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.

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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

. 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.,

(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.,

, 634 (2d Cir. 2002) (quoting DLC Mgmt. Corp. v. Town of Hyde

Park,

, 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,

(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,

(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,

(2d Cir. 2000) (quoting Dailey v. Societe Generale,

(2d Cir. 1997)). Baker is arguably inconsistent with the authorities cited in the text. See also Gasperini v. Ctr. for Humanities, Inc.,

(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,

(2d Cir. 2004); Lynch v. Ackley, No. 14‐

3751‐cv,

(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,

.

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,

(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,

, 285‐87 (1977). Defendants must prove a Mount Healthy defense by a preponderance

of the evidence. See Smith,

.

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

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