In the U.S. District Court for the Eastern District of New York, Judge Arthur D. Spatt declined to dismiss plaintiff’s § 1983 claims relating to his arrest for driving while intoxicated when he was actually having a stroke. Judge Frederic Block dealt with a range of issues relating to seniority benefits for minorities hired as custodians by the Board of Education. And in an age discrimination case, Judge Spatt denied a motion by defendant, as the prevailing party, to require plaintiff to pay the costs of the trial transcript and several deposition transcripts.
§ 1983: False Arrest, Denial of Medical Attention
In Aguilera v. The County of Nassau, 05 CV 4002 (EDNY, Sept. 18, 2006), Judge Spatt, denying defendant’s Rule 12(c) motion for judgment on the pleadings, found that the allegations in the amended complaint could support § 1983 claims (1) against two Nassau County police officers for false arrest and failure to provide emergency medical treatment, and (2) against Nassau County.
In August 2004 plaintiff, then 60 years old, was driving his employer and his employer’s wife in a limousine on the Long Island Expressway. Plaintiff had worked as a driver for the same employer for 21 years.
At about 8 p.m. plaintiff, finding it hard to focus, began driving erratically. Two Nassau County police officers pulled plaintiff over when he stopped at a red light on a service road. As plaintiff stepped out of the car, he started falling down and his ‘left side wasn’t responding.’ Answering the officers’ questions, plaintiff said he had not been drinking.
Plaintiff submitted to sobriety tests, became disoriented, and fell down again, at one point dropping his wallet and spilling its contents. One of the officers commented that plaintiff ‘looked like he was having a stroke. ‘ Plaintiff replied that he did not understand ‘what [was] wrong’ with him. His employer, saying that plaintiff ‘doesn’t drink’ and must be ill, vouched for plaintiff’s reliability and asked that he be taken to a hospital.
Instead, the officers handcuffed plaintiff and arrested him for erratic driving. They took him to a police station, where he was chained to a bench. Plaintiff complained that he was feeling ‘lousier’ and needed a doctor.
In all, he was handcuffed to a bench for some two hours without medical attention. According to plaintiff, none of the tests done on him showed the presence of alcohol or drugs.
Eventually, a paramedic arrived to take a blood sample and told an arresting officer that plaintiff needed a doctor. Plaintiff was taken by ambulance to a hospital in Mineola. Upon his arrival there, a doctor commented that plaintiff exhibited the symptoms of a stroke. That diagnosis was confirmed the next day. Plaintiff was then transferred to Long Island Jewish Hospital and stayed there for one week.
In Judge Spatt’s view, these allegations entitled plaintiff to offer evidence in support of his claims.
As to the § 1983 claim against the officers, defendants argued that they had probable cause to arrest plaintiff for what they had believed, at the time, was driving while intoxicated. But, as Judge Spatt concluded, the facts in the amended complaint could support a determination that there was no probable cause for a DWI arrest. Even if the initial stop was based on a suspicion of DWI, the ensuing sequence of events ‘could have prevented that suspicion from rising to the level of probable cause in the mind of a reasonably cautious person.’ Slip op. 12. Combined with plaintiff’s own protestations of innocence and request for medical treatment, other factors could negate probable cause, such as plaintiff’s ‘obvious physical condition,’ requests by two witnesses that plaintiff get medical attention, and the comment by an arresting officer that plaintiff seemed to be having a stroke.
As to plaintiff’s § 1983 claim against Nassau County, Judge Spatt found that the alleged facts could support an inference that the county (1) had policies requiring the police to detain DWI suspects regardless of their apparent need for medical attention; and (2) did not train its officers either to recognize when a DWI suspect may really be ill rather than drunk, or to respond properly in a medical emergency.
Discrimination: Seniority Benefits for Government Jobs
In United States v. New York City Board of Education, 96 CV 0374 (EDNY, Sept. 11, 2006), Judge Block upheld an affirmative action plan under Title VII and the Fourteenth Amendment between the United States and the New York City Board of Education to the extent that the plan granted seniority to blacks, Hispanics, Asians and women in School Building Transfers and Temporary Care Assignments. The court struck down provisions in the plan granting seniority relating to layoffs, except to actual victims of discrimination.
In 1996, the United States sued the board claiming that its tests and recruiting practices in hiring custodians and custodian engineers discriminated against blacks, Hispanics, Asians and women. A prior survey conducted by the board disclosed that 99 percent of its permanent custodial employees were men and 92 percent were white.
In February 1999, the United States and the board entered into a settlement agreement which was approved by Magistrate Judge Robert L. Levy. A number of current custodial employees moved to intervene to challenge the agreement, but Judge Levy denied the motion. The intervenors had challenged provisions of the agreement that granted permanent positions to provisional employees in the beneficiary group (blacks, Hispanics, Asians and women) and retroactive seniority to the beneficiary group. The seniority provisions impacted the intervenors in three areas: first, transfers, because a custodial employee’s salary depends on the school building to which he or she is assigned, and the ability to transfer depends, in part, on seniority; second, temporary care assignments (TCAs), which allow custodial care employees to work for more than one school during a temporary period and receive management fees for each school–a benefit which also depends on seniority; and, third, layoffs, which are based entirely on seniority.
The intervenors appealed the denial of their motion, and the U.S. Court of Appeals for the Second Circuit reversed, concluding that the Intervenors had standing to challenge the agreement.
Here, Judge Block addressed the intervenors’ motion to enjoin implementation of the agreement as it affected their seniority rights under Title VII and the Fourteenth Amendment.
Judge Block found that the United States had demonstrated a significant disparity between white men and the beneficiary group–i.e., a ‘manifest imbalance’–justifying the affirmative action plan. The United States used a statistical analysis to show disparate impact in both testing and recruiting.
Next, the court determined that the relief afforded by the agreement– retroactive seniority to victims and nonvictims relating to transfers and TCAs–passed muster under both Title VII and the Fourth Amendment. As the court stated: ‘While being passed over for a transfer of a TCA is not inconsequential, it is less harsh than losing one’s job or being required to accept a reduction in pay….’ Slip op. 58.
Conversely, the alteration of seniority rights of nonvictims impacting layoffs failed the permissible-remedy requirements under both the Fourteenth Amendment and Title VII. Title VII has an ‘unnecessary-trammeling test,’ which rejects remedies imposing too heavy a burden on nonminority employees, such as layoffs, which entail the loss of one’s job. Moreover, permanent board employees have a legitimate expectation that layoffs will be based on seniority under New York law. On the other hand, the seven actual victims of the discriminatory exams were entitled to layoff protection through retroactive seniority. Slip op. 88
Under the Fourteenth Amendment, Judge Block found the agreement narrowly tailored to serve the compelling interest of remedying the discrimination here, which warranted a race-conscious remedy:
The award of retroactive seniority to remedy the adverse impact of the exams is, for the purposes of transfers and TCAs, carefully circumscribed in its scope and effect, making a one-time adjustment for those entitled to such relief under the testing claims without establishing quotas or creating an absolute bar to the nonminorities’ abilities to obtain those perquisites. Slip op. 75.
By contrast, the minority-conscious layoffs, already found unacceptable under Title VII, were not ‘narrowly tailored’ under the Fourteenth Amendment for the same reasons that they did not meet the Title VII standard.
Judge Block also denied the board’s motion to enter the agreement as a consent judgment, and granted a motion by certain intervenors’ to certify a class:
comprising all custodial employees whose layoff-protection rights have been adversely affected by the grant of seniority benefits to beneficiaries who are nonvictims of discrimination. Slip op. 90.
Rule 54: Transcript Costs
In Bucalo v. East Hampton Union Free School District, 04 CV 1695 (EDNY, Oct. 12, 2006), Judge Spatt reversed a portion of the court clerk’s order that assessed against plaintiff $1,110.40 in deposition costs under Rule 54. The court also denied a motion by defendant, the prevailing party, to assess against plaintiff over $19,000 for the cost of the daily trial transcript.
The motions for costs followed an11-day jury trial on plaintiff’s age discrimination claims. The jury returned a verdict in defendant’s favor.
The clerk charged plaintiff with the costs of deposing three of defendant’s trial witnesses. Though defendant won the case, the court found in its discretion that defendant should bear those costs. Only three days before trial defendant served a list of six witnesses. The court permitted three of the six to testify, but ordered defendant to produce the witnesses for depositions and to pay for the deposition transcripts. Citing this history, Judge Spatt expressed disapproval of defendant’s ‘attempt to circumvent’ a ‘clear’ instruction.
Regarding the $19,214.37 for the trial transcript, Judge Spatt found that daily copy was not ‘necessary’ for use at the trial. As the court noted, there were only eight days of testimony, the claims were not complex, and defense counsel could have taken notes during the trial to prepare for cross examination, summation and the jury charge. Judge Spatt also took issue with defendant’s characterization of the court’s inquiry about whether counsel planned to purchase daily copy as an ‘instruction’ to defendant to purchase the transcript.
In any event, Judge Spatt added, the requested award of such large costs would be ‘inequitable’ in light of the financial hardship on plaintiff, a person of ‘apparently modest means.’
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 November 9, 2006, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]