Opinion
No. 07-3478-cv.
December 2, 2008.
Appeal from the United States District Court for the Eastern District of New York (Arthur D. Spatt, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court, entered on July 25, 2008, is AFFIRMED.
SUBMITTING FOR APPELLANT: DIANE K. FARRELL, Jeltje deJong ( on the brief), Devitt Spellman Barrett, LLP, Smithtown, New York.
SUBMITTING FOR APPELLEE: STEVEN A. MORELLI, Eric S. Tilton ( on the brief), Carle Place, New York.
PRESENT: HONORABLE ROGER J. MINER, HONORABLE REENA RAGGI, HONORABLE DEBRA ANN LIVINGSTON, Circuit Judges.
Defendant Town of Southampton (the "Town") appeals from a judgment entered in favor of the plaintiff Patricia Lynch ("Lynch") following a jury trial at which the Town was found to have violated Lynch's First Amendment rights when it terminated her position as a volunteer at the Town's Animal Shelter (the "Shelter") in retaliation for statements Lynch made in,inter alia, letters to the editor, newspaper articles, a televised documentary, and a lawsuit regarding conditions, policies, and practices at the Shelter. We assume the parties' familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
The jury found in favor of defendant Donald Bambrick, the head of the Shelter and Lynch's supervisor.
On appeal, the Town argues that the district court erred in denying its motion for judgment as a matter of law,see Fed.R.Civ.P. 50(b), because (1) Lynch did not demonstrate that her speech was actually chilled as a result of the Town's actions, and (2) even if such a showing was not required, the loss of her position as an unpaid volunteer at the Shelter does not trigger First Amendment scrutiny because it was "simply de minimis and . . . outside the ambit of constitutional protection." Appellant's Br. at 26. In its reply brief, the Town states that it does not now and "has never urged" that "the loss of a volunteer position is . . . de minim[i]s as a matter of law"; rather, it maintains that the question of whether Lynch's termination triggers First Amendment scrutiny is "a fact driven inquiry" that should have been submitted to the jury. Appellant's Reply Br. at 4, 19.
"We review de novo the district court's denial of a motion for judgment as a matter of law." Broadnax v. City of New Haven, 415 F.3d 265, 267 (2d Cir. 2005) (internal quotation marks omitted). With respect to the Town's first argument in support of Rule 50(b) relief, a review of the record reveals that the Town did not argue before the district court that Lynch was required to prove that her speech was actually chilled in order to prevail on her First Amendment claim. Compare Williams v. Town of Greenburgh, 535 F.3d 71, 78 (2d Cir. 2008) (imposing such a requirement on non-public-employee plaintiff in First Amendment action), with Gill v. Pidlypchak, 389 F.3d 379, 382-83 (2d Cir. 2004) (observing that such plaintiffs may not have to demonstrate that their speech was actually chilled if "some other harm is asserted"). Accordingly, we deem this argument waived. See Coon ex rel. Coon v. Willet Dairy, LP, 536 F.3d 171, 172 (2d Cir. 2008).
With respect to the Town's second argument, the record reveals that the Town repeatedly maintained below that, as a matter of law, Lynch's loss of an uncompensated volunteer position does not give rise to a First Amendment claim. For example, in making its initial motion for judgment as matter of law, the Town argued that "the fact that Ms Lynch is a volunteer, without any benefits . . . takes this out of a First Amendment claim or case." Trial Tr. at 426. Similarly, when that motion was renewed following the jury's verdict, the Town maintained that "the plaintiff as a volunteer had no First Amendment rights that were protected and that there was no adverse employment action taken against her." Id. at 763. To the extent that such an argument was initially presented to this court in the Town's opening brief and disavowed in its reply brief, the Town appears to have abandoned this categorical legal challenge to the verdict in favor of a different position,i.e., that whether or not the action taken against Lynch triggers First Amendment scrutiny is a question offact that should have been submitted to the jury. Appellant's Reply Br. at 4, 19; see also id. at 11-12 ("The Town is not arguing a different standard [for employees and volunteers]. Rather, the Town is arguing that when the same standard is applied to an employee and volunteer alike, the same government action may be materially adverse as to one, but de minim[i]s as to the other, depending on the facts of the particular case.")
We need not now decide if we agree with this revised argument.Cf. Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004) (holding that, where plaintiff is public employee, dispute as to whether alleged retaliatory act was adverse employment action raised question of fact "that should have been reserved for a jury"); Zelnik v. Fashion Institute of Tech., 464 F.3d 217, 227-28 (2d Cir. 2006) (holding that while failure to grant plaintiff emeritus status was "de minimis" as a matter of law in case before it, "the finding of an adverse employment action is a heavily fact-specific, contextual determination" (internal quotation marks omitted)). The Town acknowledges that it "did not specifically request an interrogatory" on this question. Appellant's Reply Br. at 19. Indeed, the Town has not identified any passage in the record in which it argued that this question was one of fact for the jury to decide. This argument, therefore, has also been waived.
Insofar as the Town asks us to fault the district court for failing sua sponte to submit this question to the jury, we note that, pursuant to Rule 51, a party may not assign as error "a failure to give an instruction" to the jury unless "that party properly requested it and — unless the court rejected the request in a definitive ruling on the record — also properly objected." Fed.R.Civ.P. 51(d)(1)(B) (emphasis added). We may, of course, "consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights." Fed.R.Civ.P. 51(d)(2). Because "[t]his Circuit has not yet addressed whether `claims of termination from volunteer positions based on protected conduct are equivalent to, or should be analyzed different[ly] from, more traditional claims of termination from salaried government positions,'" we identify no "plain error" warranting the exercise of such discretion in this case. Hoyt v. Andreucci, 433 F.3d 320, 327 n. 5 (2d Cir. 2006) (quoting Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 551 n. 2 (2d Cir. 2001)); cf. United States v. Olano, 507 U.S. 725, 734 (1993) ("`Plain' is synonymous with `clear' or, equivalently, `obvious.'").
Accordingly, the judgment of the district court is AFFIRMED.