14-1220
Rodriguez v. City of Rochester



                         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 TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
15th day of September, two thousand fifteen.

PRESENT:
            ROBERT A. KATZMANN,
                              Chief Judge,
            PETER W. HALL,
            RAYMOND J. LOHIER, JR.,
                              Circuit Judges.
____________________________________________

ALBERTO RODRIGUEZ, BRAULIO LOPEZ,
JOSELITO PEREZ, EDUARDO CRUZ, JOSE
DIAZ, JOSE LAZA, DANIEL TORRES, JESUS
FUENTES,

                             Plaintiffs-Appellants,

                   v.                                               No. 14-1220

CITY OF ROCHESTER, MANAGER KAREN ST.
AUBIN, COMMISSIONER PAUL HOLOHAN,

                  Defendants-Appellees.
____________________________________________

For Plaintiffs-Appellants:                            Melvin Bressler, Pittsford, NY.

For Defendants-Appellees:                             John M. Campolieto for T. Andrew Brown,
                                                      Corporation Counsel, Rochester, NY.
        Appeal from the United States District Court for the Western District of New York

(Geraci, J.).


        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part,

and REMANDED for further proceedings.

        Plaintiffs-Appellants Alberto Rodriguez, Braulio Lopez, Joselito Perez, Eduardo Cruz,

Jose Diaz, Jose Laza, Daniel Torres, and Jesus Fuentes, all of whom are Hispanic employees of

the City of Rochester, brought this suit pursuant to 42 U.S.C. §§ 1981 and 1983 alleging that the

defendants violated their federal statutory and constitutional rights by forbidding them from

speaking Spanish in the workplace regardless of whether their communications were work-

related. On appeal, the plaintiffs argue that the district court erred by: (1) granting judgment as a

matter of law in favor of defendant Karen St. Aubin pursuant to Rule 50(b) of the Federal Rules

of Civil Procedure; and (2) conditionally granting St. Aubin’s motion for a new trial pursuant to

Rules 50(c)(1) and 59. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

        We review de novo a district court’s ruling on a Rule 50(b) motion for judgment as a

matter of law. Kinneary v. City of New York, 

, 155 (2d Cir. 2010). A district court

may grant such a motion only if it concludes that there is “such a complete absence of evidence

supporting the verdict that the jury’s findings could only have been the result of sheer surmise

and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable and

fair minded [persons] could not arrive at a verdict against [it].” Brady v. Wal-Mart Stores, Inc.,

, 133 (2d Cir. 2008) (quoting Luciano v. Olsten Corp., 

, 214 (2d Cir.

1997)). We review for abuse of discretion a district court’s decision to grant a new trial. Manley


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v. AmBase Corp., 

, 245 (2d Cir. 2003). A district court abuses its discretion if “(1)

its decision rests on an error of law (such as application of the wrong legal principle) or a clearly

erroneous factual finding, or (2) its decision—though not necessarily the product of a legal error

or a clearly erroneous factual finding—cannot be located within the range of permissible

decisions.” Zervos v. Verizon N.Y., Inc., 

, 169 (2d Cir. 2001) (footnote omitted).

       The plaintiffs argue that the district court erred in granting judgment as a matter of law on

the ground that St. Aubin was sued only in her official capacity. It is well established that

“[w]here . . . doubt may exist as to whether an official is sued personally, in his official capacity

or in both capacities, the course of proceedings ordinarily resolves the nature of the liability

sought to be imposed.” Rodriguez v. Phillips, 

, 482 (2d Cir. 1995) (citing Kentucky v.

Graham, 

, 167 n.14 (1985)). Here, the district court based its determination that St.

Aubin was sued in her official capacity on the following factors: (1) the caption identified St.

Aubin by her official title and failed to state that she was being sued in her individual capacity;

(2) the complaint focused on the City’s purported “English-only policy”; (3) the defendants

directed their Rule 50(a) motion towards the plaintiffs’ failure to prove the existence of any such

policy; (4) the defendants did not assert an affirmative defense of qualified immunity; and (5) the

plaintiffs requested only compensatory damages for their constitutional cause of action. We

agree that these factors indicate that the plaintiffs sued St. Aubin in her official capacity.

       That conclusion, however, does not exclude the possibility that the plaintiffs also

intended to sue her in her individual capacity, as individual- and official-capacity claims are not

mutually exclusive. See, e.g., Yorktown Med. Lab., Inc. v. Perales, 

, 87 (2d Cir.

1991) (holding that “[plaintiff’s] suit comprises both official and individual capacity claims”).

To the contrary, numerous aspects of the plaintiffs’ claims and the proceedings below indicated



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that the plaintiffs intended to sue St. Aubin in her individual capacity in addition to her official

capacity. 

(“[W]e look to the totality of the complaint as well as the course of

proceedings to determine whether the defendants were provided with sufficient notice of

potential exposure to personal liability.”).

        First, the plaintiffs named St. Aubin as a defendant in addition to the City of Rochester

itself, which would have been duplicative had they intended to bring only official-capacity

claims. See Lore v. City of Syracuse, 

, 168 (2d Cir. 2012) (explaining that, in an

official-capacity suit, “the real party in interest is the [municipal] entity” (quoting 

)). Second, the plaintiffs requested punitive damages, which are available only in an

individual-capacity suit, for their hostile-work-environment claim. See 

(noting, inter alia, that “the complaint seeks punitive damages, which are not available against

the state,” and concluding that defendant was sued in his individual capacity). Third, although

much of the plaintiffs’ complaint concerns the alleged “English-only policy,” certain paragraphs

focus on St. Aubin’s conduct in enforcing that policy, suggesting that they wanted the district

court to hold her individually liable. Fourth, in response to the defendants’ Rule 50(a) motion for

judgment as a matter of law, the plaintiffs argued that they sought to challenge “the enforcement

of the policy, not the policy per se,” specifically, St. Aubin’s conduct in telling the plaintiffs, “in

violation of a well-settled City practice and in contravention of that practice, don’t speak Spanish

during your casual conversations.” Finally, the defendants failed to object either to the district

court’s instructing the jury on punitive damages or to its repeated statements that the jury could

find against the City, Commissioner Paul Holohan, or St. Aubin. These failures indicate that,

despite her failure to advance a qualified immunity defense, St. Aubin was aware of her

“potential exposure to personal liability.” 

. We therefore conclude that



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there are sufficient indicia of an individual capacity claim to preclude finding that St. Aubin was

sued only in her official capacity as a matter of law. Accordingly, we respectfully hold that the

district court erred in concluding that St. Aubin was sued only in her official capacity, so we

vacate that portion of the district court’s judgment, and we remand for the district court to

consider whether St. Aubin is entitled to judgment as a matter of law on the other grounds that

the defendants previously raised in their motion pursuant to Rules 50(b) and 59.1

       In the alternative to its holding on the official-capacity issue, the district court held that

the evidence was insufficient to support the jury’s award of punitive damages. See Rodriguez v.

City of Rochester, 

, 607–08 (W.D.N.Y. 2014) (“[E]ven if Plaintiffs had sued

Manager St. Aubin in her individual capacity, the record is devoid of any evidence of an ‘evil

motive or intent’ or ‘callous indifference’ that is indispensable to an award of punitive damages.”

(quoting Smith v. Wade, 

, 56 (1983)). Because the plaintiffs do not raise this issue on

appeal, they have abandoned it. See LoSacco v. City of Middletown, 

, 92–93 (2d Cir.

1995) (holding that issues not argued on appeal are deemed abandoned); Fed. R. App. P.

28(a)(8)(A) (providing that an appellant’s brief must contain “appellant’s contentions and the

reasons for them”). Moreover, we discern no error in the district court’s holding. Accordingly,

we affirm the district court’s grant of judgment as a matter of law with respect to punitive

damages.

       Finally, the district court conditionally granted St. Aubin’s motion for a new trial on the

same grounds as it granted judgment as a matter of law in her favor—i.e., that St. Aubin was

sued only in her official capacity. For the reasons discussed above, that decision was erroneous.



1
  We do not reach the plaintiffs’ contention, which they raised below but do not press on appeal,
that the defendants waived the argument that St. Aubin was not sued in her individual capacity
by failing to raise it in their Rule 50(a) motion.
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Accordingly, we vacate the district court’s conditional grant of a new trial with respect to the

plaintiffs’ claims for compensatory damages and remand to the district court to consider St.

Aubin’s motion for a new trial in light of our holding.

       We have considered the plaintiffs’ remaining arguments and find them to be without

merit. For the reasons stated herein, the district court’s grant of judgment as a matter of law is

AFFIRMED with respect to punitive damages, but is VACATED with respect to liability and

compensatory damages. The district court’s grant of a new trial is VACATED and the case is

REMANDED for further proceedings consistent with this Summary Order.



                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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