Filed: Mar. 27, 2013
Latest Update: Mar. 28, 2017
Summary: 11-3799-cv Appel v. Spiridon et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY O
Summary: 11-3799-cv Appel v. Spiridon et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY OR..
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11-3799-cv
Appel v. Spiridon et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 27th day of March, two thousand thirteen.
5
6 PRESENT: JOHN M. WALKER, Jr.,
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 Circuit Judges.
10
11
12
13 ROSALIE APPEL,
14
15 Plaintiff-Appellee,
16
17 -v.- 11-3799-cv
18
19 CHARLES P. SPIRIDON, LINDA VADEN-GOAD,
20 LINDA RINKER,
21
22 Defendants-Appellants.
23 _
24
25 FOR APPELLANT: JOHN R. WILLIAMS, New Haven, CT.
26
27 FOR APPELLEE: BETH Z. MARGULIES, Assistant Attorney
28 General, for George Jepsen, Attorney
29 General of the State of Connecticut,
30 Hartford, CT.
31
32 Appeal from the United States District Court for the
33 District of Connecticut (Underhill, J.).
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
2 AND DECREED that the judgment of the United States District
3 Court for the District of Connecticut be AFFIRMED IN PART
4 AND REVERSED IN PART.
5 Defendants-Appellants Linda Rinker, Linda Vaden-Goad,
6 and Charles Spiridon appeal from the district court’s denial
7 of qualified immunity in favor of plaintiff-appellee Rosalie
8 Appel, embodied in the court’s Memorandum and Order dated
9 August 18, 2011. Among other things, Appel claimed that
10 defendants retaliated against her for bringing a lawsuit, in
11 violation of Title VII of the Civil Rights Act of 1964, and
12 that they violated her Fourteenth Amendment substantive due
13 process right to privacy. On defendants’ motion for summary
14 judgment, the district court denied qualified immunity with
15 regard to these claims. We assume the parties’ familiarity
16 with the underlying facts, procedural history, and
17 specification of issues for review.
18 We have jurisdiction to hear this interlocutory appeal
19 because “a district court’s denial of a claim of qualified
20 immunity, to the extent it turns on an issue of law, is an
21 appealable ‘final decision’ within the meaning of 28 U.S.C.
22 § 1291 notwithstanding the absence of a final judgment.”
2
1 Mitchell v. Forsyth, 472 U.S. 511, 539 (1985). “This is so
2 even where the denial is in the context of a motion to
3 dismiss or for summary judgment.” Luna v. Pico,
356 F.3d
4 481, 486 (2d Cir. 2004) (citations omitted). “This Court
5 reviews de novo a district court’s decision ‘denying a
6 government official’s motion for summary judgment on the
7 basis of qualified immunity.’” Id. (quoting Cerrone v.
8 Brown,
246 F.3d 194, 198 (2d Cir. 2001)).
9 Appel’s first claim is that defendants retaliated
10 against her for filing this lawsuit by subjecting her to an
11 escalating series of disciplinary measures. Defendants do
12 not dispute, for purposes of this appeal, that Appel
13 successfully established a prima facie case of
14 discrimination. Instead, they maintain that the district
15 court incorrectly applied Mt. Healthy City School District
16 Board of Education v. Doyle,
429 U.S. 274, 287 (1977), which
17 provides that “even if there is evidence that the adverse
18 employment action was motivated in part by protected speech,
19 the government can avoid liability if it can show that it
20 would have taken the same adverse action in the absence of
21 the protected speech.” Heil v. Santoro,
147 F.3d 103, 110
22 (2d Cir. 1998).
3
1 The district court, however, correctly construed this
2 standard to indicate that the “controlling question” was
3 “whether defendants can show indisputably that they would
4 have taken the same adverse actions, namely implementation
5 and enforcement of the [remediation plan] and the resulting
6 progressive discipline against Appel, even in the absence of
7 her protected speech.” Appel v. Spiridon, Nos. 06 cv 1177,
8 07 cv 1237, 2011 WL 3651353, at *12 (D. Conn. Aug. 18,
9 2011). For essentially the same reasons stated by the
10 district court, we agree that a question of fact exists as
11 to whether the defendants’ treatment of Appel after she
12 filed her 2006 lawsuit, including the manner in which the
13 remediation plan was implemented and enforced, was motivated
14 by legitimate reasons or impermissible retaliation. We
15 therefore affirm the district court’s denial of qualified
16 immunity on Appel’s First Amendment claim.
17 Appel’s second claim is that defendants violated her
18 right to privacy by requesting that she show them her
19 medical records in connection with a psychiatric examination
20 she was required to undergo to continue teaching. We have
21 held that invading or intending to invade the privacy of an
22 employee’s medical or mental health records will violate the
4
1 employee’s Fourteenth Amendment right to substantive due
2 process if the employer’s intent is to “injure or to spite”
3 the plaintiff. O’Connor v. Pierson, 426 F.3d 187, 203 (2d
4 Cir. 2005). Although “bare allegations of malice coupled
5 with otherwise legitimate government action [generally] do
6 not yield a viable constitutional claim[,] . . . where a
7 more specific intent is actually an element of the
8 plaintiff's claim as defined by clearly established law, it
9 can never be objectively reasonable for a government
10 official to act with the intent that is prohibited by law.”
11 Locurto v. Safir,
264 F.3d 154, 169 (2d Cir. 2001) (citing
12 Crawford-El v. Britton,
523 U.S. 574, 587-88 (1998)).
13 The district court therefore properly focused its
14 inquiry on whether there was “genuine issue of material fact
15 whether the defendants sought access to Appel’s [records]
16 out of a mistaken belief that they were entitled to them as
17 a means of assessing her ability to continue in her duties,
18 or whether the defendants were seeking ways to discredit and
19 injure Appel.” Appel,
2011 WL 3651353, at *18 (D. Conn.
20 Aug. 18, 2011). In our view, however, the court clearly
21 misconstrued testimony given by Rinker and Vaden-Goad at a
22 preliminary injunction hearing to support the inference that
5
1 defendants intended to view the content of the psychiatric
2 evaluation they had ordered for Appel. Appel was not
3 required, or even requested, to “sign a broad medical-
4 records release form.” Cf. O’Connor, 426 F.3d at 201.
5 Ultimately, there is no evidence that defendants were
6 seeking to review the content of the psychiatric evaluation
7 or to inspect Appel’s medical or mental health records
8 themselves. Rather, they merely sought to have a
9 psychiatrist determine Appel’s fitness for duty. We
10 conclude there was insufficient evidence for a jury to
11 conclude that defendants had the required state of mind to
12 violate Appel’s substantive due process right to privacy.
13 We therefore reverse the district court’s denial of
14 qualified immunity on Appel’s substantive due process claim.
15 Finally, Rinker argues that the district court lacked
16 personal jurisdiction over her with respect to the latter
17 claim because she was dismissed from the first of Appel’s
18 two lawsuits and was never properly added as a defendant
19 after the cases were consolidated. We need not reach this
20 issue, however, because we have concluded that Rinker would
21 be entitled to qualified immunity on Appel’s substantive due
22 process claim.
6
1 We have considered defendants’ remaining arguments and
2 find them to be without merit. For the foregoing reasons,
3 the district court’s denial of qualified immunity is hereby
4 AFFIRMED IN PART AND REVERSED IN PART. We remand for
5 further proceedings consistent with this order.
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
7
