Sagendorf-Teal v. County of Rensselaer

• Decision Date: 12 November 1996
• Docket Number: D,Nos. 185,SAGENDORF-TEA,602,P,s. 185
• Citation: 100 F.3d 270
• Parties: , 12 IER Cases 313 Lindalaintiff-Appellee-Cross-Appellant, v. COUNTY OF RENSSELAER; W. Warren McGreevey, individually and as Rensselaer County Sheriff; and Charles Walker, Captain, Defendants-Cross-Appellees, Edward Phillips, Undersheriff, Defendant-Appellant-Cross-Appellee. ockets 96-7002(L), 96-7014(XAP).
• Court: U.S. Court of Appeals — Second Circuit

Page 270

100 F.3d 270

65 USLW 2344, 12 IER Cases 313

Linda SAGENDORF-TEAL, Plaintiff-Appellee-Cross-Appellant, v. COUNTY OF RENSSELAER; W. Warren McGreevey, individually and as Rensselaer County Sheriff; and Charles Walker Captain, Defendants-Cross-Appellees Edward Phillips, Undersheriff, Defendant-Appellant-Cross-Appellee.

Nos. 185, 602, Dockets 96-7002(L), 96-7014(XAP).

United States Court of Appeals Second Circuit.

Argued Sept. 9, 1996.

Decided Nov. 12, 1996.

Blair W. Todt, Carter, Conboy, Case, Blackmore, Napierski & Maloney, Albany, NY, for defendant-appellant-cross-appellee.

Mark T. Walsh, Gleason, Dunn, Walsh & O'Shea, Albany, NY, for plaintiff-appellee-cross-appellant.

Thomas R. Cioffi, Deputy County Atty., Troy, NY, submitted a brief, for defendant-cross-appellee County of Rensselaer.

Before: NEWMAN, Chief Judge, CARDAMONE and CALABRESI, Circuit Judges.

JON O. NEWMAN, Chief Judge:

The principal issue on this appeal is whether an employer, attempting to establish a dual motivation defense to a charge of termination of employment because of protected speech, must prove that the adverse action taken for an improper reason would have been taken for a proper reason on the same day that the employer acted. Edward Phillips appeals from the November 22, 1995, order of the United States District Court for the Northern District of New York (David Hurd, Magistrate Judge), denying a post-trial motion to set aside the Court's September 25, 1995, judgment. The judgment, entered after a jury verdict, awarded compensatory damages to Linda Sagendorf-Teal on her claim under 42 U.S.C. § 1983 (1994). Phillips contends that the jury should have been charged that it could accept his affirmative defense by finding that the plaintiff would have been terminated for permissible reasons, even if the jury also found that the permissible termination might not necessarily have occurred on the same day as the dismissal. He also claims that the District Court should not have given a missing witness charge because (1) the witnesses were equally available to be called by the plaintiff and (2) he was not given advance notice of the Court's intention to give the jury charge. He further argues that he was entitled to qualified immunity, or in the alternative, to a remittitur of damages to exclude any damages covering the period after the end of the employee's probation.

Sagendorf-Teal cross-appeals from the judgment on the grounds that her action should not have been dismissed against the County of Rensselaer, her employer, nor against individual employees of the County; that her wrongful dismissal claim under New York Civil Service Law § 75-b (McKinney Supp.1996) should not have been dismissed; and that it was error for the District Court to deny her claim for front-pay.

We affirm on both the appeal and the cross-appeal.

Background

On February 7, 1989, Sagendorf-Teal was fired from her position as a corrections officer with the Rensselaer County Sheriff's Department. Sagendorf-Teal alleged, and the jury found, that she was fired in retaliation for filing a written report of an incident in which certain of her co-workers were accused of using excessive force against one of the jail inmates. Sagendorf-Teal's complaint named as defendants the County of Rensselaer, Undersheriff Edward Phillips, and other employees who were subsequently dropped by stipulation or dismissed at the close of the evidence.

On January 27, 1989, one of the jail inmates became unruly and had to be subdued by the staff. That inmate, Paul Palmer, was injured during the incident (the "Palmer incident"), and filed a civil rights complaint, which was later dismissed. Sagendorf-Teal was not officially on duty at the time of the incident, but she witnessed it, and pursuant to usual procedure, submitted a written report (the "Palmer report") describing her version of what happened. Unlike every other officer's report on the Palmer incident, Sagendorf-Teal's report indicated that excessive force had been used to subdue the inmate. As a result of an investigation conducted by the Highway Division of the Sheriff's Department, some officers were disciplined for technical rules violations in connection with the Palmer incident.

Soon after Sagendorf-Teal submitted her report, she began to hear rumors that she was regarded as a traitor by her fellow corrections officers. Almost immediately, Phillips and others embarked on a calculated plan to obtain information that could be used to jeopardize Sagendorf-Teal's employment. Toward that end, Phillips obtained statements from five officers--four of whom had been involved in the Palmer incident--describing rules infractions committed by Sagendorf-Teal either prior to the Palmer incident or shortly thereafter. The rules infractions included associating with an ex-inmate while off-duty, undermining the authority of a fellow officer, and having a personal relationship with an inmate (not involved in the Palmer incident).

Prior to beginning work as a corrections officer in October 1988, Sagendorf-Teal was engaged to a man who, after their relationship ended and after Sagendorf-Teal had begun to work as a corrections officer, became an inmate at the Rensselaer County jail. ¹

On February 7, 1989, a few days after the Palmer incident, Sagendorf-Teal was called to a meeting with Undersheriff Phillips and other officers. Phillips first confronted Sagendorf-Teal regarding the five rules infractions. He then demanded that she agree to cease her relationship with her former fiance. When Sagendorf-Teal answered that she had no comment, she was fired on the spot. Her complaint alleged that the real reason for her termination was the Palmer report.

Prior to trial, the action was partially dismissed as to the County on the ground that a provision in New York's Constitution effective at the time Sagendorf-Teal was fired rendered every county immune from the acts of its sheriff. The Court also dismissed the action as to two of the defendants, McGreevey and Walker, despite the fact that it had earlier denied their motion for summary judgment.

At trial, Phillips contended, through his cross-examination, that Sagendorf-Teal was fired for the various rules infractions, including the relationship she was having with one of the inmates and her refusal to state that she would discontinue that relationship. At the close of the plaintiff's case, Phillips and the defendant then remaining in the case rested without offering any evidence.

The jury returned a verdict in favor of the plaintiff in the sum of $76,889.44 for back-pay and interest through the date of the verdict. The Court then dismissed the state law claims on the grounds that the damages award under the federal claim precluded an award of damages under the state claim. Responding to various post-trial motions, the Court also denied the plaintiff's request for front-pay and denied Phillips's motion for judgment as a matter of law on the basis of qualified immunity, for a new trial, or for a diminution in damages. Sagendorf-Teal v. County of Rensselaer, 904 F.Supp. 95 (1995).

Phillips appeals, and Sagendorf-Teal cross-appeals.

Discussion

I. Phillips' Appeal

A. Affirmative Defense

During deliberations, the jury asked for clarification of the law governing Phillips' affirmative defense of dual motivation. The verdict form had read:

Do you find that the defendant Edward J. Phillips has shown by a preponderance of the evidence that he would have made the same decision without considering the plaintiff Linda Sagendorf-Teal's protected speech?

The jury asked the Court to specify whether the statement "he would have made the same decision" meant "he would have made the same decision on the same day," or if it was enough to find that he would have made the same decision at some later time.

The Court answered that the affirmative defense required the defendant to prove that in the absence of the protected speech, Phillips nonetheless would have made the decision to terminate Teal on the very same day. The Court added that a finding that Phillips would have terminated Sagendorf-Teal on a later day would affect only the measure of damages.

In an action under 42 U.S.C. § 1983, once a plaintiff has sustained its burden of proving that protected speech was a substantial or motivating factor in an adverse employment decision, the employer has the opportunity to prove, as an affirmative defense, that it would have taken the same adverse action for legitimate reasons, even if the improper motive had not existed. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Jund v. Town of Hempstead, 941 F.2d 1271, 1289 (2d. Cir.1991); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (dual motivation defense in employment discrimination context).

The dispute in this case concerns the time when the employer would have taken the adverse action, had the improper motive not existed. The District Court instructed the jury that the dual motivation defense would be established if adverse action would have been taken, for reasons other than protected speech, on the same day that the action was in fact taken. Phillips contends that he should have been required to prove only that he would have taken the same action, for reasons other than protected speech, but not necessarily on the same day. The District Court was correct.

If an employee is discharged because of protected speech, a First Amendment violation has occurred, and the violation is not eliminated by the fact that some other circumstance later occurs or later comes to the employer's attention that would have motivated the discharge if the prior firing for protected speech had not occurred. The later circumstance might provide a basis for denying the remedy of reinstatement, see McKennon v. Nashville Banner Publishing Co., 513 U.S....