued the State, alleging that his First Amendment right of intimate association was violated because OMRDD terminated him because his wife had filed a lawsuit against state officials, including the State Attorney General.

Adler’s wife, a former Assistant Attorney General, was terminated from her position. She commenced a wrongful termination action against the Attorney General alleging that she was fired because she was not a Republican. She filed her lawsuit about a year before Adler was dismissed by OMRDD.

The Circuit Court said that the nature and extent of the right of intimate association is “hardly clear” but concluded that in Roberts v United States Jaycees, 468 U.S. 609, the U.S. Supreme Court has recognized such a right of association with two distinct components:

1. An individual’s right to associate with others in intimate relationships; and

2. A right to associate with others for purposes of engaging in activities traditionally protected by the First Amendment, such as speech and other expressive conduct.

The Circuit Court said that “[i]f simple vindictiveness against the plaintiff on account of his wife’s lawsuit was the defendants’ true motive, a First Amendment violation would be established” [emphasis added], overruling Northern District Judge Frederick J. Scullin Jr.

Judge Scullin had held that Adler was a policy-maker, and therefore he did not have any First Amendment protection against termination solely because of his political affiliation.

In addition, Judge Scullin said that to the extent that Adler’s claim was based on alleged mixed motives -- his political affiliation and his wife’s initiation of litigation against the state -- such an action “was foreclosed” by the Second Circuit’s decision in McEvoy v Spencer, 124 F.3d 92.”

But the three-judge Second Circuit panel said the district judge misinterpreted McEvoy. Although a policy-maker cannot claim First Amendment protection if he or she is dismissed because of political affiliation, “a policy-maker may not be discharged for such reasons as race, sex, or national origin.” Consistent with that view, the court ruled that:

1. Adler could proceed with his claim that he was fired solely in retaliation for his wife’s lawsuit, and not at all for reasons of political patronage.

2. Since Adler was a policy-maker, the State will prevail only if it can “ultimately demonstrate that he was in fact fired solely for reasons of political patronage”.

3. “To the extent that the [State] acted with a mixed motive, i.e., if they fired [Adler] in retaliation for his wife’s activities and for reasons of political patronage,” the McEvoy decision does not control and that the State has the burden of demonstrating that they would have removed the Adler from his position even if his wife had not been involved in litigation against the State.

The lesson here is that where a policy-maker was dismissed because of his or her political affiliation, the federal courts will uphold the termination if there is proof that the separation was the solely based on patronage considerations. But where “mixed-motives” are present, the public employer must prove that the policy-maker would have been terminated even if there were “no mix to the motive” for the termination to survive judicial scrutiny.

.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.