Cobb v. Pozzi
| Citation | 363 F.3d 89 |
| Decision Date | 11 December 2003 |
| Docket Number | Docket No. 02-7218. |
| Parties | Dwayne COBB and Jeffrey Rouse, Plaintiffs-Appellees, v. Rocco POZZI, individually and in his capacity as Commissioner of Correction for the County of Westchester, N.Y., Joseph Miranda, individually as Assistant Warden and as Chief of Operations of the Westchester County Department of Corrections and the County of Westchester, New York, Defendants-Appellants, Andrew J. Spano, individually and in his capacity as County Executive of the County of Westchester, N.Y., Susan Tolchin, individually, Alan Scheinkman, individually and in his capacity as County Attorney for the County of Westchester, N.Y., Joan Waters, individually and in her capacity as Assistant County Attorney for the County of Westchester, N.Y. and John F. Gleason, individually, Defendants. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Matthew T. Miklave, New York City (A. Jonathan Trafimow, Deborah S. Markowitz, Epstein Becker & Green, New York City, of counsel), for Appellants.
Jane Bilus Gould, White Plains, N.Y. (Lovett & Gould, White Plains, NY, of counsel), for Appellees.
Before: MESKILL, NEWMAN and POOLER, Circuit Judges.
Plaintiffs-appellees Dwayne Cobb and Jeffrey Rouse (collectively "plaintiffs") brought this action pursuant to 42 U.S.C § 1983 alleging that defendants-appellants Rocco A. Pozzi, Joseph Miranda, and the County of Westchester (collectively "defendants") disciplined them in retaliation for their association with their union in violation of their First Amendment rights and denied them equal protection of the laws in violation of the Fourteenth Amendment. Following a three day trial, the jury returned a verdict against each of the defendants and awarded each plaintiff $35,000 in damages.
The defendants seek review of the district court's orders (1) denying their motion to dismiss, (2) denying, in part, their motion for summary judgment, (3) denying their motion for judgment as a matter of law, and (4) denying their motion for a new trial.
Plaintiffs Dwayne Cobb (Officer Cobb) and Jeffrey Rouse (Officer Rouse) are corrections officers who work for the Westchester County Department of Corrections (DOC). Like all corrections officers employed by the DOC, Officers Cobb and Rouse are members of the Corrections Officers' Benevolent Association (COBA). Defendant Rocco Pozzi (Commissioner Pozzi) is the Commissioner of the DOC, and defendant Joseph Miranda (Chief Miranda) serves as the DOC's Chief of Operations. Commissioner Pozzi and Chief Miranda occupy the first and third positions respectively in the chain of command at the DOC.
The County of Westchester (County), through the DOC, operates two separate correctional facilities in Valhalla, New York: the Penitentiary and the Jail. These facilities are within a two minute drive of each other. Corrections officers consider working in the Jail less desirable than working in the Penitentiary. As Officer Cobb testified at trial: "There are less problems [at the Penitentiary]."
As of July 1999, when the events giving rise to this action occurred, COBA and the County were engaged in negotiations for a new contract. The talks were at a stalemate and relations between the County and COBA were described as strained.
Staffing issues at the Penitentiary and the Jail sometimes require that the DOC request corrections officers to work overtime. When scheduled officers call in sick and there are not enough volunteers for an overtime shift, the DOC can require what is called "forced overtime." According to DOC policy, forced overtime can only be required of individual officers who are still physically present at either correctional facility; once an officer leaves the premises, the DOC cannot require him to return to work forced overtime. Consequently, an officer is normally "forced" at the close of one of his regular shifts. As its label suggests, forced overtime is mandatory. It is also cross-institutional, meaning that the DOC can require an officer completing his shift at the Penitentiary to report immediately to the Jail for forced overtime duty.
On July 13, 1999, according to the testimony of several witnesses, there were rumors circulating throughout the Jail and Penitentiary that an unlawful "job action" may be in the works.1 Chief Miranda testified that on July 13, 1999, he was told that numerous corrections officers who would normally volunteer for overtime would not do so. Also, he was told that other corrections officers intended to put their names in the overtime log book to appear to be available but would not answer their phones when called.
Shortly before 3:00 p.m. on July 13, 1999, just prior to the start of the Jail's 3:00 p.m. to 11:00 p.m. shift, COBA representative Officer Christopher Smith instructed his fellow corrections officers at a pre-shift meeting that they should not sign up for overtime. (The DOC brought disciplinary charges against Officer Smith for giving this instruction.) Officer Smith testified that he understood that after he addressed his fellow officers, not enough officers volunteered to work overtime on the Jail's 7:00 a.m. to 3:00 p.m. shift on July 14, 1999.
This testimony is consistent with the affidavit of Sergeant John Reilly, a sergeant assigned to the 7:00 a.m. to 3:00 p.m. shift at the Jail. In it, he states that on July 13, 1999, fifty-one officers placed their names on a list for voluntary overtime and twenty-six of those officers agreed to take an overtime shift. Consequently, there was no need to exhaust the overtime list. According to Sergeant Reilly, July 13, 1999 represented a typical day of staffing at the correctional facility. The following day, July 14, 1999, was not typical. On that day, only thirty-one names appeared on the voluntary overtime list; several officers who regularly worked overtime removed their names from the list prior to the day's staffing. In addition, when the DOC placed calls to those officers who were on the volunteer overtime list, many did not answer their phones or return the DOC's call.
Sergeant Reilly's affidavit also observes that officers who chose to volunteer for overtime were harassed and intimidated. This observation is consistent with testimony offered at trial, which revealed that on July 14, 1999, after volunteering to work overtime, Officer John Higgs was called a "scab" by fellow officers and was assaulted by Officer John Minella. The DOC subsequently preferred disciplinary charges against Officer Minella and recommended that he be suspended without pay for thirty days. Following a hearing, an arbitrator upheld the charges, but ordered that the suspension be reduced to five days.
While these events were ongoing, Officers Cobb and Rouse were working their 11:00 p.m. to 7:00 a.m. shift on July 13-14, 1999 at the Penitentiary. Towards the end of their shifts, they received calls from Captain James Sullivan, the captain in charge of the 11:00 p.m. to 7:00 a.m. shift at the Penitentiary, asking if they wanted to volunteer for overtime. Each officer declined. A short time later, Captain Sullivan contacted Officers Cobb and Rouse again, as well as Officers Savino, Williams, Dorazio, Conway, Seckerson, and Vanderwerff (all of whom were also working the Penitentiary 11:00 p.m. to 7:00 a.m. shift) and informed each of them that they were being forced to work overtime. He then ordered the officers to report to the Jail at 7:00 a.m. on July 14, 1999.2
Officer Conway responded by telling Captain Sullivan that he could not work the overtime shift because his wife was being discharged from the hospital that morning and was confined to bedrest. Captain Sullivan, who had prior knowledge of Officer Conway's family medical situation, told Officer Conway that he would release him, but instructed him to fill out a special report (a "special") describing his situation. He also told Officer Conway to bring in a doctor's note documenting his wife's status. Officer Vanderwerff told Captain Sullivan that he was unable to work the overtime shift at the Jail because his daughter was sick and no one was available to take care of her. After Officer Vanderwerff submitted a special to that effect, Captain Sullivan signed off on it and released him.
After receiving their instructions from Captain Sullivan, but before the start of the 7:00 a.m. to 3:00 p.m. Jail shift, Officers Cobb, Rouse, Savino, Williams, and Dorazio prepared specials in which they explained why they were physically unable to work the forced overtime shift. (Officer Seckerson did not prepare a special, as he had decided to accept his overtime assignment.) The specials read as follows:
Cobb's Special: Due to back pain and physical exhaustion, this officer can not perform his work duties. This officer has to see his doctor.
Rouse's Special: Due to being exhausted this officer cannot work another shift and would be unable to perform my [sic] duties.
Savino's Special: This writer is too physically tired to perform assigned duties in a safe and secure manner.
Dorazio's Special: This officer is unable to work another shift due to being exhausted (physically) and be [sic] unable to perform my duties.
Williams' Special: This officer is unable to work another shift due to being exhausted physically and be [sic] unable to perform my duties.
The five officers then attempted to give their specials to Sergeant Alfred Booker, the desk sergeant in charge of the Penitentiary's 7:00 a.m. to 3:00 p.m. shift. Sergeant Booker, however, refused to accept them and instructed the five officers to report to the Jail, commenting that the situation was "a [P]en problem ... [not] a[J]ail problem." According to Sergeant Booker's sworn statement, between the time the five officers were ordered to work forced...
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