15‐1758‐cv Hughes v. Town of Bethlehem
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 23rd day of March, two thousand sixteen.
PRESENT: RALPH K. WINTER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
CHRISTOPHER A. HUGHES, Plaintiff‐Appellant,
v. 15‐1758‐cv
TOWN OF BETHLEHEM, LOUIS CORSI, Police Chief, sued in his individual capacity, Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PLAINTIFFS‐APPELLANTS: MICHAEL H. SUSSMAN, Sussman & Watkins, Goshen, New York.
FOR DEFENDANTS‐APPELLEES: THOMAS J. OʹCONNOR, Napierski, VanDenburgh, Napierski & OʹConnor, LLP, Albany, New York. Appeal from the United States District Court for the Northern District of
New York (Sharpe, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Christopher A. Hughes appeals a May 7, 2015 judgment
of the United States District Court for the Northern District of New York entered
following a jury trial on Hughesʹs First Amendment retaliation claims brought under 42
U.S.C. § 1983. The jury determined that: (1) Hughes did not prove that defendants‐
appellants Town of Bethlehem (ʺBethlehemʺ) and Police Chief Louis Corsi retaliated
against him for two protected First Amendment activities (union association and speech
related to Corsiʹs use of a racial epithet); (2) Hughes did prove that Bethlehem and Corsi
retaliated against him for First Amendment speech related to public safety and welfare
(that is, a detectiveʹs on‐the‐job intoxication); but (3) Bethlehem and Corsi also proved
their affirmative defense that they would have taken the same adverse action in the
absence of that speech. On May 7, 2015, the district court denied Hughesʹs motion for a
new trial pursuant to Federal Rule of Civil Procedure 59(a). We assume the partiesʹ
familiarity with the underlying facts, procedural history of the case, and issues on
appeal.
We review a district courtʹs denial of a Rule 59(a) motion for a new trial on
the ground that the verdict was against the weight of the evidence for abuse of
‐ 2 ‐ discretion. See ING Glob. v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 97 (2d Cir.
2014). A verdict was against the weight of the evidence if the jury reached a ʺseriously
erroneous resultʺ or the verdict constitutes ʺa miscarriage of justice.ʺ Farrior v. Waterford
Bd. of Educ., 277 F.3d 633, 634 (2d Cir. 2002) (quoting DLC Mgmt. Corp. v. Town of Hyde
Park, 163 F.3d 124, 133 (2d Cir. 1998)). In forming its decision, the district court ʺmay
weigh the evidence and the credibility of witnesses and need not view the evidence in
the light most favorable to the verdict winner.ʺ Raedle v. Credit Agricole Indosuez, 670
F.3d 411, 418 (2d Cir. 2012). The district court, however, ʺshould rarely disturb a juryʹs
evaluation of a witnessʹs credibility.ʺ DLC, 163 F.3d at 134.1
To prevail on a First Amendment retaliation claim, the plaintiff must
prove that (1) he has engaged in a protected First Amendment activity, (2) he suffered
an adverse employment action, and (3) the protected activity substantially motivated
the adverse employment action. Smith v. Cty. of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015)
(per curiam). ʺ[A] public employee bringing a freedom of association claim must
demonstrate that the association or associational activity at issue touches on a matter of
1 We assume here that the district courtʹs Rule 59(a) decision is reviewable. We have previously held that ʺa district court deni[al] [of] a motion for a new trial made on the ground that the verdict was against the weight of the evidence . . . is not reviewable on appeal.ʺ Baker v. Dorfman, 239 F.3d 415, 422 (2d Cir. 2000) (quoting Dailey v. Societe Generale, 108 F.3d 451, 458 (2d Cir. 1997)). Baker is arguably inconsistent with the authorities cited in the text. See also Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435 (1996) (commenting, in context of Rule 59(a) motion to aside the verdict as excessive, that ʺappellate review for abuse of discretion is reconcilable with the Seventh Amendmentʺ right to a jury trial). We need not resolve this apparent discrepancy, however, in light of our disposition of this appeal.
‐ 3 ‐ public concern.ʺ Cobb v. Pozzi, 363 F.3d 89, 107 (2d Cir. 2004); Lynch v. Ackley, No. 14‐
3751‐cv, 2016 WL 335928, at *8 (2d Cir. Jan. 28, 2016) (recognizing that some public
agency union activities may be matters of public concern). Likewise, ʺthe First
Amendment protects speech uttered by an employee in his or her capacity as a citizen
regarding a matter of public concern.ʺ Smith, 776 F.3d at 118.
Nevertheless, defendants may assert a defense that they would have taken
the same adverse action even absent the protected activity ‐‐ the so‐called Mount Healthy
defense. See Nagle v. Marron, 663 F.3d 100, 111 (2d Cir. 2011) (ʺ[P]rotected speech could
not substantially cause an adverse action if the employer would have taken that action
in any event . . . .ʺ). See generally Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 285‐87 (1977). Defendants must prove a Mount Healthy defense by a preponderance
of the evidence. See Smith, 776 F.3d at 119.
The district court did not abuse its discretion in not disturbing the juryʹs
verdict here. Hughes asserted at trial that Bethlehem and Corsi retaliated against him
in violation of the First Amendment for his (1) union activity, (2) speech regarding
Corsiʹs use of a racial epithet, and (3) speech regarding a detectiveʹs intoxication. These
First Amendment activities continued from late 2007 through September 2009, even
after Hughes left work for medical reasons, including work‐related stress, in May 2009.
Hughes never permanently returned to work, but from June through September 2009,
he continued to air his concerns about the detectiveʹs intoxication and Corsiʹs racist
‐ 4 ‐ language at town hall meetings and to local news organizations.
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15‐1758‐cv Hughes v. Town of Bethlehem
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 23rd day of March, two thousand sixteen.
PRESENT: RALPH K. WINTER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
CHRISTOPHER A. HUGHES, Plaintiff‐Appellant,
v. 15‐1758‐cv
TOWN OF BETHLEHEM, LOUIS CORSI, Police Chief, sued in his individual capacity, Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PLAINTIFFS‐APPELLANTS: MICHAEL H. SUSSMAN, Sussman & Watkins, Goshen, New York.
FOR DEFENDANTS‐APPELLEES: THOMAS J. OʹCONNOR, Napierski, VanDenburgh, Napierski & OʹConnor, LLP, Albany, New York. Appeal from the United States District Court for the Northern District of
New York (Sharpe, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Christopher A. Hughes appeals a May 7, 2015 judgment
of the United States District Court for the Northern District of New York entered
following a jury trial on Hughesʹs First Amendment retaliation claims brought under 42
U.S.C. § 1983. The jury determined that: (1) Hughes did not prove that defendants‐
appellants Town of Bethlehem (ʺBethlehemʺ) and Police Chief Louis Corsi retaliated
against him for two protected First Amendment activities (union association and speech
related to Corsiʹs use of a racial epithet); (2) Hughes did prove that Bethlehem and Corsi
retaliated against him for First Amendment speech related to public safety and welfare
(that is, a detectiveʹs on‐the‐job intoxication); but (3) Bethlehem and Corsi also proved
their affirmative defense that they would have taken the same adverse action in the
absence of that speech. On May 7, 2015, the district court denied Hughesʹs motion for a
new trial pursuant to Federal Rule of Civil Procedure 59(a). We assume the partiesʹ
familiarity with the underlying facts, procedural history of the case, and issues on
appeal.
We review a district courtʹs denial of a Rule 59(a) motion for a new trial on
the ground that the verdict was against the weight of the evidence for abuse of
‐ 2 ‐ discretion. See ING Glob. v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 97 (2d Cir.
2014). A verdict was against the weight of the evidence if the jury reached a ʺseriously
erroneous resultʺ or the verdict constitutes ʺa miscarriage of justice.ʺ Farrior v. Waterford
Bd. of Educ., 277 F.3d 633, 634 (2d Cir. 2002) (quoting DLC Mgmt. Corp. v. Town of Hyde
Park, 163 F.3d 124, 133 (2d Cir. 1998)). In forming its decision, the district court ʺmay
weigh the evidence and the credibility of witnesses and need not view the evidence in
the light most favorable to the verdict winner.ʺ Raedle v. Credit Agricole Indosuez, 670
F.3d 411, 418 (2d Cir. 2012). The district court, however, ʺshould rarely disturb a juryʹs
evaluation of a witnessʹs credibility.ʺ DLC, 163 F.3d at 134.1
To prevail on a First Amendment retaliation claim, the plaintiff must
prove that (1) he has engaged in a protected First Amendment activity, (2) he suffered
an adverse employment action, and (3) the protected activity substantially motivated
the adverse employment action. Smith v. Cty. of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015)
(per curiam). ʺ[A] public employee bringing a freedom of association claim must
demonstrate that the association or associational activity at issue touches on a matter of
1 We assume here that the district courtʹs Rule 59(a) decision is reviewable. We have previously held that ʺa district court deni[al] [of] a motion for a new trial made on the ground that the verdict was against the weight of the evidence . . . is not reviewable on appeal.ʺ Baker v. Dorfman, 239 F.3d 415, 422 (2d Cir. 2000) (quoting Dailey v. Societe Generale, 108 F.3d 451, 458 (2d Cir. 1997)). Baker is arguably inconsistent with the authorities cited in the text. See also Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435 (1996) (commenting, in context of Rule 59(a) motion to aside the verdict as excessive, that ʺappellate review for abuse of discretion is reconcilable with the Seventh Amendmentʺ right to a jury trial). We need not resolve this apparent discrepancy, however, in light of our disposition of this appeal.
‐ 3 ‐ public concern.ʺ Cobb v. Pozzi, 363 F.3d 89, 107 (2d Cir. 2004); Lynch v. Ackley, No. 14‐
3751‐cv, 2016 WL 335928, at *8 (2d Cir. Jan. 28, 2016) (recognizing that some public
agency union activities may be matters of public concern). Likewise, ʺthe First
Amendment protects speech uttered by an employee in his or her capacity as a citizen
regarding a matter of public concern.ʺ Smith, 776 F.3d at 118.
Nevertheless, defendants may assert a defense that they would have taken
the same adverse action even absent the protected activity ‐‐ the so‐called Mount Healthy
defense. See Nagle v. Marron, 663 F.3d 100, 111 (2d Cir. 2011) (ʺ[P]rotected speech could
not substantially cause an adverse action if the employer would have taken that action
in any event . . . .ʺ). See generally Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 285‐87 (1977). Defendants must prove a Mount Healthy defense by a preponderance
of the evidence. See Smith, 776 F.3d at 119.
The district court did not abuse its discretion in not disturbing the juryʹs
verdict here. Hughes asserted at trial that Bethlehem and Corsi retaliated against him
in violation of the First Amendment for his (1) union activity, (2) speech regarding
Corsiʹs use of a racial epithet, and (3) speech regarding a detectiveʹs intoxication. These
First Amendment activities continued from late 2007 through September 2009, even
after Hughes left work for medical reasons, including work‐related stress, in May 2009.
Hughes never permanently returned to work, but from June through September 2009,
he continued to air his concerns about the detectiveʹs intoxication and Corsiʹs racist
‐ 4 ‐ language at town hall meetings and to local news organizations. Around September 2,
2009, Hughes also constructed a mobile billboard publicly criticizing Corsi and the
town supervisor, among others.
During this timeframe, Bethlehem and/or Corsi: (1) denied Hughes a
promotion, (2) lodged a disciplinary charge against him around April 23, 2009, (3)
suspended him without pay for thirty days on May 22, 2009, (4) took away his weapon,
badge, and identification on September 4, 2009, (5) prohibited him from entering the
police station on September 9, 2009, and (6) referred him for a psychiatric evaluation on
October 21, 2009. Hughes contends that these actions were retaliatory.
Though Hughesʹs protected First Amendment activities and the
questioned actions are temporally intertwined, the district court did not abuse its
discretion in determining that the juryʹs verdict was not seriously erroneous or a
miscarriage of justice. As the district court observed, this is a case of two very different
narratives ‐‐ and the record permitted the jury to credit either. Each adverse
employment action had an alternative explanation supported by testimony or
contemporaneous documentary evidence.
Likewise, the district court did not abuse its discretion in agreeing with
the jury that the Mount Healthy defense negated retaliation as to Hughesʹs speech
relating to the detectiveʹs intoxication. Though that speech may have substantially
motivated Bethlehem and Corsi to take retaliatory action, Hughes also engaged in
‐ 5 ‐ erratic behavior in public and toward other officers. This erratic behavior could have
been enough for the jury to find that the department would have taken adverse
employment actions anyway. Hughes left work for medical reasons because of the
stress. Corsi testified that he was concerned about Hughesʹs ʺemotional state.ʺ J. App.
at 502. Based on personal interactions with Hughes, the town supervisor testified that
he ʺbecame concerned that [Hughes] might harm himself or his family or my family or
the Chief because he just seemed to be acting in an erratic manner.ʺ Id. at 643. A fellow
officer further testified about an instance where Hughes entered a restaurant to confront
and threaten the officer and his wife while they were dining. Based on these and other
circumstances, if it erred at all, the jury did not seriously err in concluding that
Bethlehem and Corsi would have taken away Hughesʹs weapon, badge, and
identification, banned him from the office, and subjected him to a psychiatric
examination regardless of Hughesʹs speech regarding the detectiveʹs intoxication.
We have reviewed Hughesʹs remaining arguments and conclude they are
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk
‐ 6 ‐