Jund v. Town of Hempstead

Decision Date26 July 1991
Docket NumberNo. 910,D,910
Parties, RICO Bus.Disp.Guide 7799 John L. JUND, Plaintiff-Appellant, v. The TOWN of HEMPSTEAD; The Town of Hempstead Republican Committee; The Nassau County Republican Committee, Defendants-Appellees. ocket 90-7857.
CourtU.S. Court of Appeals — Second Circuit

Julian Kaplan, Mineola, N.Y. (Jessel Rothman, of counsel), for appellant.

Joseph Jaspan, Garden City, N.Y. (Holly Juster, of counsel), for appellee Town of Hempstead.

Edward J. Hart, Uniondale, N.Y. (Rivkin, Radler, Bayh Hart & Kremer, Uniondale, N.Y., John E. Ryan, Kwiatkowski & Ryan, Floral Park, N.Y., of counsel), for appellees Town of Hempstead Republican Committee and Nassau County Republican Committee.

Before FEINBERG, MESKILL and CARDAMONE, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Eastern District of New York, Mishler, J., granting judgment notwithstanding the jury's verdict. The district court ruled in favor of defendants Town of Hempstead (Town), Town of Hempstead Republican Committee and Nassau County Republican Committee (Committees) and dismissed John L. Jund's complaint alleging causes of action under Civil RICO, 18 U.S.C. § 1964, and civil rights claims arising under 42 U.S.C. § 1983. The dismissal of the complaint had the effect of vacating all prior judgments in favor of Jund. Jund contends the district court erred in granting j.n.o.v. and in dismissing his complaint.

The judgment of the district court is vacated. The 1989 and 1990 jury verdicts are to be reinstated, as is the 1989 award of partial summary judgment in favor of Jund. This action is remanded for further proceedings consistent with this opinion.

BACKGROUND

This case has a long and complex history.

In 1970 John L. Jund, then nineteen years old, sought a position with the Town of Hempstead as a helper on a sanitation truck. Jund was advised to meet with his Republican Committee Block Captain, Ignazio Battalucco. Jund did so. Battalucco recommended that Jund see Harry Norwalk, the local Republican Committeeman. Norwalk told Jund that in order to get the position he sought, Jund would have to support the Republican Committee by selling football raffle tickets on a weekly basis. Jund agreed to sell the tickets and was promptly sent to see Donald Woolnough, then Assistant to the Chairman of the Town of Hempstead Republican Committee. Woolnough interviewed Jund and then sent him with a sealed letter to the Department of Sanitation. Jund was hired In July 1972 Jund sought a promotion from Sanitation Man I to Sanitation Man II (driver). The position of driver also involves assisting in packing and loading the sanitation truck and moving material from the curb to the vehicle for loading. Sanitation Man II is lead man of the crew assigned to a particular route and is expected to aid in the manual tasks. Jund's foreman, Leon Busam, told Jund that he would have to make a contribution to the Republican Committee in the amount of one percent of his annual salary to get the promotion. Because his support for the Committee had been deficient in prior years, Jund was told to round his contribution up to $100. Upon producing a check for $100 payable to the Town of Hempstead, Republican Finance Committee, Jund was given keys to a sanitation truck and told to practice driving. Jund practiced for some time, and then acted as a part-time or substitute driver. Jund subsequently became a full-time driver with his own route. Jund requested the promotion and pay raise commensurate with the position, but in April 1973 he was told by his foreman, Frank Valenza, that not only would he be denied the promotion and pay raise, but also that he was being demoted to Sanitation Man I. When Jund asked for an explanation, he was told by Assistant Department Supervisor August Cosenza, his supervisor Theodore Howell, and Frank Cozzolino, a Civil Service Employees Association Union Representative, that he was being demoted because he did not actively support the Republican Party. Jund then visited Harry Norwalk, the Republican Committeeman, who confirmed the demotion.

and began working as Sanitation Man I (helper) in May 1970.

On May 4, 1976 Jund suffered an injury to his back while picking up trash. He became disabled and could no longer perform the duties of Sanitation Man I.

On November 12, 1976 Jund requested an intradepartmental transfer to the Special Services Division of the Department of Sanitation and an interdepartmental transfer to Data Processing. Both positions involved work Jund could perform in spite of his injury. Sanitation Commissioner William Landman denied the transfers.

On May 18, 1978 the Town published a list of employees eligible for the positions of Sanitation Inspector I and Sanitation Inspector II based on competitive examinations given on December 13, 1975. The long delay in publishing the list of candidates resulted from unrelated litigation and the change in the administration of the Civil Service system from the Nassau County Civil Service Commission to the Town Civil Service Commission in 1970. Jund, who had taken and passed both exams, was ranked ninth on the Inspector I list and seventh on the Inspector II list. Several names appeared on both lists.

There were then eleven vacancies in the Town for Sanitation Inspectors which were to be filled from the appropriate eligibility lists. Two positions were filled by candidates who had permanent positions as Sanitation Inspector I, had taken and passed the promotional exam in 1975, and had been appointed to the position of Sanitation Inspector II.

Eleven applicants remained on the lists for nine positions. Of the eleven, seven were provisional employees, already occupying the position to which they aspired and awaiting formal appointment. It is the general policy of the Town that if provisionals pass the exam they are given a preference in appointment. Three of the provisionals held the position of Inspector II and four held the position of Inspector I. These seven were duly appointed, leaving two positions vacant, with four remaining candidates.

John Sandrowicz and Nathaniel Baldwin were appointed to the remaining Sanitation Inspector II positions. John Sandrowicz had been employed with the Sanitation Department for many years and had the highest score on the eligibility list. Furthermore, except for leave for military duty, Sandrowicz worked continuously for the Sanitation Department up until the time of his appointment to the new position. Sandrowicz was never asked to and never did contribute to the Republican Committees.

Nathaniel Baldwin had started work with the Sanitation Department as a helper. He is Black, and was expected to be assigned to a predominantly Black community where the Town claims he could more effectively perform the duties of sanitation inspector than could a white inspector. Nathaniel Baldwin was neither asked to nor did he ever contribute to the Republican Committees.

Two people remained on the eligibility lists, John Jund and James Heizman. Heizman had started with the Sanitation Department as a helper in 1970 and still held that position. Heizman was promoted to Sanitation Man II (driver) rather than sanitation inspector at the time of the appointments.

On July 28, 1978 Jund was placed on Separation and Leave of Absence effective October 3, 1978 because of his inability to perform the duties of Sanitation Man I (helper). This action was adopted by the Town board on October 3, 1978, and reserved for Jund the right, in accordance with Section 71 of the New York Civil Service Law, to request reinstatement to his position within one year after the termination of his disability.

On July 25, 1980 Jund sought to receive his accrued vacation benefits. He was told by Commissioner Landman that he would have to resign in order to receive the money. Jund was also informed that any resignation would be retroactive to the effective date of his separation leave. Jund resigned that day; in accordance with state law his resignation was retroactive to the date of his initial separation in 1978.

Procedural History

Much of the procedural history is set forth in our earlier opinion in this case, Cullen v. Margiotta, found at 811 F.2d 698 (2d Cir.), cert. denied sub nom. Nassau County Republican Comm. v. Cullen, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987). The following summarizes that history and outlines the relevant incidents that have occurred since the publication of that opinion.

On December 2, 1974 Jund, among others, was named as a plaintiff in a class action suit instituted in New York State Supreme Court, Nassau County, against the Nassau County Republican Committee and others. That complaint was subsequently dismissed.

On December 14, 1976 plaintiffs, including Jund, as a class filed the complaint in the instant action in federal district court naming as defendants, among others, the Town of Hempstead and the County and Town Republican Committees. The complaint asserted numerous claims including violations under section 1983 for employment discrimination in violation of the class' First Amendment rights, and civil RICO violations based on an alleged underlying scheme or plan to solicit contributions coercively from Town employees in the amount of one percent of their salaries. Damages were sought under 42 U.S.C. § 1983, and treble damages were sought on their RICO claims pursuant to 18 U.S.C. § 1964(c). The defendants moved to dismiss the complaint on several grounds including failure to state a claim upon which relief could be granted, res judicata or collateral estoppel because of the state court judgment dismissing the plaintiffs' previous action, and the statute of limitations. In a succession of orders over several years, the district court dismissed those portions of the complaint seeking relief directly under the...

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