Racism at Upstate Utility Won’t Cost the Bosses

MANHATTAN (CN) - A utility worker whose supervisor held a pen to his neck and called his fiancee a racial slur can collect more than $300,000 in back pay but not a $5,000 penalty against his bosses, the 2nd Circuit ruled.

Scott Matusick claimed that his interracial relationship caused him since 2004 to be assaulted, harassed and ultimately fired from the Erie County Water Authority, which services roughly 158,000 upstate customers, including residents of Buffalo.

Gary Bluman, a work foreman, allegedly turned violent when he learned about Matusick's relationship with Anita Starks, who is black. Matusick said Bluman and his crew threw lawn equipment on Matusick's roof and duct-taped his door shut.

The 75-page appellate ruling from January, which was amended Tuesday, quotes a trial transcript of another alleged encounter in which Bluman stuck a pen to Matusick's neck and said, "You're a fucking [nigger] lover, your -- your bitch is a [nigger], you're a fucking [nigger] now, too, and I'm going to kill all the fucking [niggers]."

A footnote to the opinion explains that Matusick had abbreviated the actual epithet as "N" on the witness stand, but that the appellate majority left the word uncensored to emphasize the its "significant - and even unique - power to offend, insult and belittle."

"According to a Lexis search performed on May 27, 2013, this circuit has used the term for similar purposes in at least fifty-five opinions," the footnote states.

The opinion notes that the Erie water authority's coordinator of employee relations, James Lisinski, also called Matusick a "[nigger] lover."

Matusick said he reported the incidents to distribution engineer John Kuryak.

Over the next two years, Matusick received a number of disciplinary violations for supposedly sleeping on the job, failing to dispatch workers to the scene of water-line breaks and blocking a security camera between 10 and 20 times.

Robert Mendez, director of the county authority, fired Matusick in 2006.

Matusick sued the utility company and all four bosses the next year, and the case ultimately went to trial in 2010. A federal jury awarded Matusick $304,775 in back pay and slapped each boss with a $5,000 penalty for civil rights violations.

The 2nd Circuit unanimously upheld the first part of the verdict but was divided in striking down the second part last month.

Matusick's "perplexing" decision to allege a violation of his rights to "intimate association," rather than racial discrimination, prevents collection of the punitive damages against his bosses, the court found.

"He might well have attempted to bring and state them in terms of racial discrimination rather than the right to intimate association; indeed, if the case had been so brought and charged to the jury, our disposition of the constitutionality of the matter ... probably would have removed the individual defendants' qualified immunity shield," Judge Robert Sack wrote for the majority. "The right to be free from race discrimination on the basis of one's racial affiliation - intimate or otherwise - is, and has long been, clearly established."

Judge Reena Raggi wrote in a partial dissent that the decision rewards Matusick's attorney with fees for "pursuing a dubious constitutional claim of association instead of an obvious one of equal protection."

She noted that the holding strikes the only non-back pay award to Matusick, who did not get compensatory or nominal damages.

An amendment to the opinion Tuesday apparently sets the nominal damages award at $1.

Matusick's attorney Harvey Sanders, with Sanders & Sanders in Cheektowaga, N.Y., applauded the decision by the filing counsel to sue the authority in the way it did "because it helped make important law."

"The reason the individual defendants were immune from punitive damages was solely because it was not yet clearly established that the right intimate association would extend to a betrothal relationship," Sanders said in an email. "That right is now clearly established in the Second Circuit."

An attorney for the authority has not returned a request for comment.

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