706 F.2d 377 (2nd Cir. 1983), 119, Keating v. Carey

Docket Nº:119, Docket 82-7266.
Citation:706 F.2d 377
Party Name:Robert E. KEATING, Plaintiff-Appellant, v. Hon. Hugh CAREY, individually and as Governor of the State of New York; Hon. Frank J. Rogers, individually and as Commissioner of the New York State Executive Department, Division of Criminal Justice Services; New York State Civil Service Commission; Hon. Victor S. Bahou, individually and as Commissioner,
Case Date:April 18, 1983
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 377

706 F.2d 377 (2nd Cir. 1983)

Robert E. KEATING, Plaintiff-Appellant,

v.

Hon. Hugh CAREY, individually and as Governor of the State

of New York; Hon. Frank J. Rogers, individually and as

Commissioner of the New York State Executive Department,

Division of Criminal Justice Services; New York State Civil

Service Commission; Hon. Victor S. Bahou, individually and

as Commissioner, President and Head of the New York State

Civil Service Commission and New York State Civil Service

Department; Hon. Josephine Gambino, individually and as

Commissioner of the New York State Civil Service Commission;

Hon. Michael Scelsi, individually and as a Former

Commissioner of the New York State Civil Service Commission;

Hon. Charles Stockmeister, individually and as a Former

Commissioner of the New York State Civil Service Commission;

Hon. Ersa H. Poston, individually and as a Former

Commissioner of the New York State Civil Service Commission;

Charles D. Palmer, individually and as Assistant

Commissioner of DCJS; Walter C. Slater, individually and as

Administrative Officer of DCJS; Richard C. Murray,

individually and as Assistant Personnel Officer of DCJS;

Donald C. Johnson, individually and as Deputy Commissioner

of DCJS; Robert Brady, individually, and as Personnel

Officer of DCJS; Norma Sue Wolfe, individually and as

Associate Public Information Officer of DCJS; Judith Hope,

individually and as Appointments Secretary to the Governor,

Robert Slanger, individually and as Representative of

Commissioner Frank J. Rogers; John Biggins, individually

and as Representative of Commissioner Frank J. Rogers; Jack

Purcell, individually and as Deputy Commissioner of DCJS,

Defendants-Appellees.

No. 119, Docket 82-7266.

United States Court of Appeals, Second Circuit

April 18, 1983

Page 378

[Copyrighted Material Omitted]

Argued Sept. 22, 1982.

Page 379

Robert E. Harris, Albany, N.Y., for plaintiff-appellant.

John Q. Driscoll, Asst. Atty. Gen., Albany, N.Y. (Robert Abrams, Atty. Gen. of the State of N.Y., Albany, N.Y., William J. Kogan, Asst. Sol. Gen., Albany, N.Y., of counsel), for defendants-appellees.

Before LUMBARD, MESKILL and CARDAMONE, Circuit Judges.

LUMBARD, Circuit Judge:

Invoking federal law, Robert E. Keating seeks to vindicate his constitutional rights to free speech, free association, equal protection and due process. The defendants allegedly violated these rights when they fired Keating from the State Civil Service over seven years ago. In granting summary judgment to the defendants, the district court dismissed Keating's claim under 42 U.S.C. Sec. 1983 (Supp. IV 1980), because he had failed to bring suit within the three year limitation period provided by New York Civ.Prac.Law Sec. 214(2) (McKinney Supp.1982). Keating had argued that the defendants should be equitably estopped from raising the statute of limitations as a defense because they had successfully conspired to conceal his cause of action. Be that as it may, the district court held that the state courts had already determined in a suit between the same parties 1 that the plaintiff had not relied on defendants' misrepresentations concerning his rights. Thus, plaintiff was barred from relitigating an issue crucial to his equitable estoppel argument. 2 We reverse. The record shows that the plaintiff has never been accorded a full and fair opportunity to litigate the extent of his reliance on defendants misrepresentations.

Judge Miner also dismissed plaintiff's claims under 42 U.S.C. Secs. 1981 (1976) and 1985 (Supp. IV 1980) for failure to allege that the defendants had acted out of a class-based discriminatory animus. 3 We affirm the dismissal of the Sec. 1981 claim because recovery under this section requires a showing of racial or, perhaps, quasi-racial discrimination. However, we reverse the dismissal of Keating's Sec. 1985 claims. First, we hold that no showing of class-based discrimination is required under the first clause of Sec. 1985(2), which makes unlawful conspiracies to deter citizens from attending federal courts. Second, we hold that Republicans are a protected class for the purpose of Sec. 1985(3) (as would be Democrats or members of any political party, in the circumstances herein alleged), and that the plaintiff has properly pleaded that the defendants discriminated against him on the basis of his Republican affiliations. 4

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I.

In reviewing a grant of summary judgment on statute of limitations and collateral estoppel grounds, we take as true the allegations in the complaint and the undisputed facts asserted in the affidavits submitted on the motion for summary judgment. Thus, we must assume the following facts to be capable of proof: Keating was one of nine noncompetitive employees chosen in 1966 to run the newly established Bureau of Intelligence and Identification Systems, now known as the Division of Criminal Justice Services. His twenty years of experience in journalism, particularly in law enforcement reporting, qualified him to be the Division's Associate Public Information Specialist. The Division Director, Robert Gallati, told Keating that the job came with the same rights and protections enjoyed by tenured, competitive civil servants. See generally, New York Civ.Serv.Law Sec. 75 et seq. (McKinney 1973 and Supp.1982).

Keating performed his job excellently for several years. However, Keating claims that as an active member of the Republican Party, he was worried as the Carey administration took office and began claiming its spoils in 1975. The Democrat/Republican turnover proceeded in due course, and, in July, Keating was told that he was to be terminated because of his Republican affiliations. Deputy Commissioner Palmer also told Keating that because his position had been designated "management-confidential," he was not entitled to the protections accorded nonconfidential "tenured" employees. On September 3, 1975, Keating was fired.

Keating claims that he had always believed he was a tenured, nonconfidential employee. However, when he inquired at the personnel office, he was informed that he had never actually received tenure. There had been some technical "mistake" in the processing of his initial appointment. Other employees in his division had been granted tenure rights, but not Keating. Keating also consulted friends and associates, some of whom confirmed the "mistake" story. When he sought legal assistance from the Civil Service Employees Association, he learned only that he was not entitled to the Association's representation. In sum, Keating claims that the defendants concealed his tenured status from him, his friends, and his associates. Consequently, he then believed he had no legally enforceable right to his job.

Keating claims that in addition to concealing his tenure rights, the defendants also conspired to deter him from bringing suit in federal court. They threatened to trump up charges against him if he sought legal remedies. They promised that if he was quiet, they would find for him some equivalent position. This promise came to naught. Since 1975, Keating has been employed only intermittently.

In 1978, another victim of the Democratic purge advised Keating to see a lawyer. He did. This lawsuit followed in August 1979. At the same time, Keating filed suit in the New York Supreme Court under C.P.L.R. Article 78 to compel reinstatement based on his alleged tenure rights under New York Civ.Serv.Law Sec. 75. The district court stayed the federal action pending the outcome of the state proceeding.

The defendants in the state action moved immediately to dismiss the complaint on the ground that Keating had failed to bring the action within the four month limitation period for Article 78 proceedings. 5 The state

Page 381

court denied the motion without opinion. The defendants then brought an interlocutory appeal. In a five sentence opinion, the Appellate Division reversed, holding that there was "no basis" for the lower court's "finding" that Keating was excused for not bringing suit within the four month limitation period. Keating v. Rogers, 77 A.D.2d 694, 429 N.Y.S.2d 501 (1980). Keating's papers on appeal were "replete with statements" that immediately after being fired, he made a series of inquiries as to his rights. Thus, the court seems to have concluded, it was not the defendants' fault that the plaintiff failed to consult with a lawyer until 1978. Id. The Court of Appeals affirmed on the Appellate Division's opinion. 54 N.Y.2d 646, 442 N.Y.S.2d 507, 425 N.E.2d 895 (1981).

Fresh from their victory in the state courts, the defendants moved for summary judgment in the district court on the same ground, namely, that the limitation period had expired. Keating once again argued that the defendants should be equitably estopped from raising a statute of limitations defense. The district court ruled that the New York courts had found Keating's delay in filing suit inexcusable; consequently, Keating was collaterally estopped from proving that the defendant's concealment had made it impossible for a reasonably diligent person to discover his cause of action.

The district court dismissed Keating's remaining claims under 42 U.S.C. Secs. 1981, 1985 and 1986 in a footnote, noting that Keating had failed to allege that the defendants acted from a class-based discriminatory motive.

II.--Timeliness of the Sec. 1983 Claim

We cannot agree that the New York Appellate Division determined that the entire span of plaintiff's four year delay was inexcusable. Under the equitable estoppel doctrine, a defendant's deliberate concealment tolls the statute. This effectively extends the limitation period by the...

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