Airday v. The City Of New York

Background

George Airday, a former city marshal, sued the City of New York and city officer Keith Schwam under 42 U.S.C. § 1983. Airday alleged that then-Mayor Michael Bloomberg decided not to renew his appointment and reassigned his city-marshal badge. His remaining claim alleged selective enforcement under the Equal Protection Clause of the Fourteenth Amendment: Airday claimed that he was treated worse than other city marshals who engaged in misconduct during their terms.

Airday advanced three theories for the alleged selective enforcement: that Schwam acted out of malice or spite, retaliated against Airday for invoking procedural protections available to city marshals before discipline, and retaliated against Airday for exercising his Fifth Amendment right against self-incrimination. Airday also argued that the City could be liable because Schwam’s recommendation influenced Mayor Bloomberg, whom Airday identified as the final policymaker.

The court had previously granted the defendants judgment as a matter of law after a jury trial on Airday’s separate procedural-due-process claim. In that earlier ruling, the court held that Airday’s evidence did not establish an implied contract requiring reappointment or continued service in a holdover status. The selective-enforcement equal-protection claim remained. The court later allowed the defendants to file a second summary-judgment motion.

Summary-Judgment Procedure

Airday objected to the second motion. Judge Caproni reaffirmed that the motion was proper because the parties had not previously resolved whether the Supreme Court’s decision in Engquist v. Oregon Department of Agriculture barred Airday’s selective-enforcement theory. The court also noted that evidentiary gaps had emerged concerning Schwam’s influence on Mayor Bloomberg’s decision.

The defendants did not submit a new statement of undisputed facts required by Local Civil Rule 56.1 and did not cite their earlier statement in their motion papers. The court stated that failure to submit such a statement may support denial of a motion and that the defendants, as the moving parties, could not expect the court to organize the record for them. Although the court addressed the defendants’ legal argument about Engquist, it denied the motion.

Legal Analysis

Engquist held that a public employee cannot bring a “class-of-one” equal-protection claim against a government employer. A class-of-one claim alleges that the government treated one person differently without a sufficient rational basis. The Supreme Court reasoned that public-employment decisions commonly involve broad, individualized discretion.

Judge Caproni distinguished Airday’s claim from a class-of-one claim. Airday alleged not merely arbitrary or irrational treatment, but treatment motivated by malice, retaliation for exercising constitutional or procedural rights, or another improper consideration. The court described this as a selective-enforcement claim under LeClair v. Saunders. Such a claim requires proof that the plaintiff was treated differently from similarly situated people and that the treatment was motivated by an impermissible consideration, punishment for exercising constitutional rights, or malicious or bad-faith intent.

The court concluded that the reasoning of Engquist did not bar a selective-enforcement claim. Unlike a class-of-one claim, a LeClair claim requires proof of an improper motive; it therefore does not impose a general rationality requirement on discretionary employment decisions. The court also relied on the Second Circuit’s discussion in Hu v. City of New York, which treated class-of-one and selective-enforcement claims as distinct theories and had not decided whether Engquist barred malice-based selective-enforcement claims in public employment.

Remaining Proof Issues

The court did not decide that Airday would ultimately prevail. It stated that Airday might have difficulty showing that the other city marshals were similarly situated in all material respects. The court also identified a possible evidentiary problem concerning whether Schwam’s alleged improper motive was shared by, or influenced, Mayor Bloomberg, the decision-maker. The court nevertheless declined to resolve those factual issues for the defendants because they had not properly presented the evidence under Rule 56.1.

Disposition

The defendants’ motion for summary judgment was denied. The parties were ordered to submit a joint status letter within two weeks addressing possible referral to Magistrate Judge Aaron for settlement, whether they would waive a jury trial, and whether they would consent to further proceedings before the magistrate judge.