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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ______
No 11-CV-539 (JFB) (AKT) ______
DENIS J. MONETTE,
Plaintiff,
VERSUS
THE COUNTY OF NASSAU AND LAWRENCE MULVEY,
Defendants. ______
MEMORANDUM AND ORDER March 31, 2015 ______
JOSEPH F. BIANCO, District Judge: In this lawsuit, plaintiff alleged that he Plaintiff Dennis Monette (“plaintiff”) was fired for several unlawful purposes, brought this employment discrimination including in retaliation for the exercise of action against the County of Nassau (“the his First Amendment right to support County”) and Lawrence Mulvey (“Mulvey”) Mangano instead of Suozzi. After a trial in (collectively “defendants”) after he was January 2014, a jury found for plaintiff on terminated as Assistant Commissioner of the his First Amendment claim against the Nassau County Police Department County,1 brought under 42 U.S.C. § 1983, (“NCPD”) on November 13, 2009. His and awarded plaintiff $150,000 in termination occurred ten days after the compensatory damages. The parties agreed election for Nassau County Executive, when that back pay, front pay, and reinstatement the result was still unknown and too close to were equitable remedies for the Court’s call. In that election, Ed Mangano determination, and they have submitted (“Mangano”) ultimately defeated Tom post-trial briefs on these issues, as well as on Suozzi (“Suozzi”), who had held the post-trial motions by the County for position since 2001. Plaintiff had been a fervent supporter of Suozzi until the 2009 election, when he switched his support to Mangano because plaintiff was frustrated 1 The only claim against Mulvey as an individual to with his treatment by his superior, NCPD go to the jury was for aiding and abetting disability discrimination under the NYHRL. (See Trial Commissioner Mulvey. Plaintiff frequently Transcript (“Tr.”) at 818.) With respect to the First complained to Suozzi about his treatment, Amendment claim under § 1983, the jury was and felt that Suozzi failed to address his instructed that both Mulvey and Suozzi were concerns. “policymakers” whose conduct could subject the County to liability. (See Jury Charge at 24.)
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absolutely no basis in the evidence. For the sharing intelligence information and same reason, plaintiff’s motion is denied coordinating their response to the threat of with respect to reinstatement and front pay. terrorism. (Id. at 202.) However, when new Commissioner James Lawrence arrived a I. BACKGROUND few months later, plaintiff was assigned additional duties involving departmental A. Factual Background management, analysis, and planning. (Id. at 154.) Set forth below is a summary of the evidence that was adduced at trial. Suozzi was re-elected in 2005, and plaintiff supported and raised funds for him Plaintiff joined the NCPD in 1968 (Tr. at in that election as well. (Id. at 173-77.) 104), and served as a uniformed police After he was re-elected, Suozzi needed to officer until 1991, when he retired with a name a new Commissioner of Police, disability pension after sustaining knee and because Commissioner Lawrence back injuries at a crime scene (id. at 116- announced his retirement. (Id. at 180.) One 19). After he retired, plaintiff worked of the candidates was defendant Mulvey, periodically for his family’s restaurant, but and Suozzi told plaintiff that he was aware was not employed full time. (Id. at 124.) In of personal friction between Mulvey and 2000, plaintiff met Suozzi, who was plaintiff. (Id. at 181-82.) The friction preparing to run for Nassau County stemmed from two incidents when both Executive. (Id. at 125.) Plaintiff was Mulvey and plaintiff were still police introduced to Suozzi by an old friend, Louis officers; one incident involved a search Yevoli, and was impressed with Suozzi’s warrant, and the other involved the alleged credentials and vision for the county. (Id. at misappropriation of property in Mulvey’s 125-28.) Plaintiff became a friend and unit. (Id. at 182-93.) As a result of his past supporter of Suozzi’s, hosting fundraisers experiences with plaintiff, Mulvey told a for him and accompanying him on the commissioner-selection committee that he campaign trail. (Id. at 128-32.) Overall, would not work with plaintiff because he plaintiff estimated that he raised $210,000 questioned plaintiff’s integrity. (Id. at 518.) for Suozzi during the 2001 election. (Id. at 136.) Suozzi named Mulvey the NCPD Commissioner in mid-2007. (Id. at 194.) After Suozzi was elected, he named Before doing so, he assured Mulvey that plaintiff the Director of Public Safety, based plaintiff would not be part of his on plaintiff’s 22 years of experience in the administration in the NCPD. (Id. at 527.) police department and his ideas about Suozzi later proposed a compromise in streamlining public safety services. (Id. at which plaintiff would be moved to the 145-48.) After five or six months in that Office of Emergency Management (OEM), a position, Suozzi appointed plaintiff as an separate entity from the police department Assistant Commissioner of the NCPD. (Id. which was located in a separate facility. (Id. at 153.) Initially, plaintiff’s new position at 536.) Mulvey insisted that plaintiff not was dedicated solely to counter-terrorism, have authority to order around police and and he represented the NCPD as a member should not be considered critical staff, and of STARCOM, a regional collaboration of Suozzi agreed. (Id. at 537.) Instead, local and federal agencies dedicated to plaintiff would serve as a liaison between
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During the period between plaintiff’s Suozzi was a candidate for re-election in 2007 move to the basement cubicle and his November 2009, when he ran against termination in November 2009, pressure was Mangano. (Id. at 221.) Although plaintiff mounting in the County government to cut had campaigned for Suozzi extensively in
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the prior elections, he chose to support position, Mulvey asked whether plaintiff Mangano in 2009 because he felt that Suozzi was “on the table.” (Id. at 653.) Suozzi had done nothing in response to plaintiff’s confirmed that everyone was on the table, complaints about his move to the basement and Mulvey immediately recommended that cubicle. (Id.) Plaintiff had also been plaintiff be fired. (Id.) Suozzi accepted the friendly with Mangano for 25 years. (Id. at recommendation and told Mulvey to act on 221-22.) Plaintiff told Yevoli and some it. (Id. at 653; 661.) other friends about his support for Mangano, and he began to attend events and raise Plaintiff testified that, when he learned funds. (Id. at 223-24.) Overall, plaintiff of his firing, he pulled over his car and raised approximately $9,500 for Mangano. vomited. (Id. at 265.) He felt faint and (Id. at 225.) At some point in the summer of dizzy, and was sweating profusely. (Id.) He 2009, plaintiff encountered Suozzi and told called several people, including his wife, him that he was supporting Mangano; in who began to cry. (Id. at 265-67.) Over the response, Suozzi waved dismissively and next four days, plaintiff called Suozzi 27 walked away. (Id. at 259-60.) Plaintiff had times, but he never answered. (Id. at 267.) known Suozzi for a number of years, and it In the following months, plaintiff felt appeared to plaintiff that Suozzi was angry. humiliated and sick, and he had trouble (Id. at 261.) sleeping and eating. (Id. at 277.) Plaintiff testified that he still holds a “terrible The 2009 election for Nassau County feeling” about the fact that, in his mind, his Executive was held on November 3, but the record reflects that he was ultimately fired results were not immediately known because from the police department he served for 30 the election was too close to call. (Id. at years. (Id. at 278.) 262.) Plaintiff was terminated on November 13, 2009, before the winner was determined. In December 2009 or January 2010, after (Id. at 263, 270.) First, plaintiff received a Mangano was announced the winner of the call from Mulvey telling him that he was election, plaintiff met with him to discuss fired because of “downsizing.” (Id. at 263.) the discontinuance of his health care, which Plaintiff immediately called Ryan and was supposed to be a lifetime benefit but Suozzi, who claimed to be surprised. (Id. at was canceled after his termination (although 264.) Both men promised plaintiff that they it was ultimately restored). (Id. at 269-70.) would call him back, but neither ever did. Plaintiff also asked Mangano about getting (Id. at 268.) his job back, but Mangano was non- committal. (Id.) At a later meeting after he Mulvey testified that plaintiff was fired took office, Mangano told plaintiff that he on November 13 because Suozzi called could not re-hire him because of pressure Mulvey to tell him that he was under from the Nassau Interim Finance Authority increased pressure with respect to the and the county legislature to cut costs. (Id. budget, and needed to eliminate a top at 275-76.) Mulvey was allowed to continue position in the police department because of as Police Commissioner for a period of time the perception that it was “top heavy.” (Id. after Mangano became County Executive in at 650, 651-54; 661.) As noted, Mulvey had January 2010. (Tr. 577.) recommended plaintiff’s termination to Ryan and Suozzi several times before, and when Suozzi mentioned eliminating a top
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B. Procedural History an alternative to their argument that they should be allowed to assert the policymaker Plaintiff filed the complaint in this case defense even though it was not in the on February 3, 2011, asserting a variety of answer, the defendants requested leave to claims of employment discrimination under amend their answer to include the defense. 42 U.S.C. § 1983, the Americans with Plaintiff’s counsel objected on the grounds Disabilities Act (“ADA”), the Age that any amendment to the answer to include Discrimination in Employment Act that defense would be highly prejudicial on (“ADEA”), and the New York Human the eve of trial. The Court reserved decision Rights Law (NYHRL). On January 10, on the defendants’ motion, but made clear 2013, the Court denied defendants’ motion that both sides should present evidence for summary judgment, and the parties during the trial on the policymaker defense submitted a proposed pretrial order on in the event the Court ultimately determined March 11, 2013. On July 11, 2013, the that there was no prejudice to plaintiff in Court held a telephone conference with the allowing defendant to amend the answer and parties and scheduled trial to begin on assert the defense. January 21, 2014. A jury trial was held from January 23, On January 6, 2014, counsel for 2014 until January 31, 2014. At the defendants requested an adjournment of the conclusion of the plaintiff’s case, defendants trial, explaining that the County had just renewed their request and filed a formal hired them as outside counsel because of motion to amend the answer to include the changes within the Office of the County policymaker defense. (ECF No. 60.) The Attorney, which had previously handled this Court then determined, in its discretion, that case. Plaintiff opposed any adjournment, such an amendment should not be permitted and the Court denied the request on January because it would be overwhelmingly 7, 2014, because the case had been pending prejudicial to plaintiff to allow defendants to for nearly three years, the trial had been amend the answer just days before the trial, scheduled for nearly six months before the given plaintiff’s inadequate time to County chose to hire outside counsel, and investigate the defense, obtain discovery there were no openings in the Court’s regarding the defense, and fully respond to calendar for at least the next six months. the defense at trial. The Court also ruled, in the alternative, that defendants were given a On January 17, 2014, defendants filed a full opportunity to present evidence on this letter motion in limine in which they defense at trial, and the proof at trial did not expressed their intention to assert the demonstrate that the policymaker defense “policymaker” defense to plaintiff’s First should apply to plaintiff’s position under the Amendment claim, which was premised on particular facts of this case. Thus, the Court the allegation that plaintiff was fired in also determined, based upon the defendants’ retaliation for supporting Mangano instead evidence, that the defense failed on the of Suozzi in the 2009 election. Defendants merits. (Tr. 753-64.) had not included that defense in the answer or in the pretrial order, and counsel from the On January 31, 2014, the jury found in Office of the County Attorney affirmatively plaintiff’s favor against the County on the § abandoned it during the oral argument on 1983 First Amendment claim. The jury the summary judgment motion in 2012. As awarded plaintiff $150,000 in compensatory
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damages for emotional distress, after the “[T]he focus should be not on the parties agreed that back pay, reinstatement, policymaking aspect of a plaintiff’s and front pay were equitable remedies for employment, but rather on whether ‘party the Court’s decision. (Tr. at 806.) The affiliation is an appropriate requirement’ for Court instructed the parties to submit briefs effective job performance.” Gordon v. Cnty. concerning plaintiff’s entitlement to those of Rockland, 110 F.3d 886, 887 (2d Cir. remedies, and also set a briefing schedule 1997) (quoting Branti v. Finkel, 445 U.S. for defendants’ motion for a new trial under 507, 518 (1980)). Federal Rule of Civil Procedure 59, and its renewed motion under Rule 50 for judgment “A party must affirmatively state any . . . as a matter of law based on the policymaker affirmative defense” in responding to a defense. pleading. Fed. R. Civ. P. 8(c). If a party fails to assert an affirmative defense in its Both parties filed their post-trial motions answer, a district court may still entertain it on March 4, 2014; their responses on April at a later stage of case “in the absence of 2, 2014; and their replies on April 16, 2014. undue prejudice to the plaintiff, bad faith or The Court held oral argument on May 2, dilatory motive on the part of the defendant, 2014. Supplemental letters were filed after futility, or undue delay of the proceedings.” the oral argument. Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003). “Mere delay, however, II. DISCUSSION absent a showing of bad faith or undue prejudice, does not provide a basis for the The discussion turns first to the County’s district court to deny the right to amend.” renewed Rule 50 motion based on the State Teachers Ret. Bd. v. Fluor Corp., 654 policymaker defense, and its Rule 59 motion F.2d 843, 856 (2d Cir. 1981). concerning the jury charge. Next, the Court considers plaintiff’s motion for back pay, The Second Circuit has provided reinstatement, and front pay, and finally, the guidance to the district courts on how to County’s motion for a new trial on damages measure prejudice in a particular case: or remittitur of the $150,000 compensatory damages award. In gauging prejudice, we consider, among other factors, whether an A. Policymaker Defense amendment would require the opponent to expend significant The County’s Rule 50 motion with additional resources to conduct respect to the policymaker defense was discovery and prepare for trial or originally a motion to amend the answer to significantly delay the resolution of add an affirmative defense. The the dispute. Undue prejudice arises policymaker defense is an affirmative when an amendment [comes] on the defense, see Krause v. Buffalo & Erie Cnty. eve of trial and would result in new Workforce Dev. Consortium, Inc., 426 F. problems of proof. Supp. 2d 68, 103 (W.D.N.Y. 2005), and although it is referred to as the “policymaker Ruotolo v. City of New York, 514 F.3d 184, defense” in this and other opinions, it 192 (2d Cir. 2008) (quotations and citations involves a far broader inquiry than whether omitted). The Second Circuit also has the individual asserting it “makes policy.” emphasized that “[w]hen the moving party
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has had an opportunity to assert the record), the Court concluded that amendment earlier, but has waited until after amendment of the answer to allow such a judgment before requesting leave, a court defense on the eve of trial would have been may exercise its discretion more overwhelmingly prejudicial to plaintiff and, exactingly.” State Trading Corp. of India, thus, the motion was properly denied.4 Ltd. v. Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir. 1990). Permitting the late assertion of the policymaker defense here would cause As set forth in a detailed ruling on the substantial prejudice to plaintiff, because the record, the Court determined the County had County raised it for the first time in a letter numerous opportunities to assert the dated January 17, 2014, just four days policymaker defense over the course of the before trial began on January 21, 2014. litigation and failed to do so, without any Although the County argues that it raised the explanation. Moreover, the Court held that issue in a 2012 letter requesting leave to the County’s late assertion of the defense on move for summary judgment, the summary the eve of trial would prejudice the plaintiff. judgment brief did not argue the In the alternative, the Court held, on the policymaker defense, and at the subsequent merits, that the County had not carried its oral argument, then-counsel for the County burden to show that plaintiff was a affirmatively abandoned it when she told the policymaker within the meaning of that Court that “political party isn’t an issue.” defense.3 This Memorandum and Order After counsel’s statement, the record is supplements the Court’s oral ruling on these devoid of any reference to the policymaker issues. defense until the County asserted it in the motion in limine just four days before trial. i. Denial of Motion to Amend Notably, the defense was not included among the six affirmative defenses listed in Plaintiff argued that the policymaker the pretrial order on March 11, 2013, nor defense was waived because the County did was any notice of the defense provided to not assert it in the answer, at summary the Court or plaintiff’s counsel in the many judgment, or in the pretrial order, and also months between the filing of the pretrial represented during oral argument on the order in March 2013 and the eve of the trial summary judgment motion that no such in January 2014. defense was being asserted. Moreover, plaintiff argued that he would be greatly At trial, because the Court reserved on prejudiced by an amendment to the answer the motion to amend, the Court allowed each on the eve of trial to include that defense. side to introduce evidence on the As set forth below (and in detail on the policymaker defense, after which the overwhelming prejudice to plaintiff was
3 As noted supra, the Court reserved on the motion to amend the answer and allowed the County (and plaintiff) to present its policymaker evidence at the 4 Moreover, the Court concludes, in the alternative, trial (so the Court could determine the level of that the defense was waived based upon, inter alia, prejudice to plaintiff in terms of his ability to the failure to assert the defense in the answer and the respond). Thus, the County presented all its evidence statement at oral argument by the County disavowing on this issue and the Court concludes that, even on that defense. As this Court noted in its oral ruling, the County’s evidence, the policymaker defense fails “[i]f that is not abandoning a defense, I don’t know as a matter of law. what is.” (Tr. 756.) 8
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abundantly clear to the Court. (See Tr. 755 limitations defense. Although the court (denying motion to amend because “I decided the issue based upon waiver, the concluded, having presided over this trial, analysis of the prejudice to plaintiff of the that there is overwhelming prejudice [to assertion of the late defense is similar to the plaintiff]. The way this developed, in my prejudice that this Court views exists in the view, was fundamentally unfair to the instant case. The Seventh Circuit explained: plaintiff.”); see also Tr. 757 (“In terms of what prejudice there was, again, I watched By omitting mention of the statute of this trial, and I was shocked at how this was limitations until they filed their reply being attempted to prove, with documents memorandum, the defendants that were not part of either the discovery deprived [plaintiff] of any reasonable process or certainly not part of the pretrial opportunity to address that defense. order, and witnesses, like Mr. Ryan and Mr. At that juncture, the parties had Yevoli, who there was no notice. Mr. Ryan largely completed an exhaustive is not even in the pretrial order.”)). In discovery process, and the scheduled particular, the Court noted that plaintiff was trial date was only a month away…. effectively “bushwhacked” by documents When the district court subsequently and witnesses related to the policymaker relied on the statute of limitations in defense which were not part of discovery. granting defendants summary (Id. at 759.) judgment on the free speech claim, it did not consider the evident The policymaker defense is not simple to prejudice to [plaintiff] in doing so. litigate—it is analyzed under a list of eight We cannot overlook the failure to non-exhaustive factors which vary in comply with Rule 8(c) in this application in each case. See Gordon, 110 context. Intentionally or not, F.3d at 889. Here, most of those factors [plaintiff] was bushwhacked. We were disputed and would have required recognize that the limitations defense additional discovery and witnesses for either may have been meritorious; and side to litigate them thoroughly. Attempting [plaintiff’s] counsel should have had to do so on just four days’ notice would some inkling that the defense might have caused obvious prejudice to plaintiff. be raised given the date that her own Plaintiff’s counsel explained to the Court in allegations placed on the events detail what discovery he would have needed central to her free speech claim. But to properly defend against this defense (Tr. it was not [plaintiff’s] obligation to 736-41), and the Court concluded that the raise the defense, and if Rule 8(c) is absence of such discovery was highly not to become a nullity, we must not prejudicial to plaintiff. countenance attempts to invoke such defenses at the eleventh hour, Other courts, in similar circumstances, without excuse and without adequate have also not allowed such an amendment to notice to the plaintiff. proceed. For example, in Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997), the Id. at 968-69 (citations omitted); see also Seventh Circuit held that the defendant Parker v. Madison Cnty. Reg’l Office of Ed., should not be permitted to belatedly raise No. 10-132-DRH, 2012 WL 1964966, at *6 (for the first time in a reply memorandum on (S.D. Ill. May 31, 2012) (denying leave to a summary judgment motion) a statute of amend answer to add certain affirmative
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defenses that had not been raised to that Tr. at 764.) Nonetheless, in an abundance of point “because allowing them to be raised at caution, the Court has considered the this stage of the litigation would be highly evidence concerning plaintiff’s employment prejudicial to plaintiff.”). in a light most favorable to the defense. (Id.) Therefore, for the reasons set forth on the record and here, the Court denied the “For a court to find that ‘political motion to amend the answer, and denies the affiliation is an appropriate requirement’ of renewed Rule 50 motion, with respect to the a specific job, there must be a ‘rational policymaker defense. connection between shared ideology and job performance.’” Cicchetti v. Davis, 607 F. ii. Applicability of the Policymaker Supp. 2d 575, 578 (S.D.N.Y. 2009) (quoting Defense to Plaintiff’s Position Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988)). Courts in this circuit considering In the alternative, even assuming whether there is such a rational connection arguendo that the Court reached the merits have applied the factors described in Vezzetti of the policymaker defense, based upon the v. Pellegrini, which include whether the evidence defendants presented to the Court employee: on that issue, the Court concludes that the defense fails as a matter of law because the (1) is exempt from civil service County did not show that plaintiff—in his protection, reconstituted position after Mulvey became (2) has technical competence or police commissioner—was a policymaker expertise, for whom “party affiliation is an appropriate (3) controls others, requirement for the effective performance of (4) is authorized to speak in the the public office involved.” Branti, 445 U.S. name of policymakers, at 518. (5) is perceived as a policymaker by the public, The Second Circuit has stated that, (6) influences government programs, “[u]ltimately, whether an employee’s (7) has contact with elected officials, position falls within the Elrod-Branti and policymaker exception is a question of law (8) is responsive to partisan politics for the court.” Almonte v. Cnty. of Long and political leaders. Beach, 478 F.3d 100, 110 (2d Cir. 2007). However, the question does require “some See 22 F.3d 483, 486 (2d Cir. 1994). preliminary factual inquiry,” id., especially where, as here, a general job description The Vezzetti factors “should be applied does not conclusively determine whether the to the formal description of the job at issue, plaintiff is a policymaker. See Morin v. that is, to the inherent powers of the Tomey, 626 F.3d 40, 45 n.5 (2d Cir. 2010). position, rather than the duties actually For this reason, the Court allowed the parties performed by plaintiff.” Cicchetii, 607 F. to introduce evidence at trial concerning the Supp. 2d at 578. That distinction is job of Assistant Commissioner, and particularly important in this case because ultimately concluded that there was little or plaintiff’s job as Assistant Commissioner no factual dispute concerning its lack of a changed over time, and it lacked a formal formal description or inherent powers. (See description or inherent powers. The most
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that was proven about the position is that it Even applying the Vezzetti factors to lacks civil service protection. (Tr. at 570- plaintiff’s job as he performed it, the Court 72.) Although this is a significant factor, the does not conclude that party loyalty was an Court disagrees with the County’s argument appropriate job requirement. At most, that it is the determinative factor. See plaintiff had technical competence and Gordon, 110 F.3d at 890 n.5 (“This circuit limited authority with respect to does not, however, presume employees are STARCOM, which was further reduced exempt from First Amendment protection under Mulvey. (Id. at 202-03; 622-23 just because they are exempt from civil (describing plaintiff’s authority with respect service protection.”). In this particular to STARCOM as indirect, with the ability to factual context, see Ciccetti, 607 F. Supp. 2d organize meetings but not compel at 579 (describing the inquiry as “fact attendance).) Although plaintiff had intensive”), the lack of civil service personal contact with Suozzi, an elected protection does not persuade the Court that official, there is no evidence that plaintiff party loyalty was an appropriate requirement was a close advisor while he was Assistant for being Assistant Commissioner because Commissioner, or that his job functions the County has not shown what the were responsive to Suozzi’s political requirements of that job actually were. The leanings or partisan agenda. None of the minimal evidence concerning other witnesses testified that there was a Assistant Commissioners did not establish a perception of plaintiff as a policymaker, and common set of duties and powers, and in he did not control any other employees. (Id. plaintiff’s case, he was stripped of authority, at 537 (“[Mulvey did] not want him to be moved from inside of police headquarters to involved in the capacity where he would be the basement cubicle, and left only with ordering people around, that he be attending management of the STARCOM task force, a [Mulvey’s] critical staff meeting and that new duty with an unclear amount of kind of thing.”); 620-21 (describing responsibility. (See Tr. at 202 (“Q: What plaintiff’s lack of “line authority”).) were your responsibilities as they related to STARCOM? A: Under Commissioner Therefore, with respect to the “principle Lawrence, to coordinate, facilitate with of primary importance: whether the them. . . . Q: What about under employee in question is empowered to act Commissioner Mulvey? A: There was no and speak on behalf of a policymaker,” function for me to perform.”); 685 Gordon, 110 F.3d at 890, the County has not (“[Mulvey] did not put him in as a decision- carried its burden. Cf. Butler v. N.Y. State maker at all. [Mulvey] limited his role”).) Dept. of Law, 211 F.3d 739, 744 (2d Cir. In other words, the evidence at trial showed 2000) (finding that deputy Attorney General that plaintiff’s job was reconstituted and was a policymaker where she supervised 80 stripped of its authority over time, such that other attorneys and routinely acted and it did not resemble the job of any other spoke on behalf of the elected Attorney Assistant Commissioner, and it is therefore General); Burkhardt v. Lindsay, 811 F. impossible to apply the Vezzetti factors to a Supp. 2d 632, 646 (E.D.N.Y. 2011) formal description of plaintiff’s job. (See id. (concluding that legislative aide was a at 762 (“There was no articulated policymaker because “the record . . . description of what [plaintiff’s] job would supports a finding that legislative aides may be, other than that he continued to be be empowered to act and speak on behalf of involved in STARCOM.”).) a policymaker or elected official.”); Alberti
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v. Cnty. of Nassau, 393 F. Supp. 2d 151, B. Jury Charge 168-72 (E.D.N.Y. 2005) (concluding that officials were policymakers when they The County also seeks a new trial under represented county before legislature, had Federal Rule of Civil Procedure 59, arguing meaningful input on budget, were required that the Court erred in its instruction with to “make sure that whatever the respect to the “motivating factor” element of commissioner wanted was done,” had the First Amendment retaliation claim. authority to approve budget requests, and channeled communications among senior In order to prove a First Amendment officials). Accordingly, in the alternative, retaliation claim, a plaintiff must the Court concludes (for the reasons set demonstrate “(1) [he] engaged in forth in the record and in this Memorandum constitutionally protected speech because and Order) that the policymaker defense [he] spoke as [a] citizen on a matter of fails on the merits under the particular facts public concern; (2) [he] suffered an adverse of this case, and the renewed Rule 50 employment action; and (3) the speech was motion is denied on that ground.5 a ‘motivating factor’ in the adverse employment decision.” Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir.
5 To the extent the County suggests that this ruling 2006) (citation omitted), overruled on other has some precedential value for assistant police grounds by Appel v. Spiridon, 531 F.3d 138 commissioners or similar officials across county (2d Cir. 2008). The focus of the Rule 59 governments, the Court completely disagrees. motion is the jury instruction with respect to Instead, the Court emphasizes that its decision is the third element. based upon the unique facts of this case where plaintiff’s Assistant Police Commissioner position was clearly reconstituted and the new position, which In the context of a First Amendment had no responsibilities on paper, and virtually none in retaliation claim, as the Supreme Court has practice, simply could not support the conclusion that explained, “the burden [is] properly placed there was a rational connection between shared upon [the plaintiff] to show that his conduct ideology and job performance. In other words, ideology was completely irrelevant to the ill-defined was constitutionally protected, and that this job duties of the reconstituted position. (See Court’s conduct was a ‘substantial factor’—or, to Oral Ruling at Tr. 762-63 (“So if you go through all put it in other words, that it was a of the factors at that point in the job, no contact with ‘motivating factor’ in the [employer’s] Mr. Suozzi . . . other than obviously complaining, decision [regarding plaintiff’s employment]. and his personal relationship with Mr. Suozzi, -- but in terms of the function of his job and giving advice [The plaintiff] having carried that burden, to Mr. Suozzi with respect to police matters or however, the District Court should have emergency matters, there is nothing in the record, gone on to determine whether the zero, zero testimony in the record from any witness, [employer] had shown by a preponderance defense witness. And Mr. Monette testified that there of the evidence that it would have reached was no such contact at that point in terms of the function of his job. So he’s not involved in advising the same decision as to [the plaintiff’s] the county executive at that point, He has no function employment even in the absence of the other than running STARCOM. He’s not influencing protected conduct.” Mt. Healthy City Sch. government programs. He’s not supervising anybody. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 287 He’s not controlling others. He’s providing no special (1977). expertise on any policy issues. Every other factor in the analysis would indicate that shared ideology or political affiliation was completely irrelevant for the position as it was reconstituted.”).) Therefore, the burden under the Vezzetti factors, is limited to the Court’s ruling—that the County had not met its unique, completely reconfigured position in this case. 12
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The County did not contest at trial, and (Tr. at 950.) The phrase “played a role” is does not contest now, the utilization of the the focus of defendants’ motion, in that they Mt. Healthy burden-shifting framework in argue that “played a role” minimizes the jury instructions for the First plaintiff’s burden in the absence of a Amendment retaliation claim.6 Instead, the qualifying word such as “important,” County challenges the particular “motivating “substantial,” or “determinative.” This factor” instruction that the Court gave to the argument is based largely on the Supreme jury. Specifically, the County argues that Court’s decision in Hazen Paper Co. v. the Court committed prejudicial error when Biggins, 507 U.S. 604 (1993), which did not it instructed the jury that it must find that address jury instructions, but which the “plaintiff’s political association was a Second Circuit cited in the jury-instruction motivating factor in the decision by case relied on by this Court at trial, Owen v. [defendants],” and then defined “motivating Thermatool Corp., 155 F.3d 137, 139 n.1 factor” as follows: (2d Cir. 1998). (See Tr. at 802-05.)
The plaintiff’s political association The passage from Hazen Paper cited in was a motivating factor in the Owen is a summary of the law of disparate defendant’s decision to take treatment, not a holding about the contents adverse action if it played a role in of jury instructions: “[w]hatever the the decision. However, plaintiff’s employer’s decisionmaking process, a political association need not be the disparate treatment claim cannot succeed only factor. Mr. Mulvey or Mr. unless the employee’s protected trait Suozzi may have taken action for actually played a role in that process and many reasons. But if one of those had a determinative influence on the reasons was plaintiff’s political outcome.” Id. at 610 (emphasis added). In association, and if that reason Owen, the Second Circuit cited this passage played a role in the decision by while “emphasiz[ing] that the particular Suozzi or Mulvey to take action words used in a jury instruction may against the plaintiff, then plaintiff (depending on the circumstances) be less has satisfied the third element. important than the meaning or substance of the charge as a whole.” 155 F.3d at 139 n.1. The Owen Court then instructed that:
6 Courts, including the Second Circuit, have continued to utilize this burden-shifting framework in What is important is that the charge First Amendment retaliation cases even subsequent to conveys the idea that (1) the the Supreme Court’s decision in Gross v. FBL impermissible factor (in ADEA Financial Services, Inc., 557 U.S. 167 (2009), with cases, age) must have played a role respect to the ADEA. See, e.g., Anemone v. Metro. in the employer’s decision, see Trans. Auth., 629 F.3d 97, 114 (2d Cir. 2011); see also Greene v. Doruff, 660 F.3d 975 (7th Cir. 2011) Hazen Paper Co. v. Biggins, 507 (holding that Gross does not affect First Amendment U.S. 604, 610, 113 S.Ct. 1701, 123 cases and the Mt. Healthy standard continues to apply L.Ed.2d 338 (1993); Price to such suits) (collecting cases). As noted herein, Waterhouse, 490 U.S. at 250 although the ADEA standard has now changed as a (plurality opinion), and (2) the result of Gross, the Court has cited several pre-Gross cases because they provide useful guidance as to the factor need not have been the sole “motivating factor” standard, which remains consideration motivating the applicable in the context of First Amendment employer’s decision. retaliation cases, as to the plaintiff’s initial burden. 13
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Id. (emphasis added). Here, the Court However, what the County fails to note followed the Second Circuit by using the is that the modification in the language was exact same phrase as Owen, i.e., “played a only made after the Court conducted role,” without the additional language from additional research (when plaintiff’s counsel Hazen Paper concerning “a determinative raised an objection) and determined that the influence,” which the Second Circuit also Second Circuit in Owens had not only omitted from its statement in Owen of determined that “substantial” and “[w]hat is important” in a jury charge.7 “motivating” are “reasonably interchangeable or at least have considerable The County points to other cases where overlap,”8 but also suggested that the term courts have used words like “substantial” to “motivating” was “perhaps more precise” define the degree to which unlawful than “substantial.” 155 F.3d at 139. In discrimination must have “played a role,” particular, in Owens, the plaintiff challenged but the word “motivating” itself defines the the use of term “substantial” in the degree, without the need for further instruction because it could suggest that the explanation. In its proposed charge, the prohibited reason had to be the only reason County sought to have the Court instruct or primary reason. Although finding that the that motivating factor means that political instruction adequately informed the jury, the affiliation “played a substantial or important Second Circuit clearly expressed a part in the decision.” (Docket No. 53, at preference for the term “motivating” over 19.). In its post-trial motion, the County “substantial”: notes that this Court’s initial draft charge contained this language, which mirrors the In the circumstances presented, the language in Judge Sand’s Modern Federal district court’s use of the phrase Jury Instructions. The County then suggests “substantial factor” rather than that “[t]he Court inexplicably altered Judge “motivating factor” was not Sand’s instructions and imposed a lessened misleading and adequately informed burden of proof upon Plaintiff in its final the jury of the law. The words version of the charge.” (Def.’s Post-Trial “substantial” and “motivating” are Memorandum, at 10-11.) reasonably interchangeable or at least have considerable overlap. While the phrase “motivating
factor” is perhaps a more precise 7 Although not in the context of jury instructions, the Second Circuit has repeated the “played a role” and more typical statement of the language in analyzing discrimination claims. See, e.g., Lamprox v. Banco Do Brasil, 538 F. Appx. 113 (2d Cir. 2013) (“[W]e find no evidence in the record that would allow a reasonable juror to conclude that 8 In describing the law (rather than jury instructions) either Lampros’s national origin as a non-Italian or in First Amendment retaliation cases, the Second his previously bringing Pais’s complaint of national Circuit also appears to use these terms origin discrimination to Monteiro’s attention played a interchangeably, sometimes referring to a role in BdB’s decision to terminate his “substantial or motivating factor,” Royal Crown Day employment.”); Jamlik v. Yale Univ., 362 F. Appx. Care LLC v. Dep’t of Health and Mental Hygiene of 148, 150 (2d Cir. 2009) (“Yale’s explanations for the City of New York, 746 F.3d 538, 544 (2d Cir. 2014) pay disparity are not inconsistent, and Jamilik does (quotations and citations omitted), or sometimes not present any other evidence to suggest that gender simply referring only to a “motivating factor” discrimination played a role in the adverse (without the term “substantial”), Mandell v. Cnty. of employment decision in question, as required to Suffolk, 316 F.3d 368, 382 (2d Cir. 2003) (quotations establish a prima facie case under Title VII.”). and citations omitted). 14
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standard for liability in ADEA cases, noted that it has “consistently held that a the trial court’s use of “substantial plaintiff in an employment discrimination factor” adequately stated the law in case need not prove that discrimination was this case. the sole motivating factor, the primary motivating factor, or the real motivating Id. at 139 (emphasis added) (citations factor in the adverse employment action; she omitted). need only prove that discrimination was a motivating factor.” Olson v. New York, 315 In short, this Court’s decision with F. App’x 361, 363 (2d Cir. 2009). The respect to the language in the instruction Olson court then quoted the statement from was to utilize verbatim what the Second Owen regarding what is important to include Circuit stated in Owen was important to in a jury instruction, which again uses the convey about the term “motivating factor” – phrase “played a role” and has no reference namely, that the impermissible factor “must to the phrase “determinative influence.” Id. have played a role in the employer’s In fact, the Olson court was concerned that, decision” – without adding other less precise when a court simply used “because of” adjectives, such as “substantial” or language rather than the term “motivating “important,” which could only potentially factor” language to describe plaintiff’s mislead the jury into believing that the burden, “use of the phrase ‘because of’ impermissible factor had to be the sole or without explanation could have been primary reason for the action. Similarly, the confusing to the jury, as it could have County’s fallback position during the trial – suggested to the jury that it could find for that is, that “motivating factor” should be plaintiff only if he proved that defined as “a motivating role” (Tr. at 805) – discrimination was the sole or primary was rejected by the Court because “played a reason he was fired.” Id. Thus, like Owen, role in the decision” better defined the term the Olson court makes clear that district “motivating factor” (as was more consistent courts should avoid adding adjectives or with Owen) than simply defining a phrases which might suggest that “motivating factor” as a “motivating role,” “motivating factor” means it was the sole or the circularity of which is obvious. primary reason for the adverse action. In this Court’s view, a lay person could easily Although the County never requested in misunderstand the term “determinative its proposed jury instruction that this Court influence” to mean plaintiff has the initial use the phrase “determinative influence,” the burden of proving retaliation was a “but for” County now suggests in its post-trial brief cause.10 However, as both sides agree, in that the Court should have utilized that phrase.9 However, the Second Circuit has
10 In fact, in Ostrowski v. Atlantic Mut. Ins. Co., 968 F.2d 171, 176 (2d Cir. 1992), the district court 9 During the charge conference, the County argued equated “determinative” and “but for” by stating: that the Court should add the word “substantial” (so “[i]n order for the age discrimination issue to be a that it would read “substantial and motivating determinative factor, it has to be a factor but for factor”), or use the word “motivating” a second time which the plaintiff would have been fired. In order (so that a “motivating factor” would be defined as a for it to be a determinative factor, you must find “motivating role”). (Tr. 802-05.) The term really that if it had not been for this, he would not “determinative influence” was not part of the have been fired.” The Second Circuit held that the County’s written proposed charge, and was never Court’s instruction impermissibly transformed a suggested in the charge conference. “mixed motive” case into a “pretext” case. Id. at 185 15
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First Amendment retaliation cases, plaintiff 2d 655 (S.D.N.Y. 1998), which was a pre- has the burden of proving only that Gross ADEA case that involved a “mixed retaliation was motivating factor, and then motive” instruction. In rejecting the City’s the burden shifts to the defendant to show argument that the Court should have used that the adverse action would have occurred the term “determinative factor” rather than anyway – and, thus, was not the “but for” “motivating factor,” the court explained: cause. See, e.g. Greene, 660 F.3d at 978-79 (“A ‘motivating factor,’ as the term is used This instruction was well within the in the cases, is a sufficient condition, but parameters established by the Second never a necessary one; if it were necessary, Circuit. For example, in Renz v. Grey and thus a ‘but for’ cause (as in ‘but for X, Advertising, Inc., 135 F.3d 217, 222 Y would not have occurred’: X is a (2d Cir. 1997), the court wrote that necessary condition of Y), the inquiry into an ADEA plaintiff is entitled to causation would be at an end. . . . If the prevail if she demonstrates that her plaintiff satisfies his burden of proving a age played a “motivating role in, or ‘motivating factor’ in the sense just defined contributed to, the employer’s (which we think is what the cases mean by decision.” The court also noted that the term), the defendant is entitled to rebut in a mixed motive case, such as this with evidence that the plaintiff’s exercise of one, an “adverse employment action his constitutional rights though a sufficient creates liability when discrimination condition was not a necessary condition of substantially motivates the action, his being rehired; the harm (the refusal to even though some legitimate factor rehire) would have occurred anyway.”). In might also contribute to the other words, the “determinative influence” employer’s decision.” Id. at 222 n.3. language in Hazen could have confused the The Second Circuit held specifically jury with respect to the plaintiff’s initial that “an ADEA plaintiff need not burden under the Mt. Healthy standard for prove that age was the only or even First Amendment retaliation claims, or led the principal reason for the them to believe that the factor had to be the complained-of employment action.” sole or primary factor. Id. at 222. Given this holding, defendant’s reliance on a “but for” This issue was discussed by Judge Stein analysis and its contention that in Courtney v. City of New York, 20 F. Supp. plaintiffs had to prove that age was “determinative” must be rejected.
(“These formulations, together with the emphasis on Id. at 659-60 (footnote omitted) the term ‘determinative’ factor, and the trial court’s (citations omitted). view expressed in the robing room that there can be no such thing as ‘a little bit of retaliation or a substantial amount of retaliation,’ indicate that the Similarly, in Zaken v. Boerer, 964 F.2d court treated the present matter as simply a pretext 1319, 1324-25 (2d Cir. 1992), which case. As Price Waterhouse pointed out, a pretext involved a claim of pregnancy case is one in which there was either unlawful discrimination, the Second Circuit held that motivation or lawful motivation, but not both; a the district court erred in defining mixed-motives case is one in which there were both lawful and unlawful motivations. We reject the motivating role as “what prompts a person district court’s view that a claim of retaliation to act.” The Court explained that “[t]he trial necessarily presents only a pretext case and cannot be court’s definition of motivating role as ‘what a mixed-motives case.”) (citations omitted). 16
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prompts a person to act’ was wrong insofar Mulvey, intentionally discriminated against as it failed to explain to the jury that plaintiff him by retaliating against him on the basis need not show pregnancy was the primary of his political association in violation of his reason for defendant’s decision to discharge constitutional rights under the First plaintiff and deny her a bonus, but only that Amendment” (Tr. 948) (emphasis added); it was a factor relied upon by defendant.” (2) the jury was instructed that “the First Id. at 1325. The Court then suggested what Amendment prohibits an official from the instruction should have been: discriminating or retaliating against public employees simply because the public In short, the jury should have been employee exercises his First Amendment instructed that if it found plaintiff right to form political associations with had demonstrated by a which the official may disagree” (Tr. 948- preponderance of the evidence that 49) (emphasis added); (3) the jury was her pregnancy played a part in instructed that plaintiff must prove that defendant’s decision, then it should “plaintiff’s political association was a find for plaintiff unless defendant motivating factor in the decision by Mr. demonstrated by a preponderance of Mulvey or Mr. Suozzi to take adverse action the evidence that the same decision against the plaintiff” (Tr. 949) (emphasis would have been made even if added); (4) the jury was further instructed pregnancy had not been one of the that “plaintiff’s political association was a factors contributing to it. motivating factor in the defendant’s decision to take adverse action if it played a role in Id. (emphasis added). the decision” (Tr. 950) (emphasis added); (5) the jury was also instructed that “if one Although the County attempts to parse of those reasons was plaintiff’s political the Court’s “motivating factor” instruction association, and if that reason played a role to suggest that it eliminated the legal in the decision by Suozzi or Mulvey to take requirement the impermissible factor had to action against the plaintiff, then plaintiff has motivate the decision, the Court’s satisfied the third element” (Tr. 950) instruction did no such thing. Moreover, the (emphasis added). Finally, the verdict sheet jury charge must be reviewed in its entirety, once again highlighted the need for the not in isolation. United States v. impermissible factor to have motivated the Shamsideen, 511 F.3d 340, 345 (2d Cir. decision by asking the question in this 2008). Here, regardless of what particular manner: “Did plaintiff prove, by a words or adjectives that the County would preponderance of the evidence, his claim have preferred in the instruction (and which that the County of Nassau terminated him would have only confused the jury and based on his political association, in potentially misled the jury into a heightened violation of plaintiff’s rights under the First burden), there can be no doubt from the Amendment?” (ECF No. 76, at 2) charge as a whole that the jury understood (emphasis added). The jury answered, that plaintiff had to prove that his political “Yes.” Then the jury, with respect to the association was a motivating, or affirmative defense under Mt. Healthy, was contributing, factor in his termination. For asked: “Did the County of Nassau prove, by example, (1) the jury was instructed that a preponderance of the evidence, that it plaintiff’s claim was that “the County of would have terminated plaintiff on the same Nassau, through Mr. Suozzi and Mr. day even if his political association had
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never changed?” (Id.) As to the question, the Assistant Commissioner, had he not been jury answered, “No.” fired on November 13, 2009.
In short, the Court’ language as a whole, In the absence of directly controlling with the references to “motivating factor,” authority, the Court turns first to the as well as the verdict sheet itself, properly common law of torts, which is the baseline defined the degree of influence required for for determining damage awards in § 1983 a finding of liability, in the same language cases. See Memphis Community Sch. Dist. used by the Second Circuit in Owen and v. Stachura, 477 U.S. 299, 306 (1986). other cases. However, “the common law is not an infallible guide for the development of § Accordingly, because there was no error 1983.” Townes v. City of New York, 176 in the instruction, the County’s Rule 59 F.3d 138, 148 (2d Cir. 1999) (quoting motion is denied. Adickes v. S.H. Kress & Co., 398 U.S. 144, 232 (1970) (Brennan, J., concurring in part C. Back Pay and dissenting in part)). In Townes, the Second Circuit noted that common-law tort At trial, both sides agreed that the award rules may conflict with the principles of back pay is an equitable remedy for the inherent in § 1983. Id. That is because the Court’s consideration, and the Court primary purpose of § 1983 “is to deter state requested briefing on the question whether actors from using the badge of their to award back pay, and how much. (Tr. at authority to deprive individuals of their 806, 973-78.) Plaintiff argues that he is federally guaranteed rights and to provide entitled to an award of back pay from the relief to victims if such deterrence fails.” date of his unlawful termination on Wyatt v. Cole, 504 U.S. 158, 161 (1992) November 13, 2009, until the date of (citing Carey v. Piphus, 435 U.S. 247, 254- judgment in 2014, while defendants argue 57 (1978)). “In cases where common law that any back pay award should run only and § 1983 principles conflict, ‘the task will until the change of administration on be the more difficult one of adapting January 1, 2010, because plaintiff would not common-law rules of damages to provide have been retained in the Mangano fair compensation for injuries caused by the administration. deprivation of a constitutional right.’” Townes, 176 F.3d at 148 (quoting Carey, There is a lack of directly analogous 435 U.S. at 258). authority with respect to the circumstances of this case. In particular, neither party nor The Court’s duty to reconcile the the Court has identified a case addressing common law with the remedial purpose of who carries the burden, and to what extent, § 1983 is of particular importance with of proving entitlement to back pay in an respect to back pay, an equitable remedy11 employment discrimination action brought under § 1983, as opposed to the other federal employment discrimination statutes, 11 Although it has not been frequently discussed in under which the burdens are more clearly opinions by the courts of this circuit, the Court shares defined. Here, each party argues that the the view of other courts that a back pay award under § 1983 is equitable. See Morgenstern v. Cnty. of other was required to prove how long Nassau, No. CV 04-58 (ARL), 2009 WL 5103158, at plaintiff would have remained as an *4-6 (E.D.N.Y. Dec. 15, 2009) (noting the equitable nature of back pay under § 1983); Wylucki v. 18
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about which the Court has “traditional plaintiff seeks here: back pay from the date discretion to locate ‘a just result’ in light of of injury to the date of judgment. Under the circumstances peculiar to the case.” Title VII, that has been called the “ordinary Albermarle Paper Co. v. Moody, 422 U.S. rule,” Joint Apprenticeship Comm., 186 F.3d 405, 424 (1975) (citation omitted). The at 124, and such awards are also common in award of back pay should be as complete as ADEA cases. See Kirsch v. Fleet Street, possible, Cohen v. West Haven Bd. of Police Ltd., 148 F.3d 149, 167 (2d Cir. 1998) (“A Comm’rs, 638 F.2d 496, 504 (2d Cir. 1980), plaintiff who has proven a discharge in but “‘it remains a cardinal, albeit frequently violation of the ADEA is, as a general unarticulated assumption, that a back pay matter, entitled to backpay from the date of remedy must be sufficiently tailored to discharge until the date of judgment.”). expunge only the actual, and not merely However, even in these analogous statutory speculative, consequences of the unfair labor contexts, “[b]ecause the termination date for practices.’” E.E.O.C. v. Joint Apprenticeship backpay awards . . . is peculiarly dependent Comm. of Joint Indus. Bd. of Elec. Indus., upon each case’s unique facts . . . courts do 186 F.3d 110, 124 (2d Cir. 1998) (quoting not apply the backpay limitation rotely.” Sure–Tan, Inc. v. NLRB, 467 U.S. 883, 900 Tse v. UBS Fin. Servs., Inc., 568 F. Supp. 2d (1984)). “The purpose of a back pay award 274, 302 (S.D.N.Y. 2008) (quoting Thorne is . . . not to punish an employer or provide a v. City of El Segundo, 802 F.2d 1131, 1136 windfall to the employee.” Meling v. St. n.4 (9th Cir. 1986)). On the contrary, the Francis Coll., 3 F. Supp. 2d 267, 275 Supreme Court has emphasized that courts (E.D.N.Y. 1998) (internal citations omitted). sitting in equity should avoid “mechanical rules” and maintain “awareness of the fact In many cases, courts attempting to that specific circumstances, often hard to locate a just result have awarded what predict in advance, could warrant special treatment in an appropriate case.” Holland v. Florida, 560 U.S. 631, 650 (2010).
Barberio, No. 99-CV-1036SR, 2001 WL 34013676, at *6 (W.D.N.Y. 2001) (discussing courts’ The specific circumstances of this case “discretionary authority to fashion equitable remedies are different than those found in the Title for a violation of 42 U.S.C. § 1983”); Flores v. Local VII and ADEA cases in which back pay 25, Int’l Bd. of Elec. Workers, AFL-CIO, 407 F. awards ran to the date of judgment. Those Supp. 218, 220-21 (E.D.N.Y. 1976) (considering cases tend to involve plaintiffs in predictably back pay to be an equitable remedy under 42 U.S.C. § 1981); see also Russell v. Northrop Grumman long-term jobs, where it is clear that an Corp., 921 F. Supp. 143, 151-53 (E.D.N.Y. 1996) award of back pay should roughly equal the (discussing considerations involved in determining salary that the plaintiff would have earned whether claims for lost wages are legal or equitable absent the unlawful firing. See, e.g., Joint in nature). Moreover, the Court does not detect any Apprenticeship Comm., 186 F.3d at 114 tension between the equitable nature of a back pay award under § 1983 and statements in Carey and (union applicants); Cohen, 638 F.3d at 498 other cases concerning the compensatory nature of (police recruits). Here, in contrast, plaintiff damages under that statute. “[T]he fact that cases in was already retired when he took the job as many contexts attach the ‘equitable’ label to back pay Assistant Commissioner, which he received in no way contradicts the basic conclusion that back after heavy campaigning for Suozzi. (Tr. at pay is still essentially a compensatory device. In fact, many of the same courts that classify back pay as 125-36.) There is no evidence which makes equitable in one part of an opinion affirm its the Assistant Commissioner position compensatory nature in the next.” Hubbard v. analogous to a long-term corporate or union Adm’r, E.P.A., 982 F.2d 531, 537 (D.C. Cir. 1992). 19
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job—in contrast, many previous Assistant As noted above, neither the party nor the Commissioners had been volunteers given Court has identified a directly analogous the position in an honorary status. (See id. case discussing the burden of proof. In at 530.) Although plaintiff was salaried, his another First Amendment employment future in the position was highly precarious discrimination case, the Second Circuit at the time he was fired. To begin with, seemed to suggest that the defendant bore Mulvey wanted to terminate plaintiff as soon the burden of limiting back pay damages as he became Commissioner in 2007 based upon evidence that it would have fired because he believed that plaintiff lacked the plaintiff for a lawful reason at some time integrity (id. at 518), and plaintiff was after the unlawful firing. Sagendorf-Teal v. protected from termination only by Suozzi, Cnty. of Rensselaer, 100 F.3d 270, 274 (2d who limited plaintiff’s duties and isolated Cir. 1996) (citing Price Waterhouse v. him from the police department in order to Hopkins, 490 U.S. 228 (1989) and appease Mulvey (id. at 535-38). Moreover, McKennon v. Nashville Banner Publ’g Co., the pressure to terminate plaintiff’s position 513 U.S. 352 (1995)). However, Sagendorf- mounted throughout 2009 for purely non- Teal primarily addressed liability, not discriminatory reasons: he was an ordinance damages, and its comment about back pay employee with minimal duties in a was dicta. department perceived to be “top heavy,” and his name repeatedly appeared on a list of In an opinion just three years later that positions that could be terminated without did address back pay, the Second Circuit compromising the police mission. (Id. at held that a plaintiff should have been 474-77; 650-54.) Ryan and Mulvey permitted to argue to the jury that she would specifically recommended plaintiff for have survived a reduction in force which termination several times, and although occurred after her unlawful firing. See Suozzi chose not to act on the Banks v. Travelers Cos., 180 F.3d 358, 361- recommendation before November 2009, 63 (2d Cir. 1999). In Banks, the trial judge there is overwhelming evidence that ruled as a matter of law that the plaintiff was plaintiff’s employment would not have ineligible for damages after the reduction in continued in Suozzi’s absence. force, and thus the Second Circuit’s opinion concerned the propriety of that ruling, not When such a question arises with respect the question of which party bore the burden to a back pay award, courts have varied in of proving the length of time for which the their approach to the assignment of the plaintiff should be awarded back pay. burden of proof, and the parties dispute it However, the Court’s comment immediately here. Plaintiff argues that the “ordinary after discussing what “Banks was entitled to rule” of back pay through the date of argue”—that “[a] jury would be permitted judgment applicable in other employment but not necessarily required to accept that discrimination contexts applies inference”—suggests that, in the Second presumptively here, and that defendants bear Circuit’s view, the plaintiff bore the burden. the burden to prove that it should not. Id. Defendants argue that plaintiff bore the burden to prove his damages to a degree of In the absence of clear guidance from reasonable certainty. See Wallace v. Suffolk the Second Circuit, this Court concludes Cnty. Police Dep’t, 809 F. Supp. 2d 73, 81 that, in the specific circumstances of this (E.D.N.Y. 2011). case and in the exercise of its equitable
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discretion to make plaintiff whole without overcome this evidence with proof that he providing a windfall, plaintiff was required would have been retained, despite the odds to prove his entitlement to back pay beyond against it. In other words, assigning the the change in administration from Suozzi to ultimate burden to plaintiff strikes an Mangano. As noted above, the Court’s appropriate balance between the common- starting point in assessing damages under § law rule that a plaintiff must prove damages 1983 actions is the common law of torts. and the remedial purpose of § 1983 because See Stachura, 477 U.S. at 306. “Plaintiffs the unlawful retaliation in this case occurred must prove every element of a Section 1983 at a moment when plaintiff was far more claim by a preponderance of the evidence, likely than almost every other member of ‘including those elements relating to the NCPD to be fired for other, lawful damages.’” Wallace, 809 F. Supp. 2d at 80. reasons. Simply presuming that plaintiff Proof of damages may not be “contingent, would continue his employment through the uncertain, or speculative,” and when date of judgment, absent any showing by assessing such proof, the common-law plaintiff, would result in a damages award concept of foreseeability remains a primary that is “merely speculative or contingent,” consideration. Id. at 80-81. Even if a Wallace, 809 F. Supp. 2d at 88, and would defendant’s action was the but-for cause of a resemble adherence to a mechanical rule particular injury, the defendant will not be rather than “special treatment in an held liable if his conduct was not the appropriate case.” Holland, 560 U.S. at 650. proximate cause; in other words, § 1983 defendants remain responsible only for Having heard the case at trial and damages that are reasonable foreseeable. Id. thorough reviewed the record of trial, the Court concludes that plaintiff has not carried A crucial distinction between this case his burden to show that he would have been and the after-acquired evidence cases under retained past December 31, 2009, much less Title VII and the ADEA, and similar cases to the date of judgment. In fact, no witness involving plaintiffs entering or leaving long- testified about the likelihood of his retention term careers, is that it was never foreseeable in the Mangano administration. Although that this plaintiff would continue as a plaintiff points to evidence that his position salaried employee of the NCPD for much was included in the NCPD budget for 2010, longer than he did. The uncertainty that budget was created when Suozzi surrounding plaintiff’s future developed remained county executive. Thus, the long before he was ever terminated and has evidence that plaintiff’s position survived been apparent in this case since its early under Suozzi is not persuasive concerning stages. Thus, unlike other plaintiffs who its future under Mangano, particularly might not be expected to disprove their because Mangano chose to retain Mulvey, employers’ post-hoc attempts to reduce a who had wanted to terminate plaintiff for back pay award, this plaintiff’s entire several years (for reasons unrelated to First claim—the precursor to his request for back Amendment activities), and was only pay—arose in a context where he was being prevented from doing so by Suozzi.12 recommended for termination because of his
minimal duties and the budgetary need to
cut jobs. Under these circumstances, in 12 The County has also relied on the fact that order to recover back pay through the date Mangano chose not to re-hire plaintiff when plaintiff of judgment, plaintiff was required to asked him to do so, arguing that Mangano’s decision was an act of “independent judgment” that breaks the 21
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In sum, the Court agrees with the Templeton, 505 F.3d 161, 180 (2d Cir. 2007) County’s argument in a broader sense: that (Jacobs, C.J. concurring); Townes, 176 F.3d plaintiff is not entitled to back pay beyond at 146-47. Here, the change in the date of the change in administration, administration occurred for reasons having simply because it was not foreseeable that nothing to do with plaintiff’s termination. plaintiff would have kept his position. The Plaintiff himself testified that, when Court views the change of administration as Mangano was elected, he was under a superseding cause, which is part of the pressure from both the county legislature common-law doctrine of proximate cause, and the Nassau Interim Finance Authority to see In re State Street Bank & Trust Co. cut costs, and that he had to proceed Fixed Income Funds Inv. Litig., 772 F. Supp. cautiously as a new county executive. (Tr. 2d 519, 541 (S.D.N.Y. 2011), an element on at 275.) Moreover, Mulvey who stayed on which plaintiff bears the burden of proof, as Police Commissioner for a period of time including in § 1983 cases.13 Higazy v. when Mangano became County Executive, had expressed his desire to terminate plaintiff going back to 2007 for reasons causal chain between plaintiff’s unlawful termination unrelated to First Amendment activity, and and any ongoing entitlement to back pay. See was prevented from doing so by Suozzi. Wallace, 809 F. Supp. 2d at 80. However, “[s]uch an intervening act must be a new and independent force, Although plaintiff supported Mangano, there which was not set in motion by the defendant’s own is no evidence that Mangano would have wrongful acts.” Zahrey v. City of New York, No. 98- protected plaintiff in the same way Suozzi 4546 (DCP)(JCF), 2009 WL 1024261, at *4 had. It is, therefore, unforeseeable that a (S.D.N.Y. Apr. 15, 2009) (internal quotation marks non-civil service Assistant Commissioner and citations omitted). Plaintiff argues that Mangano’s decision cannot be characterized as truly position, which had historically not even “new and independent,” since it was influenced, if been a salaried position, would have not “set in motion,” by the fact that plaintiff had remained where its occupant had been already been fired. Plaintiff contends that, in a stripped of most responsibilities, placed on a constrained budget environment, it was simply easier list of people whose jobs could be for Mangano not to re-hire plaintiff than it would have been to choose him for firing in the first place. eliminated without impacting the police However, even assuming arguendo that Mangano’s mission, and actually recommended for decision to not re-hire does not amount to a termination multiple times by the Deputy superseding cause, there is overwhelming evidence County Executive for Public Safety and the (as noted above) that plaintiff would have been NCPD Commissioner, the latter of whom terminated by Mulvey as soon as Suozzi left office because Mulvey had been seeking to terminate continued to serve in the Mangano plaintiff since 2007 (for reasons unrelated to the First administration. Amendment) and Suozzi was the only person preventing that termination. There is no evidence, and no rational basis to conclude, that Mangano would have prevented Mulvey from terminating plaintiff (especially given the constrained budget Cir. 2011), but in that case it is unclear whether the environment). Seventh Circuit meant to impose an ultimate burden 13 Plaintiff argues that the County bore the burden to of persuasion or simply a burden of production on the prove a superseding cause, but the case he cites from defendant. In any event, even if the County bore a this district discussed a burden of production, not the burden here, it carried its burden by presenting the ultimate burden of proof on the question of proximate evidence discussed herein concerning plaintiff’s cause. See Ramey v. Dist. 141, Int’l Ass’n of Mach. history with Mulvey and Suozzi and the tenuousness & Aerospace Workers, 473 F. Supp. 2d 365, 370 of plaintiff’s position in 2009, and plaintiff has not (E.D.N.Y. 2007). Plaintiff also relies on BCS Servs., overcome that evidence with proof that he would Inc. v. Heartwood 88, LLC, 637 F.3d 750, 757 (7th have kept his job. 22
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Limiting plaintiff’s back pay award to Accordingly, the award of back pay is the end of the Suozzi administration is limited to the end of the Suozzi consistent with the compensatory, non- administration on December 31, 2009, and punitive purpose of damage awards under plaintiff’s motion for reinstatement or front § 1983. Carey, 435 U.S. at 255 (“[T]he pay is denied. basic purpose of a § 1983 damages award should be to compensate persons for D. Compensatory Damages injuries.”). As the Court has discussed, compensating plaintiff requires a close Defendants also argue that the jury’s examination of his particular circumstances award of $150,000 in compensatory in order to locate a just result, and his damages was excessive, and requires either circumstances are quite different from cases a new trial on damages or remittitur of the where employment would ordinarily award. continue uninterrupted. Plaintiff had already retired once and been out of police work for “In determining whether a jury’s award ten years. Then, even after he returned to the is excessive, courts take into account awards NCPD, his position changed quite rendered in similar cases, ‘bearing in mind dramatically: in 2007, he was given both a that any given judgment depends on a $9,000 raise and less work to do. That level unique set of facts and circumstances.’” of compensation for plaintiff’s minimal Olsen v. Cnty. of Nassau, 615 F. Supp. 2d duties would not have continued but for 35, 45 (E.D.N.Y. 2009) (quoting Scala v. Suozzi’s unwillingness to fire plaintiff, both Moore McCormack Lines, 985 F.2d 680, when Mulvey asked him to in 2007, and 684 (2d Cir. 1993)). “A jury’s award of when Ryan recommended it multiple times damages may not be overturned unless it is throughout 2009. Thus, the Court concludes so excessive that it shocks the conscience of that awarding any compensation for back the court.” Id. (internal quotation marks and pay beyond Suozzi’s term in office would be citations omitted). a windfall for plaintiff that would not serve the compensatory purpose of damages under The $150,000 award here does not shock § 1983, and would instead simply punish the the Court’s conscience. Even defendants County by forcing it to pay four years’ concede that the general range of awards in worth of additional salary to an employee who was deemed expendable even within the administration that hired him, and which above, it is unclear what the position required. 14 has since left office. Although the position’s occupant (plaintiff) happened to receive protection from Suozzi, the evidence does not support a conclusion that such protection was in any way related to the functions or performance of 14 Finally, although the Court has emphasized plaintiff’s job, which did not meet the Vezzetti Suozzi’s protection of plaintiff in the discussion of factors. In fact, Suozzi reconstituted plaintiff’s job in the back pay award, there is a clear distinction order appease Mulvey, leaving plaintiff powerless, between this form of political protection and the isolated, and distinct from policymakers in other requirements of the Elrod-Branti test, which cases. (Tr. at 621 (Mulvey referring to plaintiff’s job determines whether “party affiliation is an as one “created by the county executive.”).) The appropriate requirement for the effective performance County was unable to show that this reconstituted of the public office involved.” 445 U.S. at 518. position met the Elrod-Branti test, but that failure of There is no evidence that the “public office proof does not affect the Court’s conclusion that involved,” the Assistant Commissioner of NCPD, plaintiff would not foreseeably have remained in the required a particular party affiliation. As is discussed position once Suozzi left office. 23
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similar cases extends at least to $125,000, excessive, particularly in light of plaintiff’s see Def. Mem. at 13 (citing Olsen, 615 F. testimony concerning the emotional and Supp. 2d at 46), and the Second Circuit physical toll of his firing. (See, e.g., Tr. at affirmed the award of up to $125,000 in 278 (“Other than what I just described . . . “mental anguish damages” where there was ongoing anxiety . . . . I haven’t had a decent no evidence of “physical sequelae or night’s sleep since that happened. I wake up professional treatment.” Meacham v. Knolls during the night. And I still am asked by Atomic Power Lab., 381 F.3d 56, 77 (2d Cir. folks all this time later why I was 2004) (applying less deferential New York terminated.”); 279 (describing “intense standard of review); see also Lore v. City of headaches that I never suffered my entire Syracuse, 670 F.2d 127, 179 (2d Cir. 2012). life” and “an upset stomach a couple of Thus, the award in this case is quite close to times a week”).) In the Court’s view, the what is often approved, and $125,000 is not jury’s award was not conscience-shocking a hard cap in cases of this type. In fact, or excessive, but rather was reasonably courts in this district recently approved based upon plaintiff’s testimony regarding awards of $175,000 and $200,000 for his emotional distress. emotional distress where, as here, there was no medical evidence and the damages were Therefore, defendants’ motion for supported solely by the plaintiff’s testimony. remittitur or a new trial on damages is See, e.g., Tretola v. Cnty. of Nassau, 14 F. denied. Supp. 3d 58, 80-84 (E.D.N.Y. 2014) (remitting emotional distress award to III. CONCLUSION $175,000 where plaintiff testified that he was humiliated and ostracized by friends in Under the particular circumstances of law enforcement, and had trouble sleeping this case and in the exercise of its equitable and stomach pains); Wallace v. Suffolk discretion, the Court awards plaintiff back Cnty. Police Dep’t, No. 04-CV-2599 pay from November 13, 2009, to December (RRM)(WDW), 2010 WL 3835882, at *8-9 31, 2009, the time period when it was (E.D.N.Y. Sept. 24, 2010) (declining to foreseeable that he would remain employed remit $200,000 award where plaintiff as Assistant Commissioner. Plaintiff’s testified that he suffered from sleepless motion for reinstatement and front pay are nights, became tense, agitated, worried, and denied. more quick-tempered, and the condition continued through the time of trial); see also The County’s renewed Rule 50 motion is Jowers v. DME Interactive Holdings, Inc., denied because leave to amend the answer to No. 00 Civ. 4753 LTS KNF, 2006 WL include the policymaker defense was 1408671, at *3 (S.D.N.Y. 2006) (“When properly denied in the Court’s discretion determining damages for mental anguish, a and, in any event, the County did not plaintiff’s recovery is not preconditioned on demonstrate that the defense applies to whether she underwent treatment, plaintiff’s position. The County’s separate psychiatric or otherwise.”). motions concerning the jury instructions and compensatory damages are also denied, Having borne in mind, as it must, this because the jury charge defined “motivating case’s “unique set of facts and factor” in the same way as the Second circumstances,” Scala, 985 F.2d at 684, the Circuit has done, and because the $150,000 Court concludes that $150,000 is not compensatory damage award does not shock
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the Court’s conscience in this case and was not excessive.
SO ORDERED.
______JOSEPH F. BIANCO United States District Judge
Dated: March 31, 2015 Central Islip, NY
* * *
Plaintiff is represented by Rick Ostrove and Matthew Brian Weinick of Leeds Brown Law, P.C., One Old Country Road, Suite 347, Carle Place, NY, 11514. Defendants are represented by Mark S. Mancher, Marc S. Wenger, and Daniel Sergio Gomez- Sanchez of Jackson Lewis LLP, 58 S Service Road, Suite 410, Melville, NY 11747.
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