Matusick v. Erie Cnty. Water Auth.

• Decision Date: 25 February 2014
• Docket Number: Docket Nos. 11–1234,11–1618.
• Citation: 757 F.3d 31
• Parties: Scott M. MATUSICK, Plaintiff–Appellee–Cross–Appellant, v. ERIE COUNTY WATER AUTHORITY, Gary Bluman, Individually and in his Official Capacity as Foreman, John Kuryak, Individually and in his Official Capacity as Distribution Engineer, James P. Lisinski, Individually and in his Official Capacity as Coordinator of Employee Relations, Robert Mendez, Individually and in his Official Capacity as Director of the Erie County Water Authority, Defendants–Appellants–Cross–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

757 F.3d 31

Scott M. MATUSICK, Plaintiff–Appellee–Cross–Appellant,

v.ERIE COUNTY WATER AUTHORITY, Gary Bluman, Individually and in his Official Capacity as Foreman, John Kuryak, Individually and in his Official Capacity as Distribution Engineer, James P. Lisinski, Individually and in his Official Capacity as Coordinator of Employee Relations, Robert Mendez, Individually and in his Official Capacity as Director of the Erie County Water Authority, Defendants–Appellants–Cross–Appellees.^*

Docket Nos. 11–1234, 11–1618.

United States Court of Appeals, Second Circuit.

Argued: May 4, 2012.

Decided: Jan. 3, 2014.

Amended: Feb. 25, 2014.

Affirmed in part; reversed in part; remanded in part. Judge Lohier concurs in the majority opinion and in a separate concurring opinion; Judge Raggi concurs in part and dissents in part.^**

Harvey P. Sanders, Sanders & Sanders, Cheektowaga, N.Y., for Plaintiff–Appellee–Cross–Appellant.

Joseph S. Brown (Adam W. Perry, Benjamin K. Ahlstrom on the brief), Hodgson Russ LLP, Buffalo, N.Y., for Defendants–Appellants–Cross–Appellees.

Before: SACK, RAGGI, and LOHIER, Circuit Judges.

SACK, Circuit Judge:

BACKGROUND

“When an appeal comes to us after a jury verdict, we view the facts of the case in the light most favorable to the prevailing party.” Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 77 (2d Cir.2006). We set forth the facts of this case in accordance with that requirement.

Scott and Anita Matusick

Plaintiff Scott Matusick, who is white, was employed by the Erie County Water Authority (“ECWA”) during 2004 when, he claims, he was assaulted, harassed, and ultimately terminated from his employment because of a romantic relationship he had with an African–American woman, Anita Starks—now Anita Starks–Matusick. Starks and Matusick met in 2003 but, according to her trial testimony, did not begin dating until January or February 2004. They “became more serious” in March or April 2004: They became engaged. Trial Tr. in Matusick v. Erie County Water Auth., No. 07–cv–00489 (RJA)(HBS)(W.D.N.Y. 2010) (“Trial Tr.”), Aug. 19, at 30.¹ At this point, however, they did not share a residence—Matusick lived in Hamburg, New York, and Starks lived in Niagara Falls, New York. In 2005, after they became engaged, Starks moved into Matusick's house in Hamburg. They were married in 2009.

Starks–Matusick has two children who were in their early teens when Starks and Matusick met and began dating. Id. at 31. According to trial testimony, the children had established a close relationship with Matusick. Since 2005, and at least until the time of trial, they have lived with Starks/Starks–Matusick and Matusick in Hamburg. Id. at 32.

Discrimination at the ECWA

The ECWA is an independent public benefit corporation and a New York State agency. SeeN.Y. Pub. Auth. Law § 1050, et seq. Its mission is to provide a safe, reliable source of water to approximately 158,000 customers in and around Erie County, New York, which includes the City of Buffalo. In order to fulfill its mission, the ECWA operates a Service Center (the “Service Center”) in Cheektowaga, New York, east of Buffalo. During 2004 and through 2006, the period relevant to this dispute, the ECWA had approximately 250 employees.

Matusick began working for the ECWA in June 1992. After several years, he held a position as a customer service representative, later becoming a bill collector, and still later, a dispatcher.²

During the summer of 2004, after Matusick and Starks became engaged, some of Matusick's coworkers at the ECWA became aware of his relationship with Starks. Many met Starks when, as was often the case, she dropped Matusick off at work. Matusick testified at trial that Robert Mendez, the Director of the ECWA, was among the employees who saw Starks and was aware of her relationship with Matusick.

At about this time, Matusick's relationship with one of his supervisors, Gary Bluman, began to deteriorate. According to Matusick, Bluman was often a ring-leader when it came to harassing him on account of his romantic relationship with Starks. In 2004, according to Matusick, Bluman and his crew went onto Matusick's property, threw lawn equipment on his roof, and duct-taped his door shut. Matusick never reported this incident to anyone at the ECWA because, according to his trial testimony, Bluman had threatened to kill Matusick's family, and Matusick was afraid of what would happen if he reported Bluman to other supervisors.

Tension came to a head in July 2004. According to Matusick's testimony, during the morning of one of his shifts, Bluman entered the room where Matusick was working, “threw some papers in [Matusick's] face[, a]nd ... said, you're going to do this, do this right fucking now.” Id. at 66. Matusick apparently told Bluman that he would do what Bluman wanted in a “couple minutes,” because he had yet to complete a project he owed one of the ECWA foremen. Id. According to Matusick's testimony, Bluman then “turned [Matusick's] chair totally around so [Bluman] was facing [Matusick]. [Bluman] put a pen to [Matusick's] neck[,] ... and he said, you're a fucking [nigger] lover, your—your bitch is a[ ] [nigger], you're a fucking [nigger] now, too, and I'm going to kill all the fucking [niggers].” Id. at 66–67.³

Matusick reported the incident to Robert Guggemos and John Kuryak, supervisors at ECWA. He did not, however, formally report it to the human resources department. As a consequence of the incident, ECWA supervisors instructed Bluman to minimize his interactions with Matusick. Nonetheless, within a month and a half after the attack, Bluman resumed making racist comments.

Bluman was not the only one engaged in the harassment. Other employees, including James Lisinski, used the word “nigger” around Matusick, despite the fact that he had made it clear—although we doubt he had to—that he found the word offensive. On one occasion during the summer of 2005, Lisinski remarkably, inasmuch as he was ECWA Coordinator of Employee Relations, told Matusick, “I'm going to get you, I'm going to get you, you [nigger] lover, you're going to get it.” Id. at 93 (internal quotation marks omitted).

A co-worker, Brendan Finn, was, according to Matusick, even more persistently antagonistic. In the summer and fall of 2005, Finn made comments to Matusick such as, “[I]s your N[igger] bitch dropping you off [?]” Id. at 81. He also allegedly referred to Starks' children as “porch monkeys” or “nigglettes.” Id. at 89, 95. In July 2005, Finn became irate when Matusick arrived late for work. Finn chased Matusick around the building, yelling something like, “now you're mother-fucking late like all the other [niggers], now you're a [ ] [nigger], too.” Id. at 76.

Matusick reported this incident along with those involving Bluman and other ECWA employees to Guggemos and Kuryak but, once again, decided against taking his concerns to the human resources department. At trial he stated that he thought that there was no reason to make a formal complaint “[b]ecause [ECWA] supervisors said that they would handle the situation and they would take care of it and th[at] certain individuals would get a talking to and [the supervisors] would handle it.” Id. at 101.

Other employees, including human resources staff, likely knew about Matusick's concerns, however. During an interview of Matusick regarding a disciplinary problem related to his covering-up a surveillance camera that had been placed in the dispatch office, Lisinski, himself an alleged offender, asked “what is this I'm hearing about you disrupting the work force and talking about, you know, black—black issues, white issues, sexual harassment, and so on and so forth[?]” ⁴Id. at 91.

Matusick's Disciplinary Problems and Termination

The heart of the factual dispute in this case is whether Matusick's treatment by the ECWA was motivated in significant part by discriminatory intent or whether it was purely a consequence of his failure to perform his duties as a dispatcher. To support their position at trial, the defendants introduced evidence regarding Matusick's long and serious history of disciplinary problems.

On October 26, 1997, the Commissioner of the ECWA visited the Service Center to find Matusick watching television, as the Commissioner later reported in a memorandum. Joint Appendix filed in this Court on July 13, 2011 (“J.A.”) 3799. ⁵ In April 2005, Matusick intentionally blocked a video camera in the dispatch office, which was installed after September 11, 2001, ostensibly for the purpose of protecting the safety of the water supply. But it also served to record the conduct of dispatchers while at work.

Matusick admitted to blocking the camera by placing various objects in front of it on between ten and twenty occasions. In May 2005, he was served with disciplinary charges under section 75 of the New York State Civil Service Law related to this incident.⁶ He admitted his guilt of all camera-blocking charges, accepting a 60 day suspension without pay.

To support its position that Matusick's discipline was not discriminatory, the ECWA points to the fact that other ECWA employees were similarly disciplined for blocking the video camera. For example, Joe Marzec, who worked as a duty-man on the night-shift with Matusick, also conceded guilt to a similar charge and accepted a 30–day suspension without pay. Thomas Radich, a control room operator, also admitted his guilt, accepting a 90–day suspension without pay.

Matusick faced more disciplinary charges in November 2005. The ECWA alleged that on October 1 and 20, 2005, Matusick had “failed to properly respond to information, failed to dispatch workers to the scene of water line breaks in a timely manner, and slept on duty.” Decl. of James R. Lisinski at ¶ 32, J.A. 1306.

After the charges were filed, the ECWA held a section 75 hearing presided over by Michael Lewandowski, an independent hearing officer selected by the ECWA. The hearing was held intermittently on five...