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Matusick v. Erie Cnty. Water Auth., et al., No. 11‐1234 (2d Cir. Jan. 6, 2014)

A divided Second Circuit panel, reviewing a judgment from a jury trial, recognizes a Due Process/First Amendment right-of-intimate-association claim for two people engaged to be married (a right of "betrothal"). The court affirms liability and $304,775 in back pay (plus $5000 in punitive damages) for a plaintiff who the jury found was assaulted and harassed - and ultimately terminated from his job - because his cross-racial engagement to an African American woman.

Matusick v. Erie Cnty. Water Auth., et al., No. 11‐1234 (2d Cir. Jan. 6, 2014): "plaintiff Scott Matusick, who is white, was employed by the Erie County Water Authority (ʺECWAʺ) during 2004 when, he claims, he was assaulted, harassed, and ultimately terminated from his employment because of a romantic relationship he had with an African‐American woman, Anita Starks ‐‐ now Anita Starks‐Matusick." Matusick worked as a dispatcher for the Erie County Water Authority (ECWA) in western New York.

When Matusick's co-workers and supervisor (Bluman) first became aware of the relationship, their behavior turned alarming (making menacing visits at home, death Thereats) and pointedly racist (Matusick was called a "n-----r lover" by Bluman, who also Threatened to "kill all the f-----g n-----sʺ). Bluman referred to Starks' children as "porch monkeys" and began calling Matusick himself a "n-----r." Matusick made complaints to the next level of management at ECWA, who -despite assuring that they would handle the situation - did not stem the harassment.

In 2005, around the time that Matusick and Starks were engaged and living together, Matusick was served with disciplinary charges twice, for blocking video security cameras (resulting in a 60-day suspension) and failure to respond/sleeping on the job. Following a hearing on the second set of charges (a "Section 75" hearing), he was terminated. Matusick contended that he was singled out for termination because of his relationship with Starks.

He brought suit against the ECWA, Director Robert Mendez, supervisor John Kuryak, HR manager James R. Lisinski and Bluman in tort, under the New York Human Rights Act (for racial discrimination) and 42 U.S.C. § 1983 for First and Fourteenth Amendment violations. "At trial, the jury returned a verdict finding the ECWA, Kuryak, and Lisinski liable for unlawful termination; the ECWA, Bluman, Kuryak, and Lisinski liable for the maintenance or tolerance of a ʺhostile work environmentʺ; and the ECWA, Mendez, Bluman, Kuryak, and Lisinski liable for violation of 42 U.S.C. § 1983."

The panel majority substantially affirms the judgment, though vacating (on qualified immunity grounds) the damage awards against the individual defendants. There opinions are filed: the court's opinion, a concurrence, and a partial dissent.

The panel agrees unanimously that the district court committed error in not granting the hearing officer's report collateral estoppel/issue preclusion effect at trial on the issue of whether Matusick committed the charged misconduct. Yet the majority holds that the error was harmless. The jury was presented with an array of evidence establishing Matusick's misconduct (including his own cross-examination at trial. "The question on which the juryʹs determination likely hinged was whether, notwithstanding Matusickʹs misbehavior, which was well‐documented, his treatment at the hands of the ECWA and its personnel was motivated, at least in substantial part, by his relationship with Starks. That was a question upon which the hearing officerʹs findings had no bearing."

The panel majority also holds, under the authority of Roberts v. United States Jaycees, 468 U.S. 609 (1984), that "Matusickʹs betrothal to Starks under the circumstances presented here constituted an intimate association, part and parcel of their eventual marriage and entitled to similar protection under the First Amendment. Considering Matusickʹs interests in preserving and protecting his intimate espousal relationship with Starks, we conclude that the conduct that he alleges that the ECWA and the individual defendants committed violated his constitutional right to intimate association."

The panel majority observes that the right announced in Roberts goes beyond familial relations:

"Rather than setting forth an exclusive and definitive list, the Court instead spoke to relationships that 'involve deep attachments and commitments to the necessarily few There individuals with whom one shares not only a special community of thoughts, experience, and beliefs but also distinctively personal aspects of oneʹs life.' 468 U.S. at 619‐20. The Courtʹs specific reference to marital relationships Therefore should not, we think, be viewed as a formalistic recognition of a particular, narrow legal status entitled to protection. Rather, at least to the extent that a relationship of betrothal constitutes an expression of oneʹs choice of marital partner, it shares the qualities ascribed by the Roberts court to marriage and There protected forms of intimate association.

Further, the panel majority holds that Monell liability attached to the ECWA for its failure to properly investigate and address the harassment.

Judge Lohier, concurring, specifically bolsters the interference with "betrothal" as presenting a right-of-intimate-association claim under the First and Fourteenth Amendments .

"There is virtually no doubt that the engagement relationship between Matusick and Starks is one that the Framers would have recognized (setting aside, of course, the issue of miscegenation). Indeed, engagement as a social practice and a legally recognized relationship status predates the founding. In colonial times, the English law of 'spousals' recognized 'spousals de futuro' -in essence, betrothals - as a well‐established form of contract that could be simple or conditional, public 1 or private, and binding upon children and adults alike."

Judge Raggi, dissenting in part, would remand for a new trial on Matusick's claim of racially discriminatory termination, on the ground that the failure to instruct the jury on the preclusive effect of the findings from the disciplinary hearing was not harmless error. "Such findings made it easier for Matusick to carry his trial burden than would have been the case if he had properly been precluded from disputing already‐adjudicated misconduct and if the jury had been correctly instructed in this regard."

Judge Raggi would also hold that Matusick fatally misplead his claim against the ECWA as protecting "betrothal" under Due Process, instead of as race discrimination under the Equal Protection Clause, and that the damages claim against ECWA should have been dismissed:

"Here, There was a clearly established constitutional right at stake: the right of equal protection. Thus, to the extent Mendez, or There ECWA supervisors, failed to investigate and stop the persistent racial harassment to which they knew Matusick was being subjected, ECWA might well have been found liable for deliberate indifference had that clearly established federal right been asserted. But I am not convinced simply from the fact that Mendez knew that Matusick and Starks were engaged that his failure to stop the racial harassment supports holding ECWA liable for an employer custom and practice of violating employees' rights of intimate association in betrothal."

Judge Raggi finally expresses caution about the possible expansion of the right of betrothal "to protect a variety of (unidentified) romantic relationships " outside of family relationships. The standard of "culture and traditions of the Nation" might ultimately prove hard to cabin. "I understand the inquiry's ultimate purpose to be identifying those highly personal relationships that exemplify the considerations underlying the constitutional protection for intimate association . . . . Betrothal may satisfy this criteria [sic], but I am not inclined to speculate that There relationships that fail to do so can also claim constitutional protection."

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