Date: 01-06-2014

Case Style: Scott M. Matusick v. Erie County Water Authority

Case Number: 11‐1234 (L)

Judge: Sack

Court: United States Court of Appeals for the Second Circuit on appeal from the Western District of New York

Plaintiff's Attorney: HARVEY P. SANDERS, Sanders & Sanders, Cheektowaga N.Y., for Plaintiff‐Appellee‐Cross‐Appellant.

Defendant's Attorney: JOSEPH S. BROWN (Adam W. Perry, Benjamin K. Ahlstrom on the brief), Hodgson Russ LLP, Buffalo, N.Y., for Defendants‐Appellants‐Cross‐Appellees.

Description: 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. Starks and Matusick met in 2003 but, according to
her trial testimony, did not begin dating until January or February 2004. They
ʺbecame more seriousʺ in March or April 2004: They became engaged. Trial Tr.
in Matusick v. Erie County Water Auth., No. 07‐cv‐00489 (RJA)(HBS)(W.D.N.Y.
2010) (ʺTrial Tr.ʺ), Aug. 19, at 30.1 At this point, however, they did not share a

1 The court identified Starks as Matusick’s girlfriend during the charge to
the jury, but the evidence shows that they were engaged to be married.
According to Starks, ʺScott came to my house, and . . . he didnʹt have a ring to put
on my finger. He did the one knee thing, but he didnʹt have a ring. So Iʹm kind

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residence ‐‐ Matusick lived in Hamburg, New York, and Starks lived in Niagara
Falls, New York. In 2005, after they became engaged, Starks moved into
Matusickʹs house in Hamburg. They were married in 2009.

Starks‐Matusick has two children who were in their early teens
when Starks and Matusick met and began dating. Id. at 31. According to trial
testimony, the children had established a close relationship with Matusick. Since
2005, and at least until the time of trial, they have lived with Starks/Starks‐
Matusick and Matusick in Hamburg. Id. at 32.

Discrimination at the ECWA

The ECWA is an independent public benefit corporation and a New
York State agency. See N.Y. Pub. Auth. Law § 1050, et seq. Its mission is to
provide a safe, reliable source of water to approximately 158,000 customers in
and around Erie County, New York, which includes the City of Buffalo. In order
to fulfill its mission, the ECWA operates a Service Center (the ʺService Centerʺ) in
of looking at him like heʹs crazy, but I did say yes[.]ʺ Trial Tr., Aug. 19, at 30.
Matusick testified at trial that he was in fact engaged. When asked why he
proposed if he ʺdidnʹt have a ring,ʺ Matusick explained that his proposal was
ʺspontaneous.ʺ Trial Tr., Aug. 23, at 60. We are aware of no evidence to the
contrary. We therefore treat their relationship as one of betrothal throughout this
opinion.

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Cheektowaga, New York, east of Buffalo. During 2004 and through 2006, the
period relevant to this dispute, the ECWA had approximately 250 employees.

Matusick began working for the ECWA in June 1992. After several
years, he held a position as a customer service representative, later becoming a
bill collector, and still later, a dispatcher.2

During the summer of 2004, after Matusick and Starks became
engaged, some of Matusickʹs coworkers at the ECWA became aware of his
relationship with Starks. Many met Starks when, as was often the case, she
dropped Matusick off at work. Matusick testified at trial that Robert Mendez, the
Director of the ECWA, was among the employees who saw Starks and was aware
of her relationship with Matusick.

2 According to Matusick, a dispatcherʹs duties include ʺanswer[ing]
emergency calls, . . . prepar[ing] work orders and excavation reports, . . . put[ting]
together a packet for the foremen which will include valve ties for a shutdown
and how to shut that down, [and] operating the radio so [the ECWA] ha[s]
communication with the trucks out in the field . . . .ʺ Trial Tr., Aug. 23, at 46. In
conversations with Matusick, ECWA personnel described the dispatcherʹs
position as ʺone of the most important jobs at the [ECWA]. Itʹs what the public
forms their perceptions about how good a job we are doing based upon the
response time and level of professionalism and interface with the [d]ispatchers.ʺ
Oct. 26, 2005, Interview by James R. Lisinski, ECWA Coordinator of Employee
Relations, of Scott Matusick, filed as exhibit 15 to the May 11, 2009, Declaration of
James R Lisinski, reprinted in the Court of Appeals Joint Appendix filed July 13,
2011, at 275. Matusick agreed with that statement. Id.

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At about this time, Matusickʹs relationship with one of his
supervisors, Gary Bluman, began to deteriorate. According to Matusick, Bluman
was often a ring‐leader when it came to harassing him on account of his romantic
relationship with Starks. In 2004, according to Matusick, Bluman and his crew
went onto Matusickʹs property, threw lawn equipment on his roof, and ducttaped
his door shut. Matusick never reported this incident to anyone at the
ECWA because, according to his trial testimony, Bluman had threatened to kill
Matusickʹs family, and Matusick was afraid of what would happen if he reported
Bluman to other supervisors.

Tension came to a head in July 2004. According to Matusick’s
testimony, during the morning of one of his shifts, Bluman entered the room
where Matusick was working, ʺthrew some papers in [Matusickʹs] face[, a]nd . . .
said, youʹre going to do this, do this right fucking now.ʺ Id. at 66. Matusick
apparently told Bluman that he would do what Bluman wanted in a ʺcouple
minutes,ʺ because he had yet to complete a project he owed one of the ECWA
foremen. Id. According to Matusickʹs testimony, Bluman then ʺturned
[Matusickʹs] chair totally around so [Bluman] was facing [Matusick]. [Bluman]
put a pen to [Matusickʹs] neck[,] . . . and he said, youʹre a fucking [nigger] lover,

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your ‐‐ your bitch is a[] [nigger], youʹre a fucking [nigger] now, too, and Iʹm
going to kill all the fucking [niggers].ʺ Id. at 66‐67.3
Matusick reported the incident to Robert Guggemos and John
Kuryak, supervisors at ECWA. He did not, however, formally report it to the
human resources department. As a consequence of the incident, ECWA
supervisors instructed Bluman to minimize his interactions with Matusick.
Nonetheless, within a month and a half after the attack, Bluman resumed making
racist comments.

Bluman was not the only one engaged in the harassment. Other
employees, including James Lisinski, used the word ʺniggerʺ around Matusick,
despite the fact that he had made it clear ‐‐ although we doubt he had to ‐‐ that he
found the word offensive. On one occasion during the summer of 2005, Lisinski

3 At trial, Matusick did not actually say the word ʺniggerʺ ‐‐ substituting,
instead, ʺNʺ or ʺNs,ʺ while noting that he ʺwas not comfortable saying the real
word [Bluman] said.ʺ Id. at 67.

Of course we share Matusickʹs discomfort. Its use in the context of this
opinion serves to describe accurately the severity of the behavior to which
Matusick was subjected at the ECWA, as found by the jury, and not to trivialize
the wordʹs significant –‐ and even unique ‐‐ power to offend, insult, and belittle.
According to a Lexis search performed on May 27, 2013, this Circuit has used the
term for similar purposes in at least fifty‐five opinions. The most recent in a
published opinion was in Rivera v. Rochester Genesee Regʹl Transp. Auth., 702
F.3d 685(2d Cir. 2012).

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remarkably, inasmuch as he was ECWA Coordinator of Employee Relations, told
Matusick, ʺIʹm going to get you, Iʹm going to get you, you [nigger] lover, youʹre
going to get it.ʺ Id. at 93 (internal quotation marks omitted).

A co‐worker, Brendan Finn, was, according to Matusick, even more
persistently antagonistic. In the summer and fall of 2005, Finn made comments
to Matusick such as, ʺ[I]s your N[igger] bitch dropping you off [?]ʺ Id. at 81. He
also allegedly referred to Starksʹ children as ʺporch monkeysʺ or ʺnigglettes.ʺ Id.
at 89, 95. In July 2005, Finn became irate when Matusick arrived late for work.
Finn chased Matusick around the building, yelling something like, ʺnow youʹre
mother‐fucking late like all the other [niggers], now youʹre a[] [nigger], too.ʺ Id.
at 76.

Matusick reported this incident along with those involving Bluman
and other ECWA employees to Guggemos and Kuryak but, once again, decided
against taking his concerns to the human resources department. At trial he stated
that he thought that there was no reason to make a formal complaint ʺ[b]ecause
[ECWA] supervisors said that they would handle the situation and they would
take care of it and th[at] certain individuals would get a talking to and [the
supervisors] would handle it.ʺ Id. at 101.

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Other employees, including human resources staff, likely knew
about Matusickʹs concerns, however. During an interview of Matusick regarding
a disciplinary problem related to his covering‐up a surveillance camera that had
been placed in the dispatch office, Lisinski, himself an alleged offender, asked
ʺwhat is this Iʹm hearing about you disrupting the work force and talking about,
you know, black –‐ black issues, white issues, sexual harassment, and so on and
so forth[?]ʺ4 Id. at 91.

Matusickʹs Disciplinary Problems and Termination

The heart of the factual dispute in this case is whether Matusickʹs
treatment by the ECWA was motivated in significant part by discriminatory
intent or whether it was purely a consequence of his failure to perform his duties
as a dispatcher. To support their position at trial, the defendants introduced
evidence regarding Matusickʹs long and serious history of disciplinary problems.

On October 26, 1997, the Commissioner of the ECWA visited the
Service Center to find Matusick watching television, as the Commissioner later
reported in a memorandum. Joint Appendix filed in this Court on July 13, 2011

4 Matusick also testified about the ECWAʹs training and policy materials
related to discrimination in the workplace. Although the ECWA apparently has
detailed policies on ʺemployee relations,ʺ including ʺequal employment
opportunityʺ and ʺcomplaint resolution,ʺ none of these policies were made
available to Matusick during his tenure at the ECWA. Id. at 98‐99.

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(ʺJ.A.ʺ) 3799.5 In April 2005, Matusick intentionally blocked a video camera in the
dispatch office, which was installed after September 11, 2001, ostensibly for the
purpose of protecting the safety of the water supply. But it also served to record
the conduct of dispatchers while at work.

Matusick admitted to blocking the camera by placing various objects
in front of it on between ten and twenty occasions. In May 2005, he was served
with disciplinary charges under section 75 of the New York State Civil Service
Law related to this incident.6 He admitted his guilt of all camera‐

5 In the memorandum, he reported that when he arrived, he found
ʺMatusick slouched in the dispatcherʹs chair loudly engaged in a football game he
was watching on the overheard TV. . . . [Matusick] jumped‐up and looked out
the window as he screamed out ʹwhat kind of an asshole would call during the
fourth quarter of the game.ʹʺ J.A. 3799. Matusick had apparently been watching
a now notorious Buffalo Bills game. See Mark Gaughan, Bills Battle Broncos to
the Bitter End, BUFFALO NEWS, Oct. 27, 1997, at S3 (reporting that the Bills came
back from a 20‐0 deficit in the fourth quarter, but ultimately lost on a field goal
with 1:56 remaining in overtime).

6 State employees covered by section 75 ʺshall not be removed or
otherwise subjected to any disciplinary penalty provided in this section except
for incompetency or misconduct shown after a hearing upon stated charges
pursuant to this section.ʺ N.Y. Civ. Serv. Law § 75(1). The section outlines the
hearing process and its relationship to the termination of a public employee,
including that the employee will have written notice of the hearing and the
charges and time to answer. Id. § 75(2).

We have decided that, even though section 75 only provides a hearing
officerʹs recommendation, which can then either be accepted or rejected by an
agency head, the provision ʺgives covered employees a property interest in their

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blocking charges, accepting a 60 day suspension without pay.

To support its position that Matusickʹs discipline was not
discriminatory, the ECWA points to the fact that other ECWA employees were
similarly disciplined for blocking the video camera. For example, Joe Marzec,
who worked as a duty‐man on the night‐shift with Matusick, also conceded guilt
to a similar charge and accepted a 30‐day suspension without pay. Thomas
Radich, a control room operator, also admitted his guilt, accepting a 90‐day
suspension without pay.

Matusick faced more disciplinary charges in November 2005. The
ECWA alleged that on October 1 and 20, 2005, Matusick had ʺfailed to properly
respond to information, failed to dispatch workers to the scene of water line
breaks in a timely manner, and slept on duty.ʺ Decl. of James R. Lisinski at ¶ 32,
J.A. 1306.

After the charges were filed, the ECWA held a section 75 hearing
presided over by Michael Lewandowski, an independent hearing officer selected
by the ECWA. The hearing was held intermittently on five non‐consecutive days
between December 2005 and February 2006. Matusick was formally represented
employment, so that they may not be terminated without notice and hearing.ʺ
OʹNeill v. City of Auburn, 23 F.3d 685, 688 (2d Cir. 1994).

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by his union representatives. His father, a lawyer, was also present on all
hearing dates.

On April 7, 2006, the hearing officer issued a 25‐page Report and
Recommendation. Id. at ¶¶ 52‐57, J.A. 1309; see also Report and
Recommendation, J.A. 1482‐1506. The hearing officer began his factual analysis
by noting that the ʺvideotapes of the surveillance camera in the Dispatch office
for the dates of October 1, 2005, and October 20, 2005, were not offered into
evidence upon the claim of the [ECWA] that the tapes had been automatically
recorded over.ʺ J.A. 1487. At the heart of Matusickʹs argument before the section
75 hearing officer was the assertion that ʺthe tapes would provide conclusive
evidence that the claims made against him [were] false.ʺ Id. The hearing officer
rejected Matusickʹs spoliation argument, concluding that the tapes would be
unlikely to provide dispositive evidence of guilt or innocence, and that he, the
hearing officer, could reach proper conclusions based on testimonial and
documentary evidence in the record. Id. at 1488.

Ultimately, the hearing officer found Matusick guilty of several of
the charges against him. For example, the officer concluded that in the early
morning hours of October 1, 2005, Matusick failed to respond to reports of a
water‐line break for more than an hour. He also found that Matusick had slept

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while on duty as a dispatcher on October 1, 2005. And the officer found that
Matusick had failed to respond to reports of a water‐line break on October 20,
2005, for almost four hours before –‐ after receiving three calls from residents –‐
finally dispatching an engineer.

The hearing officer recommended Matusickʹs dismissal, in light of
his continued misconduct and the threat it caused to the integrity of the Countyʹs
water system. J.A. 1505.

Matusick never expressly argued to the hearing officer that he was
treated adversely because of his relationship with Starks. In his Report and
Recommendation, the hearing officer did comment on the possibility of disparate
treatment when it came to pursuing disciplinary charges for sleeping while on
duty at the ECWA: ʺ[Matusick] argues that the evidence . . . shows that
employees sleep on the job without consequence therefore it would be disparate
treatment to impose [a] penalty on [Matusick] for similar conduct. That
argument falls short because while [evidence supports the assertion that] coworkers
[were sleeping on the job],ʺ there was no evidence that management was
aware of it. J.A. 1497. The hearing officer did not suggest, however, that
Matusick had specifically argued that discrimination on the basis of his romantic

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relationship with an African‐American woman was the reason for his alleged
disparate treatment.

On April 24, 2006, Mendez adopted the recommendation of the
hearing officer on behalf of the ECWA and formally terminated Matusick.
Mendez, the Director of the ECWA, testified at trial that the sole basis for the
termination was the Report and Recommendation.
Procedural History

On June 26, 2007, Matusick filed a complaint in State Supreme Court,
Erie County, against the ECWA and ten individual defendants: (1) Robert
Mendez, Director of the ECWA; (2) Gary Bluman, ECWA foreman; (3) John
Kuryak, an ECWA Distribution Engineer; (4) James Lisinski, Coordinator of
Employee Relations; (5) David F. Jaros, Senior Distribution Engineer; (6) Karla
Thomas, a director of Human Resources; (7) Helen Cullinan Szvoren, also a
director of Human Resources; (8) Matthew J. Baudo, Secretary to the ECWA; (9)
Robert Guggemos, an ECWA Distribution Engineer; and (10) Joseph Marzec,
another employee of the ECWA.

The complaint contained six claims. First, it asserted one for
physical assault and battery against Bluman individually. Second, it set forth a
claim for unlawful discrimination and hostile work environment against the

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ECWA and each of the individual defendants in violation of New York Executive
Law § 296(1)(a) (ʺIt shall be an unlawful discriminatory practice . . . [f]or an
employer . . . , because of an individualʹs . . . race . . . to discharge from
employment such individual or to discriminate against such individual in
compensation or in terms, conditions or privileges of employment.ʺ). Third, it
made a claim under the same section for disparate treatment resulting in
discipline and termination. Fourth, also under the same section, it asserted a
claim for retaliation in violation of state law. Fifth, it asserted a claim under 42
U.S.C. § 1983, alleging that while acting under color of state law the defendants
deprived Matusick of his First and Fourteenth Amendment rights under the
United States Constitution. Finally, the complaint asserted a claim under New
York State law for intentional infliction of emotional distress against all
defendants.

On July 27, 2007, the ECWA removed the case to the United States
District Court for the Western District of New York under 28 U.S.C. § 1331 and §
1441 on the grounds that the complaint asserted a claim arising under federal
law: the claim under 42 U.S.C. § 1983.

After discovery, the defendants moved for summary judgment on all
claims. On February 22, 2010, Magistrate Judge Hugh B. Scott, to whom the

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matter had been referred by the district court judge, issued a Report and
Recommendation recommending that the motion be denied in part and granted
in part. Matusick v. Erie Cnty. Water Auth., No. 07‐cv‐489A, 2010 WL 2431077,
2010 U.S. Dist. LEXIS 144193 (W.D.N.Y. Feb. 22, 2010).
First, the magistrate judge recommended denial of the defendantsʹ
motion for summary judgment with regard to Matusickʹs constitutional claims.

See id. at *7‐*11, 2010 U.S. Dist. LEXIS 144193, at *28‐*43. In doing so, he agreed
with Matusickʹs assertions that: (1) he had a constitutional right under both the
First and Fourteenth Amendments to maintain a romantic relationship with
Starks, see id. at *8, 2010 U.S. Dist. LEXIS 144193, at *34; and (2) a reasonable jury
could conclude that the ECWA itself was subject to liability under Monell v.
Department of Social Services of the City of New York, 436 U.S. 658 (1978),
because the abuse and harassment alleged by Matusick, ʺif accepted by a trier of
fact, is sufficient to establish a custom or practice that is so pervasive and
widespread that the ECWA had either actual or constructive knowledge of it.ʺ
Matusick, 2010 WL 2431077, at *9, 2010 U.S. Dist. LEXIS 144193, at *36.
Second, the magistrate judge recommended that the district court
deny the defendantsʹ motion as to Matusickʹs disparate treatment claim under
state law arising from his termination, but that it grant summary judgment as to

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any disparate treatment claim arising from Matusickʹs May 2005 suspension.
With respect to the suspension, the magistrate judge concluded that ʺ[t]he
plaintiff has failed to adequately articulate a basis to distinguish the discipline he
received with the discipline received byʺ similarly situated fellow employees. Id.
at *12, 2010 U.S. Dist. LEXIS 144193, at *48. With regard to the termination,
however, the magistrate judge reasoned that Matusick had ʺsufficiently
articulate[d] a basis that would allow a rational factfinder to conclude that the
proffered reason for Matusic[k]ʹs termination was not the true reason,ʺ and that
Matusick was not precluded from bringing this claim because of the resolution of
the section 75 hearing concluding that there was a basis for his termination. Id. at
*13, 2010 U.S. Dist. LEXIS 144193, at *49‐*50.

Finally, with respect to the claim of the maintenance or tolerance of a
ʺhostile work environmentʺ contrary to New York law, the magistrate judge
again reasoned that if a trier of fact were to accept Matusickʹs allegations of
serious and sustained harassment, then he would have made out a viable hostile
work environment claim. Id. at *14, 2010 U.S. Dist. LEXIS 144193, at *53. The
magistrate judge recommended dismissal of the plaintiffʹs ʺintentional infliction
of emotional distress claimʺ against the defendants and ʺphysical assault and
batteryʺ claim against Bluman individually, however, because these claims were

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barred by the statute of limitations. See id. at *13‐*14, 2010 U.S. Dist. LEXIS
144193, at *51‐*54.

On June 11, 2010, the district court (Richard J. Arcara, Judge)
adopted the magistrate judgeʹs recommendations in their entirety. The case
proceeded to trial against all of the defendants named in the original complaint.

* * *

During the course of the trial, the parties debated the role that the
hearing officerʹs determinations following the section 75 hearing should play in
the juryʹs resolution of the case. Although the district court had accepted the
magistrate judgeʹs recommended conclusion that the section 75 hearing did not
preclude Matusickʹs discrimination claims, the court allowed the defendants to
present evidence to the jury regarding the hearing process, including that the
hearings involved an ʺindependent hearing officer hold[ing] a session, much like
court here.ʺ Trial Tr. Aug. 26, at 149. Mendez testified that the report and
recommendation from the section 75 hearing officer concerning Matusickʹs
disciplinary problems was ʺthe strongest . . . report and recommendation that Iʹve
ever had towards a termination of an employee.ʺ Id. at 162. The jury also saw
the ECWA document, signed by Mendez, adopting the report and
recommendation. The court did not permit the defendants to put into evidence

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the written report and recommendation by the ECWA hearing officer, however,
and it prohibited Mendez from testifying as to the specific information in the
report.

The court also explained the role of the report and recommendation
in its charge to the jury, stating that they did not bind the jury or force it ʺin any
way to reach a particular outcome on plaintiffʹs unlawful termination claim,ʺ the
central element of which was whether Matusickʹs interracial relationship was a
motivating factor in his termination. Trial Tr., Aug. 31, at 104‐05.

At the close of evidence, the defendants made a motion for judgment
as a matter of law. See Matusick v. Erie Cnty. Water Auth., 774 F. Supp. 2d 514,
519 (W.D.N.Y. 2011) (ʺPost‐Trial Orderʺ). The district court granted that motion
with respect to defendants Jaros, Thomas, Szvoren, Baudo, and Guggemos, and
with respect to some of the claims against Mendez and Bluman, neither of whom
were involved in formulating disciplinary charges against Matusick. See id. at
519. The remaining claims proceeded to verdict.

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.

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The jury awarded Matusick $304,775 in back pay to be paid by the ECWA on the
state unlawful termination claims, and $5,000 in punitive damages against each
individual defendant on the section 1983 claims.7 Id. at 520.

The defendants, including the ECWA, filed post‐trial motions for
judgment as a matter of law under Federal Rule of Civil Procedure 50(b), and for
a correction of the final judgment in the event that the judgment survived the
50(b) motion. See id. at 517‐18.

The defendants argued that the juryʹs verdict on the unlawful
termination claim could not stand as to any of the defendants held liable for that
claim, and therefore that the award of backpay should be vacated. See id. at 520.

At the heart of this assertion was the argument, reasserted here on appeal, that
Matusick could not ʺcompare himself to other employees because his disciplinary
history was different and because he declined an invitation to settle the charges
that led to his Section 75 hearing.ʺ Id. Further, they asserted that ʺthe race of
plaintiffʹs then‐girlfriend [sic] was not a motivating factor behind plaintiffʹs
termination because the weight of the evidence indicates that no one in a position

7 The jury did not award damages on the hostile work environment claim,
and the finding of liability on that claim is not on appeal here.

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to make or to contribute to the decision to terminate knew about the
relationship.ʺ Id.

The district court expressed skepticism about the defendantsʹ
arguments:

As for plaintiffʹs evidence that race was a motivating
factor behind his termination, the Court is concerned
that defendantsʹ remaining arguments are simply an
invitation to disbelieve plaintiff and to believe other
witnesses. . . . Viewing the evidence in the light most
favorable to plaintiff, plaintiff submitted evidence
acceptable to a reasonable jury that defendants ‐‐
directly or by aiding and abetting ‐‐ terminated plaintiff
and disciplined him more harshly than they would have
otherwise because of animosity toward his interracial
relationship.

Id. at 521.

The court also considered the defendantsʹ argument that the section
75 hearing should preclude the plaintiff from re‐litigating his discrimination
claim because the hearing resolved in the defendantsʹ favor the question of
whether there were legitimate bases for Matusickʹs termination. See id. at 520‐21.

The district court rejected this argument, concluding that the hearing officer
never finally decided that the plaintiff should be terminated; he only
recommended that course of action. It was Mendez who ultimately decided to
adopt the hearing officerʹs recommendation and terminate Matusick. Id. at 521.

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The district court then considered objections by the defendants
related to the plaintiffʹs section 1983 claims, and the award of punitive damages
arising from them. The court had concluded prior to trial that the plaintiff had a
valid section 1983 claim, and that the individual defendants did not enjoy
qualified immunity with respect to it. After trial, the court considered the
defendantsʹ assertion that the individual defendants could not be held liable
under a theory of supervisory liability. Id. at 522.

The district court dismissed this argument, noting its ʺconcern[] that
defendants have overlooked the evidence that emerged at trial in pursuit of a
technical and unsettled legal point.ʺ Id. The crux of the defendantsʹ position
rested on the argument that the Supreme Courtʹs then‐recent decision in Ashcroft
v. Iqbal, 556 U.S. 662 (2009), made clear that under section 1983, ʺʹmasters do not
answer for the torts of their servants,ʹʺ and therefore that ʺʹeach Government
official, his or her title notwithstanding, is only liable for his or her own
misconduct.ʹʺ Matusick, 744 F. Supp. 2d at 522 (quoting Iqbal, 556 U.S. at 677).
The district court concluded, however, that despite this evolving legal doctrine,
ʺa reasonable jury could have credited the evidence that the individual
defendants actively participated in racial slurs and actively cast plaintiff, and not

23

themselves, as a disruptive member of the ECWA workforce because he
complained about racial harassment.ʺ Id. at 522.

In considering the defendantsʹ qualified immunity argument, the
court did not focus on the defendantsʹ assertion that they were entitled to
protection because it was not clearly established that the plaintiffʹs betrothal
relationship was protected by the First Amendment8 at the time of the incidents.
Instead, the court said that ʺthe very first step in assessing a claim for qualified
immunity is to identify the discretionary governmental function that required the
conduct that a plaintiff claims to be improper.ʺ Id. at 525 (citing Scott v. Fischer,
616 F.3d 100, 105 (2d Cir. 2010)). ʺCritical to . . . qualified immunity cases . . . is
that the governmental conduct that is allegedly improper has to match the
governmental function that would receive immunity from liability.ʺ Id. There
was no governmental function that could require the substantial derision the
plaintiff faced while working at the ECWA, and therefore, according to the
8 As discussed at greater length in section II.A.3.a below, whether the
intimate association right arises under the First or Fourteenth Amendment has
not yet been authoritatively settled. See Adler v. Pataki, 185 F.3d 35, 42‐44 (2d Cir.
1999) (discussing cases that frame the right either as an implied First Amendment
right or as a fundamental liberty protected by the Due Process Clause of the
Fourteenth Amendment).

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district court, the defendants could not raise a qualified immunity defense. See
id.

Having left the juryʹs findings on liability undisturbed, the court
then addressed whether the juryʹs award of punitive damages on the section 1983
claim was reasonable in light of the violations at issue. Once again, the court
concluded that ʺa reasonable jury could have decided based on the evidence that
defendants were liable under Section 1983 for intentional racial harassment
designed to punish plaintiff for his interracial relationship.ʺ Id. at 526‐27.

The defendants appeal.

DISCUSSION

I. The Import of the Section 75 Hearing

Many of the defendantsʹ arguments on appeal challenge the district
courtʹs treatment of the section 75 hearing before, during, and after trial. As
discussed above, the court (1) adopted the magistrate judgeʹs determination that
the hearing officerʹs findings did not preclude the plaintiffʹs claims, and repeated
that conclusion after trial; (2) instructed the jury that the section 75 hearing did
not ʺforceʺ the jury to resolve any of the questions before it in any particular way;
and (3) did not allow the hearing officerʹs written recommendation into evidence.

25

The defendants dispute all three of these decisions. We conclude that even if the
district court erred as a legal matter in instructing the jury on the preclusive effect
of the recommendation, this error was harmless and does not require vacatur.
See Fed. R. Civ. P. 61.

A. Issue Preclusion

Whether the hearing officerʹs fact‐findings that there was a sufficient
and legitimate basis for Matusickʹs termination precluded the plaintiff from
relitigating those issues in the district court is a question of law. We review the
district courtʹs answers to such questions de novo. See, e.g., United States v.
Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005).

State law governs the preclusive effects in federal court of a state
administrative agencyʹs quasi‐judicial findings. Univ. of Tenn. v. Elliott, 478 U.S.
788, 796‐99 (1986); see also Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.
75, 81 (1984); Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706,
728 (2d Cir. 2001) (similar).

ʺNew York courts give quasi‐judicial administrative fact‐finding
preclusive effect where there has been a full and fair opportunity to litigate.ʺ
Burkybile v. Bd. of Educ. of Hastings‐On‐Hudson Union Free Sch. Dist., 411 F.3d

26

306, 310 (2d Cir.), cert. denied, 546 U.S. 1062 (2005). This rule applies to findings
made by administrative officers after conducting section 75 hearings. See, e.g., In
re Cheeseboro, 84 A.D.3d 1635, 1636, 923 N.Y.S.2d 772, 773 (3d Depʹt 2011)
(deciding that a finding of fact by a section 75 hearing officer that
unemployment‐insurance applicant had been terminated from prior employment
for cause had preclusive effect with regard to a denial of a benefits application).

Like a prior judicial finding of fact, in order to have preclusive effect
over a subsequent fact‐finding or legal analysis, a prior administrative
determination must have resolved the identical issue, and the issue must have
been actually and finally decided in the prior adjudication. See Restatement
(Second) of Judgments § 27 (1982).9 But even if an identical issue was necessarily
decided in the prior proceeding, issue preclusion does not apply unless there was
ʺa full and fair opportunity [for the party against whom preclusion is sought] to
contest the decision now said to be controlling.ʺ Buechel v. Bain, 97 N.Y.2d 295,
304, 766 N.E.2d 914, 919, 740 N.Y.S.2d 252, 257 (2001).

9 The ʺidentical issue necessarily decidedʺ requirement under New York
law comprises two parts: (1) the issues of both proceedings must be identical, and
(2) the issue must have been raised, necessarily decided, and material to the first
action. Leather v. Eyck, 180 F.3d 420, 425–26 (2d Cir. 1999), cert. denied, 533 U.S.
941 (2001) (alterations omitted).

27

1. Finally Decided. The district courtʹs preclusion analysis did not
proceed beyond its observation that the report and recommendation of the
hearing officer was a ʺnon‐binding recommendation[] regarding plaintiffʹs
termination,ʺ which was therefore not a final decision on the merits and could
not have preclusive effect. Matusick, 774 F. Supp. 2d at 521.

To support this conclusion, the district court relied on our decision
in Leventhal v. Knapek, 266 F.3d 64, 72 (2d Cir. 2001). There, we considered the
preclusive effect of a finding by a section 75 hearing officer employed by the New
York State Department of Transportation (the ʺDOTʺ) that the Department had
violated the Fourth Amendment rights of one of its employees by searching his
workplace computer to discover whether he had installed unlicensed software.

See id. at 69‐70. We concluded that this determination did not preclude the
subsequent reexamination by the district court of the employeeʹs Fourth
Amendment argument asserted through a section 1983 claim, because a final
determination had not been made by the Commissioner of the DOT. See id. at 72.

The district courtʹs reliance on Leventhal is misplaced. In that case,
there was no final decision both because the parties settled before the hearing

28

officer had taken all of the evidence and because the DOT Commissioner had not
adopted any recommendations of the hearing officer. Id.

In this case, however, the ECWA did adopt the recommendations of
the hearing officer. And, therefore, that recommendation became the official
decision of the agency. The case at bar is thus no different from other cases in
which New York courts have granted preclusive effect to section 75
recommendations later adopted by the state agency. See, e.g., In re Agran, 54
A.D.3d 479, 479‐80, 863 N.Y.S.2d 295, 296 (3d Depʹt 2008); In re Dimps, 274
A.D.2d 625, 626, 710 N.Y.S.2d 448, 449‐50 (3d Depʹt 2000). This is so even though
Matusick decided not to challenge the determination in state court, as he was
entitled to do. See Harris v. Israel, 95 A.D.3d 1117, 1117, 943 N.Y.S.2d 901, 902
(2d Depʹt 2012) (review of section 75 proceeding finding petitioner, former state
employee, guilty of misconduct and insubordination); see also Doe v. Pfrommer,
148 F.3d 73, 79‐80 (2d Cir. 1998) (issue preclusion applies to unreviewed state
agency determinations).10

10 Matusick also argues that the section 75 hearing officerʹs
recommendations are not preclusive because he was not represented by counsel.
This argument is meritless. New York courts have held that as long as the section
75 respondent is represented by a union official, as Matusick was here, the results
of that hearing can have preclusive effect. See Ryan v. N.Y. Tel. Co., 62 N.Y.2d

29

2. Identicality of Issues. We must therefore address what we think
to be a more difficult question ‐‐ whether any of the issues decided by the hearing
officer are identical to issues decided by the jury and therefore preclusive of
issues that must be decided in order to resolve this dispute.

As an initial matter, the district court correctly concluded that the
hearing officerʹs determination that Matusick had engaged in the charged
conduct, and that these violations called for his termination, does not preclude a
jury from later finding that Matusick was also terminated at least in part because
of his relationship with Starks. The plaintiff could be successful on the state antidiscrimination
claims or the section 1983 claims even if the jury were to accept
that there were legitimate reasons for terminating him, too.

The ʺstandards for recoveryʺ under the New York State Human
Rights law anti‐discrimination provisions ʺare in accord with Federal standards
under [T]itle VII of the Civil Rights Act of 1964.ʺ Ferrante v. Am. Lung Assʹn, 90
N.Y.2d 623, 629, 687 N.E.2d 1308, 1312, 665 N.Y.S.2d 25, 28 (1997). Under these
standards, a plaintiff claiming that he was discriminated against on an
494, 503‐04, 467 N.E.2d 487, 492, 478 N.Y.S.2d 823, 828 (1984). Indeed, section 75
proceedings can be preclusive even where the respondent elected not to appear
at all. See In re Agran, 54 A.D.3d at 479‐80, 83 N.Y.S. at 295.

30

impermissible basis must demonstrate (1) that he is a member of the class
protected by the statute; (2) that he was qualified for the position; (3) that he
experienced an adverse employment action; and (4) that this adverse
employment action occurred under circumstances giving rise to an inference of
discrimination. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); United States v. Brennan, 650 F.3d 65, 93 (2d Cir. 2011). ʺOnce th[is] prima
facie case has been shown, the burden then must shift to the employer to
articulate some legitimate, nondiscriminatory reason for the adverse employment
action. The burden then shifts back to the plaintiff to show that the defendantʹs
stated reason for the adverse employment action was in fact pretext.ʺ Brennan,
650 F.3d at 93 (quoting McDonnell Douglas, 411 U.S. at 802) (internal quotation
marks and alterations omitted). Even if the factfinder decides that the defendants
terminated the plaintiff in part for legitimate reasons, the plaintiff may prevail on
his or her claim if he or she can demonstrate that his or her employer was
motivated, at least in part, by discriminatory purposes. See Nelson v. HSBC
Bank USA, 41 A.D.3d 445, 446‐47, 837 N.Y.S.2d 712, 714 (2d Depʹt 2007).

Although a First Amendment retaliation claim under section 1983 is
not evaluated using the McDonnell Douglas burden‐shifting methodology, it too

31

involves consideration of whether the plaintiff experienced an adverse action
related to his or her employment as a result of protected conduct as opposed to
alternative, legitimate, work‐related reasons. ʺTo succeed on . . . First
Amendment claims, [the plaintiff] must demonstrate by a preponderance of the
evidence that the [conduct] at issue was protected, that he suffered an adverse
employment action, and that there was a causal connection between the
protected [conduct] and the adverse employment action.ʺ Blum v. Schlegel, 18
F.3d 1005, 1010 (2d Cir. 1994). ʺShould a plaintiff demonstrate these factors, the
defendant has the opportunity to demonstrate by a preponderance of the
evidence that it would have undertaken the same adverse employment action
even in the absence of the protected conduct.ʺ Id. (internal quotation marks
omitted). The plaintiff may prevail on his section 1983 claim if he can show that
the defendants would not have implemented the same adverse employment
actions were it not for their discriminatory motivations. See Adler v. Pataki, 185
F.3d 35, 47 (2d Cir. 1999).

The issue decided by the hearing officer after the section 75 hearing
related to the ECWAʹs articulated basis for Matusickʹs termination. As noted,
however, there is no indication that the hearing officer was ever presented with

32

evidence that the charges against Matusick were motivated, even in part, by an
intent to discriminate, which is at the heart of the disparate treatment claims here.
Nor is there any indication that if the hearing officer had heard this evidence, it
would have been within his statutorily defined authority to review that
allegation, or that he would have found that Matusickʹs termination was
warranted.11 Therefore, the hearing officerʹs factual determinations were not
identical to the issues of fact presented to the jury for its determination.12 See
Burkybile, 411 F.3d at 313 (ʺThe record does not reflect that any constitutional
claims were raised at the Section 3020‐a hearing, so we do not take these as

11 A section 75 hearing officerʹs sole responsibility is to consider whether
the state employee facing charges has been ʺincompeten[t] or [committed]
misconduct.ʺ See N.Y. Civ. Serv. Law § 75(1).

12 Of course, as is the case here, whether or not an issue decided in a prior
proceeding is identical to an issue at stake in a subsequent proceeding is often a
corollary of the question whether or not the issue in question in the second
proceeding was ʺactually litigatedʺ in the prior proceeding. See, e.g., WRIGHT,
MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE § 4417 n. 9 (citing Faigin v.
Kelly, 184 F.3d 67, 77‐79 (1st Cir. 1999) (issues were not identical and, as a
corollary, the issue at stake in the subsequent litigation was not actually litigated
in the prior)). Here for example, the fact that the hearing officer never heard
evidence of discrimination directly supports the conclusion that that question
was never actually litigated below, and confirms that there was no identicality of
issues between the administrative hearing focused on Matusickʹs misconduct and
the litigation concerning discrimination on the basis of the race of Matusickʹs
romantic partner.

33

decided.ʺ); see also Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454,
472 (S.D.N.Y. 2011) (ʺ[A] finding that [p]laintiff was terminated for cause does
not bar [p]laintiffʹs Title VII claim. Even if [p]laintiff cannot dispute the factual
findings of the Hearing Officerʹs decision, [p]laintiff can still prevail if he shows
that [d]efendants acted with an improper motive in bringing charges against
[p]laintiff.ʺ).

But the hearing officer did make findings of fact that bear on the
issues raised on appeal –‐ he found that Matusick had actually committed
misconduct and that his conduct at work evinced an incompetence and
carelessness not befitting his role as a dispatcher for a water authority. The
question we must address, then, is what the preclusive effects of these findings
are. And that question turns on what the Restatement (Second) of Judgments
refers to as ʺ[o]ne of the most difficult problems in the application of [collateral
estoppel is] . . . [the] delineat[ion] [of] the issue on which litigation is, or is not,
foreclosed by the prior judgment.ʺ RESTATEMENT (SECOND) OF JUDGMENTS § 27
cmt. c. (1982).

34

Critical to the resolution of the question is the determination of
whether the ʺissueʺ that is identical in the two proceedings involves a factual or
legal determination. As one federal district court explained:

An issue is a single, certain and material point arising out of
the allegations and contentions of the parties. It may concern
only the existence or non‐existence of certain facts, or it may
concern the legal significance of those facts. If the issues are
merely [factual], they need only deal with the same past
events to be considered identical. However, if they concern
the legal significance of those facts, the legal standards to be
applied must also be identical; different legal standards as
applied to the same set of facts create different issues.
Overseas Motors, Inc. v. Import Motors Ltd., 375 F. Supp. 499, 518 n.66a (D.
Mich.), affʹd, 519 F.2d 119 (6th Cir. 1974), cert. denied, 423 U.S. 987 (1975)
(internal quotation marks omitted).

The hearing officerʹs ultimate conclusions ‐‐ that Matusick had
committed disciplinable misconduct and was incompetent ‐‐ were guided by the
particular legal framework and standards applicable in section 75 proceedings.
See, e.g., Peters v. Cnty. of Rensselaer, 28 A.D.3d 854, 854, 811 N.Y.S.2d 811, 812‐

13 (3d Depʹt 2006) (deciding that under New Yorkʹs Civil Service Law, there was
substantial support for section 75 hearing officerʹs determination that petitioner, a
maintenance worker at a local community college, committed disciplinable

35
misconduct when, during his work shift, he sat in a truck reading a newspaper
and smoking). The section 75 framework differs substantially from the legal
framework for state and federal employment discrimination law applicable to
Matusick’s federal jury trial. The hearing officer’s conclusions about the
significance of Matusick’s misconduct and incompetence for purposes of section
75, therefore, are not preclusive of any findings that the jury could have made in
the course of their deliberations with respect to the reasons for Matusick’s
termination. Cf. Swineford v. Snyder Cnty. Pa., 15 F.3d 1258, 1268 (3d Cir. 1994)
(concluding that administrative determination that plaintiff had not violated
company rules for the purposes of determining whether she was eligible for
unemployment benefits was not preclusive of employerʹs argument that plaintiff
was fired for legitimate reasons and not as retaliation for the exercise of her First
Amendment rights). In particular, the hearing officer’s conclusions did not
preclude the jury from finding that Matusick was terminated in substantial part
because of his relationship with Starks.

The factual findings supporting the hearing officer’s ultimate
conclusion ‐‐ that Matusick had indeed committed the charged conduct, i.e., that
he had failed to respond to calls and slept on duty ‐‐ are of a different nature.

36

These findings precluded Matusick from arguing otherwise at trial. See Klein v.
Perry, 216 F.3d 571, 574 (7th Cir. 2000) (observing that, under Indiana Law, an
issue of fact determined by state agency adjudicator is preclusive of subsequent
factual findings in a civil rights dispute in federal court, even if those findings are
embedded within a different legal claim). Therefore, in the course of deciding –‐
both under state law and for the section 1983 claims –‐ whether the defendants
terminated Matusick for legitimate or illegal reasons, the jury was required to
accept that Matusick had failed to perform ‐‐ satisfactorily, if at all ‐‐ some of his
duties at the ECWA. See, e.g., Burkybile, 411 F.3d at 309‐314 (deciding that, when
applying federal constitutional standards in determining whether a genuine issue
of material fact existed, we accept the fact‐findings of the hearing officer in the
course of our examination of the federal constitutional claim).

Applying these principles to this case, we conclude that the jury was
precluded from finding that Matusick had not actually engaged in the conduct
charged against him in the section 75 hearing. Inasmuch as the district court did
not expressly instruct the jury that its fact‐findings were cabined in this regard,
the jury charge was in error.

37

B. The Admissibility and Persuasiveness of the Section 75 Report and
Recommendation

The defendants also assert two other arguments related to the courtʹs
treatment of the section 75 hearing officerʹs determination.
First, they dispute the courtʹs decision not to instruct the jury that it
could find the fact that the hearing officer issued the report and recommendation
to be evidence that the defendants terminated Matusick for legitimate reasons.13
This argument is rooted in our opinion in Ruiz v. County of Rockland, 609 F.3d
486 (2d Cir. 2010), and our summary order in Testagrose v. New York City
Housing Authority, 369 F. Appʹx 231 (2d Cir. 2010).

In Ruiz, we considered a former state employeeʹs Title VII and Equal
Protection Clause claims against his former employer who had claimed that the
plaintiff was terminated as a consequence of misconduct, not his protected status,
and that this misconduct was found after a section 75 disciplinary hearing. Ruiz,
13 The defendants assert at various points in their briefing that the district
court instructed the jury that the hearing officerʹs report and recommendation
was ʺnot entitled to any weight.ʺ See, e.g., Defs. Reply and Response Br. at 11.
This framing appears to be a mischaracterization of the jury charge. The courtʹs
instruction on the section 75 hearing focused on the fact that the outcome of that
hearing did not force the jury to arrive at any particular decision with regard to
the plaintiffʹs wrongful termination claim, not on the evidentiary weight of the
hearing officerʹs determinations.

38

609 F.3d at 490. We concluded that, together with other evidence, the fact that
the hearing officer had recommended termination supported the defendantsʹ
arguments that the plaintiff was terminated for legitimate reasons rather than
inappropriate discrimination. See id. at 494 (ʺ[F]indings of fact made by a neutral
decision‐maker have ʹprobative weight regarding the requisite causal link
between an employeeʹs termination and the employerʹs illegal motive.ʹʺ (Quoting
Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 115 (2d Cir. 2002))). The crux of the
defendantsʹ argument, then, appears to be that the jury should have been
expressly instructed that the fact that the hearing officer made the determination
was probative of the defendantsʹ assertion that Matusick was terminated for
legitimate reasons.

Second, the defendants dispute the district courtʹs evidentiary
rulings to exclude the actual report and recommendation as documentary
evidence of the hearing officerʹs conclusions.

We need not, however, address either of these arguments. Even if
the district court erred in any of the ways that the defendants allege, as we will
explain, neither these errors nor the decision not to instruct the jury on the

39

potential preclusive effect of the section 75 hearing were materially prejudicial to
the defendants.

C. Harmless Error

Under Federal Rule of Civil Procedure 61, courts are instructed to
ʺdisregard all errors and defects that do not affect any partyʹs substantial rights.ʺ
Fed. R. Civ. P. 61. But ʺ[e]rror cannot be regarded as harmless merely because
the trial judge or the appellate court thinks that the result that has been reached is
correct.ʺ FEDERAL PRACTICE & PROCEDURE § 2883. Instead, the ʺprobable effect of
the errorʺ must be ʺdetermined in light of all evidence.ʺ Id. The ʺsubstantial
rightsʺ language of the Federal Rules has therefore been interpreted to require an
examination into the likely outcome of the proceedings. An error is not harmless
if ʺone cannot say, with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment was not
substantially swayed by the error.ʺ Kotteakos v. United States, 328 U.S. 750, 765
(1946); see also United States v. David, 131 F.3d 55, 61 (2d Cir. 1997) (describing
Kotteakos as ʺconstruing the ʹsubstantial rightsʹ language of 28 U.S.C. § 391 (from
which Rule 61 is derived), as requiring an assessment of ʹwhether the error itself
had substantial influenceʹ on the outcome of the case.ʺ).
40

The court here erred by not instructing the jury on the preclusive
effect of the section 75 hearing officerʹs factual findings. The court may also have
erred by not instructing the jury on the persuasive weight of the report and
recommendation and by excluding that report from evidence. These errors
allowed Matusick to attempt to persuade the jury that he was falsely accused of
misconduct in support of his argument that the ECWAʹs proffered legitimate
reason for firing him was false. We conclude, however, that the error did not
have the probable effect of having ʺsubstantial influence,ʺ David, 131 F.3d at 61,
on the outcome of the trial.

We think it highly unlikely that the jury would have found the
defendantsʹ evidence regarding Matusickʹs alleged misconduct unconvincing.
Matusick did testify about the incidents that served as the impetus for the section
75 hearing, including the water‐line breaks on October 1 and October 20, 2005.
However, he was thoroughly and effectively cross‐examined on these points, and
ECWA witnesses testified about their perception of his misconduct, including
that he was sleeping on the job. Matusick himself had admitted to blocking the
camera ten to twenty times when accepting his suspension without pay, a point
the defense counsel stressed repeatedly to the jury. And Matusick’s counsel
41

argued in his summation that other ECWA employees were not terminated for
similar misconduct ‐‐ in effect conceding that Matusick had engaged in
misconduct.

Importantly, the defendants also submitted evidence regarding the
likely merit of Matusickʹs assertions, all of them consistent with the timing and
content of the hearing officerʹs conclusions. They included business memoranda
from differing incidents recording Matusickʹs misconduct in great detail,
including call logs clearly demonstrating his failure to respond to calls for
assistance, and his receipt of a 60‐day suspension for his misconduct. With
regard to the October 1, 2005, incident, for example, where Matusick had been
charged with not responding to a large water leak for over an hour, and the
October 20, 2005, incident, where Matusick failed to respond to a water leak for
over three hours, the jury had before it work orders, letters from employees who
witnessed the events and the citizens who had made the calls, log book entries, a
newspaper article, interoffice memoranda, insurance letters, and deposition
testimony that all confirmed that Matusick had failed to respond for the periods
alleged on those dates. All of this specific and concrete evidence weighed against
Matusickʹs general denial of the facts. And the jury had before it the notice of

42

Section 75 charges, detailing the precise times of the calls and therefore the
amount of time it took Matusick to respond, and it heard Mendezʹs testimony
that the section 75 report was ʺthe strongest . . . report and recommendation that
Iʹve ever had towards a termination of an employee.ʺ Trial Tr. Aug. 26, at 162.

Finally, in light of the fact that the jury found Mendez, who
ultimately adopted the hearing officer’s recommendation, not to be individually
liable for the wrongful termination claim, it seems unlikely that the jury credited
Matusickʹs testimony that he had not committed misconduct justifying
termination, and it is similarly unlikely that a different jury charge would have
made a difference with respect to the juryʹs other findings. The evidence made
clear what the section 75 hearing officer found: that Matusick had indeed
committed the misconduct alleged.

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.

43

In light of the substantial evidence that Matusick committed the
misconduct found in the section 75 hearing report, we conclude that probable
effect the error was harmless and decline to require the case to be retried.

II. Sufficiency of the Evidence on
Matusickʹs Unlawful Termination Claim

A. Evidence Linking the ECWA, Kuryak,
and Lisinski to the Termination

The defendants also appeal from the district courtʹs denial of their
Rule 50 motions for judgment as a matter of law. They argue that the juryʹs
findings of liability on the unlawful termination claim under New York
Executive Law § 29614 cannot stand against the ECWA or either of the individual
defendants held liable after trial –‐ Kuryak and Lisinski.

The defendants bear a heavy burden to prevail on this argument.
ʺ[A] Rule 50 motion must be denied unless the evidence is such that, without
weighing the credibility of the witnesses or otherwise considering the weight of
the evidence, there can be but one conclusion as to the verdict that reasonable

14 It is the law in our Circuit that ʺan employer may violate Title VII if it
takes action against an employee because of the employeeʹs association with a
person of another race.ʺ Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008).

The same goes for New York Executive Law § 296, claims that, we have
explained, are ʺanalytically identical to claims brought under Title VII.ʺ Torres v.
Pisano, 116 F.3d 625, 629 n.1 (2d Cir. 1997).

44

[persons] could have reached.ʺ Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248
(2d Cir. 2005) (internal quotation marks omitted). ʺ[W]e review the district
courtʹs denial of a Rule 50 motion de novo, [and] we are bound by the same stern
standardsʺ on appeal. Id.

With regard to the ECWA, the defendants first argue that because
the jury found Mendez not liable for unlawful termination it could not have
found the ECWA liable as Matusickʹs employer. In making this argument, the
defendants point to a principle of New York law that an employer is not liable for
the discriminatory acts of its employees unless it ʺapproved of, or acquiesced inʺ
these acts. Totem Taxi, Inc. v. N.Y.S. Human Rights Appeal Bd., 65 N.Y.2d 300,
304, 480 N.E.2d 1075, 1075, 491 N.Y.S.2d 293, 293 (1985). Kuryakʹs and Lisinksiʹs
conduct was too remote from the employerʹs control to be the basis for the
ECWAʹs liability, they argue, and because Mendez was held not individually
liable, the ECWA cannot be held liable based on his conduct either.

Even if the juryʹs finding that Mendez was not liable for unlawful
discrimination was inconsistent with a finding of liability against the ECWA, this
would not necessarily require vacatur. We have long held the view that
ʺ[c]onsistent jury verdicts are not, in themselves, necessary attributes of a valid

45

judgment.ʺ Globus v. Law Research Serv., Inc., 418 F.2d 1276, 1290 n.17 (2d Cir.
1969), cert. denied, 397 U.S. 913 (1970). The question, then, is whether there was
sufficient evidence in the record to support a finding of liability on the part of the
ECWA.

It is true that there is no direct evidence that higher‐ups at the
ECWA actively participated in the harassment of Matusick and terminated him
as a result of his interracial relationship. But the law recognizes that ʺsmoking
gunʺ evidence of discrimination is rarely available; plaintiffs alleging
discrimination are therefore ʺentitled to rely on circumstantial evidence.ʺ
Holcomb v. Iona Coll., 521 F.3d 130, 141 (2d Cir. 2008). We need not reiterate the
disconcerting history of the treatment of Matusick because of his relationship
with Starks to conclude that the record contains substantial evidence to that
effect: Matusick presented evidence of racially motivated harassment and
intimidation at the ECWA that was chronic and pervasive. The jury could have
concluded that racial animus tainted the investigation into Matusickʹs
misconduct and that the ECWA was aware of that fact, or at least that such
animus was a substantial factor in the ECWAʹs decision to follow the section 75
hearing officerʹs recommendation of termination. The ECWA has thus not
carried its heavy burden under Rule 50.

46

There also appears to be some basis for the juryʹs determination that
the ECWA, but not Mendez, was liable for unlawful termination. Under section
296, a person can be found individually liable for violations of the Stateʹs Human
Rights law if either (1) he or she can be said to constitute the employer in his or
her own individual capacity, see Patrowich v. Chem. Bank, 63 N.Y.2d 541, 543,
473 N.E.2d 11, 13, 483 N.Y.S.2d 659, 661 (1984); see also N.Y. Exec. Law §
296(1)(a); or (2) if he or she ʺaid[s], abet[s], incite[s], compel[s] or coerce[s] the
discriminatory conduct,ʺ N.Y. Exec. Law § 296(6).

As a general rule, individuals may be subject to liability as
employers ʺif they have ownership interests in the [employer] or do more than
carry out personnel decisions of others.ʺ Townsend v. Benjamin Enterprises, Inc,
679 F.3d 41, 57 2d Cir. 2012). Although there was substantial evidence that
Mendez was himself responsible for making the decision to terminate Matusick,
it does not necessarily follow that he is subject to personal liability for the acts of
which Matusick complains under the circumstances of this case. By state law,
Matusick was entitled to a section 75 hearing after which an independent hearing
officer would evaluate whether he should be subject to discipline. The jury could
plausibly have determined that Mendezʹs individual role in accepting the hearing
officerʹs recommendations was too passive to warrant individual liability.

47

The defendantsʹ argument that there was insufficient evidence to
establish that other individual defendants ‐‐ Kuryak, who investigated the
disciplinary charges, and Lisinksi, the Coordinator of Employee Relations ‐‐
aided and abetted the improper dismissal also fails. There was evidence in the
record that both defendants knew about the harassment, did nothing to respond
to it, and then participated directly in the investigation and termination. More:
The jury had before it evidence that Lisinski, the employee relations specialist,
had himself taunted Matusick based on Starksʹs race. It was for the jury to
evaluate the credibility of these defendantsʹ testimony and weigh it, along with
the other evidence before it, to determine whether racial animus in part
motivated the decision to terminate. See Kirsch v. Fleet St., Ltd., 148 F.3d 149, 164
(2d Cir. 1998). The juryʹs conclusion as to the responsibility of Kuryak and
Lisinksi as aiders and abettors of the ECWA must stand.

B. Comparators

The defendants further assert that Matusick failed to establish that
he was discriminated against because of his protected status inasmuch as he
could not point to a similarly situated comparator. This argument, too, must be
rejected if the verdict is one that ʺreasonable [persons] could have reached.ʺ
Cross, 417 F.3d at 248. Matusickʹs evidence of comparators, although not

48

overwhelming, is sufficient for a reasonable jury to have ruled in his favor on this
claim.

The defendants argue to the contrary that the comparators Matusick
has identified, ʺother [ECWA] dispatchers, who reported to the same supervisors
under the same standards and engag[ed] in the same conduct,ʺ but were not
terminated, Appelleesʹ Br. at 37, do not provide a sufficient basis for establishing
discriminatory treatment because they are not similar to Matusick in ʺall material
respects.ʺ Ruiz, 609 F.3d at 494 (internal quotation marks omitted). Unlike any
alleged comparators, Matusick admitted to wrongful conduct (blocking the
security camera), and thus agreed to a 60‐day suspension before his section 75
hearing. He was thus the only person terminated during the period at issue who
had engaged in serious misconduct only months earlier. Moreover, the
defendants contend, the closest comparator, Radich, was also terminated for
sleeping on the job, and he was not dating a black woman, suggesting that the
basis for Matusickʹs discipline was his misconduct and not his romantic
relationship.

The plaintiff argues, however, that he pointed to several
comparators who were not terminated despite engaging in similar conduct. It is
true that none of these employees had as extensive a history of behavior

49

potentially subject to legitimate discipline as did Matusick, but it does not follow
that they cannot serve as comparators. In Graham v. Long Island R.R., 230 F.3d
34 (2d Cir. 2000), we reversed a district courtʹs grant of summary judgment to an
employer who terminated the plaintiff allegedly on the basis of his race. Id. at 36.
Although we reiterated the rule that a comparator must be similarly situated in
all material respects, id. at 39, we made it clear that this rule does not require a
precise identicality between comparators and the plaintiff. ʺWhether two
employees are similarly situated ordinarily presents a question of fact for the
jury.ʺ Id. And the case law requires that for such evidence to be probative, and
therefore to support a jury verdict, there must only be ʺan objectively identifiable
basis for comparability.ʺ Id. at 40 (internal quotation marks omitted). We then
concluded that the fact that one comparator (who had been treated differently
from the plaintiff) had committed fewer infractions than had the plaintiff did not
in itself mean that he could not be a comparator. Id. at 42‐43.

The same reasoning applies here. There may not have been anyone
at the ECWA who engaged in exactly the same misconduct as did Matusick, but
this did not preclude the jury from considering the way that other employees
who also engaged in disciplinable on‐the‐job misconduct were treated, combined
with other indications that ECWA employees held racially discriminatory views,

50

to conclude that Matusick was terminated, at least in material part, because of the
race of his romantic partner.
We therefore affirm the district courtʹs denial of the defendantsʹ Rule

50 motions with regard to the plaintiffʹs unlawful termination claims against the

ECWA.

III. Section 1983 Claims against ECWA
and the Individual Defendants

The defendants mount various challenges to the juryʹs finding of
liability on Matusickʹs section 1983 claims. We conclude that because his
constitutional right to intimate association in the context of the First Amendment
was not clearly established at the time of the alleged misconduct, the individual
defendants held liable for these claims were entitled to qualified immunity. We
therefore vacate the judgment against the individual defendants based on the
section 1983 claims, including the award of punitive damages against them.
The ECWA, as a municipal entity, however, is not protected by
qualified immunity. See Owen v. City of Independence, Mo., 445 U.S. 622, 650
(1980). And we conclude that, in light of the severity, pervasiveness, and
notoriety of the conduct of the individual defendants, as established at trial, the
juryʹs finding of liability against the ECWA is supported by the evidence.

51

A. Qualified Immunity

1. Background Principles. Section 1983 provides persons with a
private cause of action against those acting ʺunder color of state lawʺ to recover
money damages for the deprivation of ʺany rights, privileges, or immunities
secured by the Constitution.ʺ 42 U.S.C. § 1983. ʺBut to ensure that fear of liability
will not unduly inhibit officials in the discharge of their duties, the officials may
claim qualified immunity[.]ʺ Camreta v. Greene, 131 S. Ct. 2020, 2030 (2011)
(internal quotation marks omitted). ʺQualified immunity balances two important
interests ‐‐ the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.ʺ Pearson v. Callahan, 555
U.S. 223, 231 (2009).

Toward this end, in evaluating a qualified immunity defense, courts
must examine two factors: (1) whether the plaintiff has made out a violation of a
constitutional right; and (2) whether that right was ʺclearly establishedʺ at the
time of the defendantʹs alleged misconduct. Id. at 232.15

15 This Court has at times placed a further gloss on these principles, stating
that ʺ[e]ven where the law is ʹclearly establishedʹ and the scope of an officialʹs
permissible conduct is ʹclearly defined,ʹ the qualified immunity defense also
protects an official if it was ʹobjectively reasonableʹ for him at the time of the
challenged action to believe his acts were lawful.ʺ Taravella v. Town of Wolcott,

52

Were we concerned solely with the individual defendants, our
conclusion that they are protected by qualified immunity because Matusickʹs
right to be free from interference with his intimate association with Starks was
not clearly established at the time they acted, would require us to make the often
difficult choice as to which component of the qualified immunity inquiry to
address first. See Pearson, 555 U.S. at 236 (ʺpermitt[ing us] to exercise [our]
sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular
case at handʺ). In this case, however, inasmuch as the ECWA would not be
entitled to qualified immunity for any constitutional violation under Monell, 436
U.S. at 690‐91, see Owen, 445 U.S. at 650, we must in any event decide the nature
599 F.3d 129, 134 (2d Cir. 2010) (some internal quotation marks omitted); accord
Southerland v. City of N.Y., 680 F.3d 127, 141‐42 (2012), cert. denied, 133 S. Ct.
980 (2013). This interpretation is not without controversy, see, e.g., Walczyk v.
Rio, 496 F.3d 139, 165‐66 (2d Cir. 2007) (Sotomayor, J., concurring) (describing the
gloss as a ʺdoctrinal misstatement[]ʺ and stating that ʺwhether a right is clearly
established is the same question as whether a reasonable officer would have
known that the conduct in question was unlawfulʺ (emphasis in original)).

We need, not, however, address the question of whether it would have
been objectively reasonable for the individual defendants here to believe that
their conduct was lawful even if the constitutional right asserted by Matusick
were clearly established ‐‐ the defendants have never argued this basis for
qualified immunity. And in any event, we conclude that the right at issue was
not clearly established for the purposes of this defense.

53

and extent of the plaintiffʹs constitutional right of intimate association to
determine the ECWAʹs liability. We therefore begin by considering the merits of
Matusickʹs constitutional claims.

2. Merits. The district court instructed the jury that in order for it to
conclude that any of the individual defendants were liable to the plaintiff under
section 1983, the jury was required to find that ʺthose acts that [the jury] ha[s]
found that the defendant took under color of state law caused the plaintiff to
suffer the loss of a federal right.ʺ Trial Tr. Aug. 31, at 111. The right at issue in
this case, according to the district court, was ʺthe plaintiffʹs right to enter into
intimate relations with another person.ʺ Id. The court instructed the jury that
Matusickʹs relationship with ʺhis then‐girlfriend Anita Starksʺ was a
constitutionally protected intimate relationship, id. at 112; and further, that ʺ[t]he
loss of the right to associate does not have to mean literally that the relationship
ended or it was impaired. This right can be violated if someone is penalized for
those ‐‐ for who the other person is in a relationship.ʺ Id. at 112.

The questions we must address at this stage of our qualified
immunity analysis are (1) whether the relationship between Matusick and Starks
was protected by the constitutional right to intimate association; and (2) whether
the conduct alleged by Matusick and later found by the jury to ʺpenalize[]ʺ

54

Matusick for this relationship was a sufficient infringement of the right to this
intimate association that Matusickʹs constitutional right was violated.16
These questions are not easily disentangled. As we have observed, a
ʺcategorical approach is inappropriate for dealing with association‐rights cases.

It fails to account for the ʹbroad range of human relationships that may make
greater or lesser claims to constitutional protection from particular incursions by
the State.ʹʺ Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y.,
502 F.3d 136, 144 (2d Cir. 2007) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 620
(1984)). Instead, ʺthe question is: Upon a balancing of all pertinent factors, do
the stateʹs interests, and its means of achieving them, justify the stateʹs intrusion
on the particular associational freedom?ʺ Id.

We separate the questions here in order to clarify the level of
constitutional protection afforded relationships like Matusickʹs. We conclude
that, whatever the treatment we would be required to give other intimate

16 Although we highlight the district courtʹs jury instructions as an
articulation of the district courtʹs understanding of the law governing Matusickʹs
claims, the courtʹs denial of qualified immunity, insofar as it does not involve the
resolution of a dispute of fact, is ʺa question of law better left for the court to
decide.ʺ Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (internal quotation
marks omitted). We therefore review the district courtʹs denial of qualified
immunity de novo. See Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007) (ʺWe review
a denial of qualified immunity de novo.ʺ); Anderson v. Recore, 446 F.3d 324, 328
(2d Cir. 2006) (same).

55

romantic relationships, 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.

a. Right to Intimate Association.

The right to intimate association was first recognized by the
Supreme Court in Roberts v. United States Jaycees, 468 U.S. 609 (1984), a case
brought by a civic organization challenging a Minnesota statute prohibiting the
group from excluding women. Id. at 615‐17. The Court addressed the claim
under the ʺconstitutionally protected ʹfreedom of association,ʹʺ which exists in
ʺtwo distinct senses,ʺ id. at 617: first, the choice to ʺenter into and maintain
certain intimate human relationships [without] undue intrusion by the State,ʺ
and, second, the right to associate with others ʺfor the purpose of engaging
in those activities protected by the First Amendment ‐‐ speech, assembly, petition
for the redress of grievances, and the exercise of religion,ʺ id. at 617‐18. It is the

56

first of these rights ‐‐ the right to intimate association, as opposed to expressive
association ‐‐ that is the subject of the section 1983 claims here.17

In Roberts, the Court began by explaining that the right to intimate
association is undergirded by at least two constitutional interests, each related to
the protection of individual liberty against state intrusion. First, there is a social
interest in preserving such protection: ʺ[C]ertain kinds of personal bonds have
played a critical role in the culture and traditions of the Nation by cultivating and
transmitting shared ideals and beliefs,ʺ a process essential to the maintenance of
17 Although it is clear that the Constitution protects a right to form
intimate associations with other individuals or small groups, the origin of this
right is the subject of considerable controversy. See Adler, 185 F.3d at 42 (ʺThe
source of the intimate association right has not been authoritatively
determined.ʺ). Some case law suggests that the right is included within the
personal liberty protected by the Due Process Clause. See id. (citing cases); IDK,
Inc. v. Cnty. of Clark, 836 F.2d 1185, 1192 (9th Cir. 1988) (ʺ[T]he Supreme Court
has most often identified the source of the protection as the due process clause of
the fourteenth amendment, not the first amendmentʹs freedom to assemble.ʺ).

Other cases place it under the ambit of the First Amendment. See, e.g., Starling v.
Bd. of Cnty. Commʹrs, 602 F.3d 1257, 1260 (11th Cir. 2010) (describing the ʺFirst
Amendment right to intimate associationʺ). Or it may best be understood as
falling within the ʺborderlands of the First Amendmentʺ but undergirded by
other constitutional doctrines, including equal protection and substantive due
process. See Kenneth L. Karst, The Freedom of Intimate Association, 89 YALE L.J.
624, 655 (1980).

Ultimately, though, the precise constitutional origins of this right are not,
in themselves, critical to our analysis, except to the extent that understanding the
constitutional values at stake in these cases –‐ liberty, privacy, expression, and
equality –‐ helps guide our analysis of how far this right extends.

57

a pluralistic democracy, as these values ʺfoster diversity and act as critical buffers
between the individual and the power of the State.ʺ Id. at 619. Second, the right
to intimate association protects individual interests central to the freedom of
expression by ʺsafeguard[ing] the ability independently to define oneʹs identity
that is central to any concept of liberty.ʺ Id. at 618‐19.

The Court then offered this guidance as to the types of relationships
thought to implicate these constitutional interests:

The personal affiliations that exemplify these
considerations, and that therefore suggest some relevant
limitations on the relationships that might be entitled to
this sort of constitutional protection, are those that
attend the creation and sustenance of a family ‐‐
marriage, childbirth, the raising and education of
children, and cohabitation with oneʹs relatives.

Id. (citations omitted).

Finally, the Court recognized that the diversity of human
relationships necessitated a sliding‐scale analysis rather than a bright‐line test:
ʺWe need not mark the potentially significant points on this terrain with any
precision. We note only that factors that may be relevant include size, purpose,
policies, selectivity, congeniality, and other characteristics [of an associative
relationship] that in a particular case may be pertinent.ʺ Id. at 620.

58

The Roberts Courtʹs reference to traditional familial relationships,
most notably marriage, has led some courts to conclude that the right does not
extend to romantic relationships beyond marriage. See, e.g., Poirier v. Mass.
Depʹt of Corr., 558 F.3d 92, 96 (1st Cir. 2009) (ʺThe unmarried cohabitation of
adults does not fall under any of the Supreme Courtʹs bright‐line categories for
fundamental rights in this area.ʺ (citing Roberts, 468 U.S. at 619)); see also
Cameron v. Seitz, 38 F.3d 264, 274‐76 (6th Cir. 1994).

We think this to be an unduly narrow reading of Roberts. The Court
did not suggest that constitutional protections applied only to the relationships it
enumerated. Rather than setting forth an exclusive and definitive list, the Court
instead spoke to relationships that ʺinvolve deep attachments and commitments
to the necessarily few other individuals with whom one shares not only a special
community of thoughts, experience, and beliefs but also distinctively personal
aspects of oneʹs life.ʺ 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 other protected forms of intimate association. We

59

therefore conclude that Matusickʹs betrothal to Starks fulfilled the standards set
out in Roberts and is entitled to protections similar to those that marital
relationships enjoy under the right to intimate association.18

There is no question here but that the relationship between Starks
and Matusick was a bona fide betrothal: They were involved in a long‐term
romantic relationship, held themselves out as engaged and were recognized as
such, maintained together a relationship with Starksʹ children, and shared
significant features of their private life together in anticipation of marriage. It
may be worth noting that they did indeed marry. But that fact cannot, of course,
be part of the test and we do not rely on it for that purpose because, had their
relationship been otherwise identical but failed for some reason to ripen into

18 Although the Roberts Court indeed took pains not to ʺmark the
potentially significant points on th[e] terrain [of the right] with any precision,ʺ
468 U.S. at 620, the Supreme Court addressed the question more directly in
Rotary Club v. Duarte, 481 U.S. 537 (1987), observing that it had never held that
ʺconstitutional protection is restricted to relationships among family members.ʺ

Id. at 545.

Of course, not all romantic relationships presuppose such deep
attachments. The Supreme Court has made the relevant, if rather uncontroversial,
point that ʺʹpersonal bondsʹ that are formed from the use of a motel room for
fewer than 10 hours are not those that have ʹplayed a critical role in the culture
and traditions of the Nation by cultivating and transmitting shared ideals and
beliefs.ʹʺ FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 237 (1990) (quoting Roberts,
468 U.S. at 618‐19).

60

marriage, it would nonetheless have been the same relationship we conclude was
deserving of constitutional protection at the time of the defendantsʹ interference
with it. Their relationship at the time of the events at issue here was thus an
integral part of their eventual choice to enter into the formal, legal bonds of
marriage ‐‐ it was marked by the same characteristics of deep attachment,
commitment, and self‐identification that Roberts and its progeny have viewed as
characteristic of constitutionally protected intimate association. We reach this
conclusion not, as the dissent suggests, by drawing ʺdescriptive analogies,ʺ but
by applying the standard set out by the Supreme Court in Roberts to the facts of
this case as best we can, and deciding that the right of intimate association it
describes extends to the particular relationship at hand.

b. Whether the Defendantsʹ Conduct Here Violated
Matusickʹs Right to Intimate Association

Having concluded that Matusick possessed a constitutional right
protecting his intimate association with Starks, the next question is whether that
right was violated.

First, we note that this is an association which most ECWA witnesses
testified to being aware of. Even had they not, the evidence is clear that the
ECWA defendants knew of the nature of Matusick and Starksʹ relationship:

61

Starks drove Matusick to work, and Matusick introduced her as his girlfriend at
work‐related gatherings. But more striking: We cannot interpret the language of
ECWA defendants when they called Matusick a ʺnigger loverʺ or told him that
his ʺbitch is [a] [nigger]ʺ as demonstrating anything other than a knowledge of
and disdain for the nature of Matusick and Starksʹ relationship.

The question then is whether this right was violated. The Roberts
Court provided little guidance as to how to determine whether the right of
intimate association has been infringed upon beyond noting that courts must
engage in a ʺcareful assessment of where that relationshipʹs objective
characteristics locate it on a spectrum from the most intimate to the most
attenuated of personal attachments.ʺ Id. at 620.

Some courts have examined whether the relationship at issue calls
for strict or intermediate scrutiny or rational basis review. See, e.g., Poirier, 558
F.3d at 96. In the public employer context, others have applied the balancing test
set out by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563,
566‐68 (1968), in order to weigh the relative interests of the plaintiff in preserving
an intimate relationship and the interests of the state in ʺpromoting the efficiency
of the public services it performs through its employees.ʺ Id. at 568; see, e.g.,

62

Shahar v. Bowers, 114 F.3d 1097, 1103 (11th Cir. 1997) (en banc), cert. denied, 522
U.S. 1049 (1998).

We do not think it necessary to choose among those standards to
resolve the issues in this case. The ECWA had no legitimate interest in
interfering with Matusickʹs espousal relationship with Starks or terminating him
on account of this relationship ‐‐ in other words, there is nothing to be placed in
the balance against Matusickʹs exercise of his right of intimate association. To
interfere with Matusickʹs constitutional right ʺon so unsupportable a basis as
rac[e is] so directly subversive ofʺ the constitutional interests at stake, Zablocki v.
Redhail, 434 U.S. 374, 398 (1978) (Powell, J., concurring in the judgment), that it
cannot, under any circumstance we can conceive of, be accepted. Cf. Loving v.
Virgina, 388 U.S. 1, 11 (1967) (striking down state law prohibiting inter‐racial
marriage under the Equal Protection Clause of the Fourteenth Amendment,
remarking that ʺ[t]here is patently no legitimate overriding purpose independent
of invidious racial discrimination which justifies this classification.ʺ).

c. Matusickʹs Failure to Bring a
Racial Discrimination Claim

Finally, we note a somewhat perplexing aspect of the manner in
which Matusick pursued his claims. He might well have attempted to bring and

63

state them in terms of racial discrimination rather than the right to intimate
association; indeed, if the case had been so brought and charged to the jury, our
disposition of the constitutionality of the matter would not likely have required
us to interpret the reach of the Roberts opinion, and probably would have
removed the individual defendantsʹ qualified immunity shield. The right to be
free from race discrimination on the basis of oneʹs racial affiliation –‐ intimate or
otherwise ‐‐ is, and has long been, clearly established. See, e.g., Bob Jones Univ.
v. United States, 461 U.S. 574, 605 (1983) (detailing how decisions of the Supreme
Court ʺfirmly establish that discrimination on the basis of racial affiliation and
association is a form of racial discriminationʺ prohibited by the Fourteenth
Amendment). Matusick, however, chose not to tread this path. That choice,
made for whatever reason, is not relevant to our analysis of Matusickʹs
constitutional right to intimate association, upon which he did base his claims.

3. Clearly Established.

We must decide at this juncture, see Pearson, 555 U.S. at 231,
whether it was clearly established at the time the defendants took the actions that
are the subject of this suit that a betrothal relationship of the kind Matusick
shared with Starks was protected by the First Amendment right to intimate

64

association. We conclude that it was not, and that, therefore, the individual
defendants are immune from liability here.

In order for a constitutional right to be clearly established, ʺ[t]he
contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.ʺ Anderson v. Creighton, 483
U.S. 635, 640 (1987). This does not mean that there must be a factual equivalency
between the case at issue and prior cases. The ʺsalient questionʺ instead is
whether the case law at the time in question would have put reasonable officers
on ʺfair warningʺ that their conduct violated the plaintiffʹs rights. Hope v. Pelzer,
536 U.S. 730, 741 (2002).

In performing this analysis we consider, ʺ(1) whether the right in
question was defined with ʹreasonable specificityʹ; (2) whether the decisional law
of the Supreme Court and the applicable circuit court support the existence of the
right in question; and (3) whether under preexisting law a reasonable defendant
official would have understood that his or her acts were unlawful.ʺ Ying Jing
Gan v. City of N.Y., 996 F.2d 522, 532 (2d Cir. 1993) (internal quotation marks
omitted).

Here, in determining that the plaintiffʹs right to intimate association
with a person to whom he was engaged to be married was clearly established, the

65

magistrate judgeʹs report and recommendation, later adopted by the district
court, cited a 2007 decision of the United States District Court for the District of
North Dakota, Steinbach v. Branson, No. 05‐cv‐101, 2007 WL 2985571, 2007 U.S.
Dist. LEXIS 75156 (D.N.D. Oct. 9, 2007), and a non‐precedential 2004 summary
order of the Ninth Circuit, which stated simply that ʺthe First Amendment right
of association extends to individuals involved in an intimate relationship, such as
fiancés,ʺ Wittman v. Saenz, 108 F. Appʹx 548, 550 (9th Cir. 2004).

That authority is insufficient to render that rule ʺclearly establishedʺ
for present purposes. To be sure, there is authority to the effect that a
constitutional right may be sufficiently well established even if there is no
Supreme Court ruling or ruling on the relevant circuitʹs part on point. See, e.g.,
Varrone v. Bilotti, 123 F.3d 75, 78‐79 (2d Cir. 1997) But the law must nonetheless
be well enough settled ‐‐ capable of making a reasonable person aware of
whether an act violates a constitutional right ‐‐ so that in fairness and pursuant to
the purpose of qualified immunity to protect public officials acting in good faith,
the defendant can be held to account for a violation. We have thus held, at the
other end of the spectrum from the present case, that where the law was
established in three other circuits and the decisions of our own Court
foreshadowed the right, for example, that the law was sufficiently ʺwell

66

establishedʺ that its violation stripped the defendant of his immunity. Id. None
of our cases suggest, however, that an out‐of‐circuit district court precedent and a
fleeting and non‐precedential reference from another circuit court is enough to
render a right clearly established. Indeed, we have specifically cautioned against
the reliance on non‐precedential summary orders in ʺclearly establishedʺ
analyses. See Jackler v. Byrne, 658 F.3d 225, 244 (2d Cir. 2011), cert. denied, 132 S.
Ct. 1634 (2012). ʺNon‐precedentialʺ decisions, by their very definition, do not
make law.

This result is supported here by our frequent observations about the
ambiguity of the right to intimate association. As already noted, we have said
that the nature and the extent of the right are ʺhardly clear,ʺ Adler, 185 F.3d at 42,
and, as we have noted, ʺ[t]he source of the intimate association right has not been
authoritatively determined.ʺ Id. This, combined with the Supreme Courtʹs
specific reference to marriage as the kind of relationship afforded this sort of
constitutional protection in Roberts, suggests that there were not court decisions
that sufficiently foreshadowed to a reasonable officer in 2004‐2005 that the right
to intimate association would extend to the relationship between Matusick and
Starks, as we conclude it does here. While not determinative, having spent as
much time and effort in deciding whether or not the defendants behavior

67

violated Matusickʹs First Amendment right to intimate association under Roberts,
we would be hard put to hold the defendants to the knowledge of what our
answer would be.

We conclude that the individual defendants held liable on the
section 1983 claims are immune from these claims, and the $5,000 award in
punitive damages against each of them is vacated.19

B. Monell Liability

The conclusion that the individual defendants are immune with
respect to this claim does not dispose of all of the section 1983 claims made in this
case. The defendants assert that the finding of liability on the section 1983 claim
19 We are mindful that the right at issue was clearly established under state
law and likely also under federal statutory law. See supra note 14. This does not,
however, result in the defendants being subject to damages for the plaintiffʹs
constitutional claims. The Supreme Court has observed that, though officials
should ʺconform their conduct to applicable statutes and regulations,ʺ qualified
immunity is cabined to constitutional violations. Davis v. Scherer, 468 U.S. 183,
194‐95 (1984) (acknowledging ʺthat officials should conform their conduct to
applicable statutes and regulations,ʺ but declining to hold ʺthat the violation of
such provisions is a circumstance relevant to the officialʹs claim of qualified
immunity.ʺ); see also Williams v. Depʹt of Veteran Affairs, 879 F. Supp. 578, 584
(E.D. Va. 1995) (ʺWhen examining a qualified immunity defense to an action
brought under the Constitution, the question is not whether reasonable
government actors would know that the alleged behavior was wrong, unethical,
or illegal under state or federal statutes and rules, but whether they would
believe it to be unconstitutional.ʺ (emphasis in original)), revʹd on other grounds,
104 F.3d 670 (4th Cir. 1997), cert. denied, 526 U.S. 1150 (1999) .

68

against the ECWA, resulting in the award of punitive damages against that
defendant, was not supported by the evidence. The ECWA, as a municipal
entity, does not enjoy absolute or qualified immunity from section 1983 suits.
Owen, 445 U.S. at 650. And we therefore must review the juryʹs award to
determine whether it should be set aside because it is not supported by sufficient
evidence such that a reasonable jury could return the verdict here.

This task is complicated by the principle that a municipality cannot
be held liable for the conduct of employees under a respondeat superior theory,
i.e., simply by dint of the employer‐employee relationship between the ECWA
and the employee defendants found liable by the jury. See Monell, 436 U.S. at
691. A municipality is liable under section 1983 only if the deprivation of the
plaintiffʹs rights under federal law is caused by a governmental custom, policy, or
usage of the municipality. Id.; see also Connick v. Thompson, 131 S. Ct. 1350,
1359 (2011).

We recently concluded that, while ʺisolated acts . . . by nonpolicymaking
municipal employees are generally not sufficient to demonstrate a
municipal custom, policy, or usage that would justify liability,ʺ they can be the
basis of liability if ʺthey were done pursuant to municipal policy, or were
sufficiently widespread and persistent to support a finding that they constituted

69

a custom, policy, or usageʺ of which supervisors must have been aware. Jones v.
Town of E. Haven, 691 F.3d 72, 81 (2d Cir. 2012). The question is therefore
whether there is evidence that ʺa policymaking official ordered or ratified the
employeeʹs actions ‐‐ either expressly or tacitly.ʺ Id.

A custom or policy of harassment and other discriminatory acts
giving rise to hostile work environment claims can form the basis of section 1983
claims. See, e.g., Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004)
(discussing section 1983 liability for harassment and other forms of
discriminatory acts, ʺincluding those giving rise to a hostile work environmentʺ);
Gierlinger v. N. Y. State Police, 15 F.3d 32, 34 (2d Cir. 1994) (ʺSection 1983
liability can be imposed upon individual employers, or responsible supervisors,
for failing properly to investigate and address allegations of sexual harassment
when through this failure, the conduct becomes an accepted custom or practice of
the employer.ʺ).

Like the district court, we conclude that there were sufficient facts in
the record such that a reasonable fact‐finder could conclude, as the jury in fact
did, that the verbal and physical harassment of Matusick on the basis of his
intimate association with Starks rose to the level of a custom, policy, or practice at
the ECWA.

70

First, the acts of discrimination and harassment alleged by Matusick
were frequent and severe. Although Matusick hesitated before alerting his
supervisors, ultimately many human resources personnel, including the director
of human resources, were aware of his complaints well before he was terminated.
They failed to act.

According to testimony that the jury was entitled to accept, Lisinski,
ECWA Coordinator of Employee Relations, raised Matusickʹs complaints directly
with Matusick during an interview concerning Matusickʹs covering the
surveillance cameras in the dispatch office. Matusick also discussed the
harassment prior to that occasion with other superiors. There was evidence that
Karla Lewis, the ECWAʹs director of human resources, who reported to Mendez,
knew of but chose not to investigate the harassment. The jury could reasonably
have found that the ECWAʹs inaction in the face of known and pervasive
harassment reflected an unconstitutionally discriminatory custom or practice.
See Jones, 691 F.3d at 81; Patterson, 375 F.3d at 226 (municipal liability may be
established by showing of conduct ʺso manifest as to imply the constructive
acquiescence of senior policy‐making officialsʺ).

And a reasonable jury properly could have found a sufficient basis
for Monell liability in Mendezʹs lack of response to the pervasive harassment.

71

First, the jury could have believed Matusick and Starks that Mendez knew of
their intimate association because he had met them together. Second, based on
the pervasiveness of the harassment and the lack of response, the jury could
reasonably have found that Mendezʹs inaction and acquiescence to the
harassment that Matusick suffered allowed the harassment to become the custom
and practice, if not the policy, of the ECWA. See Turpin v. Mailet, 619 F.2d 196,
200 (2d Cir.), cert. denied, 449 U.S. 1016 (1980) (ʺIndeed, by holding that a
municipality can be held liable for its ʹcustomʹ Monell recognized that less than
formal municipal conduct can in some instances give rise to municipal liability
under section 1983. To require that senior officials must have formally adopted
or promulgated a policy before their conduct may be treated as ʹofficialʹ would
for present purposes render Monell a nullity, exalting form over substance.ʺ).

Indeed, Karla Lewisʹs high‐level position ‐‐ she reported directly to Mendez ‐‐
and her failure to address the harassment supports an inference that Mendez also
knew of the harassment and allowed for the conduct to become the accepted
custom or practice of the ECWA. In addition, the continuation of the harassment
in several forms over time certainly supports the reasonableness of the
conclusion that Mendezʹs ʺfail[ure] properly to investigate and address

72

allegationsʺ of harassment allowed for ʺthe conduct [to] become[] an accepted
custom or practice of the employer.ʺ Gierlinger, 15 F.3d at 34.

We therefore affirm the juryʹs award of liability on Matusickʹs
section 1983 claims against the ECWA, and, for the reasons discussed below, we
leave undisturbed the award of $5,000 in punitive damages against the agency.

C. Punitive Damages

The Supreme Court has erected three guideposts for determining
whether punitive damages are proper in section 1983 cases: ʺ(1) the degree of
reprehensibility of the . . . conduct, (2) the ratio of punitive damages to
compensatory damages, and (3) the difference between this remedy and the civil
penalties authorized or imposed in comparable cases.ʺ Mathie v. Fries, 121 F.3d
808, 816 (2d Cir. 1997) (internal quotation marks omitted). The district court
decided that

a reasonable jury could have decided based on the
evidence that defendants were liable under Section 1983
for intentional racial harassment designed to punish
plaintiff for his interracial relationship. The evidence
included usage of any number of racial slurs over a
prolonged period of time, intentional decisions to ignore
plaintiffʹs complaints about harassment, and intentional
decisions to commence proceedings to hasten plaintiffʹs
termination and thus to eliminate his supposedly
disruptive influence on the work environment. In the
face of this evidence, the jury assessed each individual

73

defendant only $5,000 in punitive damages. The
aggregate punitive damages award was only a fraction
of the backpay award that plaintiff received. Under
these circumstances, the juryʹs decision to award
punitive damages was reasonable, as was the amount
awarded.

Matusick, 774 F. Supp. 2d at 526‐27. We agree.

D. Award of Attorneyʹs Fees

The district court awarded attorneyʹs fees on the basis of the
prevailing‐party statute, 42 U.S.C. § 1988(b). After approving the applicable rates
for Matusickʹs attorneys and staff, the court made an across‐the‐board 50 percent
reduction based on a perceived lack of detail in the billing records. This
reduction is the only issue raised in the plaintiffʹs cross‐appeal.

Under prevailing‐party statutes such as section 1988, there is a
presumption that the lodestar figure represents a reasonable fee, and ʺif the court
. . . reduces that figure it must state its reasons for doing so as specifically as
possible.ʺ LeBlanc‐Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998) (internal
quotation marks and alterations omitted). ʺApplications for fee awards should
generally be documented by contemporaneously created time records that
specify for each attorney, the date, the hours expended, and the nature of the
work done.ʺ Kirsch, 148 F.3d at 173. The district court stated its reasons for the

74

reduction: It decided not to award the lodestar amount because of concerns
regarding ʺunspecified conferences, telephone calls, email correspondence, and
reviews.ʺ Matusick, 774 F. Supp. 2d at 532.

ʺWe afford a district court considerable discretion in determining
what constitutes reasonable attorneyʹs fees in a given case, mindful of the courtʹs
ʹsuperior understanding of the litigation and the desirability of avoiding frequent
appellate review of what essentially are factual matters.ʹʺ Barfield v. N.Y.C.
Health & Hosps. Corp., 537 F.3d 132, 151 (2d Cir. 2008) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983)). A fee award will not be disturbed absent an
abuse of discretion. See Crescent Publʹg Grp., Inc. v. Playboy Enters., Inc., 246
F.3d 142, 146 (2d Cir. 2001).

We find no abuse of discretion here. The district court provided a
reasoned and thorough explanation for its decision to reduce the proposed
lodestar amount. Indeed, the defendants raised questions about the plaintiffʹs
attorneyʹs billing records, and the district court provided the plaintiff with an
opportunity to supplement his fee request. Counsel nevertheless failed to submit
additional documentation to justify the award. The district courtʹs fee award is
therefore affirmed.

75

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district
court with respect to the state law claims and its award of backpay to the
plaintiff. We also affirm the judgment as to the plaintiffʹs section 1983 claim
against the ECWA and the concomitant award of punitive damages against the
ECWA. We reverse the judgment imposing liability against the individual
defendants on the plaintiffʹs section 1983 claims against them, and therefore also
reverse the judgment insofar as it awarded punitive damages against the
individual defendants. On cross appeal, the district courtʹs attorneyʹs fee award
is also affirmed.

Costs of the plaintiff on appeal to be paid by the ECWA.

76

1 LOHIER, Circuit Judge, concurring:

2 I agree with the majority opinion, including its fact‐specific determination
3 that the engagement relationship between Scott Matusick and his fiancée, Anita
4 Starks, is the type of intimate association protected by the First Amendment. I
5 write separately to emphasize that Matusick’s arguments at trial focused on the
6 defendants’ efforts to interfere with that relationship and to make clear that the
7 engagement relationship is entitled to constitutional protection because it has
8 played a “critical role in the culture and traditions of the Nation” since the
9 founding. Roberts v. U.S. Jaycees, 468 U.S. 609, 618‐19 (1984).

10 As an initial matter, the dissent acknowledges that Matusick and Starks’s
11 “choice of each other as marital partners” may be protected by the intimate
12 association right, Dissenting Op., post, at 14 (emphasis omitted), but states that
13 Matusick did not present his case “on the theory that betrothal was the specific
14 protected relationship violated,” id., post, at 16. First, I discern no constitutional
15 difference between undermining a person’s choice of marital partner and
16 interfering with a betrothal relationship. Second, I disagree with the dissent’s
17 characterization of Matusick’s position at trial. The heart of Matusick’s argument
18 was that defendants tried to interfere with his engagement relationship.

19 Throughout their jury addresses, Matusick’s attorneys stressed that “Matusick’s
termination was 1 a form of discrimination because of his relationship with his
2 wife who was at that time his fiancee,” Joint App’x at 1894, and that “Matusick
3 was a victim of discrimination because he was dating and then became engaged
4 to an African American woman,” Joint App’x at 2905. At trial, moreover, Starks
5 testified that Matusick “acknowledged me as his fiancee” at work and introduced
6 her as his fiancée to his supervisor, Robert Mendez. Joint App’x at 1906‐07; see
7 Joint App’x at 2101 (Matusick confirming that he told coworkers that he was
8 engaged and introduced Stark to some coworkers). The couple described to the
9 jury how they fell in love and became engaged.

10 Although the Court in Roberts did not list engagement relationships in its
11 non‐exclusive roster of “highly personal relationships” that “might be entitled to
12 . . . constitutional protection,” 468 U.S. at 618‐19, such relationships surely
13 qualify. There is virtually no doubt that the engagement relationship between
14 Matusick and Starks is one that the Framers would have recognized (setting
15 aside, of course, the issue of miscegenation). Indeed, engagement as a social
16 practice and a legally recognized relationship status predates the founding. In
17 colonial times, the English law of “spousals” recognized “spousals de futuro” –
18 in essence, betrothals – as a well‐established form of contract that could be simple

2

or conditional, public 1 or private, and binding upon children and adults alike. See
2 Wightman v. Coates, 15 Mass. 1, 6 n.a (1818) (reviewing the enforceability of
3 marriage promises under the laws of various European nations). See generally
4 Henry Swinburne, A Treatise of Spousals, or Matrimonial Contracts (1686);
5 Chester Francis Wrzaszczak, The Betrothal Contract in the Code of Canon Law
6 (Canon 1017) 183‐86 (1954). While spousals de futuro were the custom in early
7 colonial New England, see Chilton L. Powell, Marriage in Early New England, 1
8 New Eng. Q. 323, 327 (1928), the modern social form of engagement replaced
9 formal betrothal customs “after a few years of life in the New World,” Alice
10 Morse Earle, Old‐Time Marriage Customs in New England, 6 J. Am. Folklore 97,
11 101 (1893).

12 By the later 1700s American middle‐class social practice with respect to
13 marriage involved “courting”— sustained social interaction between the sexes in
14 parents’ parlours, community gatherings, group or couples’ outings, and through
15 written correspondence. See, e.g., Ellen K. Rothman, Hands and Hearts: A
16 History of Courtship in America 22‐26 (1984); see also Anya Jabour, Marriage in
17 the Early Republic 13‐14 (1998). The key transition from courting to engagement
18 involved the exchange of promises between the engaged. See, e.g., Rothman,

3

Hands and Hearts, 1 at 33‐35. Couples would date their engagements from the
2 moment of that exchange, and they treated the mutual promises as momentous.
3 See, e.g., Jabour, Marriage in the Early Republic, at 18. Engagements could last
4 for an extended period of time. See Rothman, Hands and Hearts, at 57‐75. Social
5 acknowledgment of an engagement varied, but a private announcement to family
6 was common, and the promise itself was nearly universal. Engaged and married
7 couples today will recognize many, if not all, of these attributes.

8 Engagement promises carried legal and economic as well as social
9 significance. American courts recognized the important status of engagement
10 and during the eighteenth century began to develop a civil cause of action for
11 breach of promise. These actions permitted a woman whose engagement
12 promise was breached to recover from a (former) fiancé and were available in
13 almost all of the States into the twentieth century. See Rebecca Tushnet, Rules of
14 Engagement, 107 Yale L.J. 2583, 2586‐88 (1998); Robert C. Brown, Breach of
15 Promise Suits, 77 U. Pa. L. Rev. 474, 474‐75 (1929). Early American courts did not
16 require formal indicia of engagement, holding instead that “young persons[’] . . .
17 mutual engagements [could be] inferred from a course of devoted attention and
18 apparently exclusive attachment, which is now the common evidence.”
19 Wightman, 15 Mass. at 5.

4

For these 1 reasons I think there is no question that the engagement
2 relationship in general and in this case is a “highly personal relationship” entitled
3 to constitutional protection.

5

REENA RAGGI, Circuit Judge, concurring in part in the judgment and dissenting in part:
On this appeal, we consider a judgment in favor of plaintiff Scott Matusick on
state law claims of race discrimination and retaliation, as well as a federal claim of
infringement of the right of intimate association, all arising out of Matusick’s
employment with the Erie County Water Authority (“ECWA”). On plaintiff’s state
law claims, the judgment (1) holds ECWA, as well as defendants Bluman, Kuryak,
and Lisinski liable for a racially hostile work environment, but awards no
compensatory damages; and (2) holds ECWA, Kuryak, and Lisinski liable for
racially discriminatory termination, and awards $304,775.00 in back pay. On
plaintiff’s federal claim, the judgment (3) holds ECWA, Mendez, Bluman, Kuryak,
and Lisinski liable, awards no actual or nominal compensatory damages, but awards
$5,000 in punitive damages as against each individual defendant.1

I join my panel colleagues in affirming that part of the judgment holding
defendants liable under state law for creating a racially hostile work environment.
I also join in the panel decision to reverse that part of the judgment holding liable
individual defendants Mendez, Bluman, Kuryak, and Lisinski on Matusick’s federal

1 Because no compensatory damages are awarded on the federal claim, it
appears that the jury’s intimate association finding pertained only to Matusick’s
complaint about a hostile work environment, not to his termination.

1

intimate association claim. I respectfully dissent, however, from the panel decision
to affirm the judgment in all other respects.

With respect to Matusick’s claims of racially discriminatory termination, I
would vacate the judgment and remand for a new trial. Like the majority, I identify
error in the district court’s failure to preclude Matusick from disputing facts found
against him at a disciplinary hearing conducted preliminary to his discharge
pursuant to N.Y. Civ. Serv. Law § 75(1), and in the court’s failure to charge the jury
that it could not second‐guess these administrative findings in its own deliberations.
See ante at 36–37. Unlike the majority, however, I do not think these errors can be
dismissed as harmless.

As to Matusick’s intimate association claim against ECWA, I would order
dismissal. While I think the circumstances at issue might have supported holding
ECWA, as well as individual defendants, liable for race discrimination under the
Equal Protection Clause—a federal claim plaintiff chose not to pursue—I do not
think that, as the case was tried, they demonstrate an ECWA policy or custom of
interference with intimate association, specifically, with engagement to marry.

2

1. Racially Discriminatory Termination: The Preclusion Errors Were Not
Harmless

As the majority opinion explains, New York law gives preclusive effect to
quasi‐judicial administrative fact‐finding where there has been a full and fair
opportunity to litigate the point at issue. Thus, a federal court will do the same. See
ante at 26–27 (citing relevant authority). Insofar as Matusick was charged with
various acts of workplace misconduct preliminary to being terminated—specifically,
sleeping on the job and failing timely to dispatch workers to the site of a water main
leak on October 1, 2005; and failing timely to respond to a reported water‐pressure
problem on October 20, 2005—he plainly had a full and fair opportunity to litigate
these accusations at a Section 75 proceeding before an independent hearing officer
who found them proved. See ante at 12–14. Thus, the panel agrees that the district
court erred both in allowing Matusick to argue to the contrary at trial and in failing
to instruct the jury as to the preclusive effect of the Section 75 misconduct findings
on its own deliberations. See ante at 37, 40. The panel majority nevertheless
dismisses these errors as harmless, concluding that they did “not affect any party’s
substantial rights.” Fed. R. Civ. P. 61; see ante at 39–41. I respectfully disagree.

3

While the law strongly disfavors retrial in civil cases, see Fed. R. Civ. P. 61,
such relief is warranted where an appellant shows that complained‐of error affected
substantial rights, see Tesser v. Bd. of Educ., 370 F.3d 314, 319 (2d Cir. 2004). To
carry this burden, an appellant must show that the error likely affected the outcome
of the case. See Lore v. City of Syracuse, 670 F.3d 127, 150 (2d Cir. 2012) (holding
that “substantial right is not implicated if there is no likelihood that the error or
defect affected the outcome of the case”); ante at 40 (quoting Kotteakos v. United
States, 328 U.S. 750, 765 (1946)).2 That showing is made here by the record of
Matusick’s own arguments at trial insisting that he had not engaged in the charged
misconduct, leaving racial bias as the likely explanation for his termination.

As to October 1, 2005, Matusick’s counsel specifically told the jury that his
client “wasn’t sleeping” at work on that date and had in fact “dispatched the duty
man in a timely manner.” J.A. 2924. Both statements are in direct contradiction to

2 In Kotteakos, a criminal case, the Supreme Court observed that error is not
harmless if “one cannot say, with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the judgment was not
substantially swayed by the error.” Kotteakos v. United States, 328 U.S. at 765. To
the extent this appears to resolve ambiguities in favor of a defendant, it is
noteworthy that a criminal defendant’s “substantial rights” include the presumption
of innocence and the right not to be convicted except upon proof beyond a
reasonable doubt, which are not applicable in civil cases.

4

the hearing officer’s findings of fact. The district court did not admit these findings
into evidence, much less did it instruct that such findings were binding on the jury’s
own deliberations. Thus, even though defendant Mendez, who made the final
termination decision, was permitted to testify that the hearing officer’s Section 75
discharge recommendation was the strongest he had ever seen, Matusick’s counsel
was allowed to impugn this recommendation and the undisclosed findings on which
it was based as the “irrelevant” product of a “kangaroo court.” J.A. 2932. Indeed,
counsel was allowed to argue at length that the evidence would admit no conclusion
other than that Matusick had not engaged in any workplace misconduct on October
1:

The Water Authority concluded that the water was shut down within
a reasonable period as reflected in their own claim file denying the
claim by the resident. . . . The evidence is clear that the call came in at
5 a.m. Mr. Lisinski and Mr. Jaros admit that there w[ere] no calls prior
to 5 a.m. . . .

Mr. Kuryak and Mr. Jaros confirmed that there w[ere] no police or
highway records of any calls. After that call came in Mr. Matusick
found Mr. Marzec, he then had some problems with his computer, but
he was printing the necessary documents by 5:31. Mr. Baudo admitted
the computer issues were possible and Mr. Schichtel confirmed the
computer problems were far more common during the midnight shift.
The computer documents in evidence do not show that there weren’t
computer problems. In fact, some missing evidence, pages one through
nine of Plaintiff’s Exhibit 31. We have page 9, but we don’t have pages

5

1 through 8. We don’t know what happened prior to 5:47 a.m. That
evidence is not available to you.

It is undisputed that Mr. Marzec had difficulties using the laptop,
which made it more important that Scott Matusick print out maps for
him before he left. But even despite all that, Mr. Marzec was on the
scene by 6:30. Mr. Matusick was where he was supposed to be
throughout, in his chair, by the phone at all times. Mr. Lisinski
admitted that. There’s no evidence he was sleeping on October 1st.
[T]here’s no video of him sleeping, and [Water Authority officials]
knew . . . how to preserve videos if that evidence was going to be
important to them.

J.A. 2924–25.

As to October 20, 2005 misconduct, Matusick’s counsel similarly insisted that
his client had not failed timely to respond to a report of a possible water leak.
Rather, he “simply made a judgment call” to wait “for a second customer call”
before dispatching the duty man. J.A. 2925. This too was in direct contradiction to
what should have been binding findings of fact by the hearing officer. The officer
specifically found that Matusick had not timely responded to a 1:50 a.m. report of
a drop in water pressure indicative of a potentially serious water leak. Indeed, the
hearing officer found that Matusick had misrepresented ECWA’s policy when he
told the caller who first reported a problem, “[W]e don’t send a guy out there by
himself in the middle of the night looking for a water leak.” J.A. 312. The hearing
officer concluded that Matusick’s failure either to dispatch a Water Authority

6

employee to the site or to arrange for an over‐the‐phone assessment of the problem
could not have reflected “a judgment call” in light of his discredited account of a
purported second call. J.A. 311.

Instead of accepting these findings, as the law required, Matusick’s counsel
argued to the jury that the soundness of Matusick’s “judgment call” in not taking
immediate action on October 20 was so plainly supported by the testimony of
“nearly all the witnesses” as to be, in effect, indisputable:

Again, the facts are clear. At approximately 2:15 a.m. there was the
first call regarding just low pressure, no visible water, no visible leak.
This is in a remote area where there are open fields and ditches and
there aren’t many houses and a caller who lived back from the road.
At 5:10 a.m. a second call came in where a leak was observed and Mr.
Matusick promptly dispatched the duty man. A third call came in [at]
5:22 just 12 minutes later, reporting water in the field. But by then Mr.
Matusick was already dispatching the duty man. You heard plenty of
testimony about other potential causes of low pressure, not just a water
main break, it included corroded pipes, blocked screens on intakes,
malfunctioning pressure reducing valves, garden hoses being left on,
et cetera, et cetera, et cetera.

You heard testimony from dispatchers, active and retired, from
engineers, that you don’t just dispatch based on one low pressure call
in the middle of the night in a remote area. . . .

Plaintiff’s Exhibit 53 reinforces the practice of waiting until morning to
dispatch in connection with low pressure. Only Mr. Jaros claimed that
you also dispatched the duty man regardless of circumstances. Every
other witness disagreed. You consult control, you wait for a second

7

call, you wait until someone sees water, sees an actual leak, then you
dispatch the duty man.

J.A. 2926–27.

Plainly, Matusick’s purpose in making these arguments was to show pretext.
If he could convince the jury that there was nothing to the misconduct charges, then
the defendants’ proffered legitimate reason for terminating him was false, making
it more likely than not that the real reason for his termination was race
discrimination or retaliation. See Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 149 (2000) (noting probative value of proof that employer’s explanation is
false); James v. N.Y. Racing Ass’n, 233 F.3d 149, 155 (2d Cir. 2000) (explaining that
“in some circumstances a prima facie case plus falsity of the employer’s explanation
can, without more, be enough to support a reasonable finding that prohibited
discrimination has occurred”). If, instead, Matusick had been properly foreclosed
from disputing the misconduct found at the Section 75 proceeding, he would have
been able to prevail only by carrying the heavier burden of showing that,
notwithstanding his misconduct, the proscribed reasons played a substantial part
in his termination. In these circumstances, I think there is a real likelihood that the
preclusion errors affected the outcome of this trial.

8

In concluding otherwise, the majority states that it is highly unlikely that a
jury would have discredited the charged misconduct because (1) Matusick was
“thoroughly and effectively cross‐examined” on his denials; (2) defendants offered
persuasive evidence of the misconduct; (3) Matusick admitted to having blocked a
workplace security camera, misconduct that was the subject of an earlier Section 75
proceeding resulting in a 60‐day suspension; (4) Matusick’s counsel effectively
admitted his client’s misconduct in arguing that other ECWA employees were not
terminated for comparable or worse misbehavior; and (5) the jury finding that
Mendez was not individually liable for wrongful termination made it “unlikely that
the jury credited Matusick’s testimony that he had not committed misconduct
justifying termination.” Ante at 41–43. I am not convinced.

Specifically, I cannot agree that the noted preclusion errors were necessarily
neutralized by defendants’ opportunity to cross‐examine Matusick and to put on
evidence supporting the misconduct charges. Indeed, such a conclusion is at odds
with our obligation, on the appeal of a judgment following a jury verdict, “to view
the facts of the case in the light most favorable to the prevailing party.” Kosmynka
v. Polaris Indus., Inc., 462 F.3d 74, 77 (2d Cir. 2006). When the evidence is so
viewed, we must assume that the jury credited Matusick’s disavowal of workplace

9

misconduct and, accordingly, found no misconduct basis for termination. 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.

Nor is a different conclusion warranted because Matusick’s counsel argued
that other employees were not terminated for misconduct worse than that attributed
to his client. I respectfully submit that such an argument does not effectively admit
misconduct on its face, much less in context. At most, it tells the jury that
defendants’ discriminatory intent in terminating him for unwarranted charges of
misconduct is further evidenced by the fact that employees actually guilty of
comparable or worse misconduct were not terminated. Before referencing any
comparators, counsel made Matusick’s position plain: he was not sleeping on the job
on October 1, and his conduct on October 20 reflected a reasonable exercise of
judgment. See J.A. 2924–26. Thereafter, he urged the jury to give no weight to
arguments referencing the administrative tribunal, which he dismissed as “a
kangaroo court,” though its misconduct findings should have bound him. J.A. 2932.
Finally, I cannot agree that the verdict in favor of Mendez, the supervisor who
made the final termination decision, means that the jury rejected Matusick’s

10

disavowal of workplace misconduct. See ante at 42–43. Indeed, such a conclusion
is undermined by the majority’s own reasoning in elsewhere reconciling the jury’s
decision that ECWA was liable for wrongful termination even though Mendez was
not. In this regard, the majority submits that the misconduct charges against
Matusick could have been “tainted” by racial animus. Ante at 46. But it would be
far easier for Matusick to prove that “taint” if he could persuade the jury that the
charges were false than if the jury were required to accept them as proved. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 149; James v. N.Y. Racing
Ass’n, 233 F.3d at 155. Because Matusick’s trial strategy was to argue falsity,
consistent with our obligation to view the evidence in the light most favorable to
him as the prevailing party, we must assume that the jury made the finding that he
urged. Thus, because Matusick was precluded from arguing, and the jury was
precluded from finding, that the misconduct charges were false, the preclusion
errors here cannot be deemed harmless.

Accordingly, I would vacate the judgment in favor of Matusick on his racially
discriminatory termination claims and order a new trial.

11

2. Matusick’s Constitutional Claim of Intimate Association

a. Matusick’s Failure To Pursue an Obvious Constitutional Claim for Race

Discrimination Under the Equal Protection Clause

At its core, this is a case about race discrimination. As the majority opinion
details, Matusick, who is white, was subjected to co‐worker abuse because of his
relationship with an African‐American woman, Anita Starks. Such racial
harassment not only supported Matusick’s hostile‐work‐environment claim under
New York law, but also would have supported a parallel claim under 42 U.S.C.
§ 1983 for violation of the Fourteenth Amendment’s Equal Protection Clause. See
U.S. Const. amend. XIV. Moreover, the harassment would have supported such a
constitutional claim without any inquiry into the particulars of the Matusick‐Starks
relationship. Whether Starks was Matusick’s fiancée, his next‐door neighbor, or just
a casual friend, if defendants took adverse action against Matusick because this
white man associated with an African‐American woman, the conduct violated equal
protection. See Bob Jones Univ. v. United States, 461 U.S. 574, 605 (1983) (observing
that precedent “firmly establish[es] that discrimination on the basis of racial
affiliation and association is a form of racial discrimination”); see also Holcomb v.
Iona College, 521 F.3d 130, 139 (2d Cir. 2008) (holding, under Title VII, that where

12

employee is subjected to adverse action because “employer disapproves of
interracial association, the employee suffers discrimination because of the
employee’s own race” (emphasis in original)); DeMatteis v. Eastman Kodak Co., 511
F.2d 306, 312 (2d Cir. 1975) (concluding that white plaintiff had standing under 42
U.S.C. § 1981 to sue employer for taking adverse employment action against him in
reprisal for selling house to African‐American person); Rosenblatt v. Bivona &
Cohen, P.C., 946 F. Supp. 298, 300 (S.D.N.Y. 1996) (concluding that white plaintiff
had standing to sue under § 1981 for termination motivated by marriage to African‐
American woman).

For reasons that the majority aptly describes as “perplexing,” ante at 64,
Matusick did not pursue a violation of equal protection at trial. He sought § 1983
relief only for violation of the right to intimate association, even as he relied
exclusively on evidence of racial harassment to prove that violation. While the
nature of Matusick’s relationship with Starks would have been irrelevant to an equal
protection claim based on such harassment, it was critical to his intimate association
claim.

13

b. The Majority’s Recognition of an Intimate Association Right in
Betrothal

The majority identifies the constitutionally protected right at issue as one of
“betrothal.” To the extent Matusick and Starks were engaged, there is precedent
suggesting that their choice of each other as marital partners might claim
constitutional protection under the Due Process Clause, if not also under a First
Amendment right of intimate association. See Roberts v. U.S. Jaycees, 468 U.S. 609,
620 (1984) (“[T]he Constitution undoubtedly imposes constraints on the State’s
power to control the selection of one’s spouse.”)3; Loving v. Virginia, 388 U.S. 1
(1967) (holding that state prohibition on interracial marriage violated both equal
protection prohibition against race discrimination and due process right to marry);
Adler v. Pataki, 185 F.3d 35, 42 (2d Cir. 1999) (observing that whenever Supreme
Court has considered impairment of “most fundamental of intimate relationships,
marriage, it has not spoken generally of right of intimate association, but has
referred specifically to a right to marry and has grounded that right on the liberty
protected by the Due Process Clause”).

3 In Roberts, the Supreme Court recognized the “right of association” to have
two components, one relating to association with others for expressive purposes
protected by the First Amendment, the other relating to intimate association, see 468
U.S. at 617–18. Language in Roberts, and the authorities cited therein, suggest that
the right derives from the personal liberty protected by the Due Process Clause. Id.;
see Adler v. Pataki, 185 F.3d 35, 42 (2d Cir. 1999).

14

Whatever the constitutional source of the right of intimate association in
betrothal recognized by the majority today, I agree that it was not so clearly
established at the time of the events at issue to support the individual defendants’
liability for infringing that right through the creation of a hostile work environment.
I thus join in the decision to dismiss Matusick’s constitutional claim against the
individual defendants on the ground of qualified immunity.

Qualified immunity does not extend to Matusick’s municipal employer, the
ECWA. See Owen v. City of Independence, 445 U.S. 622, 650 (1980); Monell v.
N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 701 (1978). My colleagues in the majority
uphold the intimate association judgment against that defendant, concluding that
the evidence was sufficient to admit a jury finding that Matusick sustained
pervasive verbal and physical harassment “on the basis of his intimate association
with Starks [that] rose to the level of a custom, policy, or practice at the ECWA.”
Ante at 71. While I recognize that we can affirm for any reason that finds support
in the record, see 10 Ellicott Square Court Corp. v. Mountain Valley Indem. Co., 634
F.3d 112, 125 (2d Cir. 2011), I cannot join my colleagues in concluding that the record
here admits a finding of an ECWA custom or practice to violate employees’ intimate
association right in betrothal.

15

c. Betrothal Was Not Here Identified as the Protected Intimate
Association

Insofar as the majority recognizes betrothal as the intimate association here
at issue, I am not persuaded that this case was presented to the jury on the theory
that betrothal was the specific protected relationship violated. To be sure, in his
opening statement to the jury, Matusick’s counsel stated that his client’s
“termination was a form of discrimination because of his relationship with his wife
who was at that time his fiancée.” J.A. 1894 (emphasis added). Even assuming this
is enough to identify betrothal as a protected relationship, the jury did not find that
Matusick had been terminated based on intimate association. Rather, it found him
terminated on the basis of racial bias. With respect to the hostile work environment
that informs the jury’s intimate association judgment, counsel did not link that
injury to the fact of the couple’s engagement—as distinct from their relationship
generally. In his opening statement, counsel asserted that Matusick was subjected
to repeated racial epithets simply because he had “fall[en] in love with an African
American woman,” making no mention of what intimate association the couple had
formed that warranted constitutional protection. J.A. 1892. Indeed, counsel stated
that Matusick’s co‐workers made plain that their harassment was prompted by his
client “hanging around” with blacks, that “[w]hite people shouldn’t hang around

16

with [blacks],” and that Matusick “should stay away from the [blacks].” J.A. 1893.4
This suggested that Matusick was subjected to a racially hostile work environment
because he maintained any relationship with an African American woman, not
specifically because that relationship was a betrothal. As I have already noted, the
Equal Protection Clause would proscribe a hostile work environment based on race
without regard to the couple’s precise relationship, but the same conclusion does not
obtain with respect to the right of intimate association.

Nor did counsel’s summation or the court’s charge clarify that betrothal was
the intimate association supporting Matusick’s constitutional claim. To the contrary,
counsel repeatedly referenced Starks as Matusick’s “girlfriend,” rather than as his
“fiancée,” and stated that Matusick was discriminated against “because he was
dating and then became engaged to an African American woman,” drawing no
constitutional distinction between the two phases of the couple’s relationship. J.A.
2905, 2915, 2934–35.5 In discussing infringement, counsel did reference engagement

4 In the quoted excerpts, I have substituted the word “blacks” for the racial
epithet that counsel ascribed to Matusick’s harassers. See ante 8 n.3.

5 This conflation persists in Matusick’s brief on appeal, which maintains that
“the right to intimate association extends to all highly intimate family relationships,
including a dating/fiancée relationship.” Appellee’s Br. 47; see Webster’s New
World Dictionary 1491(3d ed. 1986) (defining “virgule” as “short diagonal line (/)
used between two words to show either is applicable (and/or). . . .”).

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and marriage: “It is not required that the defendants interfere with the relationship
itself. They do not need to have broken up the marriage or caused the engagement
to be broken off [ ] to cause harm.” J.A. 2934. But that negative point hardly made
clear to the jury that the couple’s betrothal was the critical fact supporting a
constitutional claim of intimate association.

Indeed, the district court did not so charge the jury. It instructed as follows:
Freedom of association includes the right to enter into and maintain
certain intimate human relationships, such as a relationship that
plaintiff shared with his then‐girlfriend Anita Starks. . . This right can
be violated if someone is penalized for those — for who the other
person is in a relationship.

J.A. 3008–09. The fact that the court referred to Starks as Matusick’s
“girlfriend”—not his “fiancée”—can reasonably be understood to signal that the
constitutional claim did not depend on the couple’s betrothal. That conclusion is
only reinforced by the instruction that the right of intimate association can be
violated by penalizing someone “for who the other person is in a relationship,”
rather than by penalizing someone “for his choice of whom to marry.”

d. The Record Does Not Admit a Finding of Municipal Liability for
Violation of the Intimate Association Right in Betrothal

In any event, the record does not admit a finding that ECWA had a policy,
practice, or custom of violating employees’ intimate association right in betrothal.

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The law recognizes that, even in the absence of a professed unconstitutional policy,
a municipality may be liable for the unconstitutional practices of its subordinates
where those practices are “so persistent and widespread” in the workplace “as to
practically have the force of law,” Connick v. Thompson, 131 S. Ct. 1350, 1359
(2011), “or if a municipal custom, policy, or usage would be inferred from evidence
of deliberate indifference of supervisory officials to such abuses,” Jones v. Town of
E. Haven, 691 F.3d 72, 81 (2d Cir. 2012). The majority concludes that the jury could
have found an unconstitutional custom or policy here from evidence that Matusick
complained to various supervisors about persistent harassment by co‐workers, that
supervisors failed to take remedial action, and that at least one of those
supervisors—Mendez—knew that Matusick and Starks were engaged. See ante at
71–73. I cannot agree. Where municipal liability is based on employer inaction,
“rigorous standards of culpability and causation must be applied” to ensure against
vicarious liability. Board of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 405 (1997);
accord Connick v. Thompson, 131 S. Ct. at 1365; Reynolds v. Giuliani, 506 F.3d 183,
192 (2d Cir. 2007). Matusick did not satisfy these standards.

As the majority itself recognizes, the pervasive harassment that Matusick
experienced was racial. See ante at 46. The record does not indicate that Matusick

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complained or that ECWA would otherwise have known, that such racial
harassment was caused by his engagement to marry Starks.6 The latter motivation,
and ECWA’s knowledge of it, would appear necessary to support a conclusion that
ECWA had a custom or practice of violating its employees’ rights of intimate
association, and not only their rights of equal protection. See City of St. Louis v.
Prapotnick, 485 U.S. 112, 127 (1988) (stating that if authorized policymakers approve
subordinate’s decision “and the basis for it,” their ratification is chargeable to
municipality); Green v. City of New York, 465 F.3d 65, 80 (2d Cir. 2006) (referencing
municipality’s practice to engage in “constitutional violation at issue”); Amnesty
Am. v. Town of W. Hartford, 361 F.3d 113, 128 (2d Cir. 2004) (Sotomayor, J.)
(observing that plaintiff must establish that policymaking official had notice of
potentially serious problem of unconstitutional conduct, such that need for
corrective action or supervision was obvious). While Starks testified that Mendez
knew of the couple’s engagement, that knowledge does not by itself equate to
knowledge that Matusick was being harassed because the couple planned to marry.

6 The record does indicate one log entry in which Matusick complained that
co‐worker Finn was making disparaging comments about him, his father, and his
family. While Matusick testified that he considered Starks and her children his
“new family,” he did not so state in his complaint, much less did he indicate that the
couple were engaged and that the disparagement was informed by that relationship.

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Indeed, as already noted, Matusick’s counsel argued to the jury that the harassment
was prompted by the fact that the couple had any relationship at all, circumstances
that would have supported an equal protection claim but not necessarily one based
on an intimate association right in betrothal.

Further, insofar as the panel unanimously affords Mendez qualified immunity
as an individual because his obligation to stop racial harassment as a violation of the
intimate association right of betrothal was not then clearly established, it seems
curious to conclude that his failure to stop the harassment is an adequate basis for
identifying an ECWA custom or practice of violating its employees’ rights of
intimate association. See ante at 72–73; see also City of Canton v. Harris, 489 U.S.
378, 388 (1989) (holding that official’s inaction must demonstrate “deliberate
choice”). Indeed, precedent signals caution in reaching such a municipal liability
conclusion. This court has held that where a municipal liability claim is grounded
in an employer’s deliberate indifference to the unconstitutional actions of its
employees, the constitutional right at stake has to be “clearly established.” Townes
v. City of New York, 176 F.3d 138, 143–44 (2d Cir. 1998); Young v. County of Fulton,
160 F.3d 899, 904 (2d Cir. 1998). The Eighth Circuit recently cited approvingly to
Townes and Young in reaching the same conclusion en banc. See Szabla v. City of

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Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007). As that court explained, requiring
that a constitutional right be clearly established to support a claim of deliberate
indifference “is not an application of qualified immunity for liability flowing from
an unconstitutional policy. Rather, the lack of clarity in the law precludes a finding
that the municipality had an unconstitutional policy at all, because its policymakers
cannot properly be said to have exhibited a policy of deliberate indifference to
constitutional rights that were not clearly established.” Id. at 394 (emphasis in
original). While these deliberate indifference cases arise in the context of failures to
train or supervise rather than failure to investigate or discipline, what is common
to all these circumstances is employer inaction. And as the Eighth Circuit has
persuasively explained in Szabla, for inaction of any sort to reflect “deliberate
indifference to constitutional rights,” the right must be established. To conclude
otherwise is to ignore the rigorous standards of culpability and causation that, as I
earlier noted, the Supreme Court has mandated for municipal liability based on
deliberate indifference to employees’ constitutional violations. See Board of the
Cnty. Comm’rs v. Brown, 520 U.S. at 405; see Reynolds v. Giuliani, 506 F.3d at 192
(holding that rigorous standards apply to “broad range of supervisory liability
claims” including failure to supervise and to discipline, as well as to train).

22

Here, there was a clearly established constitutional right at stake: the right of
equal protection. Thus, to the extent Mendez, or other 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.

e. The Law Does Not Warrant Extension of the Right of Intimate
Association to Romantic Relationships Generally

Even if I were convinced that Matusick had demonstrated an ECWA custom
or practice of interfering with employees’ choices of whom to marry, I would not be
able to join in the majority opinion. While my colleagues are careful to identify
betrothal as the intimate association at issue, certain language in the opinion could
be read to imply that the right reaches more broadly to protect a variety of
(unidentified) romantic relationships. See ante at 58–61, 60 n.18. Such a suggestion
is at best dictum, but it is dictum in which I cannot join.

23

In recognizing a right of intimate association, as distinct from a right of
expressive association, the Supreme Court explained that the former shields “the
formation and preservation of certain kinds of highly personal relationships” from
unjustified state interference. Roberts v. U.S. Jaycees, 468 U.S. at 618 (emphasis
added). In short, not every highly personal relationship can claim the constitutional
protection of intimate association, only “certain kinds.” While the Supreme Court
has declined to identify “every consideration that may underlie this type of
constitutional protection,” id., it has stated that the “kinds of highly personal
relationships” warranting constitutional protection are those that “have played a
critical role in the culture and traditions of the Nation by cultivating and
transmitting shared ideas and beliefs,” in the process “foster[ing] diversity and
act[ing] as critical buffers between the individual and the power of the State.” Id.
at 618–19. “[T]he constitutional shelter afforded such relationships reflects the
realization that individuals draw much of their emotional enrichment from close ties
with others.” Id. at 619 (emphasis added) (observing that affording constitutional
protection to “these relationships . . . safeguards the ability independently to define
one’s identity that is central to any concept of liberty” (emphasis added)). As the
highlighted language indicates, while the highly personal relationships warranting

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intimate‐association protection characteristically foster personal identity and
provide emotional enrichment, not every personal relationship that does so is
constitutionally protected. The considerations underlying extension of intimateassociation
protection to “such relationships” relate to the “critical role” they play
“in the culture and traditions of the Nation,” as described by Roberts. Id. at 618–19.
In Roberts, the Supreme Court identified “[t]he personal affiliations that
exemplify these considerations, and that therefore suggest some relevant limitations
on the relationships that might be entitled to this sort of constitutional protection.”

Id. at 619 (emphasis added). These affiliations are “those that attend the creation
and sustenance of a family,” specifically, “marriage, childbirth, the raising and
education of children, and cohabitation with one’s relatives.” Id. (citations omitted).

The Court observed that such “[f]amily relationships, by their nature, involve deep
attachments and commitments to the necessarily few other individuals with whom
one shares not only a special community of thoughts, experiences, and beliefs but
also distinctively personal aspects of one’s life.” Id. at 619–20. Such family
relationships are also “distinguished by such attributes as relative smallness, a high
degree of selectivity in decisions to begin and maintain the affiliation, and seclusion
from others in critical aspects of the relationship.” Id. at 620. Insofar as betrothal

25

reflects a proclaimed promise (if no longer an enforceable contract) to marry,7 it
might be said to attend the formal creation of a family and, thus, to play a critical
role in the transmittal of the nation’s culture and traditions.

The majority, however, suggests that intimate association might reach further
because Roberts did not specifically cabin the right of intimate association to family
relationships, see Board of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S.
537, 545 (1987) (noting that Supreme Court has “not held that constitutional
protection is restricted to relationships among family members”), and our own court
has disclaimed any “categorical approach . . . [to] association‐rights cases,” Chi Iota
Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136, 144 (2d
Cir. 2007). True enough. But neither the Supreme Court nor this court has thus far
recognized the right of intimate association to apply outside the context of families,
whether defined by blood or law. See also Poirier v. Mass. Dep’t of Corr., 558 F.3d
92, 96 (1st Cir. 2009) (upholding dismissal of intimate association claim by prison
guard fired for romantic relationship with former inmate, holding that “unmarried
cohabitation of adults does not fall within any of the Supreme Court’s bright‐line

7 See N.Y. Civ. Rights Law § 80‐a (abolishing cause of action for breach of
promise to marry); Fearon v. Treanor, 272 N.Y. 268, 5 N.E.2d 815 (1936) (upholding
statute as constitutional), appeal dismissed, 301 U.S. 667 (1937).

26

categories for fundamental rights”); but see Fair Hous. Council of San Fernando
Valley v. Roommate.com, LLC, 666 F.3d 1216, 1222 (9th Cir. 2012) (construing antidiscrimination
provisions of federal and state fair housing laws not to apply to
shared living quarters to avoid possible intrusion on intimate association rights of
roommates). At a minimum, this signals caution in expanding the right based
simply on analogous descriptive characteristics.

Certainly, Roberts does not suggest that any small, select, and secluded
association—a description that might well fit some criminal enterprises—can claim
constitutional protection. Rather, Roberts instructs that “[a]s a general matter, only
relationships with these sorts of qualities” are “likely to reflect the considerations”
warranting constitutional protection for intimate associations. Roberts v. U.S.
Jaycees, 468 U.S. at 620. Thus, Roberts’s descriptive characteristics establish a useful
objective standard for identifying entities—like the Jaycees—whose size and
openness preclude them from claiming intimate‐association protection. See also
Board of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. at 547 (holding
Rotary Club not protected by right of intimate association). Indeed, this court has
used Roberts’s descriptive characteristics in this way, to reject intimate association
claims in various contexts. See Piscottano v. Murphy, 511 F.3d 247, 278–80 (2d Cir.

27

2007) (rejecting claim by corrections officers disciplined for gang association); Chi
Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d at 147
(rejecting intimate association claim by fraternity wishing to continue excluding
women without forfeiting university recognition); Sanitation Recycling Indus., Inc.
v. City of New York, 107 F.3d 985, 995–96 (2d Cir. 1997) (rejecting intimate
association claim by carting companies challenging restrictive licensing scheme).

Neither the Supreme Court nor this court, however, has afforded intimate
association protection based solely on a finding of small size, selectivity, and
seclusion. Such a preliminary finding might allow the intimate association inquiry
to continue, but it does not conclusively resolve it. The inquiry process is
necessarily holistic given “the broad range of human relationships that may make
greater or lesser claims to constitutional protection from particular incursions by the
State,” Roberts v. U.S. Jaycees, 468 U.S. at 620 (noting that factors relevant to
intimate association inquiry include “size, purpose, policies, selectivity, congeniality,
and other characteristics that in a particular case may be pertinent”). Moreover, it
contemplates a “careful assessment of where the relationship’s objective
characteristics locate it on a spectrum from the most intimate to the most attenuated
of personal attachments.” Id. But the ultimate point of the inquiry is not simply to

28

draw descriptive analogies. Rather, 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. As thus far
identified by the Supreme Court, those considerations relate to the critical role that
certain highly personal relationships have played in the “culture and traditions of
the Nation.” Id. at 618–19. Betrothal may satisfy this criteria, but I am not inclined
to speculate that other relationships that fail to do so can also claim constitutional
protection.

In explaining why I dissent from the majority’s decision to uphold ECWA’s
liability for violating Matusick’s right of intimate association, a final point is
noteworthy: the practical beneficiary of the court’s decision is not Matusick, but
only his attorney. Although the jury awarded Matusick $5,000 in punitive damages
from each of the individual defendants found liable on the intimate association
claim, the panel today reverses that judgment on the ground of qualified immunity.

And while the majority affirms the intimate association judgment against ECWA,
the jury awarded Matusick no compensatory (or even nominal) damages against
that defendant. Thus, the practical effect of today’s decision with respect to the
intimate association claim is not to compensate Matusick for infringement of any

29

constitutional right, but only to allow his lawyer to recover attorney’s fees for
pursuing a dubious constitutional claim of association instead of an obvious one of
equal protection. See 42 U.S.C. § 1988.

* * *

To conclude, I concur in the court’s decision to affirm the judgment for
Matusick on his state law claim of a racially hostile work environment. I also concur
in the decision to dismiss Matusick’s federal intimate association claim against
individual defendants on the ground of qualified immunity. For the reasons stated
in this opinion, however, I respectfully dissent from the majority decision to affirm
the judgment for Matusick on his state wrongful termination claim and his federal
intimate association claim against ECWA.

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Outcome: For the foregoing reasons, we affirm the judgment of the district
court with respect to the state law claims and its award of backpay to the
plaintiff. We also affirm the judgment as to the plaintiffʹs section 1983 claim
against the ECWA and the concomitant award of punitive damages against the
ECWA. We reverse the judgment imposing liability against the individual
defendants on the plaintiffʹs section 1983 claims against them, and therefore also
reverse the judgment insofar as it awarded punitive damages against the
individual defendants. On cross appeal, the district courtʹs attorneyʹs fee award
is also affirmed.

Costs of the plaintiff on appeal to be paid by the ECWA.

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