         11-3799-cv
         Appel v. Spiridon et al.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 27th day of March, two thousand thirteen.
 5
 6       PRESENT: JOHN M. WALKER, Jr.,
 7                RICHARD C. WESLEY,
 8                PETER W. HALL,
 9                         Circuit Judges.
10
11
12
13       ROSALIE APPEL,
14
15                                     Plaintiff-Appellee,
16
17                      -v.-                                                        11-3799-cv
18
19       CHARLES P. SPIRIDON, LINDA VADEN-GOAD,
20       LINDA RINKER,
21
22                                     Defendants-Appellants.
23                                                          _
24
25       FOR APPELLANT:                JOHN R. WILLIAMS, New Haven, CT.
26
27       FOR APPELLEE:                 BETH Z. MARGULIES, Assistant Attorney
28                                     General, for George Jepsen, Attorney
29                                     General of the State of Connecticut,
30                                     Hartford, CT.
31
32            Appeal from the United States District Court for the
33       District of Connecticut (Underhill, J.).
1        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

2    AND DECREED that the judgment of the United States District

3    Court for the District of Connecticut be AFFIRMED IN PART

4    AND REVERSED IN PART.

5        Defendants-Appellants Linda Rinker, Linda Vaden-Goad,

6    and Charles Spiridon appeal from the district court’s denial

7    of qualified immunity in favor of plaintiff-appellee Rosalie

8    Appel, embodied in the court’s Memorandum and Order dated

9    August 18, 2011.   Among other things, Appel claimed that

10   defendants retaliated against her for bringing a lawsuit, in

11   violation of Title VII of the Civil Rights Act of 1964, and

12   that they violated her Fourteenth Amendment substantive due

13   process right to privacy.     On defendants’ motion for summary

14   judgment, the district court denied qualified immunity with

15   regard to these claims.     We assume the parties’ familiarity

16   with the underlying facts, procedural history, and

17   specification of issues for review.

18       We have jurisdiction to hear this interlocutory appeal

19   because “a district court’s denial of a claim of qualified

20   immunity, to the extent it turns on an issue of law, is an

21   appealable ‘final decision’ within the meaning of 28 U.S.C.

22   § 1291 notwithstanding the absence of a final judgment.”


                                     2
1    Mitchell v. Forsyth, 472 U.S. 511, 539 (1985).     “This is so

2    even where the denial is in the context of a motion to

3    dismiss or for summary judgment.”    Luna v. Pico, 356 F.3d

4    481, 486 (2d Cir. 2004) (citations omitted).     “This Court

5    reviews de novo a district court’s decision ‘denying a

6    government official’s motion for summary judgment on the

7    basis of qualified immunity.’”    Id. (quoting Cerrone v.

8    Brown, 246 F.3d 194, 198 (2d Cir. 2001)).

9        Appel’s first claim is that defendants retaliated

10   against her for filing this lawsuit by subjecting her to an

11   escalating series of disciplinary measures.    Defendants do

12   not dispute, for purposes of this appeal, that Appel

13   successfully established a prima facie case of

14   discrimination.   Instead, they maintain that the district

15   court incorrectly applied Mt. Healthy City School District

16   Board of Education v. Doyle, 429 U.S. 274, 287 (1977), which

17   provides that “even if there is evidence that the adverse

18   employment action was motivated in part by protected speech,

19   the government can avoid liability if it can show that it

20   would have taken the same adverse action in the absence of

21   the protected speech.”   Heil v. Santoro, 147 F.3d 103, 110

22   (2d Cir. 1998).


                                   3
1        The district court, however, correctly construed this

2    standard to indicate that the “controlling question” was

3    “whether defendants can show indisputably that they would

4    have taken the same adverse actions, namely implementation

5    and enforcement of the [remediation plan] and the resulting

6    progressive discipline against Appel, even in the absence of

7    her protected speech.”   Appel v. Spiridon, Nos. 06 cv 1177,

8    07 cv 1237, 2011 WL 3651353, at *12 (D. Conn. Aug. 18,

9    2011).   For essentially the same reasons stated by the

10   district court, we agree that a question of fact exists as

11   to whether the defendants’ treatment of Appel after she

12   filed her 2006 lawsuit, including the manner in which the

13   remediation plan was implemented and enforced, was motivated

14   by legitimate reasons or impermissible retaliation.     We

15   therefore affirm the district court’s denial of qualified

16   immunity on Appel’s First Amendment claim.

17       Appel’s second claim is that defendants violated her

18   right to privacy by requesting that she show them her

19   medical records in connection with a psychiatric examination

20   she was required to undergo to continue teaching.     We have

21   held that invading or intending to invade the privacy of an

22   employee’s medical or mental health records will violate the


                                   4
1    employee’s Fourteenth Amendment right to substantive due

2    process if the employer’s intent is to “injure or to spite”

3    the plaintiff.    O’Connor v. Pierson, 426 F.3d 187, 203 (2d

4    Cir. 2005).   Although “bare allegations of malice coupled

5    with otherwise legitimate government action [generally] do

6    not yield a viable constitutional claim[,] . . . where a

7    more specific intent is actually an element of the

8    plaintiff's claim as defined by clearly established law, it

9    can never be objectively reasonable for a government

10   official to act with the intent that is prohibited by law.”

11   Locurto v. Safir, 264 F.3d 154, 169 (2d Cir. 2001) (citing

12   Crawford-El v. Britton, 523 U.S. 574, 587-88 (1998)).

13       The district court therefore properly focused its

14   inquiry on whether there was “genuine issue of material fact

15   whether the defendants sought access to Appel’s [records]

16   out of a mistaken belief that they were entitled to them as

17   a means of assessing her ability to continue in her duties,

18   or whether the defendants were seeking ways to discredit and

19   injure Appel.”    Appel, 2011 WL 3651353, at *18 (D. Conn.

20   Aug. 18, 2011).   In our view, however, the court clearly

21   misconstrued testimony given by Rinker and Vaden-Goad at a

22   preliminary injunction hearing to support the inference that


                                    5
1    defendants intended to view the content of the psychiatric

2    evaluation they had ordered for Appel.   Appel was not

3    required, or even requested, to “sign a broad medical-

4    records release form.”   Cf. O’Connor, 426 F.3d at 201.

5    Ultimately, there is no evidence that defendants were

6    seeking to review the content of the psychiatric evaluation

7    or to inspect Appel’s medical or mental health records

8    themselves.   Rather, they merely sought to have a

9    psychiatrist determine Appel’s fitness for duty.     We

10   conclude there was insufficient evidence for a jury to

11   conclude that defendants had the required state of mind to

12   violate Appel’s substantive due process right to privacy.

13   We therefore reverse the district court’s denial of

14   qualified immunity on Appel’s substantive due process claim.

15       Finally, Rinker argues that the district court lacked

16   personal jurisdiction over her with respect to the latter

17   claim because she was dismissed from the first of Appel’s

18   two lawsuits and was never properly added as a defendant

19   after the cases were consolidated.   We need not reach this

20   issue, however, because we have concluded that Rinker would

21   be entitled to qualified immunity on Appel’s substantive due

22   process claim.


                                   6
1        We have considered defendants’ remaining arguments and

2    find them to be without merit.   For the foregoing reasons,

3    the district court’s denial of qualified immunity is hereby

4    AFFIRMED IN PART AND REVERSED IN PART.   We remand for

 5   further proceedings consistent with this order.
 6
 7                              FOR THE COURT:
 8                              Catherine O’Hagan Wolfe, Clerk
 9
10




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