In the U.S. District Court for the Eastern District of New York. Judge Arthur D. Spatt held that several professional clam diggers had no standing to challenge the town of Oyster Bay’s one-year residency requirement for a permit. In another case Judge Spatt held that the court had personal jurisdiction over a Swedish corporation through the activities of its subsidiary in managing an online gambling Web site. Judge I. Leo Glasser denied summary judgment on a probationary teacher’s § 1983 claims for retaliatory discharge and related state law claims. Magistrate Judge Joan M. Azrack dismissed an age discrimination complaint against New York City Off-Track Betting Corp. (OTB). And Judge Spatt declined to dismiss Title VII claims against the Episcopal Diocese of Long Island and the Church of the Advent.
Standing: Privileges, Immunities
In Stevenson v. The Town of Oyster Bay, 04 CV 4508 (EDNY, May 23, 2006), Judge Spatt granted defendants’ motion for summary judgment against plaintiffs, three professional clam diggers who challenged the town of Oyster Bay’s one-year residency requirement for commercial shellfish permits. Though defendants failed to raise the issue, the court held that plaintiffs, as residents of New York State, had no standing to mount an equal-protection challenge to the residency requirement based on the Privileges and Immunities Clause.
Plaintiffs are professional clam diggers who sought licenses to clam in the waters off of the town of Oyster Bay. The Town Code provides that applicants for shellfish permits may be required to submit proof that they have resided in the town for one year. In support of their applications, plaintiffs submitted a copy of a lease agreement for an apartment within the town dated Sept. 1, 2003, approximately the same day that they applied for the permits.
The town denied all three applications under a provision of the Town Code vesting the town clerk with discretion to refuse permits to people unsuitable to conduct the requested activity. The town clerk cited alleged environmental or criminal charges against two applicants, and asserted that the third applicant was really a resident of Islip who put his name on the lease as ‘a ploy to work our waters.’
Plaintiffs commenced this suit asserting causes of action under 42 USC § § 1983, 1985(d) and 1988 for violations of the Equal Protection Clause. Plaintiffs contended that, despite the reasons offered by the town clerk, their applications were actually denied because they failed to meet the one-year residency requirement. This, they claimed, discriminated against non-town residents and violated plaintiffs’ fundamental right to travel in pursuit of their trade.
Apparently, there were valid grounds to deny the permits to plaintiffs as unsuitable applicants. In any event, the court saw that plaintiffs had no standing to pursue their equal protection claims.
As Judge Spatt noted, Article IV of the Constitution entitles citizens of each state ‘to all Privileges and Immunities of Citizens in the several States.’ One such privilege is the right to travel between the ‘several States.’ Thus, state laws that discriminate against out-of-state residents, particularly in the pursuit of their occupation, may be invalid. In United Bldg. & Construction Trades Council v. Mayor & Council of Camden, 465 US 208 (1984), the Supreme Court made clear that the Privileges and Immunities Clause applies with the same force to local as to statewide laws. But that decision also held that the Privileges and Immunities Clause protects only ‘out-of-state’ residents. Plaintiffs here were ‘in-state’ New York residents when they filed their applications, and therefore had no standing to challenge the town’s residency requirement. Slip op. 11.
In Uebler v. Boss Media AB, 03 CV 4790 (EDNY, May 30, 2006), Judge Spatt denied a motion by defendant, a Swedish corporation, to dismiss the complaint for lack of personal jurisdiction.
Plaintiff sued Boss Media and others for their failure to pay her $913,333.42 in prize money after she won the ‘Win a Million’ trivia contest on an online gambling Web site known as ‘Oriental Casino,’ sponsored and operated by subsidiaries and a licensee of Boss Media. Plaintiff began receiving $3,333.33 in monthly prize payments, which continued for about two years then stopped.
Boss Media is a Swedish corporation with its principal place of business in Sweden. One of its subsidiaries is WebDollar, which manages financial matters related to online gaming at the Web site.
Judge Spatt found that under applicable New York law, CPLR § 302(a)(1), the court had jurisdiction over Boss Media because it transacted business here through its agent WebDollar. As Judge Spatt held, ‘plaintiff has satisfied her burden by establishing the appearance of WebDollar as a division of Boss Media’s financial department, responsible for processing certain transactions and allocating the proceeds. This conclusion is supported by Boss Media’s own description in its Annual Report of WebDollar as ‘carrying out’ activities of certain divisions of Boss Media.’
§ 1983: Retaliatory Discharge
In Weintraub v. Board of Educ. Of the City of New York, 00 CV 4384 (EDNY, April 28, 2006), Judge Glasser found a public school teacher’s § 1983 claims by way of the First and Fourteenth Amendments, and his false imprisonment claims under state law, sufficient to survive summary judgment.
In November 1998, plaintiff was a probationary fifth-grade teacher. He referred a student to the assistant principal, Douglas Goodman, for having thrown a book at him. The student quickly returned to the classroom, and threw a book at plaintiff again three days later. When the student again was returned to the class, plaintiff told Mr. Goodman, and some teachers, that he intended to file a grievance based on Mr. Goodman’s failure to take appropriate disciplinary action. Plaintiff next became the subject of a series of complaints from Mr. Goodman, and principal Daisy O’Gorman, escalating from the inappropriate issuance of a breakfast pass, to charges of corporal punishment of students, to ‘pedagogical inadequacies’ (including a litter-strewn classroom), ‘abandonment’ of his class, sexual abuse of a student, and assault of another teacher (who had offered testimony in support of the abandonment charge). The assault charge led to plaintiff’s arrest.
Although substantially all of the allegations against him were either withdrawn or dismissed, the school district gave plaintiff a nonclassroom assignment and ultimately terminated him. He took a position with another district, but lost that position after filing a claim for false imprisonment against the city relating to his arrest on the assault charge. Plaintiff also filed an unsuccessful Article 78 petition challenging his dismissal from the second position. The state court found that he ‘was unable to generate any evidence that his termination was retaliatory for having served a notice of claim.’ Slip op. 14.
As Judge Glasser observed, the adverse ruling in the Article 78 action did not preclude plaintiff’s claims, because the state court action did not raise any issues ‘related to the alleged First Amendment retaliation, false imprisonment or related Fourth Amendment violations, or constitutional due process rights allegedly violated in the course of his termination.’ Slip op. 14-15.
Judge Glasser dismissed plaintiff’s false arrest claims against the arresting officer, because there was probable cause to arrest. Slip op. 24-27. The court also dismissed the false arrest and malicious prosecution claims against certain other defendants, including the school board, based on probable cause, the absence of a proceeding apart from the arrest and, as to the school board, the existence of policies against the complained-of behavior. Plaintiff’s ‘inchoate’ 1983 claim was dismissed for failure to allege an underlying constitutional deprivation.
However, the court found fact issues precluding summary judgment on the false arrest claim with respect to the defendants (apart from the arresting officer) involved in plaintiff’s arrest. Slip op. 27-34. Denying summary judgment on plaintiff’s § 1983 claims grounded on the First and Fourteenth Amendments, Judge Glasser noted that, although a probationary position does not give rise to a protected property interest, the failure to afford plaintiff a timely ‘name-clearing hearing’ may have caused compensable injury, and his expression of concern about defendant’s failure to create a safe classroom environment may have been protected speech supporting the retaliatory discharge claims. Slip op. 35-40.
ADEA Pleading Requirements
In Del Franco v. New York City Off-Track Betting Corp., 02 CV 3067 (EDNY, April 28, 2006), Magistrate Judge Azrack granted defendant OTB’s motion for summary judgment and dismissed a complaint alleging discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA). OTB hired plaintiff when she was 63 years old and terminated her two years later after numerous complaints by supervisors at different OTB offices.
Magistrate Judge Azrack found that plaintiff had satisfied the first and third elements of a prima facie case of age discrimination under the ADEA: she was 65 years old and her termination was an adverse employment action. But she did not satisfy the fourth element since she did not show that the circumstances of her termination gave rise to an inference of age discrimination.
First, plaintiff undermined her assertion that her job performance was satisfactory by conceding her failure to show up at one OTB branch and her refusal to serve a customer at another. In addition, five supervisors at separate OTB branches filed complaints about her attitude and work performance. Although plaintiff pointed to alleged discriminatory remarks by an OTB supervisor, the court found no nexus between the alleged discriminatory remarks and the decision to terminate her, because the remarks: (1) were not made by a decision maker; (2) were not related to the challenged employment decision; and (3) were not made close in time to her discharge. Next, apart from plaintiff’s inability to establish a prima facie case of employment discrimination, the court determined that OTB articulated a legitimate, nondiscriminatory reason for its decision to terminate her. The evidence supporting the OTB’s contention that plaintiff was discharged for ‘misconduct and insubordination’ provided a sufficient rebuttal to any presumption of age discrimination. Finally, plaintiff never produced probative evidence that defendant’s decision to discharge plaintiff was a pretext.
Title VII: Employer Definition
In Krasner v. The Episcopal Diocese of Long Island, 03 CV 6253 (EDNY, May 13, 2006), a Title VII case, Judge Spatt denied the diocese’s motion for summary judgment and the motion by co-defendant Church of the Advent to dismiss the complaint for lack of subject matter jurisdiction. In denying the church’s motion, Judge Spatt relied on the Supreme Court’s decision in Arbaugh v. Y & H Corp., 126 SCt 1235 (2006), which held that the threshold number of 15 employees under Title VII was an element of a plaintiff’s claim for relief on the merits, not a jurisdictional issue.
The diocese contended that it was not an employer under Title VII and that plaintiff was not its employee. As Judge Spatt found, however, plaintiff had set forth enough facts to demonstrate ‘that she was directed to perform duties by the Diocese; that she attended training offered by the Diocese; that she participated in the Diocese group plan health insurance; and the Diocese controlled aspects of her compensation, hours, and job duties.’ This was sufficient to raise issues of material fact ‘as to whether there was common ownership and control between the Diocese and the Church.’ Slip op. 9. The diocese, moreover, had not provided sufficient discovery to enable plaintiff to oppose the motion.
Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.
[This article is reprinted with permission from the June 9, 2006,__ issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]