# Barbano v. Madison County

> Court of Appeals for the Second Circuit · December 28, 1990 · 922 F.2d 139

URL: https://www.frixlaw.com/law-library/cases/8986352

## Case

- **Full name:** Maureen E. BARBANO, Plaintiff-Appellee-Cross-Appellant v. MADISON COUNTY Madison County Board of Supervisors Madison County Veterans Affairs Committee Donald Greene, Madison County Madison County Board of Supervisors Madison County Veterans Affairs Committee, Defendants-Appellants-Cross-Appellees
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** December 28, 1990
- **Citations:** 922 F.2d 139; 55 Empl. Prac. Dec. (CCH) 40,461; 54 Fair Empl. Prac. Cas. (BNA) 1287; 1990 U.S. App. LEXIS 22494
- **Precedential status:** Published
- **Opinion:** Concurring in part by Graafeiland
- **Judges:** Feinberg, Graafeiland, Kearse
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8986352

## How later opinions describe it (automated extraction)

- holding that the district court acted within its discretion in denying front pay entirely because other relief, including back pay, prejudgment interest, and attorneys' fees, sufficed to make the plaintiff whole
- finding no abuse of discretion in trial court’s denial of reinstatement and conclusion that plaintiff was made whole by award of back pay of eight and one-half years, prejudgment interest, and attorneys’ fees
- holding that the denial of front pay based on the district court's implied finding that the other relief awarded to plaintiff was sufficient, did not constitute an abuse of discretion
- holding that failure to award front pay, because the district court impliedly found that other relief was sufficient, did not constitute an abuse of discretion
- holding that because district court impliedly determined that other relief was sufficient, denial of front pay award was not an abuse of discretion

## Opinion text

VAN GRAAFEILAND, Circuit Judge,
concurring in part and dissenting in part:
In 1980, the following people were members of the Board of Supervisors of Madison County:
Don R. Callahan
Leland T. Whipple
Robert B. Palmiter
Harrison R. Holdridge
Donald R. Huller
Calvin Brewster
E. Bart Hanifin
Jason D. Rogers
Francis T. Costello
James E. Powell
Richard Lamb
Donald Greene
Bettina Simberg
Richard Wood
Douglas S. Newbold
John S. Patane
William Magee
Dr. John McCann
James Rafte
The district court held that the Board violated federal law in that the members discriminated against plaintiff because of her sex. My colleagues agree. Because I believe that the members of the Board have been grievously wronged by these holdings, I disagree.
Madison County, located in upstate New York, is predominately rural and has a population of only 65,000. However, not a single member of Madison County’s Board of Supervisors was elected by the voté of these 65,000 County residents. The County contains a number of small towns, each of which, like the County itself, is an involuntary subdivision of the State. See Curtis v. Eide, 19 A.D.2d 507, 508 , 244 N.Y.S.2d 330 (1963). Each town is required to elect a town supervisor. N.Y. Town Law § 20 . 1 Each automatically becomes a member of the County Board of Supervisors. Id. at § 41(7); N.Y. County Law § 150 . As such a member, he or she has “powers and duties co-ordinate with the powers and duties of the supervisors of other towns in the county.” N.Y. Town Law § 41 (7).
The New York courts have interpreted the foregoing statutory provisions on a number of occasions; see, e.g.:
Lane v. Johnson, 283 N.Y. 244, 260 [ 28 N.E.2d 705 ] (1940).
“It is true, as we have said, that a Supervisor becomes a member of the Board of Supervisors of the county, but, as this court long, ago pointed out, ‘members of the board of supervisors are never elected as such, but hold that office and perform its duties under a general law, and by force of their election as supervisors of separate towns or cities.’ ”
Matter of Noble, 34 A.D. 55, 58 [ 54 N.Y.S. 42 ] (1898).
“Although the board of supervisors is a county organization, its members are not elected by the body of electors of the county, but are chosen by the electors of their several towns respectively, and individually they are classed as town officers .... Each town has its duly elected supervisor, who represents it as a member of the board of supervisors of the county in which the town is situated.”
As above pointed out, each town supervisor’s powers as a member of the County Board of Supervisors are “co-ordinate”, i.e., equal in rank, quality, authority and significance, with those of other town supervisors on the Board. N.Y. Town Law § 41 (7). In other words, neither the County of Madison nor its Board of Supervisors can discipline or discharge a supervisor whose pronouncements do not conform to *148 the policies of the County. The sole remedy for misconduct or malfeasance by a supervisor is removal by the Appellate Division of the State Supreme Court pursuant to section 36 of the N.Y. Public Officers Law. “No penalty other or less severe than removal is provided.” Matter of Luce v. Better, 239 A.D. 23, 28 , 265 N.Y.S. 61 (1933) (Taylor, J., dissenting). The importance of this fact will be demonstrated in the discussion that follows. Of necessity, this discussion is in some respects more comprehensive than is that of the majority opinion.
In 1978, the position of Director of Madison County Office of Veterans Affairs became vacant with the retirement of the Director then in office. Five or six candidates for appointment to the vacant office, including Joseph Hammond, James Alley and Alan Wagner, were interviewed. The choice narrowed down to Hammond and Wagner, who were said to be “neck and neck” in the opinion of the interviewing committee. Hammond was selected, primarily because he came from the same locality as did the chairman of the interviewing committee.
In February 1980, when the position of Director again became vacant, the Veterans Affairs Committee of the Board of Supervisors concluded that, because the 1978 public interviews had produced a well-qualified candidate in the person of Alan Wagner and only a relatively short period had elapsed since those interviews had been conducted, there was no need to go through the same procedure again. The Committee therefore recommended to the Board of Supervisors that it hire Wagner. However, because plaintiff, “hollering Affirmative Action and Equal Opportunity Employment” (her own words), raised a fuss about the failure to conduct new interviews, the Board decided that interviews should be conducted again. After interviewing six men and two women, the Veterans Affairs Committee recommended Wagner for the second time, and this time the Board of Supervisors voted without dissent to hire him. In fairness to Wagner and the members of the Board of Supervisors, Wagner’s qualifications deserved greater consideration than was given them by the district judge, who merely observed, almost it appears by way of criticism, that the “Committee members were enamored with Wagner’s military record and involvement in veterans’ organizations.”' In view of the nature of the job position to be filled, “Director of Veterans Affairs”, it would be strange indeed if the Board of Supervisors did not look kindly upon Wagner’s record as a soldier and a veteran.
Because this opinion would be prolonged unduly by the incorporation in its entirety of Wagner’s excellent service record, excerpts therefrom must suffice. Wagner served in the U.S. Air Force from 1954 to 1965. During that time, he took several extension courses to qualify him for service as a personnel specialist or manager, and he became active in that branch of the service. This led to his designation in 1961 as NCOIC of the 26th Air Division Reserve Affairs. His duties as such were summarized in his service report as follows:
CURRENT DUTIES: Guides subordinate units on all matters concerning administration of reserve affairs. Responsible for the submission and audit of reports prepared by subordinate units pertaining to reserve affairs. Conducts command screenings to determine special training requirements. Reviews for accuracy, validity, and consolidates reports such as Worldwide Housing, Transient Billeting Facilities, Information on Overseas Areas for AF Personnel and Their Families, Worthless Checks, and Human Reliability Report. Posts manpower authorization changes to UMD’s.
The following two excerpts, the first from a report dated March 31, 1962 and the second from a report dated October 5, 1964, demonstrate the esteem in which Wagner was held by his superiors:
SSgt Wagner assumed the duties of NCOIC of 26th Air Division Reserve Affairs nine months ago without benefit of previous experience. In many ways this duty is unique within the Personnel area; and in Sgt Wagner’s case, there was no experienced supervisor to provide him with guidance and training. Under these *149 conditions it is of particular significance that he has so quickly grasped a comprehensive knowledge of the Reserve Affairs program. Sgt Wagner is very conscientious in his attitude, and mature in judgment. In those areas of his job in which flexibility of action exist, he displays a positive awareness and concern for the welfare of the Air Force rather than following the path of least resistance or favoring individual reservists based on personalities or friendships. Strengths: When requirements reach Sgt Wagner, action is taken immediately. Difficult or distasteful tasks are never put aside to “worry about tomorrow”. This degree of eagerness to keep ahead of the job is a valuable asset in any organization and inspires the respect and support of his superiors.
* % * * * *
SSgt Wagner is a very mature and conscientious NCO. He is tactful and diplomatic in the manner in which he accomplishes his assigned duties. This is considered important in view of the fact that he must continually deal with officers at higher headquarters, senior staff officers within this headquarters and subordinate echelons as a matter of daily routine. These differences in rank have not materially affected his ability to accomplish what he has set out to do. His knowledge of Reserve Affairs and training regulations and procedures have been invaluable to the Training Plans and Policies Division. His efforts have contributed substantially to resolving the complex problems associated with the screening and submission of command special training needs to higher headquarters. Due to his continuing efforts, the active duty training of reserve personnel, known as obligors, who have been arbitrarily assigned to this headquarters, has resulted in those persons to complete [sic] their military obligation. He presents a fine military appearance at all times in addition to being very courteous and personable. STRENGTHS: His most obvious strength is manifest by his loyalty coupled with my confidence in his ability to apply a common sense approach to the solving of Reserve Affairs and Personnel Training problems.
It is little wonder that Wagner consistently was ranked as “An exceptional airman of great value to the service.” Wag--ner’s election for two terms as Commander of Munnsville Post 54 of the American Legion, his additional election as Madison County Commander, and the enthusiastic support of his job candidacy by his fellow veterans speak for themselves insofar as his leadership abilities and his interest in veterans affairs are concerned.
In contrast to Wagner’s experience and activities as a soldier and veteran, the record discloses that plaintiffs previous employment experience consisted of three years as a waitress at a McDonald’s hamburger restaurant and three years as a clerk in the Food Stamps section of Madison County’s social service department.
In the light of the foregoing, the district court’s finding that “[t]he record does not support defendants’ claim that Alan Wagner had more experience as a supervisor” was clearly erroneous. Plaintiff had no experience whatever as a supervisor. Wagner, a noncommissioned army officer, had ample experience. His service record, which is in evidence, contains a section entitled “How Well Does He Supervise?”, and Wagner received the second highest rating possible under this section. The rating states “Succeeds under unusual or difficult circumstances. Secures high production.” The above-quoted comment concerning Wagner’s “CURRENT Duties” states that he guided subordinate units on all matters concerning administration of reserve affairs. Moreover, following his army duty, Wagner worked for nine years at Oneida Ltd., where he was foreman in the drop room and supervised approximately fifty people. In short, the district court’s finding concerning relative supervisory experience was inexplicably and clearly erroneous.
Another clearly erroneous crucial finding by the district court was that the evidence “does [not] support defendants’ assertion that plaintiff was lacking in tactfulness.” *150 Reams have been written about how a job applicant should conduct himself or herself during a job interview. H. Anthony Medley, in his book Sweaty Palms: The Neglected Art of Being Interviewed (1984), states that “You should be pleasant and avoid controversy.” Id. at 37 . Thomas L. Moffatt, in his equally informative book Land That Job (1982), writes, “Rudeness, inattentiveness, and challenging the capability of the interviewer are, of course, out of the question.” Id. at 86 . He continues, “[B]e sure your motions, your tone of voice, and your actual words communicate a friendly, respectful, honest, self-confident, and cooperative mental attitude.” Id. at 87 . One need not have read these books to realize the desirability of following these admonitions; they are statements of plain common sense. However, from start to finish, plaintiff proceeded as if these common sense admonitions did not exist.
At the very outset, she insulted Don Callahan, Chairman of the Board of Supervisors, by sending her employment application to him by Registered Mail, Return Receipt Requested. She admittedly followed this most unusual procedure to prevent Callahan from lying and saying that he had not received the application. Perhaps the district judge would not have been offended had he been in Callahan’s position. However, I suggest that most persons whose integrity was called into question in this manner would take it as a slap in the face. Plaintiff was not preparing for a job interview; she was preparing for a fight.
Indeed, a review of plaintiffs deposition and her answers to interrogatories shows that she considered James Alley rather than herself to be the best choice for the job. Moreover, plaintiffs attorney, certainly with her knowledge and consent, sued the County on Alley’s behalf, alleging that the job should have gone to him. When counsel for the County attempted to question plaintiff about these allegations and admissions, the district court refused to permit it, stating that the testimony was irrelevant and that plaintiff was not qualified to state whether Alley was more qualified than she for the job. This, I suggest, was clear error. Plaintiff’s contention that she was entitled to the appointment stands in stark contrast to her statements that the appointment should have gone to Alley.
The committee members who testified stated that plaintiff came to the interview with a chip on her shoulder and that she was not tactful. The district court said that these assertions were frivolous. I have read the entire record very carefully, and I strongly disagree. After plaintiff made her presentation and the individual members of the committee were permitted to ask questions, Donald Greene, town supervisor of Stockbridge, asked the first one. Mr. Greene inquired how somebody who was not a veteran would qualify for the position of Director of Veterans Affairs. Plaintiff’s response to this question was:
I’m sorry, sir, it’s obvious to me that you haven’t even looked at my resume, because I am a veteran.
Had Mr. Greene wished to engage in the controversy that plaintiff obviously desired, he could have responded that, under New York law, plaintiff was not a veteran. Article 17 of New York’s Executive Law provides that to qualify as a veteran one must have been in the active military service during a war in which the United States was engaged. See N.Y.Exec.Law §§ 350(3) and 364(1). See also N.Y.Soc. Serv.Law § 168(1). New York has a longstanding policy of favoring veterans as thus defined. August v. Bronstein, 369 F.Supp. 190, 193 (S.D.N.Y.) (three judge court), aff'd mem., 417 U.S. 901 , 94 S.Ct. 2596 , 41 L.Ed.2d 208 (1974). Plaintiff served for forty-four days in 1976, a period during which the United States was not at war. Assuming for the sake of argument that plaintiff’s forty-four days of service qualified her in common parlance as a veteran, plaintiff’s response to Mr. Greene’s question not only lacked tact, it was boorish and rude. It certainly would not serve as a sterling example of how to win friends and influence people.
Mr. Greene then asked plaintiff whether her husband would object to her perform *151 ing the duties of the job, and stated that he would not want his wife running around the countryside with a bunch of men. Plaintiff states that she told Mr. Greene “in no uncertain terms” that she was not his wife. Mr. Greene, a retired farmer sixty-two years of age, was old enough to be plaintiffs father, indeed old enough to be her grandfather. I believe that Mr. Greene, who died the following year, was entitled to something other than the churlish — “in no uncertain terms” — comment he received from plaintiff. Apparently, respect for one’s elders was a policy that plaintiff abjured.
I am not at all sure that Mr. Greene’s question concerning the reaction of plaintiff’s husband to the duties of the proposed employment was indicative of sexual bias. If a man applied for a job that required him to run around the countryside with a bunch of women, he might very well be asked what his wife’s reaction would be. Family discord that is job related has an inevitable deleterious effect on employee performance, regardless of whether the employee is a man or a woman. Whether or not the question was proper, the fact remains that plaintiff was seeking employment, not carrying on a battle for women’s rights. Plaintiff stated in her deposition that the newspapers accused her of being abrasive in the interview, and she did not dispute this characterization. She said that if she was abrasive it was because she was antagonized. However, regardless of the cause, abrasiveness does not win offers of employment.
In another well-accepted work dealing with employment interviews, Make Your Job Interview a Success, the author, J.I. Biegeleisen, states, “It is a known fact that the candidate who comes out of the interview with a job offer is not necessarily the one best qualified technically, important an attribute as that may be, but the one who makes the best impression.” Id. at 94. When Douglas Newbold, a member of the interviewing committee, was asked what factors led him to favor Wagner as a candidate, he testified:
Well, several things: his — the fact that he had experience supervising employees, that he had I — I would consider it a substantial amount of experience in the military, and that he came across in the interviews, primarily, I suppose, made— probably was the biggest factor. He just seemed to be the kind of person that we were looking for to — to work with to fill the position. He seemed honest, he seemed soft-spoken, he seemed tactful; you felt that you could rely on what he told you.
And since the supervision was kind of distant, you know, on a month-by-month basis, it seemed that it was important that we had somebody we could rely on to operate the office.
I believe that the district court should have recognized the Committee’s right to rely on these criteria, criteria that plaintiff obviously did not satisfy.
I agree that Mr. Greene’s questions concerning plaintiff’s proposed or possible pregnancies were improper and should not have been asked. However, as pointed out at the outset of this opinion, there was no way in which Mr. Greene or any other individual supervisor could have been prevented from asking these questions or punished for so doing. Although conceivably it might be argued that Greene’s words were binding on the small town of Stock-bridge where he was the elected supervisor, they cannot be said to represent the policy or the will of the other 63,000 inhabitants of Madison County who had no say whatever in Greene’s election or his presence on the Board of Supervisors. Where, as here, controlling law limits the County’s authority over individual supervisors, the County cannot be held responsible for their unauthorized conduct. See Jett v. Dallas Independent School Dist., — U.S. -, 109 S.Ct. 2702, 2723 , 105 L.Ed.2d 598 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 124-31 , 108 S.Ct. 915, 924-28 , 99 L.Ed.2d 107 (1988); Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir.1988), cert. denied, 488 U.S. 1014 , 109 S.Ct. 805 , 102 L.Ed.2d 796 (1989).
The record is devoid of evidence that Madison County has a history or policy of *152 discriminating against women. When defense counsel attempted to prove the absence of such discrimination, the district court erroneously prevented him from so doing. The undisputed fact remains that plaintiff was employed by the County prior to the incident in question and was in the tenth year of her employment at the time of trial. The district court prohibited defense counsel from inquiring of her whether she had ever been discriminated against. We know from her testimony at deposition and from the fact that her counsel objected to the question that the answer if given would have been “No”.
In my opinion, the district court erred as a matter of both fact and law in holding that the members of Madison County’s Board of Supervisors were guilty of sex discrimination. I would reverse the judgment in plaintiff's favor. Needless to say, I concur in my colleagues’ disposition of plaintiff’s cross-appeal.
. Oneida, which is an incorporated city with a population of 11,000, elects three supervisors.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8986352. Public record. Not legal advice.