22-1081-cv Airday v. The City of New York, Schwam
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of July, two thousand twenty-three.
Present: DEBRA ANN LIVINGSTON, Chief Judge, DENNY CHIN, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________
ESTATE OF GEORGE AIRDAY,
Plaintiff-Appellant,
GEORGE AIRDAY,
Plaintiff,
v. 22-1081-cv
THE CITY OF NEW YORK AND KEITH SCHWAM,
Defendants-Appellees,
DAVID M. FRANKEL,
Defendant. _____________________________________
For Plaintiff-Appellant: NATHANIEL B. SMITH, New York, NY.
1 For Defendants-Appellees: MACKENZIE FILLOW (Richard Dearing and Deborah A. Brenner, on the brief), for the Hon. Sylvia O. Hinds- Radix, Corporation Counsel of the City of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Caproni, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Estate of George Airday appeals from the April 28, 2022 judgment of
the United States District Court for the Southern District of New York (Caproni, J.), entered after
two separate jury trials, granting Defendants-Appellees’ motions for judgment as a matter of law
pursuant to Federal Rule of Civil Procedure 50(b). As relevant here, Plaintiff George Airday
(“Airday”) brought an action against Defendants-Appellees, the City of New York (the “City”)
and Keith Schwam (“Schwam”), for deprivation of property without due process and selective
enforcement after he was terminated from his position as a New York City marshal. The district
court held separate trials on the due process and selective enforcement claims, and in each trial,
the jury returned a verdict in Airday’s favor. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
* * *
We review a district court’s grant of a Rule 50(b) motion for judgment as a matter of law
de novo. Connelly v. County of Rockland, 61 F.4th 322, 325 (2d Cir. 2023). “We will overturn
the grant of judgment as a matter of law only if, drawing all reasonable inferences in favor of the
nonmoving party and making all credibility assessments in his favor, there is sufficient evidence
2 to permit a rational juror to find in his favor.” Zahra v. Town of Southold, 48 F.3d 674, 683 (2d
Cir. 1995) (internal quotation marks and alterations omitted).
I. Selective Enforcement Claim
To begin, we discern no error in the district court’s decision to grant Defendant-Appellees’
motion for judgment as a matter of law on the selective enforcement claim. To make out a
selective enforcement claim, a plaintiff must establish that “(1) the [plaintiff], compared with
others similarly situated, was selectively treated, and (2) the selective treatment was motivated by
an intention to discriminate on the basis of impermissible considerations, such as race or religion,
to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to
injure the [plaintiff].” FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992).
On appeal, Plaintiff-Appellant first contends that four comparators—Howard Schain
(“Schain”), Jeffrey Rose (“Rose”), Charles Marchisotto (“Marchisotto”), and Joel Shapiro
(“Shapiro”)—were similarly situated to Airday. With respect to each comparator, no reasonable
jury could have found this to be true. “To satisfy [the similarly situated] standard, the plaintiff’s
and comparator’s circumstances must bear a reasonably close resemblance. They need not,
however, be identical. A plaintiff can prevail by showing that she was similarly situated in all
material respects to the individuals with whom she seeks to compare herself.” Hu v. City of New
York, 927 F.3d 81, 96 (2d Cir. 2019) (internal quotation marks and citations omitted); see also
Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (explaining that what constitutes “all
material respects” includes “whether the conduct for which the employer imposed discipline was
of comparable seriousness”).
Although each of the offered comparators was also a city marshal who committed some
form of misconduct, their misconduct was not, as a matter of law, of comparable seriousness to
3 that of Airday, who was arrested for violation of a court order and possession of an unlicensed
firearm. For example, Schain’s misconduct consisted principally of tampering with official
records, filing a false record, and failing to properly supervise a towing company he hired in
connection with his job responsibilities. Similarly, Rose’s misconduct included improperly
seizing two vehicles, failing to maintain accurate records, and filing false official records to cover
up embezzlement by an employee. Although serious, both Schain’s and Rose’s transgressions in
the course of their employment are different in kind from, and not of “comparable seriousness” to,
Airday’s failure to comply with a court order. Similarly, Marchisotto and Shapiro are not
similarly situated comparators because they, unlike Airday, complied with their respective
disciplinary orders. Specifically, Marchisotto fully complied with a court order of protection
imposed following an arrest, and Shapiro resigned from his position as a marshal upon Schwam’s
request. Here, the series of events makes clear that Schwam sought to discipline Airday because
he violated the court order of protection and refused to resign. Thus, because of their compliance
with disciplinary action, Marchisotto and Shapiro did not commit misconduct of “comparable
seriousness” to Airday’s. We therefore conclude that no reasonable jury could find the
comparators were similarly situated to Airday. 1 Thus, assuming arguendo that Plaintiff-
Appellant’s non–class based selective enforcement claim in the public employment context is
cognizable, see Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 594 (2008), we conclude that the
district court correctly granted judgment as a matter of law as to this claim.
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22-1081-cv Airday v. The City of New York, Schwam
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of July, two thousand twenty-three.
Present: DEBRA ANN LIVINGSTON, Chief Judge, DENNY CHIN, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________
ESTATE OF GEORGE AIRDAY,
Plaintiff-Appellant,
GEORGE AIRDAY,
Plaintiff,
v. 22-1081-cv
THE CITY OF NEW YORK AND KEITH SCHWAM,
Defendants-Appellees,
DAVID M. FRANKEL,
Defendant. _____________________________________
For Plaintiff-Appellant: NATHANIEL B. SMITH, New York, NY.
1 For Defendants-Appellees: MACKENZIE FILLOW (Richard Dearing and Deborah A. Brenner, on the brief), for the Hon. Sylvia O. Hinds- Radix, Corporation Counsel of the City of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Caproni, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Estate of George Airday appeals from the April 28, 2022 judgment of
the United States District Court for the Southern District of New York (Caproni, J.), entered after
two separate jury trials, granting Defendants-Appellees’ motions for judgment as a matter of law
pursuant to Federal Rule of Civil Procedure 50(b). As relevant here, Plaintiff George Airday
(“Airday”) brought an action against Defendants-Appellees, the City of New York (the “City”)
and Keith Schwam (“Schwam”), for deprivation of property without due process and selective
enforcement after he was terminated from his position as a New York City marshal. The district
court held separate trials on the due process and selective enforcement claims, and in each trial,
the jury returned a verdict in Airday’s favor. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
* * *
We review a district court’s grant of a Rule 50(b) motion for judgment as a matter of law
de novo. Connelly v. County of Rockland, 61 F.4th 322, 325 (2d Cir. 2023). “We will overturn
the grant of judgment as a matter of law only if, drawing all reasonable inferences in favor of the
nonmoving party and making all credibility assessments in his favor, there is sufficient evidence
2 to permit a rational juror to find in his favor.” Zahra v. Town of Southold, 48 F.3d 674, 683 (2d
Cir. 1995) (internal quotation marks and alterations omitted).
I. Selective Enforcement Claim
To begin, we discern no error in the district court’s decision to grant Defendant-Appellees’
motion for judgment as a matter of law on the selective enforcement claim. To make out a
selective enforcement claim, a plaintiff must establish that “(1) the [plaintiff], compared with
others similarly situated, was selectively treated, and (2) the selective treatment was motivated by
an intention to discriminate on the basis of impermissible considerations, such as race or religion,
to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to
injure the [plaintiff].” FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992).
On appeal, Plaintiff-Appellant first contends that four comparators—Howard Schain
(“Schain”), Jeffrey Rose (“Rose”), Charles Marchisotto (“Marchisotto”), and Joel Shapiro
(“Shapiro”)—were similarly situated to Airday. With respect to each comparator, no reasonable
jury could have found this to be true. “To satisfy [the similarly situated] standard, the plaintiff’s
and comparator’s circumstances must bear a reasonably close resemblance. They need not,
however, be identical. A plaintiff can prevail by showing that she was similarly situated in all
material respects to the individuals with whom she seeks to compare herself.” Hu v. City of New
York, 927 F.3d 81, 96 (2d Cir. 2019) (internal quotation marks and citations omitted); see also
Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (explaining that what constitutes “all
material respects” includes “whether the conduct for which the employer imposed discipline was
of comparable seriousness”).
Although each of the offered comparators was also a city marshal who committed some
form of misconduct, their misconduct was not, as a matter of law, of comparable seriousness to
3 that of Airday, who was arrested for violation of a court order and possession of an unlicensed
firearm. For example, Schain’s misconduct consisted principally of tampering with official
records, filing a false record, and failing to properly supervise a towing company he hired in
connection with his job responsibilities. Similarly, Rose’s misconduct included improperly
seizing two vehicles, failing to maintain accurate records, and filing false official records to cover
up embezzlement by an employee. Although serious, both Schain’s and Rose’s transgressions in
the course of their employment are different in kind from, and not of “comparable seriousness” to,
Airday’s failure to comply with a court order. Similarly, Marchisotto and Shapiro are not
similarly situated comparators because they, unlike Airday, complied with their respective
disciplinary orders. Specifically, Marchisotto fully complied with a court order of protection
imposed following an arrest, and Shapiro resigned from his position as a marshal upon Schwam’s
request. Here, the series of events makes clear that Schwam sought to discipline Airday because
he violated the court order of protection and refused to resign. Thus, because of their compliance
with disciplinary action, Marchisotto and Shapiro did not commit misconduct of “comparable
seriousness” to Airday’s. We therefore conclude that no reasonable jury could find the
comparators were similarly situated to Airday. 1 Thus, assuming arguendo that Plaintiff-
Appellant’s non–class based selective enforcement claim in the public employment context is
cognizable, see Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 594 (2008), we conclude that the
district court correctly granted judgment as a matter of law as to this claim.
1 In light of this determination, we need not address whether the second element of a selective enforcement claim—that the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the plaintiff—was satisfied.
4 II. Procedural Due Process Claim
We likewise discern no error in the district court’s decision to grant Defendants-Appellees’
motion for judgment as a matter of law on the procedural due process claim. “To succeed on a
procedural due process claim, a plaintiff must first identify a property right, second show that the
state has deprived him or her of that right, and third show that the deprivation was effected without
due process.” Progressive Credit Union v. City of New York, 889 F.3d 40, 51 (2d Cir. 2018)
(internal quotation marks, alteration, and emphasis omitted). “To determine whether a
constitutionally cognizable property right is implicated, we look to whether the interest involved
would be protected under state law . . . .” Id.
On appeal, Plaintiff-Appellant advances only the theory that Airday had a constitutionally
protected property right in the form of an implied contract with the City that he would be
reappointed to the marshal position, without specifying any terms of such a contract. Under New
York law, an implied contract requires consideration, mutual assent, legal capacity, and legal
subject matter. Nadel v. Play-By-Play Toys & Novelties, Inc., 208 F.3d 368, 381–82 (2d Cir.
2000) (citing Maas v. Cornell Univ., 721 N.E.2d 966, 969–70 (N.Y. 1999)). The manifestation
of mutual assent must be “sufficiently definite to assure that the parties are truly in agreement with
respect to all material terms.” Tractebel Energy Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d
89, 95 (2d Cir. 2007) (internal quotation marks omitted) (quoting Express Indus. & Terminal Corp.
v. N.Y. State Dep’t of Transp., 715 N.E.2d 1050, 1053 (N.Y. 1999)). Here, Plaintiff-Appellant
points to no evidence that any City official, either through words or conduct, mutually assented to
a contract to reappoint Airday. It is true that the norm was for marshals, including Airday, to be
held in a holdover position and then reappointed—but that norm alone cannot constitute the
requisite mutual assent because it provides no assurance that the parties were in agreement on all
5 material terms of the purported contract. We therefore conclude that Airday lacked a
constitutionally protected property right, and Plaintiff-Appellant’s procedural due process claim
fails as a matter of law. 2
We have considered Plaintiff-Appellant’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk
2 Accordingly, we need not address whether the remaining elements of a procedural due process claim were satisfied, nor the alternative grounds on which the district court decided against Plaintiff- Appellant’s implied contract theory.