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| BERGSTEIN & ULLRICH, LLP |
Bergstein & Ullrich, LLP 15 Railroad Avenue Chester, NY 10918 Telephone: 845-469-1277 Fax: 845-469-5904 Office Hours: Mon - Fri 9 a.m. - 5 p.m. |
Public Employees:
whistleblowers and freedom of association
In 2005, our firm successfully defended a jury verdict in favor of a City of Yonkers
employee who was fired after she had associated with a mayoral candidate who ran
against the incumbent mayor. The jury found that after the City reorganized its
workplace, it failed to reinstate the plaintiff in retaliation for her protected political
association. Although the case prevailed at trial on the basis of circumstantial evidence
of the mayor’s involvement in retaliating against our client, the Court of Appeals
sustained the verdict. Gronowski v. Spencer, 424 F.3d 285 (2d Cir. 2005).
In 2006, a federal court in Albany, New York, ruled in our client’s favor when she
alleged that a “chain of command” speech code violated the First Amendment to the U.
S. Constitution. The speech code prevented public school teachers from speaking out
on matters of public concern without first clearing that speech with a supervisor. The
federal court enjoined enforcement of the speech code. Price v. Saugerties Central
School District, 2006 WL 314458 (N.D.N.Y. Feb. 9. 2006).
In 2003, the Second Circuit Court of Appeals ruled in our client’s favor in a case
alleging that he was fired from his position as Orange County’s jail administrator after
he truthfully testified in a lawsuit filed by two nurses who claimed that the jail’s
medical provider was overmedicating inmates. In this case, the Court of Appeals
affirmatively stated that the First Amendment prohibits government employers from
retaliating against witnesses who testify truthfully at trial. When the case returned to
the trial court, the parties settled prior to trial. The plaintiff’s widow later received a
“courageous plaintiff” award from the New York chapter of the National Employment
Lawyers’ Association. Catletti v. County of Orange, 334 F.3d 225 (2d Cir. 2003).
In 2001, Helen Ullrich prevailed at the trial in which Catletti testified on behalf of the
nurses. This First Amendment whistleblower lawsuit alleged that two nurses were
fired after they complained about the jail’s medication practices for mentally-ill
inmates. The jury awarded the nurses more than a million dollars in damages. The
case settled post-trial. Berweger v. County of Orange, 121 F. Supp. 2d 334 (S.D.N.Y.
2000).
Retaliation
In Spring 2009, our first settled a lawsuit alleging that a state parole officer was
retaliated against for complaining about sex discrimination in the workplace. When
defendants sought to dismiss the case prior to trial, the district court rejected that
motion and agreed with our firm that a jury could find that the plaintiff could prove
retaliation in the terms and conditions of her employment even though she was not
fired from her job. Flynn v. New York State Division of Parole, 620 F. Supp. 2d 463
(S.D.N.Y. 2009).
Due Process
In 2004, our firm was presented a unique case involving the Due Process Clause of
the U.S. Constitution. The New Windsor Town Supervisor had seized the ambulances
and equipment used by the non-profit New Windsor Volunteer Ambulance Corps. The
Town argued that it owned the vehicles and equipment because NWVAC purchased it
with money from its contract with the Town. Our firm argued that the property
legally belonged to NWVAC and that the Town seized it without pre-deprivation notice
as required under the Due Process Clause. Without any precedent to reply upon in
deciding this case, the trial court agreed with us that the Town had violated NWVAC’s
rights and ordered that the Town return the vehicles and equipment. The Court of
Appeals affirmed the trial court’s ruling. New Windsor Volunteer Ambulance Corps.
v. Meyers, 442 F.3d 101 (2d Cir. 2006).
In a unique case involving the due process rights of private union members, we
prevailed at trial in defending a union worker who was sued by the union for allegedly
working outside union rules. The employee countersued because the due process
hearing into the charges against him were a sham. The jury agreed with our client and
awarded him damages. Although few precedents covered this precise case under the
Labor-Management Reporting and Disclosure Act (LMRDA), the Court of Appeals
sustained the verdict, ruling that the union violated our client’s rights. Local 38 v.
Pelella, 350 F.3d 73 (2d Cir. 2003).
First Amendment: prior restraints
This firm has successfully challenged restrictions against the placement of political
signs on private property. In 2002, our firm successfully struck down as
unconstitutional various political sign laws in Orange County on behalf of a woman
who was running for Orange County District Attorney. These sign laws favored
commercial over political speech and otherwise imposed burdensome rules in order to
post political signs on private property. Sugarman v. Village of Chester, 192 F. Supp.
2d 282 (S.D.N.Y. 2002). A few months later, our firm successfully challenged a
Village of New Paltz sign ordinance which made it harder for residents to post political
signs. Savago v. Village of New Paltz, 214 F. Supp. 2d 252 (N.D.N.Y. 2002). We
prevailed in a similar lawsuit in 2005, persuading a federal judge that Village of Cold
Spring violated the First Amendment in imposing burdensome requirements for a
homeowner to post political signs at his home. Lusk v. Village of Cold Spring, 418 F.
Supp. 2d 314 (S.D.N.Y. 2005). In that case, we also prevailed in the Court of Appeals
in arguing that the procedures for posting political signs on private property violated
the First Amendment. Lusk v. Village of Cold Spring, 475 F.3d 480 (2d Cir. 2007).
We have also successfully challenged restrictions against public assemblies on public
property. In 2008, a federal court agreed with us that a de-facto town square in an
Orange County village was suitable for public assemblies and that the municipality
violated our client’s rights in prohibiting her from holding a peace rally there. The
court also ruled that the Town violated the First Amendment in requiring indigent
protesters to take out a cost-prohibitive insurance policy before holding public
assemblies on municipal property. Coe v. Town of Blooming Grove, 567 F. Supp. 2d
543 (S.D.N.Y. 2008).
Government Immunity
In 2006, the Court of Appeals ruled in favor of our client, a public school teacher who
sued his school district for age discrimination. The court did not rule on the merits of
the claim, however. Instead, it ruled on a procedural question raised by the school
district under the Eleventh Amendment to the U.S. Constitution, which holds that
plaintiffs cannot sue the state in federal court. The question in this case was whether
board of education constitute “arms of the state” under the Eleventh Amendment. The
Court of Appeals ruled that board of education are not arms of the state and that,
therefore, our client could pursue his age discrimination suit in federal court. Woods
v. Rondout Valley Board of Education, 466 F.3d 232 (2d Cir. 2006).
Defamation
We have successfully persuaded judges to dismiss defamation cases against our client,
many of whom were being sued by public officials and private developers who were
offended by our clients’ public comments. In one case, a state judge dismissed a
lawsuit brought against a community activist who criticized a public official at a town
meeting. In another case, we succeeded in dismissing a defamation case brought
against a lawyer who allegedly called another lawyer a “welcher” in public. Murphy v.
Kulkin, 2005/04. We also convinced a defamation plaintiff to drop his complaint
against our client who allegedly criticized a developer at a public meeting. We invoked
the New York law against Strategic Lawsuits Against Public Participation in our
motion to dismiss, which the developer chose not to oppose. Muller v. Abbott,
2215/04.
In another unique case, we persuaded the Appellate Division in Albany to dismiss a
lawsuit filed by a Town judge against a Sullivan County artist who caricatured the
judge as the devil. The judge-plaintiff argued that the parody was both defamatory and
made use of the judge’s likeness without his consent, in violation of state law. The
appellate court ruled that the painting was protected parody under the First
Amendment and it therefore could not form the basis for a lawsuit. Altbach v. Kulon,
302 A.D.2d 655, 754 N.Y.S.2d 709 (3d Dep’t 2003).n
whistleblowers and freedom of association
In 2005, our firm successfully defended a jury verdict in favor of a City of Yonkers
employee who was fired after she had associated with a mayoral candidate who ran
against the incumbent mayor. The jury found that after the City reorganized its
workplace, it failed to reinstate the plaintiff in retaliation for her protected political
association. Although the case prevailed at trial on the basis of circumstantial evidence
of the mayor’s involvement in retaliating against our client, the Court of Appeals
sustained the verdict. Gronowski v. Spencer, 424 F.3d 285 (2d Cir. 2005).
In 2006, a federal court in Albany, New York, ruled in our client’s favor when she
alleged that a “chain of command” speech code violated the First Amendment to the U.
S. Constitution. The speech code prevented public school teachers from speaking out
on matters of public concern without first clearing that speech with a supervisor. The
federal court enjoined enforcement of the speech code. Price v. Saugerties Central
School District, 2006 WL 314458 (N.D.N.Y. Feb. 9. 2006).
In 2003, the Second Circuit Court of Appeals ruled in our client’s favor in a case
alleging that he was fired from his position as Orange County’s jail administrator after
he truthfully testified in a lawsuit filed by two nurses who claimed that the jail’s
medical provider was overmedicating inmates. In this case, the Court of Appeals
affirmatively stated that the First Amendment prohibits government employers from
retaliating against witnesses who testify truthfully at trial. When the case returned to
the trial court, the parties settled prior to trial. The plaintiff’s widow later received a
“courageous plaintiff” award from the New York chapter of the National Employment
Lawyers’ Association. Catletti v. County of Orange, 334 F.3d 225 (2d Cir. 2003).
In 2001, Helen Ullrich prevailed at the trial in which Catletti testified on behalf of the
nurses. This First Amendment whistleblower lawsuit alleged that two nurses were
fired after they complained about the jail’s medication practices for mentally-ill
inmates. The jury awarded the nurses more than a million dollars in damages. The
case settled post-trial. Berweger v. County of Orange, 121 F. Supp. 2d 334 (S.D.N.Y.
2000).
Retaliation
In Spring 2009, our first settled a lawsuit alleging that a state parole officer was
retaliated against for complaining about sex discrimination in the workplace. When
defendants sought to dismiss the case prior to trial, the district court rejected that
motion and agreed with our firm that a jury could find that the plaintiff could prove
retaliation in the terms and conditions of her employment even though she was not
fired from her job. Flynn v. New York State Division of Parole, 620 F. Supp. 2d 463
(S.D.N.Y. 2009).
Due Process
In 2004, our firm was presented a unique case involving the Due Process Clause of
the U.S. Constitution. The New Windsor Town Supervisor had seized the ambulances
and equipment used by the non-profit New Windsor Volunteer Ambulance Corps. The
Town argued that it owned the vehicles and equipment because NWVAC purchased it
with money from its contract with the Town. Our firm argued that the property
legally belonged to NWVAC and that the Town seized it without pre-deprivation notice
as required under the Due Process Clause. Without any precedent to reply upon in
deciding this case, the trial court agreed with us that the Town had violated NWVAC’s
rights and ordered that the Town return the vehicles and equipment. The Court of
Appeals affirmed the trial court’s ruling. New Windsor Volunteer Ambulance Corps.
v. Meyers, 442 F.3d 101 (2d Cir. 2006).
In a unique case involving the due process rights of private union members, we
prevailed at trial in defending a union worker who was sued by the union for allegedly
working outside union rules. The employee countersued because the due process
hearing into the charges against him were a sham. The jury agreed with our client and
awarded him damages. Although few precedents covered this precise case under the
Labor-Management Reporting and Disclosure Act (LMRDA), the Court of Appeals
sustained the verdict, ruling that the union violated our client’s rights. Local 38 v.
Pelella, 350 F.3d 73 (2d Cir. 2003).
First Amendment: prior restraints
This firm has successfully challenged restrictions against the placement of political
signs on private property. In 2002, our firm successfully struck down as
unconstitutional various political sign laws in Orange County on behalf of a woman
who was running for Orange County District Attorney. These sign laws favored
commercial over political speech and otherwise imposed burdensome rules in order to
post political signs on private property. Sugarman v. Village of Chester, 192 F. Supp.
2d 282 (S.D.N.Y. 2002). A few months later, our firm successfully challenged a
Village of New Paltz sign ordinance which made it harder for residents to post political
signs. Savago v. Village of New Paltz, 214 F. Supp. 2d 252 (N.D.N.Y. 2002). We
prevailed in a similar lawsuit in 2005, persuading a federal judge that Village of Cold
Spring violated the First Amendment in imposing burdensome requirements for a
homeowner to post political signs at his home. Lusk v. Village of Cold Spring, 418 F.
Supp. 2d 314 (S.D.N.Y. 2005). In that case, we also prevailed in the Court of Appeals
in arguing that the procedures for posting political signs on private property violated
the First Amendment. Lusk v. Village of Cold Spring, 475 F.3d 480 (2d Cir. 2007).
We have also successfully challenged restrictions against public assemblies on public
property. In 2008, a federal court agreed with us that a de-facto town square in an
Orange County village was suitable for public assemblies and that the municipality
violated our client’s rights in prohibiting her from holding a peace rally there. The
court also ruled that the Town violated the First Amendment in requiring indigent
protesters to take out a cost-prohibitive insurance policy before holding public
assemblies on municipal property. Coe v. Town of Blooming Grove, 567 F. Supp. 2d
543 (S.D.N.Y. 2008).
Government Immunity
In 2006, the Court of Appeals ruled in favor of our client, a public school teacher who
sued his school district for age discrimination. The court did not rule on the merits of
the claim, however. Instead, it ruled on a procedural question raised by the school
district under the Eleventh Amendment to the U.S. Constitution, which holds that
plaintiffs cannot sue the state in federal court. The question in this case was whether
board of education constitute “arms of the state” under the Eleventh Amendment. The
Court of Appeals ruled that board of education are not arms of the state and that,
therefore, our client could pursue his age discrimination suit in federal court. Woods
v. Rondout Valley Board of Education, 466 F.3d 232 (2d Cir. 2006).
Defamation
We have successfully persuaded judges to dismiss defamation cases against our client,
many of whom were being sued by public officials and private developers who were
offended by our clients’ public comments. In one case, a state judge dismissed a
lawsuit brought against a community activist who criticized a public official at a town
meeting. In another case, we succeeded in dismissing a defamation case brought
against a lawyer who allegedly called another lawyer a “welcher” in public. Murphy v.
Kulkin, 2005/04. We also convinced a defamation plaintiff to drop his complaint
against our client who allegedly criticized a developer at a public meeting. We invoked
the New York law against Strategic Lawsuits Against Public Participation in our
motion to dismiss, which the developer chose not to oppose. Muller v. Abbott,
2215/04.
In another unique case, we persuaded the Appellate Division in Albany to dismiss a
lawsuit filed by a Town judge against a Sullivan County artist who caricatured the
judge as the devil. The judge-plaintiff argued that the parody was both defamatory and
made use of the judge’s likeness without his consent, in violation of state law. The
appellate court ruled that the painting was protected parody under the First
Amendment and it therefore could not form the basis for a lawsuit. Altbach v. Kulon,
302 A.D.2d 655, 754 N.Y.S.2d 709 (3d Dep’t 2003).n