Sagendorf-Teal v. County of Rensselaer

• Decision Date: 22 November 1995
• Docket Number: No. 90-CV-152.,90-CV-152.
• Citation: 904 F. Supp. 95
• Parties: Linda SAGENDORF-TEAL, Plaintiff, v. COUNTY OF RENSSELAER; W. Warren McGreevy; Rensselaer County Sheriff; John May, Sergeant; Edward Phillips, Undersheriff; Charles Walker, Captain; Hal Smith, Lieutenant; and Rensselaer Employees, Agents, Servants, and/or Employees of the County of Rensselaer, Defendants.
• Court: U.S. District Court — Northern District of New York

904 F. Supp. 95

Linda SAGENDORF-TEAL, Plaintiff, v. COUNTY OF RENSSELAER; W. Warren McGreevy; Rensselaer County Sheriff; John May, Sergeant; Edward Phillips, Undersheriff; Charles Walker, Captain; Hal Smith, Lieutenant; and Rensselaer Employees, Agents, Servants, and/or Employees of the County of Rensselaer, Defendants.

No. 90-CV-152.

United States District Court, N.D. New York.

November 22, 1995.

Gleason, Dunn, Walsh & O'Shea, Albany, New York (Mark T. Walsh, of counsel), for Plaintiff.

Carter, Conboy, Case, Blackmore, Napierski & Maloney, P.C., Albany, New York (Gregory S. Mills, of counsel), for Defendants.

MEMORANDUM DECISION AND ORDER

HURD, United States Magistrate Judge.

I. INTRODUCTION.

On February 7, 1989, plaintiff Linda Sagendorf-Teal was terminated by the defendant Undersheriff Edward Phillips ("Phillips"), from her probationary position as a Corrections Officer with the Rensselaer County Sheriff's Department. She brought suit pursuant to 42 U.S.C. § 1983 claiming that she was terminated because of exercise of her First Amendment right to free speech. On September 22, 1995, a jury awarded her damages in the amount of $76,889.44 in back pay plus interest against Phillips. The action was dismissed against the other defendants. The Court denied plaintiff's request for reinstatement to her former position. Judgment was entered on September 25, 1995.

Phillips has filed post trial motions. He seeks judgment in his favor as a matter of law pursuant to Fed.R.Civ.P. 50(a), or a new trial pursuant to Fed.R.Civ.P. 59, or in the alternative a remittitur in the award of damages. The plaintiff moves for an award of front pay. Oral argument was hear on November 9, 1995, in Utica, New York. The court reserved decision.

II. DISCUSSION.

A. Defendant's Motions

Defendant's motions for judgment as a matter of law, for a new trial, or for a diminution in damages, stem from several arguments. Defendant first argues that the Court improperly charged the jury with regard to missing witnesses. He next avers that the Court erred in responding to the jury's question asking for a clarification of the Court's charge. Third, defendant puts forth the position that he is entitled to qualified immunity, and finally, he posits that plaintiff does not have a protected property interest in employment beyond the probationary period, and thus her damages should be reduced accordingly.

1. MISSING WITNESS CHARGE:

The Court charged that Matthew Plumley. Thomas Job, Scott Ryan, Ronald Fountain, and James Karam were not called to testify and could be viewed as missing witnesses. Because these people were "equally available" to both parties, the defendant claims error.

The trial court carries sound discretion in determining whether to issue a missing witness charge. United States v. Mittelstaedt, 31 F.3d 1208, 1215 (2d Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 738, 130 L.Ed.2d 640 (1995); United States v. Adeniji, 31 F.3d 58, 65 (2d Cir.1994); United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir.1988). "All that a party needs to show is that there is some evidence supporting the theory behind the instructions so that a question of fact may be presented to the jury." Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994).

Plaintiff denies even subpoenaing these five witnesses, and disputes the argument that because she subpoenaed past and present employees of the County, the missing witnesses (who were both past and present employees), should be deemed equally available. "`"Availability" of a witness ... depends ... on all the facts and circumstances bearing upon the witness's relation to the parties, rather than merely on physical presence or accessibility.'" United States v. Myerson, 18 F.3d 153, 158 (2d Cir.1994) (quoting Torres, 845 F.2d at 1170), cert. denied, ___ U.S. ___, 115 S.Ct. 159, 130 L.Ed.2d 97 (1994).

Of the five witnesses addressed in the charge at issue, three were still employed by the County at the time of trial. Defendant does not dispute that subpoena power alone does not give the plaintiff equal control over an employee of the County. Only the former County employees, Plumley and Fountain, fall close enough to merit a review of their availability. Applying the above-cited test, all five were not equally available. Plumley, Fountain, Karam, and Ryan were all involved in the so-called Palmer incident. Testimony described corrections officers as a group to be close and bonding. Each of the corrections officers involved, including Plumley and Fountain, gave conflicting statements to that of plaintiff, accusing her of improper conduct. In sum, Plumley and Fountain bore significant interest in a favorable outcome for the defense: through their support of former co-workers and through their own personal involvement.

Defendant carries no right to be apprised of a jury charge prior to resting. The trial court has discretion to change its charge up until the time of its delivery. See Estate of Lutren v. Chesapeake & O.R.R., 592 F.2d 941, 945 (6th Cir.1979).¹ Here, a closing argument was made that brought to light an issue of missing witnesses. Counsel for the plaintiff included in his closing, a reference to employees and former employees of the County that were not called to testify. Prior to this time, the Court had no request for, or reference to, a charge explaining the effect of witnesses failing to testify. Neither did either party broach the subject during the jury charge conference held prior to closing arguments. This Court made the determination, when confronted with the issue during plaintiff's closing, to include an instruction about missing witnesses to clarify to the members of the jury their options in weighing such an absence that was already brought to their attention. No mandatory language was used; and the option to disregard the witness' absence was clearly presented.

More important, any error was harmless. "To succeed on a challenge to a district court's jury instructions, an appellant must show that the requested charge accurately reflected the law, and that viewing the charge actually given as a whole, he was prejudiced." Mittelstaedt, 31 F.3d at 1215. These "missing witnesses" were expected to testify regarding plaintiff's various rules infractions. However, the defendant did not rely on these violations as justification for plaintiff's termination. Rather, the justification relied upon was that she failed to assure him of a complete disassociation from a prisoner. The charge accurately displayed the jurors' options in drawing inferences, and likewise told of the option of drawing no inference. These factors combine to support a conclusion that no harm was committed by such a charge.

2. JURY'S QUESTION TO THE COURT:

The jury asked for clarification of a point during their deliberation. Specifically, they asked, "Please specify what is meant by the statement `he would have made the same decision.' Does this mean the same day or sometime later during her eight month probationary period or ever?" The Court responded by stating "Defendant would have made the same decision on the same day." Defendant claims that he must only establish that he would have made the same decision, and places no time constraints upon that determination. Otherwise, too strict a standard would be placed upon the defendant to prove this defense. No case law was cited for this proposition.

The Supreme Court, in the case of Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), found that once plaintiff establishes that her conduct is constitutionally protected, and that conduct was a substantial or motivating factor in the decision to terminate her, the defendant is in turn entitled to an opportunity to prove by "a preponderance of the evidence that he would have reached the same decision as to her employment even in the absence of the protected conduct." Id. at 287, 97 S.Ct. at 576. Once plaintiff has shown a motivating factor underlying an act that violates her rights, she has satisfied her case unless the defendant shows that there exists another more significant motivating factor — a legitimate factor — which standing alone would have rendered the same decision. Regarding this shift in the burden then, "the employer ... is given the opportunity to prove that there were legitimate, nondiscriminatory reasons for his action and that the result would have been the same even in the absence of the allegedly improper basis for its conduct." Jund v. Town of Hempstead, 941 F.2d 1271, 1289 (2d Cir. 1991). The emphasis in this determination is on the existence of other motivating factors that would legitimize the decision that was rendered.

Defendant seeks to expand the standard and allow the jury to decide that another decision would have taken place at a future date, having the same effect on the plaintiff, and legitimizing an unconstitutional decision made on February 7, 1989. This is not the Mt. Healthy test. An unconstitutional termination on February 7, cannot be rectified by a jury determination that there would have been a legitimate termination on February 8, or March 8, or May 8. That would not be the same decision at issue, but a subsequent decision directed to the issue of damages but not liability. Defendant has failed to show that error was committed in responding to the jury's question in the manner done.

3. QUALIFIED IMMUNITY:

Defendant seeks dismissal of the complaint on the basis that he was entitled to qualified immunity for his act of terminating the plaintiff. He claims that it was objectively reasonable for him to believe that his act did not violate plaintiff's rights. He takes no issue with the proposition that the plaintiff's right not to be terminated for exercising her First Amendment right of free speech was clearly established at the time of the termination.

The jury found that the plaintiff's statement concerning the Palmer incident was a...