-------------------------

In 42 U.S.C. Section 1983 action, individual defendants pursue interlocutory appeal of rulings on qualified immunity. Court also provides a good explanation of pendent appellate jurisdiction, meaning what claims can be decided on interlocutory appeal even though interlocutory appeal is not otherwise available as to those claims.

Demoret v. Zegarelli, 451 F.3d 140 (2d Cir. June 8, 2006) - This is a 42 U.S.C. Section 1983, Title VII, and New York state law action alleging sex discrimination, sexual harassment, and retaliation. Theresa Demoret and Robin Pell worked for the Village of Sleepy Hollow. Dwight Douglas was the Village Administrator. Philip Zegarelli was the Mayor. The plaintiffs claim that they were exposed to a hostile work environment by Douglas based on their gender. Demoret alleges that Douglas: (1) acted condescendingly toward her by closely supervising her work, while male colleagues were treated in a friendly manner with courtesy; (2) failed to give her meaningful work; and (3) took away some of her duties (although some of these duties were given to another female). Demoret complained to the Mayor, but to her knowledge, he never took any corrective action. Demoret was eventually terminated when the Village learned during discovery in this lawsuit that Demoret had improperly disclosed Village documents to her attorneys, who were involved in other litigation against the Village. With respect to Pell, she alleges that Douglas: (1) spoke in a condescending manner and did not extend social pleasantries that he offered to male colleagues; (2) accused Pell of being "too emotional" when she complained about the unequal treatment; (3) made the statement that the Village was holding a sexual harassment seminar because "women do foolish things"; (4) micromanaged her assignments; and (5) scrutinized her department's budget and expenditures more closely than other departments. Pell also alleges that she was paid less than similarly situated male employees. In fact, she alleges she was even paid less than two male subordinates. She was also promised a stipend for taking on some extra responsibility and she was never paid. She also was not allowed to accumulate comp time or overtime pay like her male colleagues. The Village also declined to change her job title to recreation superintendent after she became qualified for that position. One of her male predecessors had been given the superintendent title. After the plaintiffs brought this lawsuit, the two individual defendants, Douglas and Zegarelli, moved for summary judgment based on qualified immunity as to the 42 U.S.C. Section 1983 claims. The district court found sufficient evidence of a hostile work environment and refused to grant qualified immunity as to those claims. With respect to Pell's disparate treatment claim, the district court also denied defendants' motion for summary judgment. On appeal, the Second Circuit affirms in part and reverses in part. With respect to the hostile work environment claims, the court finds that the plaintiffs failed to present sufficient evidence of a hostile work environment. Therefore, the two individual defendants are entitled to qualified immunity. With respect to Pell's disparate treatment claims, the court affirms the district court's denial of qualified immunity. Therefore, Pell may proceed with those claims. Next, the court addresses the issue of pendent appellate jurisdiction. The court explains:

In considering this interlocutory appeal, we may exercise pendent jurisdiction over issues that are not otherwise appealable, but only to the extent that (1) those issues are "inextricably intertwined" with the question of qualified immunity, or (2) review of those issues is necessary for meaningful review of the qualified immunity claim.

. . . .

Where the standards for finding a violation under other statutes are the same as those for finding a constitutional violation under § 1983, and we premise a finding of qualified immunity on the fact that no individual defendant violated the plaintiff's constitutional rights, liability under statutes other than § 1983 also tends to be inextricably intertwined with the qualified immunity question. Finally, where a municipality's liability arises solely from the actions of an employee who is entitled to qualified immunity, we may, in our discretion, reach the liability of the municipality under the doctrine of pendent appellate jurisdiction (citation omitted).

Based on these general principles, the court finds that the hostile work environment claim against the individuals and against the Village under the New York State Human Rights Law should also be dismissed. With respect to Pell's claims of disparate treatment, she may pursue those claims based on Title VII and New York state law except for a few minor employment actions that would not be actionable under Title VII or New York state law. Finally, with respect to the Title VII and New York state law retaliation claims, the court holds that those claims are not inextricably intertwined with the Section 1983 claims. Therefore, the court lacks pendent jurisdiction as to those claims. Click here to see actual case.