Rudow v. City of New York

• Decision Date: 02 July 1987
• Docket Number: No. 890,D,890
• Citation: 822 F.2d 324
• Court: U.S. Court of Appeals — Second Circuit
• Parties: 44 Fair Empl.Prac.Cas. 229, 43 Empl. Prac. Dec. P 37,203, 56 USLW 2055 Norman RUDOW, Plaintiff-Appellant v. The CITY OF NEW YORK, the City of New York Commission on Human Rights, and Lois Whitman, Defendants-Appellees. ocket 86-7833.

Page 324

822 F.2d 324

44 Fair Empl.Prac.Cas. 229,

43 Empl. Prac. Dec. P 37,203, 56 USLW 2055

Norman RUDOW, Plaintiff-Appellant v. The CITY OF NEW YORK, the City of New York Commission on Human Rights, and Lois Whitman, Defendants-Appellees.

No. 890, Docket 86-7833.

United States Court of Appeals Second Circuit.

Argued March 12, 1987.

Decided July 2, 1987.

Gail S. Strassfeld, Boston, Mass. (Silverglate, Gertner, Fine, Good & Mizner, Boston, Mass., of counsel), for plaintiff-appellant.

Barry P. Schwartz, Office of the Corp. Counsel, City of New York, New York City (Peter L. Zimroth, Corp. Counsel of the City of New York, June A. Witterschein, Office of the Corp. Counsel, City of New York, New York City, of counsel), for defendants-appellees The City of New York and The City of New York Com'n on Human Rights.

Marvin E. Frankel, New York City (Scott D. Heller, Kramer, Levin, Nessen, Kamin & Frankel, New York City, of counsel), for defendant-appellee Lois Whitman.

Before TIMBERS, MESKILL and NEWMAN, Circuit Judges.

MESKILL, Circuit Judge:

In this appeal from a judgment of the United States District Court for the Southern District of New York, Sand, J., we consider the boundaries of absolute prosecutorial immunity where a municipal attorney represents both her employer agency and the individual complainant before that agency. Because it appears that the dual representation created a conflict of interest in this case, we also consider whether the target of the agency prosecution, Norman Rudow, who alleges injury to a claimed liberty interest in his status as an innocent person, may sustain an action under 42 U.S.C. Sec. 1983 (1982). We conclude that the Human Rights Commission (HRC) prosecutor is absolutely immune from personal liability under federal and state law, and that Rudow's claims do not rise to the level of a constitutionally protected interest that would support an action against the City under section 1983.

BACKGROUND

In an opinion reported at 642 F.Supp. 1456 (S.D.N.Y.1986), Judge Sand ordered entry of summary judgment in favor of the defendants after a full examination of the facts viewed in the light most favorable to the appellant, Rudow. Familiarity with the district court opinion is assumed, and we repeat here only those facts necessary for an understanding of the case on appeal.

In 1981, Brenda Alvarez, a clerical worker for Litton Office Product Centers, complained to the HRC that Rudow, who was then Litton's regional division president, had sexually harassed her on the job. HRC staff attorney Lois Whitman was assigned to the case, and she assured Alvarez that the attorney-client privilege protected the confidentiality of their communications. Whitman prosecuted the complaint in a hearing before an administrative law judge. In a January 1983 decision, the HRC sustained the sexual harassment complaint and awarded Alvarez damages of $15,188.97. The New York Supreme Court confirmed the determination, Rudow v. New York City Commission on Human Rights, 123 Misc.2d 709, 474 N.Y.S.2d 1005 (1984), and Rudow appealed to the Appellate Division, which affirmed without opinion, 109 A.D.2d 1111, 487 N.Y.S.2d 453 (1st Dep't 1985). Leave to appeal to the New York Court of Appeals was denied. 66 N.Y.2d 605, 499 N.Y.S.2d 1025, 489 N.E.2d 1302 (1985). Rudow was subsequently fired by Litton and has suffered loss of job prestige and deteriorated health.

Throughout the administrative and judicial stages of the sexual harassment prosecution, Lois Whitman continued to represent both the HRC and Alvarez. It appears that, by failing to obtain prior HRC permission to participate in the case beyond the state Supreme Court stage, Whitman may have exceeded the specific jurisdictional authority delegated to her, although her supervisor later ratified her decision to remain in the case in the appellate stages.

While preparing his appeal to the Appellate Division, Rudow learned that Alvarez had lied to the ALJ about receiving medical care and had submitted a forged note, ostensibly signed by a physician, describing her nervous condition. Rudow moved to supplement the record on appeal with evidence of the false testimony. When confronted privately by Whitman, Alvarez admitted her fabrications. Whitman did not report this admission to the HRC or the court, but met ex parte with the ALJ who presided over the original hearing. He advised Whitman that knowledge of the perjury and forgery would not have altered his ultimate determination. Apparently satisfied that she had met her professional responsibility, Whitman continued to press Alvarez's case and opposed Rudow's motion before the Appellate Division to supplement the record. The Appellate Division granted Rudow's motion but refused to overturn the Supreme Court's ruling.

While continuing his court battle, Rudow also mounted a direct attack on the City, demanding a new HRC hearing and, when no relief appeared likely, filed this action. The New York Post published articles disclosing the tainted hearing, and shortly thereafter the City sought to vacate the HRC ruling in order to accept additional evidence. The City's Corporation Counsel wrote to Alvarez, severing any attorney-client relationship that Alvarez "may have had in the past" with Whitman.

Acting without the support of the HRC or Whitman, Alvarez sued unsuccessfully to prevent reopening of her sexual harassment case. Before the HRC could actually vacate its order, however, Rudow and Alvarez reached an agreement under which they jointly requested that the HRC take no further action on Alvarez's complaint and waived any rights they may have had to further agency proceedings on the matter. Rudow has continued this separate action, in which Alvarez is not a party.

Rudow claims that Whitman's failure to disclose Alvarez's perjury and forgery distorted the sexual harassment prosecution in a way that deprived him of his constitutional right to liberty without due process of law. He claims a protected liberty interest in his legal status as a person innocent of the unlawful employment practice of sexual harassment. Alternatively, Rudow claims that a protected liberty interest arises from the combination of his reputation interest with his interests in his legal status as an innocent person, in his employment opportunities and in being free of attorney deceit. He claims that his liberty interest in being free of attorney deceit springs from the New York attorney misconduct statute, N.Y.Jud.Law Sec. 487 (McKinney 1983). Rudow also asserts a violation of section 487 as an independent cause of action against Whitman and the City.

The district court ruled that neither Rudow's section 1983 claim nor his pendent state claim of attorney misconduct could be maintained against Whitman because she was protected by the doctrine of absolute prosecutorial immunity. As to Rudow's section 1983 claim against the City, Judge Sand decided that even if Whitman's conduct was culpable and even if the conduct could be imputed to the City as Whitman's employer, Rudow had nevertheless failed to allege that he had been deprived of a constitutionally protected interest in liberty or property. The district court dismissed the federal and state claims against Whitman and the federal claim against the City, but held the City answerable for violation of the attorney misconduct statute. Thereafter, Rudow withdrew this latter claim, subject to reinstatement in the event that the district court's dismissal of the other claims is reversed on appeal.

DISCUSSION

The first question, and the one that disposes of all claims against defendant Lois Whitman, is whether the doctrine of absolute immunity protects her from federal and state liability despite allegations that she acted outside of her authority to prosecute Alvarez's administrative complaint against Rudow. Even accepting, as we must, in the posture of this appeal, Rudow's factual claims, we conclude that Whitman's conduct was at least colorably prosecutorial in nature and not clearly beyond her jurisdiction, and was, therefore, protected under the federal and state doctrines of absolute immunity.

In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court held that prosecutors are absolutely immune from section 1983 liability for prosecutorial activities "intimately associated with the judicial phase of the criminal process." Id. at 430, 96 S.Ct. at 995. The same immunity was extended to agency attorneys conducting a trial and presenting evidence on the record to an administrative trier of fact. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). In Butz, the Court found "no substantial difference between the function of the agency attorney in presenting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court." Id. at 516, 98 S.Ct. at 2916.

The public interest in maintaining its prosecutors' freedom to exercise independent judgment without fear of personal civil liability is no less compelling in an agency hearing than in a court hearing. Compare Imbler, 424 U.S. at 423, 96 S.Ct. at 991, with Butz, 438 U.S. at 517, 98 S.Ct. at 2916. Moreover, the collateral safeguards against prosecutorial malfeasance are the same. See Butz, 438 U.S. at 515-17, 98 S.Ct. at 2915-16 (protections against false evidence include independent judicial review, cross-examination and reinterpretation of evidence by opposing counsel, analysis by impartial trier of fact).

Although the Supreme Court upheld absolute immunity for a prosecutor acting "within the scope of his duties," Imbler, 424 U.S. at 410, 96 S.Ct. at 985, it has not considered how far beyond the limits of his authority a prosecutor may stray before losing that immunity. We have. In Barr v. Abrams, 810 F.2d 358 (2d Cir.1987), we ruled that a personal liability action could not be maintained against prosecutors in the New York Attorney General's...