Scott v. Goodman

• Decision Date: 28 March 1997
• Docket Number: No. 93-CV-0797 (FB).,93-CV-0797 (FB).
• Citation: 961 F.Supp. 424
• Parties: Corine SCOTT, Cecile Clue, Robert Cantrell, John Krut and Tim Schermerhorn, Plaintiffs, v. Raymond GOODMAN, Roland Shelton, Dewey Gallese, Timothy Bohanan, Richard Jenkins, Ronald Pain, Ronald Meyers, Nathaniel Ford, Carmen Suardy, John Does 1-3 and the New York City Transit Authority, Defendants.
• Court: U.S. District Court — Eastern District of New York

961 F.Supp. 424

Corine SCOTT, Cecile Clue, Robert Cantrell, John Krut and Tim Schermerhorn, Plaintiffs, v. Raymond GOODMAN, Roland Shelton, Dewey Gallese, Timothy Bohanan, Richard Jenkins, Ronald Pain, Ronald Meyers, Nathaniel Ford, Carmen Suardy, John Does 1-3 and the New York City Transit Authority, Defendants.

No. 93-CV-0797 (FB).

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

March 28, 1997.

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Arthur Z. Schwartz, Lewis, Greenwald, Kennedy, Lewis, Clifton & Schwartz, P.C., New York City, for Plaintiff.

Evelyn Jonas, New York Transit Authority, Brooklyn, for Defendant.

MEMORANDUM AND ORDER

BLOCK, District Judge:

The Court previously referred to Magistrate Judge Roanne L. Mann for a report and recommendation ("R & R") defendants' motion for summary judgment on plaintiffs' first, tenth, eleventh and twelfth causes of action, and plaintiffs' motion for summary judgment on the first, eleventh and twelfth causes of action. Defendants have submitted objections ("Objections") to the R & R issued by Magistrate Judge Mann on December 24, 1996. These are limited to the R & R'S overbreadth ruling in respect to the eleventh and twelfth causes of action, which allege that defendant Transit Authority's ("TA's") anti-adornment regulation (the "Rule") violates the First Amendment to the United States Constitution.¹

The Court has considered the TA's Objections and conducted a de novo review of the R & R. Fed.R.Civ.P. 72(b); see also United States v. Premises Known as 281 Syosset Woodbury Road, 862 F.Supp. 847, 851 (E.D.N.Y.1994) (magistrate judge's rulings on dispositive matters subject to de novo review). The Court adopts in full Magistrate Judge Mann's disposition of the matters referred to her. However, although the Court agrees with the R & R's conclusion that the Rule is unconstitutional because of its overbreadth, the Court reaches that result through a somewhat different analysis.

DISCUSSION

It is well settled that a law is facially void if it "does not aim specifically at evils within the allowable area of [government] control, but ... sweeps within its ambit other activities that constitute an exercise" of protected rights of expression. Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940). The Court notes the obvious: that the Rule, which proscribes every conceivable button, badge, or other insignia a TA employee could wear on his or her uniform, is clearly overbroad unless the TA can establish that such a sweeping prohibition serves a government interest that outweighs the employees' First Amendment rights.

The only interest posited by the TA to justify such a ban is its asserted need for strict uniformity in the appearance of TA employees. In their Objections, the TA proffers three reasons to support this contention: (1) the TA's interest in "providing safe and efficient transportation services to millions of New Yorkers without disruption or inconvenience;" (2) the fact that "other emotionally charged controversial messages ... might be worn on uniforms;" and (3) the fact that TA employees have contact with the public. For purposes of its analysis the Court will assume that all TA employees subject to the Rule have contact with the public.

The cases upholding prohibitions based on the uniformity rationale all concern law enforcement or military organizations. In these cases, the need for uniform appearance is tied to the organization's interest in "fostering discipline, promoting uniformity, encouraging esprit de corps, and enhancing the identification of its employees as members of its organization. ...." Immigration & Naturalization Serv. v. Federal Labor Relations Auth., 855 F.2d 1454, 1465 (9th Cir.1988). These cases have established a bright-line rule that, as a matter of law, law enforcement agencies have such needs for strict uniform appearance. See id. at 1464 ("We believe that the right to require a uniform necessarily encompasses the right to require an unadorned uniform."); see also United States Dep't of Justice v. Federal Labor Relations Auth., 955 F.2d 998, 1004 (5th Cir.1992) ("[W]hen a law enforcement agency enforces an anti-adornment/uniform policy in a consistent and nondiscriminatory manner, a special circumstance exists, as a matter of law, which justifies the banning of union buttons."). Even when dealing with the unobtrusive wearing of a yarmulke, the Supreme Court upheld an Air Force regulation that barred the wearing of any head gear whatsoever. Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986).

Although the TA is not a military or law enforcement organization, the Court need not here decide whether an anti-adornment rule can never be justified by a non-military or non-law enforcement organization because the TA has, in any event, failed to establish that it has a sufficient interest in uniformity to overcome the broad sweep of the Rule. The TA has offered little more than speculation and conclusory allegations to support its alleged need for uniformity. This does not suffice to overcome a motion for summary judgment. See Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.1996) (summary judgment cannot be defeated through "conclusory statements .... conjecture or surmise."). Mere incantations that a pristine uniform is necessary to provide safe public transportation by TA employees having contact with the public is clearly insufficient to legitimatize an anti-adornment rule which renders nugatory all expressions of constitutionally protected speech contained on a button, badge or insignia. The TA has therefore failed to meet its burden of proving an interest sufficient to outweigh the employees' First Amendment rights. See Connick v. Myers, 461 U.S. 138, 150, 103 S.Ct. 1684, 1691-92, 75 L.Ed.2d 708 (1983) (where speech involves a matter of public concern, the employer must then show that its interests in the efficiency of its services outweigh the employee's First Amendment rights).

We are not here dealing with a button-by-button analysis, but rather with the desire of the TA to obtain the Court's approbation for a rule which proscribes any type of button.² Cf. American Fed'n of Gov't Employees v. Pierce, 586 F.Supp. 1559 (D.D.C.1984) (striking down ban on political buttons); United States Dep't of Justice v. Federal Labor Relations Auth., 955 F.2d 998 (5th Cir.1992) (upholding Immigration and Naturalization Service ban on union lapels). Nor are we concerned with evaluating the appropriateness of challenges concerning private employers' anti-adornment uniform rules in the context of unfair practice complaints under the National Labor Relations Act which do not implicate constitutional concerns. See, e.g., Burger King v. National Labor Relations Bd., 725 F.2d 1053 (6th Cir.1984).

As an alternative ruling, the R & R determines that the "as-applied" challenge in the eleventh cause of action should proceed to trial because there are genuine issues of disputed fact as to whether the Rule was enforced in a discriminatory manner. In a related holding, the R & R advises that summary judgment should be denied with respect to the qualified immunity defense to the "as-applied" challenge. Since these provisional denials of summary judgment were both predicated on the contingency that this Court rejects the facial challenge, they are accordingly dismissed as academic.

SO ORDERED.

REPORT AND RECOMMENDATION

MANN, United States Magistrate Judge:

Plaintiffs, employees of the New York City Transit Authority ("TA"), filed this civil rights action pursuant to 42 U.S.C. § 1983, against the TA and managers and supervisors within the TA, seeking injunctive relief, compensatory damages, and punitive damages. Although plaintiffs allege twelve causes of action, defendants have moved for summary judgment, pursuant to Fed. R.Civ.P. 56(c), only on the First, Tenth, Eleventh, and Twelfth Causes of Action, and plaintiffs have cross-moved on the First, Eleventh, and Twelfth Causes of Action. By order of the Honorable Frederic Block, the motions were referred to the undersigned for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B).

In the First Cause of Action, plaintiff Corine Scott ("Scott") alleges that defendant Raymond Goodman ("Goodman"), the Director of Labor Relations for the TA's Rapid Transit Operations Division, acting in violation of Scott's First and Fourteenth Amendment rights, penalized her in retaliation for her membership in, and substantial activity in connection with, the Transport Workers Union of America, Local 100, AFL-CIO ("Local 100"). (Complaint ["Comp."] at ¶¶ 1, 11, 14-15.) Scott further claims that Goodman violated her rights by withholding otherwise available work because she refused to waive her right to pursue a civil rights lawsuit. (Id. at ¶¶ 1, 13-15.)

In the Tenth Cause of Action, plaintiff Robert Cantrell ("Cantrell"), who previously had been demoted from the position of train operator, complains that Goodman denied him reinstatement to that position in retaliation for Cantrell's union membership and activity. (Id. at ¶ 97.)

In the Eleventh and Twelfth Causes of Action. plaintiffs assert that the TA's Rule 10(f), an "anti-adornment" policy prohibiting employees from wearing buttons or pins on their uniforms, is an unconstitutional restriction on their right to free speech, both on its face and in its application by TA management. (Id. at ¶¶ 104, 106-07, 109.)

Defendants have moved for summary judgment, contending that Scott's First Cause of Action is barred by collateral estoppel and is moot; that Cantrell has failed to adduce sufficient evidence to support his claim in the Tenth Cause of Action; that the anti-adornment policy at issue in the Eleventh and Twelfth Causes of Action is proper and justified on its face and in its application; that the Eleventh and Twelfth Causes of Action are moot; and that the individual defendants are...