Opposition Brief — Wimmer v. Suffolk County Police Department

No. 99-206

IN THE

Supreme Court of the United States

PAUL WIMMER,

Petitioner,

v.

SUFFOLK COUNTY POLICE DEPARTMENT

and JOHN GALLAGHER,

Respondents.

ON PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Rosert J. CIMINO

Suffolk County Attorney

THEODORE D. SKLAR*

Assistant County Attorney

CHRISTOPHER A. NICOLINO

Assistant County Attorney

Attorneys for Respondents

H. Lee Dennison Building, Fifth Floor

100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, New York 11788-0099

; 16) 853-5668

* Counsel of Record mem

155314 @J Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

ee ES TS eee ee ee ee

TABLE OF CONTENTS

Page

Table of Cited Authorities ..........-0eeeeeeee il

Densemant GE GO CHD occ ccccccectcesevesceues l

A. Proceedings Below .........-..eseeeee- l

BD. Bembemnet OF FOG ooo csc ccc decccvccccns 3

Perceived Misstatements Made in the Petition .... 15

Reasons for Denying the Writ .............-5-- 18

The Petitioner Has Failed To Establish

Jurisdiction For Review Of The Order

Appealed From As Required By Rule 10 Of

re. od dvcakendwenas o6eubsenver 18

A. The Courts Below Correctly Applied

The Good Faith,Reasonable Belief

Inquiry To The Petitioner’s Opposition

Clause Claim Under Section 704(a) Of

We “a cukaewaceseserteasesens 18

B. This Court’s Decisions In Monell v. New

York City Department Of Social

Services, 436 U.S. 658, 98 S. Ct. 2018,

56 L. Ed. 2d 611 (1978), And In Its

Progeny, Should Not Be Overruled.

cians in deeh late carne sen es au lers 25

eee gee eakeuedeneeens 26

ul

TABLE OF CITED AUTHORITIES

Page

Cases:

Berg v. LaCrosse Cooler Company, 612 F.2d 1041

(Tt Clip. 1SQG) . occicn vaunavh ones seeeseeeees 20

Board of the County Commissioners of Bryan

County, Oklahoma v. Brown, 520 U.S. 397, 117

S. Ct. 1382, 137 L. Ed. 2d 626 (1997) ........ 26

Booker v. Brown & Williamson Tobacco, Inc., 879

F.2d 1304 (6th Cig, 1969) 2. ccccscccercvcces 21

City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.

Ct. 915, 99 L. Bd. 2 BOT Cheese « oc wecccesse< 25

Crowley v. Prince George's County, 890 F.2d 683

(4th Cr. 1908) .. ves tsaeucen cues ceaeeeees 19

Equal Employment Opportunity Commission vy.

Federal Labor Relations Authority, 476 U.S. 19,

106 S. Ct. 1678, 90 L. Ed. 2d 19 (1986) ...15, 19, 26

Harper v. Blockbuster Entertainment Corporation,

139 F.3d 1385 (11th Cir. 1998) ........... 21, 24, 25

Hedgepeth v. Kaiser Foundation Health Plan of

Northwest, 76 F.3d 386, 1996 WL 29252 (9th Cir.

ib ) rrr ry era 20

Holland v. Jefferson National Life Insurance

Company, 883 F.2d 1307 (7th Cir. 1989) ...... 21

a pieianmaaee c:

lil

Cited Authorities

Page

Jennings v. Tinley Park Community Consolidated

School District No. 146, 796 F.2d 962 (7th Cir.),

cert. denied, 481 U.S. 1017, 107 S. Ct. 1895, 95

St ED occaevceepassestevoceus 20

Lanaux v. Central New York Psychiatric Center, 152

F.3d 919 (2d Cir. 1998), cert. denied, U.S. _.,

119 S. Ct. 382, 142 L. Ed. 2d 316 (1998) ...... 24

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U.S. 387, 43 S. Ct. 422, 67 L. Ed. 2d 717

ico ccrkedeeaceedebeeveerrenscsees 19

Little v. United Technologies, Carrier Transicold

Division, 103 F.3d 956 (11th Cir. 1997) ....19, 20, 21

Love v. RE/MAX of America, \nc., 738 F.2d 383 (10th

DP or eea sa easecheeeevreseneceseecs 20

Manoharan v. Columbia University College of

Physicians & Surgeons, 842 F.2d 590 (2d Cir.

TE CU cuepUeeesseederbbeeresaveoeeees 18, 24

Meritor Savings Bank v. Vinson, 447 U.S. 57, 106

S. Ct. 2399, 91 L. Ed. 2d 49 (1971) ........... 22, 23

Monell v. New York City Department Of Social

Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed.

DE REDTED cocvccvccccseccescecsceseses 25

Cited Authorities

Page

Moyo v. Gomez, 40 F.3d 982 (9th Cir.), amending,

32 F.3d 1382, cert. denied, 513 U.S. 1081, 1158S.

Ct. 732, 130 L. Ed. 26 635 (1995) ..... cece: 22, 23

Parker v. The Baltimore and Ohio Railroad

Company, 652 F.2d 1012 (D.C. Cir. 1981) .....20, 21

Payne v. McLemore’s Wholesale & Retail Stores,

654 F.2d 1130 (Sth Cir.), cert. denied, 455 U.S.

1000, 102 S. Ct. 1630, 71 L. Ed. 2d 866 (1982)

peGeveaausduekuxndacuracsseeeauesasieens 20

Pennsylvania Department of Corrections v. Yeskey,

524 U.S. 206, 118 S. Ct. 1952, 141 L. Ed. 2d 215

Se Cobsudakedduusebeeeaeencares 15, 19, 25, 26

Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170

Sat SE, Sb oubGaueeadvbcateedecacunenen 18

Rice v. Sioux City Memorial Park Cemetery, 349

U.S. 70, 75 S. Ct. 614, 99 L. Ed. 2d 897 (1955)

TOT errr eer Tr errr ee Tree 19

Rogers v. E.E.O0.C., 454 F.2d 234 (Sth Cir. 1971) .22, 23

Silver v. KCA, Inc., 586 F.2d 138 (9th Cir. 1978) . 19

Sisco v. J.S. Alberici Construction Company, 655

F.2d 146 (8th Cir.), cert denied, 455 U.S. 976,

102 S. Ct. 1485, 71 L. Ed. 2d 688 (1982) ...... 20

Standard vy. A.B.E.L. Services, Inc., 161 F.3d 1318

Sea, CE «ics auanubeb ed ceetenuaeners 21

Cited Authorities

Statutes:

G2 ULB & NGS. ivi sees tesesueses

42 U.S.C. § ZQQCRHB) «cv cvcccceves

United States Constitution:

First Amendment ...............--

Rules:

, 9 So 5 ey Beret re rT

United States Supreme Court Rule 10

Te

|

STATEMENT OF THE CASE

A. Proceedings Below

Petitioner, Paul Wimmer (hereinafter referred to as

“Petitioner”), was employed on March 29, 1993 as a police

officer by respondents, Suffolk County Police Department

(hereinafter referred to as “SCPD”) and Peter F. Cosgrove,

Commissioner of the Suffolk County Police Department

(hereinafter referred to as “Commissioner Cosgrove”). Upon

his appointment, Petitioner began serving an eighteen (18)

month term as a probationary police officer. Commissioner

Cosgrove terminated Petitioner on February 15, 1994 as a result

of unsatisfactory performance during his probationary period

(900) '. Petitioner, a white male, commenced this action seeking

damages for civil rights violations in connection with the

termination of his employment by the filing of a summons and

complaint on or about November 21, 1994.

: The SCPD and Commissioner Cosgrove were the only

defendants named in the complaint. At trial, the SCPD was

dismissed as a party and the district court allowed Petitioner to

amend his complaint to add the County of Suffolk (hereinafter

referred to as the “County”) as a defendant (617).

Commissioner Cosgrove was only named in the caption of

the complaint. The complaint did not otherwise mention

Commissioner Cosgrove and did not contain a single allegation

against him.

The complaint contained three federal claims: (i) a Title

VII claim (Complaint, 437 and 38 at pp. 7-8); (ii) First

Amendment and Fourteenth Amendment claims (Complaint,

{140 and 41 at pp. 8-9); and (iii) a 42 U.S.C. § 1983 claim

|. Numerical references are to pages in the Joint Appendix filed

with the Second Circuit Court of Appeals.

SII ii |

2

(Complaint, {943 and 44 at p.9). The complaint also alleged

causes of action under the New York Executive Law (Complaint,

438 at p. 8) and New York Constitution (Complaint, 941 at

pp. 8-9).

After he was terminated by Commissioner Cosgrove,

Petitioner applied to be reinstated by his previous employer,

the New York City Police Department (hereinafter referred to

as the “NYPD”) (328). As part of the application process,

Petitioner prepared a statement explaining his termination from

the SCPD (1129). This statement was not disclosed by Petitioner

to the defense prior to trial. It was obtained by the defense on

the eve of trial only after a so-ordered subpoena was served on

the NYPD.

At trial Petitioner claimed that he did not recall the statement

(334). He remembered it when he was confronted with it (334).

In the statement, dated March 3, 1994, Petitioner told the NYPD,

“[b]asically, [I] was terminated from [the SCPD] for personality

difference with two field training officers out of a total of five

or six” (1129). Clearly, when he was seeking to be reinstated

by the NYPD, Petitioner did not claim that Commissioner

Cosgrove or the County violated his civil rights.

By notice of motion dated November 25, 1996, the SCPD

and Commissioner Cosgrove moved for summary judgment on

the grounds that: (i) Petitioner was not engaged in protected

activity under Title VII; (ii) there could be no direct action

against a municipality under the First Amendment; (iii) the

complaint did not plead that the alleged unlawful termination

was pursuant to an official policy or custom of the County; and

(iv) the state law claims were barred by the failure to serve a

notice of claim. Petitioner opposed the motion for summary

judgment. The district court refused to consider and decide the

motion for summary judgment.

Se =.

ee ee

3

The case was tried before a jury. At the close of Petitioner's

case, the district court granted a Fed. R. Civ. P. 50 motion by

the County and Commissioner Cosgrove to dismiss the Title

VII claim, the claim brought directly under the First Amendment

and the state human rights claim. The district court reserved

decision on the motion to dismiss the 42 U.S.C. § 1983 claim.

At the close of the defense case, the Rule 50 motion to dismiss

the 42 U.S.C. § 1983 claim was renewed and was granted by

the district court. The Second Circuit Court of Appeals affirmed.

B. Statement of Facts

Petitioner came to the SCPD after what he alleged in his

complaint and described in his direct testimony as “3 successtul

years with the New York City Police Department (“NYPD”)

and New York City Housing Authority Police Department

(“HAPD”)” (Complaint 49, at p.3). On cross-examination,

Petitioner was confronted with evidence that he had failed to

divulge during pre-trial discovery which demonstrated that he

lied about his so-called “career” as a police officer before coming

to the SCPD. Petitioner initially denied, then he was forced to

acknowledge, that he was held over in the New York City Police

Academy and was assigned to the Police Applicant Recruit

Training Section for ten months for a psychological evaluation,

commonly known as a “psych hold” (369-370).

While he was on “psych hold”, Petitioner was engaged in

activities like modeling uniforms and escorting the commanding

officer of the Police Academy to ceremonial functions (177-

179). After spending fifteen (15) months of his three (3) year

New York City police career in the NYPD Academy (October

15, 1990-January 23, 1992) (172; 183; 1120), Petitioner finally

entered a HAPD field training unit known as PBMTU(T). While

he was in training, Petitioner received a critical evaluation in

the area of “Human Relations” (1126):

_——————————

4

Officer is often to (sic) eager to assimilate with others

in the squad. His actions have a tendency to make

his peers uncomfortable and this alienates him from

others. The afore-mentioned items have been

discussed with the officer in an attempt to correct

the situation.

Petitioner was assigned to a HAPD precinct on July 13,

1992 after he finished his field training (1120). After just two

months at his first precinct assignment, Petitioner was attacked

and injured by a young woman while he was giving her a parking

ticket (193-194). Petitioner laterally transferred to the NYPD

on November 30, 1992, which was slightly more than four

months after he began his first precinct assignment in the HAPD

(1120). He spent four (4) months in the NYPD, including at

least three (3) weeks back in the NYPD Academy (196-197),

before he was appointed to the SCPD on March 29, 1993.

Petitioner failed his initial psychological exam with the

SCPD (371). He graduated from the SCPD Academy with a

grade of 77.34 out of a minimum passing grade of 75. One of

Petitioner's field training officers (FTOs) in the SCPD, P.O.

Glenn M. Ferrante, who rode with Petitioner in a patrol car on

eighteen tours, reported to his precinct commander on February

6, 1994, that “[t}he undersigned officer's overall evaluation of

PPO Petitioner is that his ability to perform as a Police Officer

is unacceptable. | believe he is an immature individual and

possibly has some sort of psychological imbalance” (889).

Ferrante concluded that Petitioner was “unable to properly

perform the duties of a Police Officer. I strongly feel he would

be a danger to himself and the public” (890; 1014; 1033).

Another one of Petitioner’s field training officers, P. O. James

P. Gormley, reported on January 27, 1994 that:

[Petitioner's] comments to me were sometimes

bizarre, if not offending. At one point during training

5

he stated that he was having an orgasm, ever since

he was 5 years old he dreamed of driving a police

car on the LIE [Long Island Expressway].

[Petitioner] seems to be more interested in making

“contacts” in the Department than learning how to

be a Suffolk County Police Officer. He was very

negative towards any feedback that I gave him.

(887). Gormley also reported on October 24, 1993 that Petitioner

made remarks, like “we both wear blue, and he [Petitioner] shits

and pisses blue” (991; 675). Another FTO, P.O. George Hodge,

reported on October 7, 1993 fhat Petitioner verbalized

“a paramount desire to achieve higher rank”, and “as this

idiosyncrasy could very well alienate neighboring sector car

operators I feel it is significant” (973). Hodge could not have

had any knowledge of Petitioner’s remarkably similar

performance evaluations while he was trained at the HAPD;

Petitioner withheld those evaluations from the defense.

Upon entering the SCPD Academy, Petitioner was required

to submit a “Self Introduction” (849-849a). Petitioner began

his self-introduction by describing his career expectation.

Petitioner wrote that he wanted to become a “Detective Lietenant

(sic), commanding officer of the Homicide Squad, perhaps

making CAPTAIN” (849). Petitioner summed up his

expectations at the end of his self introduction. He wrote that

“[m]y lifetime goal is to be the Finest of the Finest in Suffolk

County, P.D., and to serve after my retirement as a legislator,

and a judge therefore a lifetime achievement of “excelling” in

Ail three branches of government: Executive, Legislative and

Judicial. I believe I have the gift of virtue” (849a). Petitioner

acknowledged on cross-examination that he pursued admission

into law school, but was not accepted (204). In between the

description of his career goals, Petitioner described his father

as “an irrational alcoholic” and “a sad example of civility”

(849a). Petitioner then described himself as “an ethicist, a lover

6

of wisdom and justice” (849a). He wrote that “I have recently

been nominated Vice President of Humanity Against Hatred”

(849a). He wrote that “[m]y legal mentor is Thurgood Marshall,

and my local hero is the Honorable Judge (retired) Stuart Namm

for his courage to speak out on the injustices and collusion

between the local police and prosecutors. | am a white male

who respects and Admires All people” (849a).

On direct examination, Petitioner described what he claimed

was harassment of him at the SCPD Academy. He referred to

six exhibits which were internal correspondence he prepared at

the direction of his instructors. Petitioner was directed to write

about the meaning of the word semantics (851); about “ten

codes” (852-853); about not having a uniform shirt tucked in

(854); about a memobook error (855); about an improper shoe

shine (858) and about submitting an arrogantly worded appeal

of an examination question (873-878).

On cross-examination, Petitioner acknowledged nineteen

(19) other internal correspondence that he was required to write

at the police academy (850; 856-872; 875-876; 879-880; 1 132-

1133). They addressed deficiencies far more substantive than

the untucked shirt and unshined shoes Petitioner chose to talk

about on direct examination. The internal correspondence

addressed Petitioner’s deficiencies in understanding topics like

the definition of serious physical injury (856); when a police

officer can enter a home to make an arrest (866); the elements

of burglary in the second degree (869-872; 879) and improper

handcuffing technique (880).

According to Petitioner, he did not think he did anything

wrong when he was required to write many of the internal

correspondence at the police academy (223). Petitioner believed

that the instructors were trying to make him resign (223). On

cross-examination, Petitioner admitted that he only testified on

direct examination about the two high test scores he received at

the academy (225-226). Petitioner acknowledged that he also

7

received poor test scores and that he graduated close to the

bottom of his academy class with a final grade of 77.34, which

was 2.34 points away from failing out of the police academy

(225-227).

After barely graduating from the police academy, Petitioner

began field training. Petitioner was trained for eighteen (18)

weeks at two precincts — the Fifth Precinct and the Sixth

Precinct. He was trained by eleven police officers who served

as Field Training Officers (FTOs) and drove in a patrol car with

Petitioner. Those FTOs were Police Officers Pitts (949-966);

Roche (967-968; 974-978; 978-983); Hodge (972-973); Ryan

(976-977); Gormley (984-99 1); Ferrante (997-1000; 1003-1010;

1013-1016; 1020-1035; 1038-1041; 1042-1044); Hatton (1001-

1002); Tucker (1011-1012); Fountain (1036-1037); Nolan

(1045-1048; 1051-1060; 1063-1068; 1072-1099) and Brierton

(1049-1050; 1061-1062). Phases I (3 weeks) and II (3 weeks)

of Petitioner’s field training at the Fifth Precinct were evaluated

in end of phase reports prepared by one sergeant, Terrence Brady

(969-971; 992-996; 886; 902; 701-708). Brady was the only

sergeant who evaluated Petitioner’s field training. Phase II was

also evaluated in writing by Lt. William Murphy (901; 589-

590). Phases III (3 weeks) and FV (3 weeks) of Petitioner’s field

training at the Sixth Precinct were evaluated in end of phase

reports prepared by Lt. Joseph Williams (1017-1019; 1042-

1044).

Petitioner’s field training during Phases I, II, I] and IV

was also evaluated by the SCPD Deputy Chief of Patrol, Russell

Brown, by the Sixth Precinct’s Commanding Officer, Inspector

Philip Robilotto, by Deputy Inspector Robert Gould of the Sixth

Precinct and by Captain James Rhoads from the Chief of Patrol’s

Office (893). Petitioner was categorized at the “minimum

acceptable” level for Phases I and II (892). After rounding off

grades in 17 of 32 categories in Phase III to the next highest

number, Petitioner was again placed in the “minimum

CE EETE’S Oe ee

8

acceptable” category (893). At the end of Phase IV, Petitioner

was unacceptable in the majority of categories (893). Other

criticisms of Petitioner included his obsession with making rank;

his inability to accept criticism and feedback; an unacceptable

attitude towards the public; his tendency to become

argumentative with his field training officers; he was overly

talkative about inappropriate items and his inability to handle

paperwork involved with the job (892-893). Based on the

foregoing, it was decided to extend Petitioner’s field training

by two (2) complete phases (6 more weeks) and to send him for

two (2) days of intensive remedial training at the Police

Academy (893; 881-882; 903-904).

On cross-examination, Chief Brown explained why

Petitioner’s field training was extended (824-825):

It was decided that we were going to give him two

extra phases of training. This was to give him the

best opportunity to get the most out of our training

to be a police officer.

We were trying to salvage the officer, and it was my

determination that we would do extra field training

to that goal.

Phase V of Petitioner’s extended field training was evaluated

in an end of phase report prepared by Lt. Joseph Williams (1069-

1071). Phase VI was evaluated in an end of phase report prepared

by Lt. William Murphy (1100-1102).

During Phases V and VI, Petitioner was criticized for

unacceptable paperwork, for over-talkativeness and

inappropriate remarks and for derogatory comments about

civilians, fellow officers and supervisors (894; 908-909). In the

daily observation report for December 21, 1993, P.O. Brierton

commented that Petitioner had apparently witnessed a motor

9

vehicle accident occur, and Petitioner “was going to disregard

actions of one vehicle, which was apparently over a double,

solid yellow line because operator stated she knew Lt. Jantzen”

(1062). In the daily observation report for December 24, 1993,

P.O. Nolan wrote that Petitioner “failed to find a potential

weapon (sm. survival type pocket knife) on DWI prisoner during

initial search after cuffing” and that Petitioner “also failed to

stay w/susp./prisoner at MVA after being told to do so by”

P.O. Nolan (1068). Both of those daily observation reports were

noted by Captain Rhoads in his summary of Petitioner’s field

training dated January 24, 1994 which recommended to Rhoads’

superior, Chief Brown, that Petitioner be terminated (905-91 0).

In a second report dated February 4, 1994 to Chief Brown,

Rhoads noted that at the conclusion of six (6) phases (18 weeks)

of field training, including two (2) days of special remedial

training at the police academy, it was decided that Petitioner’s

field training would end because “nothing would be gained by

continuing his field training” (894).

Petitioner testified that he met with Captain Rhoads at the

end of Phase VI (140-145). Petitioner did not testify that he

told Rhoads that he was being retaliated against by other police

officers. Similarly, Petitioner did not complain to Captain

Rhoads about any racial slurs or the targeting of Hispanic

motorists.

On January 24, 1994, another meeting was held to discuss

Petitioner’s future with the SCPD. This meeting was called by

Chief Brown (835) and was attended by Brown, Captains

Rhoads and Gabriel, Lieutenants Murphy and Williams,

Sergeant Brady and P.O.’s Friedrich, Ferrante, Gormley, Hodge

and Pitts (836, 894). Brown testified on cross-examination that

the attendees were determined based on who was working on

the day of the meeting (836). Brown explained the purpose of

the meeting (836-837): “I wanted to talk to the officers and

supervisors who were directly involved in [Petitioner’s] field

Fe ae eee

10

training to see what level we had gotten to, whether there were

any additional steps that we could take to salvage this officer.”

Captain Rhoads summarized the meeting in his memorandum

of February 4, 1994 (894):

At the conclusion of the meeting, a unanimous

agreement was-reached that PPO Wimmer's

performance could not be brought up to an

acceptable level and the potential for this officer to

expose the department to complaints, and possible

lawsuits, presented an unacceptable risk. Therefore,

he should not be put on the street. It was also agreed

that a recommendation for termination should be

sent to the Commissioner.

On direct examination, Chief Brown summarized his

knowledge of Petitioner’s training and performance (794-795):

He was having the same problems, he was

having problems dealing with the public, he was

almost contemptuous about the public, he was

cynical about them.

He was having problems dealing with his field

training officers, he wasn’t doing what they were

telling him to do. He would become argumentative

with them every time they tried to give him some

constructive criticism and generally not take any

direction from them.

He was also deficient in certain things that we

wanted him to do. He was not able to properly

prepare his field reports or some of the other general

reports that we do on a daily basis. He was having

some problems with officer safety.

3

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;

;

;

;

2

He was also having problems with talking too

much to the public. He would get out, he would be

saying things to the public that had no bearing on

the incident at hand and in some instances people

found offensive.

Brown decided that Petitioner was not suited to be a SCPD

police officer and decided to recommend to Commissioner

Cosgrove that Petitioner be terminated (796; 813). Brown was

asked to explain the reasons for his decision and gave this answer

(796):

Again, he was having problems with the public,

he wasn’t responding to training and he wasn’t

getting along with his field training officers and in

fact he wasn’t getting along with a lot of the officers.

Brown's recommendation to terminate Petitioner was sent

up through the chain of command to Commissioner Cosgrove.

In a memorandum to his superior, Chief of Patrol Edwin Michel,

Brown attached a report prepared by Captain Rhoads which

summarized Petitioner’s professional deficiencies and the

significant unsuccessful attempts to correct those deficiencies

(891-894). Brown wrote (891):

Although there are no single deficiencies or

incidents of significant magnitude sufficient to

warrant his dismissal, collectively, there are

overwhelming deficiencies and character flaws

which preclude the probability that he will ever

become a well-adjusted and productive police

officer. This conclusion was reached after attending

roundtable discussion with numerous people who

were involved in this officer’s field training and

reviewing reports subsequently submitted by those

participants.

12

Brown stated that his recommendation was not based upon

Petitioner's ideology or membership in any organization (797).

In fact, Brown did not even know what Petitioner’s ideology

was or what organizations he belonged to (797). Brown never

spoke to Commissioner Cosgrove about Petitioner. Brown was

not ordered to concoct a scheme to railroad Petitioner out of

the SCPD (797). Brown had no reason to believe that his

subordinates, the FTOs, the field training coordinators or

Captain Rhoads fabricated a scheme to railroad Petitioner out

of the SCPD for exercising his constitutional rights (797).

Lt. Murphy (597-598); P.O. Friedrich (627-628); P.O. Hodge

(652-653); P.O. Gormley (672-674); Sgt. Brady (708-710) and

P.O. Ferrante (763-764) all testified in similar fashion. They

also refuted Petitioner’s allegations and explained their actions.

Brown’s recommendation was passed up the chain of

command to his superior, Chief of Patrol Edwin Michel (896).

Michel passed it to his superior, Chief of Department Joseph

Monteith (896). Monteith passed it to his superior,

Commissioner Cosgrove. Cosgrove then directed that a

termination letter be prepared (895; 900).

Petitioner called Commissioner Cosgrove to testify on his

case in chief. Under questioning by Petitioner’s counsel,

Cosgrove explained that in cases of termination, he receives a

package of documents which he examines to see if there was a

gencral consensus that he take action. In Petitioner’s case,

Cosgrove remembered that he read many of the daily observation

reports on Petitioner’s field training (418-419). Cosgrove

acknowledged (404-406) having seen memos from Monteith,

Michel and Rhoads (895-899) before he gave the command to

terminate Petitioner (408). Cosgrove also discussed Petitioner’s

termination with Deputy Police Commissioner Robert Kearon,

who served as Cosgrove’s legal adviser. Kearon told Cosgrove

that “he saw no problem with it” (410). Cosgrove said that he

never spoke with anybody that trained Petitioner, and never

13

spoke with any sergeants or lieutenants (410). Petitioner's

counsel asked Cosgrove if he ever heard that Petitioner made

allegations that there was discriminatory conduct going on

within the Police Department (414), Cosgrove responded, “No”

(414). Cosgrove remembered that there were a lot of daily

observation reports in the package he was given with the

recommendations from his commanding officers to terminate

Petitioner (418). Cosgrove believed that the package might have

included other memos and Petitioner's police academy record

(418). Cosgrove also testified that he did not recall if Petitioner's

personal statement was included (418).

Petitioner called Captain (formerly Lieutenant) William

Murphy to the stand. Murphy stated that he did not have a belief

as to Petitioner's political affiliations (572). Murphy believed

that at times Petitioner made others feel that he was liberal in

his viewpoints (573). Murphy told Petitioner that he had a school

teacher mentality (573) and that it was a possibility,

“communication wise”, that Petitioner started off on the wrong

foot with other police officers (574-575). Murphy asked Captain

Rhoads to meet with Petitioner because Murphy could not

describe Petitioner on paper (575-576), Murphy testified that

Petitioner never complained to him about his field training

officers using bad adjectives when speaking about minorities,

or about targeting minority motorists and making illegal car

stops until after Petitioner was terminated (576-577).

At the end of Phase VI, Petitioner told Murphy that he had

not been shown the daily observation reports (578). Murphy

then let Petitioner make copies of the reports (579). Murphy

attended Chief Brown’s meeting on January 24, 1994 (580-585).

According to Murphy, “Chief Brown had called that meeting

to get facts and answers to questions that he had regarding Mr.

Wimmer’s employment so that he would be able to make a

recommendation to the commissioner as to whether to terminate

or to retain Mr. Wimmer” (581).

14

On cross-examination, Murphy testified (595-596) that at

the end of Phase VI he received from Petitioner a “Field Training

Program Critique” (1138) and a “Recruit Field Training Guide”

(1140-1148). In his written critique of the field training program,

Petitioner did not mention anything about discrimination taking

place (597; 1138). Similarly, Petitioner did not mention anything

about being singled out or retaliated against (597; 1138). There

was room on the form for those comments, or Petitioner could

have written an internal correspondence to document those

allegations (610). Murphy recommended that Petitioner be

terminated based on his review of the daily observation reports

and end of phase reports from all six phases, and his review of

internal correspondence written by or about Petitioner and his

discussions with Petitioner (599). Murphy stated that:

[i]t became clear to me that Mr. Wimmer was not

able to learn from his field training officers that a

constant barrier to effective communication between

the two was always present. He proved over and over

that he just did not get a grasp of what the training

process was all about.

(599-600).

On cross-examination, Petitioner testified that he enjoyed

working for the NYPD and HAPD and thought that, “for the

most part”, they were professional (172). Later on cross-

examination, Petitioner acknowledged that he had described

the NYPD as “an unprofessional police agency” in internal

correspondence he wrote while at the SCPD Academy

(217-218; 850).

Discussing his claim for damages, Petitioner testified that

some of the medical symptoms of the trauma he suffered as a

result of being fired happened immediately after he was fired

[February 15, 1994] (338). Headaches, throwing up and not

15

being able to eat started almost immediately, within a week of

being fired (338). Loss of interest in outside activities started

gradually, approximately two weeks after (338-339). Depression

began within a week or so (339). Stomach problems, sleeping

problems, impotency and anxiety and fear began within a week

of his termination (339-340). Petitioner was then confronted

with another document that he withheld from the defense until

it was obtained from the NYPD on the eve of trial. The document

was a medical questionnaire that Petitioner filled out and

submitted to the NYPD on March 9, 1994 when he applied for

reinstatement to the NYPD (1130). Petitioner stated, “I have

nothing to report since my last full medical on August 25, 1992”

(1130). Petitioner did not report any of his alleged trauma and

medical conditions to the NYPD even though the medical

questionnaire required him to respond truthfully and completely

in order to be reinstated as a member of the NYPD (341-342).

PERCEIVED MISSTATEMENTS

MADE IN THE PETITION

Petitioner alleges in his Petition for a Writ of Certiorari

(hereinafter referred to as “the Petition”) at page 2 that “[t]here

was considerable evidence that a large number of officers had

conspired to bring about petitioner’s dismissal because they

objected to his opposition to discrimination”, and that the so-

called conspirators “had hidden their motives from the Police

Commissioner ...”. Those conclusory allegations are

unsupported by the record. Indeed, the petitioner’s complaint

did not even allege the existence of any such conspiracy or

attempt to state a claim based upon a conspiracy. Moreover, the

petitioner did not raise and the courts below did not consider

any conspiracy theory. See Pennsylvania Department of

Corrections v. Yeskey, 524 U.S. 206, 212-213, 118 S. Ct. 1952,

1956, 141 L. Ed. 2d 215, __ (1998); Equal Employment

Opportunity Commission v. Federal Labor Relations Authority,

476 U.S. 19, 24, 106 S. Ct. 1678, 1681, 90 L. Ed. 2d 19, __

(1986).

16

The Petitioner also purports to set forth the geographic

jurisdiction of the SCPD and the racial demographics of Long

Island. See Petition at page 3. There is no evidence of record on

the racial composition of Long Island. In addition, the SCPD

only has jurisdiction over parts of the five towns in the western

part of Suffolk County, and it has no jurisdiction over the five

towns in the eastern portion of the County.

Petitioner claims that “[rJacial issues arose throughout

petitioner's training period.” See Petition at page 4. This is an

embellishment of the record. According to Petitioner's trial

testimony, he heard the word “moulee” used one time while he

rode with P.O. Pitts during Phase I (86-87). Petitioner never

testified that he complained to anyone about the use of that

word. Petitioner also testified that P.O. Hodge issued traffic

tickets to Hispanic motorists without any cause on two occasions

during Phase II (94-96; 99-100). According to Petitioner, he

heard the word “niggers” used over the police radio one time

during Phase II of field training (111). Petitioner did not tell

any superior officers about the use of discriminatory language

until he allegedly told Lt. Williams when he got to the Sixth

Precinct for Phases III-V1 (113). The record shows that Petitioner

received critical narrative evaluations from P.O.’s Hodge, Ryan

and Gormley before he arrived at the Sixth Precinct (972-973;

976-977; 988-991). Petitioner testified that he heard the work

“spook” used two times during Phase III. Petitioner did not

testify that he heard or observed any other racial slurs or

incidents during Phases IV, V and VI. Petitioner acknowledged

on cross-examination that he never documented any of those

incidents (284-285; 293-295). Petitioner also acknowledged on

cross-examination that none of the alleged racial incidents he

observed, and none of the racial epithets he allegedly heard,

was ever directed towards him or any members of the SCPD

(323-324).

Petitioner’s assertion that the alleged remark to him that

demanded “whose side am 1 on anyway” had soitiething to do

——

17

with assistance that he provided to an African-America family

is unfounded in the text of the referenced transcript page

(See February 4, 1997 at pp. 49-50).

On oral argument before the district court on the

Respondents’ Rule 50 motion, where the facts must be viewed

in the light most favorable to the Petitioner, Respondents’

counsel briefly described Police Officers Ferrante and Nolan

as “the bad F.T.O.’s” based solely upon the Petitioner's

testimony. Now, the Petitioner is unfairly trying to turn that

description into some kind of an admission through the use of

the phrase “candidly characterized.” See Petition at p. 5.

Petitioner also mischaracterizes the record and the decision

by the Second Circuit when he states that “Instead, the

Commissioner asked his legal advisor whether there was a

‘problem with the pattern’ of concerted, apparently pretextual

negative evaluations and whether as a result termination ‘would

present any legal problems’.” See Petition at p. 7. The text that

appears between the two quoted fragments of Commissioner

Cosgrove’s testimony has been fabricated by the Petitioner and

has no basis in the record.

Petitioner also resorts to the use of scandalous and

inflammatory statements that have no basis in the record. The

entire statement at page 22 of the Petition, beginning with the

remarks about the SCPD’s “long, troubled history” and ending

with the remarks about “a preemptive strike”, are outrageous

remarks that are not supported by any evidence in the record.

Petitioner also falsely asserts that “[t]here was substantial

evidence of widespread animus within the Suffolk County Police

towards officers who opposed discrimination or reported

misconduct, the all too common ‘blue wall of silence. . .”.” See

Petition at p. 26. The record is completely devoid of any

evidence to support that claim and the unwarranted ad hominem

attack contained therein. Moreover, this assertion was not raised

by the Petitioner in the courts below.

18

Perceived misstatements of law in the Petition will be

addressed in the Reasons for Denying the Writ section of this

Brief in Opposition.

REASONS FOR DENYING THE WRIT

THE PETITIONER HAS FAILED TO ESTABLISH

JURISDICTION FOR REVIEW OF THE ORDER

APPEALED FROM AS REQUIRED BY RULE 10 OF

THIS COURT

A. The Courts Below Correctly Applied The Good Faith,

Reasonable Belief Inquiry To The Petitioner’s

Opposition Clause Claim Under Section 704(a) Of Title

VIL.

The Petitioner was the beneficiary of a broad interpretation

of the “opposition clause” of Section 704(a) of Title VII.

42 U.S.C. § 2000e-3(a). Under that broad interpretation, to prove

that he engaged in protected activity, an employee need not

establish that the conduct he opposed was in fact a violation of

Title VII. The employee must, however, demonstrate that he

had a good faith, reasonable belief that the underlying challenged

actions of the employer violated Title VII. Reed v. A.W. Lawrence

& Co., Inc., 95 F.3d 1170, 1177-1179 (2d Cir. 1996);

Manoharan vy. Columbia University College of Physicians

& Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). In Petitioner’s

briefs to the Second Circuit, he cited to many of the cases that

are also cited in his Petition and he variously described this

rule as a “well established principle” (see Petitioner’s main brief

at p. 22) and as “the well settled principles of law which govern

in this Circuit, and the majority of other Circuits”

(see Petitioner’s reply brief at p. 2). Petitioner has now

abandoned the arguments that he advanced in the courts below

and he has decided instead to characterize the prevailing case

law as “sharply divided” and as “‘a trap for the unwary” that is

replete with “loopholes”. See Petition at pp. 8-9.

|

19

Petitioner should not be permitted to now attack for the

first time in this Court the very same caselaw that he embraced

in the courts below. See Pennsylvania Department of Corrections

v. Yeskey, 524 U.S. 206, 212-213, 118 S.Ct. 1952, 1956, 141

L. Ed. 2d 215, __ (1998); Equal Employment Opportunity

Commission v. Federal Labor Relations Authority, 476 U.S. 19,

24, 106 S. Ct. 1678, 1681, 90 L. Ed. 2d 19, __ (1986). The

Petitioner's reversal of position, combined with what can be

fairly described as a meandering legal argument that is

characterized by a misapprehension of the cited caselaw, is an

attempt to mask the fact that the Petitioner’s real disagreement

is with the conclusion by the courts below that no reasonable

juror could have concluded that the Petitioner had a good faith,

reasonable belief that the conduct he complained about

constituted an unlawful employment practice of the SCPD. The

courts below, however, correctly applied the prevailing

jurisprudence on Title VII “opposition clause” retaliation claims

and properly rebuked the Petitioner's attempt to turn that clause

into a general bad acts statute. See C rowley v. Prince George's

County, 890 F.2d 683, 685-687 (4th Cir. 1989), and Silver y.

KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978). Even though

both Crowley and Silver, supra, were relied on by the Second

Circuit in its decision in this case, the Petitioner has neither

cited nor discussed those decisions in his Petition.

This is not a case involving a “real and embarrassing conflict

of opinion and authority between Circuit Courts of Appeal.”

Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, 79,

75 S. Ct. 614, 620, 99 L. Ed. 2d 897, __ (1955), quoting Layne

& Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393,

43 S. Ct. 422, 423, 67 L. Ed. 2d 717 (1923) (considering the

meaning of the phrase “special and important reasons” within

the context of the former version of Rule 10 of the Supreme

Court Rules). The Circuit Courts of Appeal have not had any

difficulty applying the good faith, reasonable belief inquiry to

section 704(a) “opposition clause” retaliation claims. E. g., Little

v. United Technologies, Carrier Transicold Division, 103 F.3d

20

956, 959-960 (Lith Cir. 1997); Jennings v. Tinley Park

Community Consolidated School District No. 146,796 F.2d 962,

966-967 (7th Cir}, cert. denied, 481 U.S. 1017, 107 S. Ct. 1895,

95 L. Ed. 2d S02 (1987); Love v. RE/MAX of America, Inc., 738

F.2d 383, 385 (10th Cir. 1984); Sisco v. J.S. Alberici

Construction Company, 655 F.2d 146, 150 (8th Cir.), cert denied,

455 U.S. 976, 102 S. Ct. 1485, 71 L. Ed. 2d 688 (1982); Payne

v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1138

(Sth Cir.), cert. denied, 455 U.S. 1000, 102 S. Ct. 1630, 71

L. Ed. 2d 866 (1982). Contrary to the Petitioner’s contention,

the lower courts are not sharply divided over the scope of the

protection afforded by section 704(a). None of the cases cited

by the Petitioner, including Hedgepeth v. Kaiser Foundation

Health Plan of the Northwest, 76 F.3d 386, 1996 WL 29252

(9th Cir. 1996) (decision without reported opinion) and Parker

v. Baltimore and Ohio Railroad Company, 652 F.2d 1012 (D.C.

Cir. 1981), support that proposition.

The Petitioner struggles to articulate a ground for granting

the petition notwithstanding the settled state of the applicable

case law. His arguments are not persuasive and should be

rejected.

The good faith, reasonable belief inquiry that was applied

by the Second Circuit in this case under section 704(a) is

consistent with Title VII’s central purpose, which is the

elimination of employment discrimination by informal means.

Little v. United Technologies, Carrier Transicold Division,

supra, 103 F.3d at 960 (11th Cir. 1997); Payne v. McLemore's

Wholesale & Retail Store, supra, 654 F.2d at 1137-1138 (Sth

Cir.), cert. denied, 455 U.S. 1000, 102 S. Ct. 1630, 71 L. Ed. 2d

866 (1982); Berg v. LaCrosse Cooler Company, 612 F.2d 1041,

1045-1046 (7th Cir. 1980). The Petitioner’s contention that Title

VII is jeopardized by a decision that is consistent with the

prevailing case law is illogical. The Petitioner prefers a rule

that would dilute the good faith, reasonable belief inquiry to

the point where it would become “no more than speculation

21

regarding [an employee's] subjective knowledge.” Harper v.

Blockbuster Entertainment Corporation, 139 F.3d 1385, 1388

n.2 (11th Cir. 1998). The Circuit Courts, however, have refused

to eviscerate the reasonableness inquiry because to do so would

encourage employees to immunize themselves from discharge

or discipline by filing utterly baseless charges of discrimination.

Holland v. Jefferson National Life Insurance C. ompany, 883 F.2d

1307, 1315-1316 (7th Cir. 1989); Booker v. Brown & Williamson

Tobacco, Inc., 879 F.2d 1304, 1312-1314 (6th Cir. 1989): Parker

v. The Baltimore and Ohio Railroad Company, 652 F.2d 1012.

1020 (D.C. Cir. 1981) (“The employer is sufficiently protected

against malicious accusations and frivolous claims by a

requirement that an employee seeking the protection of the

Opposition clause demonstrate a good faith, reasonable belief

that the challenged practice violates Title VII.”).

The Petitioner's argument that the Courts of Appeals have

“fashioned three related loopholes”, which the Petitioner

alternatively describes as employer defenses (see Petition at

pp. 8-9), is erroneous.

An employee seeking the protection of the “opposition

clause” bears the burden of demonstrating a good faith,

reasonable belief that the challenged practice violates Title VII:

an employer does not have any burden to raise a defense or a

“loophole” to an otherwise baseless opposition clause claim.

Little v. United Technologies, Carrier Transicold Division.

supra, 103 F.3d at 960 (1 1th Cir. 1997); Parker v. The Baltimore

& Ohio Railroad Company, supra, 652 F.2d at 1020 (D.C. Cir.

1981). The courts below correctly found that the Petitioner failed

to produce any evidence from which a reasonable juror could

conclude that he held a good faith, reasonable belief that the

challenged practices violated Title VII. See Standard v. A.B.E_L.

Services, Inc., 161 F.3d 1318, 1328 (11th Cir. 1998), Indeed,

the Petitioner did not offer any evidence at all that he subjectively

believed that the SCPD was engaged in any unlawful

employment practices and that his belief was objectively

22

reasonable. The only evidence of record on the pertinent good

faith, reasonable belief inquiry consists of the Petitioner's

admissions, which were brought out during his cross-

examination by the Respondents, that none of the objectionable

conduct was directed towards him or towards other employees

of the SCPD. The Petitioner attempted to compensate for this

glaring lack of evidence in the courts below by misconstruing

certain caselaw. The Petitioner has repeated this tactic in his

Petition by setting forth an argument that misapprehends the

courts’ holdings in Rogers v. E.E.0.C., 454 F.2d 234 (Sth Cir.

1971) and in Moyo v. Gomez, 40 F.3d 982 (9th Cir.), amending,

32 F.3d 1382, cert. denied, 513 U.S. 1081, 115 S. Ct. 732, 130

L. Ed. 2d 635 (1995), and by misquoting a portion of this Court’s

decision in Meritor Savings Bank v. Vinson, 447 U.S. 57, 66,

106 S. Ct. 2399, 2405, 91 L. Ed. 2d 49, __ (1971). See Petition

at p. 10.

The case of Rogers v. E.E.O.C., supra, came to the Fifth

Circuit “in a preliminary and undefinitive posture.” 454 F.2d at

236. The employer asked the district couri “to limit at the

threshold the investigative scope of the [E.E.O.C.] on the ground

that the Commission seeks evidence of a discriminatory

employment practice which is not proscribed by Title VII. ..”.

Id. The employee’s indefinite charge of discrimination appeared

to assert a claim based in part on the employer’s alleged

discriminatory treatment of patients. The Fifth Circuit refused

to prohibit the E.E.O.C. from investigating certain patient

records that were pertinent to that allegation. The court did not

hold that discriminatory conduct directed towards non-

employees is actionable as the basis of an “opposition clause”

claim by an employee who witnessed and opposed that conduct.

Rather, the court held:

that an employer’s patient discrimination may

constitute a subtle scheme designed to create a

working environment imbued with discrimination

and directed ultimately at minority group employees.

23

As patently discriminatory practices become

outlawed, those employers bent on pursuing a

general policy declared illegal by Congressional

mandate will undoubtedly devise more sophisticated

methods to perpetuate discrimination among

employees.

454 F.2d at 239. The court allowed the E.E.0.C. to investigate

whether or not the employer’s treatment of pat; nts was evidence

of a “subtle” or “sophisticated” method of discriminating against

its employees. 454 F.2d at 240-241. Clearly, the Petitioner has

misapprehended the Fifth Circuit's holding in Rogers v. E.E.0.C.

This error is compounded by the fact that the Petitioner has

misquoted Meritor Savings Bank y. Vinson, supra, 477 U.S. at

66, 106 S. Ct. at 2405,91 L.Ed. 2dat__, by deleting the words

“for employees” from the quoted text, which should read: “that

her employer created an offensive work environment for

employees by giving discriminatory service to its Hispanic

clientele.” The Petitioner's errors improperly diminish the fact

that even conduct directed towards non-employees must be

connected in some way to an unlawful employment practice,

be it overt, subtle or sophisticated, that victimizes employees.

The Petitioner’s reliance on Moyo v. Gomez, 40 F.3d 982

(9th Cir.), amending, 32 F.3d 1382, cert. denied, 513 U.S. 1081 .

115 S. Ct. 732, 130 L. Ed. 2d 635 (1995) is also misplaced. In

that case, the Ninth Circuit reinstated the dismissed complaint

and held, in pertinent part, that the plaintiff corrections officer

could have had a reasonable belief that the prison inmates who

were allegedly being mistreated qualified as employees

protected by Title VII because, in certain circumstances, prison

inmates can be considered as “employees” who are protected

by Title VII. 40 F.3d at 985. Once again, and in accordance

with settled Title VII “opposition clause” jurisprudence, the

ultimate inquiry is always on whether or not the employee

reasonably believed that the unlawful practice was an unlawful

employment practice under Title VII.

24

Based on the foregoing discussion, the Second Circuit

correctly held that “[bJecause [Petitioner] did not introduce

evidence that minority employees of the Department felt that

they worked in a racially hostile environment, [Petitioner] could

not reasonably have believed that he was protesting an unlawful

hostile work environment.” See Appendix at p. 17a.

The Petitioner also erroneously claims that the Circuit Court

decisions utilize a “retrospective methodology” which

improperly limits “opposition clause” claims by the application

of caselaw decided after the conduct that was complained of.

See Petition at p. 11. This argument is unfounded. For example,

in Lanaux v. Central New York Psychiatric Center, 152 F.3d

919 (2d Cir. 1998) (decision without reported opinion), cert.

denied, __ U.S. ___, 119 S. Ct. 382, 142 L. Ed. 2d 316 (1998),

the court simply held that the employee’s complaints ‘“‘about

the treatment of minority patients were unrelated to any unlawful

employment practice, and therefor the making of such

statements was not protected activity.” That holding was correct,

it did not break any new ground, and it certainly did not apply a

change in the law “retrospectively” to defeat the employee's

claim that she had a good faith, reasonable belief that the practice

was an unlawful employment practice at the time she opposed

it. In Manoharan v. Columbia University College of Physicians

and Surgeons, supra, 842 F.2d at 594 (2d Cir. 1988) and in

Mayo v. Kiwest Corp., 94 F.3d 642 (4th Cir. 1996) (decision

without reported opinion), each of the Circuit Courts expressly

reviewed the issue of the employees’ objectively reasonable

beliefs based on the state of the law at the time the employees

engaged in the alleged protected activities. There is no division

among the Circuit Courts on this approach, and the caselaw

shows that the employee is always given the benefit of every

doubt on the question of the objective reasonableness of his

belief at the time of the conduct complained of, and is not

prejudiced by later changes in caselaw. The Petitioner cites to

Harper v. Blockbuster Entertainment Corporation, 139 F.3d

1385 (11th Cir. 1998) in an effort to further illustrate what he

25

characterizes as “the limitations of the protection afforded to

complainants by this rule. . .”. See Petition at p. 14. Presumably,

the Petitioner’s reference to “this rule” is intended to be a

reference to the “retrospective methodology” rule that he has

concocted. Harper, however, does not support the Petitioner’s

contention. The Petitioner has also mischaracterized the court's

decision by stating that “the Eleventh Circuit stressed that at

the time of that objection several circuits had agreed that such

grooming standards were legal under Title VII” (see Petition at

p. 14). The clear implication from this statement is that some

circuits had a contrary view of the law. The court’s decision,

however, was not equivocal: “Every circuit to have considered

the issue [on grooming standards] has reached the same

conclusion reached by this Court... .”. 139 F.3d at 1388.

The Petitioner’s remaining arguments on the “opposition

clause” issue suffer from the same infirmities discussed above.

Those arguments are equally without merit, and they fail to set

forth any basis for granting the Petition.

B. This Court’s Decisions In Monell v. New York City

Department Of Social Services, 436 U.S. 658, 98 S. Ct.

2018, 56 L. Ed. 2d 611 (1978), And In Its Progeny,

Should Not Be Overruled.

The Petitioner’s request that the Petition be granted for the

purpose of overturning or clarifying Monell v. New York City

Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018,

56 L. Ed. 2d 611 (1978), and its progeny, should be denied. In

his brief to the Second Circuit, the Petitioner argued that he

established municipal liability under Monell and its progeny,

including City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.

Ct. 915, 99 L. Ed. 2d 107 (1988). See Petitioner’s main brief at

pp. 27-40, and Petitioner’s reply brief at pp. 7-11. Because the

Petitioner embraced Monell and its progeny in the courts below,

he cannot now argue in support of his Petition that certiorari

should be granted to overrule those cases. See Pennsylvania

Department of Corrections v. Yeskey, supra, 424 U.S. at 212-

213, 1188S. Ct. at 1956, 141 L. Ed. 2d at __; Equal Employment

Opportunity Commission v. Federal Labor Relations Authority,

supra, 476 U.S. at 24, 106 S. Ct. at 1681, 90 L. Ed. 2d at __

(1986). In addition, there is no basis in the record in this case

that warrants undertaking a task as monumental as redefining

the jurisprudence of municipal liability under 42 U.S.C. § 1983

and adopting the rule of respondeat superior liability for § 1983

claims. See Board of the County Commissioners of Bryan

County, Oklahoma vy. Brown, 520 U.S. 397, 117 S. Ct. 1382,

137 L. Ed. 2d 626 (1997).

CONCLUSION

For all the reasons set forth above, it is respectfully

requested that the Petition for a Writ of Certiorari from the Order

of the United States Court of Appeals for the Second Circuit,

dated May 5, 1999, be denied in its entirety.

Respectfully submitted,

Rosert J. CIMINO

Suffolk County Attorney

THEODORE D. SKLAR*

Assistant County Attorney

CHRISTOPHER A. NICOLINO

Assistant County Attorney

Attorneys for Respondents

H. Lee Dennison Building, Fifth Floor

100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, New York 11788-0099

(516) 853-5668

* Counsel of Record