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The Legal Aid Society cannot be considered a “state actor” under federal civil rights laws, the 2nd U.S. Circuit Court of Appeals reaffirmed last week. The court upheld the dismissal of an age discrimination suit brought by a fired Legal Aid Society investigator in Orange County, N.Y., finding that “independence from governmental control” is still the most salient factor in weighing whether an entity is a state actor under the law. A three-judge panel found that recent U.S. Supreme Court cases have not fundamentally changed the analysis used to determine that the Society is not a state actor amenable to suit under 42 U.S.C. �1983. The court in Schnabel v. Legal Aid Society of Orange County Inc., 99-9385, also found that investigator Philip A. Schnabel’s claim was properly dismissed on summary judgment by Southern District Judge Colleen McMahon because he had failed to present enough evidence to show that Legal Aid’s reasons for firing him were a pretext for unlawful discrimination. The reasons offered by Legal Aid for dismissing the former lawyer and retired police chief in 1997 were many. Legal Aid’s Chief Attorney Gary Abramson sent the then 63-year-old Schnabel a letter in which he said the investigator was inept, insubordinate and exhibited a “fundamental disdain” for Legal Aid clients because of his “lengthy experience as a police chief,” in Rocky Hill, Conn. And Abramson said the investigator had showed “horrendous” judgment in turning over a tape to an assistant district attorney that was later used, along with Schnabel’s own grand jury testimony, to indict one of Legal Aid’s clients for perjury. Schnabel, who was replaced by a 31-year-old, filed suit under 42 U.S.C. �1983 and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. �621. Judge McMahon granted summary judgment for the Legal Aid Society on both the �1983 and ADEA claims. Her decision on �1983 was based on 2nd Circuit cases from the 1970s — Lefcourt v. Legal Aid Society, 445 F.2d 1150 (1971) and Graseck v. Mauceri, 582 F.2d 203 (1978) — in which the court found that dismissal of a Legal Aid attorney was not state action. But on the appeal, Schnabel argued that the validity of Lefcourt and Graseck were thrown into doubt by the U.S. Supreme Court’s decisions finding that Amtrak is a state actor and that a public defender is a state actor when making hiring and firing decisions on behalf of the state, respectively, Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), and Branti v. Finkel, 445 U.S. 507 (1980). Writing for the 2nd Circuit in Schnabel, Judge Jose A. Cabranes said that the “decisions in Lefcourt and Graseck relied in significant part” on the fact that, notwithstanding that Legal Aid receives substantial government funds, there is “a lack of governmental control over or interference” with Legal Aid’s affairs. “Neither of the intervening Supreme Court decisions cited by plaintiff even implies that this is no longer a legitimate factor to consider,” Judge Cabranes wrote. Judge Cabranes then said that Schnabel had met the “minimal burden” of showing a prima facie case of age discrimination, but that once the Legal Aid Society had shown “legitimate, nondiscriminatory reasons” for firing him, Schnabel “offered no evidence that he was discriminated against because of his age.” Schnabel had argued that a recent U.S. Supreme Court case prevents a district court from granting the defense summary judgment on an ADEA claim where a plaintiff makes a prima facie showing of discrimination and gives the trier of fact reason to disbelieve the defendant’s explanation for the action. But Judge Cabranes had a different view of the meaning of Reeves v. Sanderson Plumbing Products Inc., 120 S.Ct. 2097 (2000). “Following Reeves, we decline to hold that no ADEA defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext,” he said. “Rather, we hold that the Supreme Court’s decision in Reeves clearly mandates a case-by-case approach, with the court examining the entire record to determine” whether plaintiffs satisfy their ultimate burden of showing that they were the victim of intentional discrimination. “Because plaintiff has presented no evidence from which the inference can be drawn that he was discriminated against on the basis of age, he cannot meet what the Reeves Court reaffirmed was his ‘ultimate burden,’ ” Judge Cabranes said. Senior Judges Roger J. Miner and Senior Judge Joseph M. McLaughlin joined in the opinion. Michael H. Sussman and Stephen Bergstein of Goshen represented Schnabel. Eric C. Stuart of Hedinger and Lawless represented the Legal Aid Society.

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