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The 2nd U.S. Circuit Court of Appeals last week overturned a $23,200 jury verdict for discrimination against two top officials in the state court system in Queens. Two years ago, an Eastern District jury had returned a verdict against the two officials, finding that they had discriminated against a court officer when they brought him up on formal disciplinary charges for brandishing his gun at a janitor and lying about the incident to his superiors. Finding no basis for a discrimination claim as a matter of law, the circuit’s ruling relieved the two court officials — Anthony D’Angelis, the chief clerk of the state Supreme Court in Queens, and Major Louis Bianculli, the commanding court officer at the criminal courthouse in Kew Gardens — of any liability for having pressed administrative charges seeking the termination of plaintiff George Neilson. The panel’s opinion was written by Judge Ralph K. Winter. Neilson claimed that his equal protection rights were violated when the two officials sought to have him fired for unholstering his gun when he encountered a janitor from the Queens District Attorney’s Office after regular working hours at the Kew Gardens courthouse. The janitor had complained that Neilson had cocked his gun and pointed it at him. After an administrative hearing, Neilson, instead of being fired, was suspended for a week without pay. The Office of Court Administration adopted the findings of a hearing officer, former Criminal Court Judge Alfred H. Kleiman, that Neilson properly displayed his gun but had been untruthful in denying the incident to his supervisors. Neilson claimed unconstitutional discrimination because no formal charges had been brought against two other court officers involved in unrelated incidents even though the two faced what Neilson contended to be more serious charges. One of the other officers had been permitted to undergo treatment for alcoholism rather than being disciplined after showing up drunk at a firing range for his annual firearms test. The other officer accepted a demotion after using a fellow officer’s credit card to place six calls to a phone sex line from the Kew Gardens courthouse. No administrative charges were filed against that officer, who paid his co-worker $360.62 for the bills he had run up. STRICT STANDARD The jury found that Neilson had been discriminated against because he had been treated more harshly than the other two officers. But Judge Winter wrote that when a claim of discrimination is not based upon a suspect category, such as race, much stricter standards must apply. When a litigant like Neilson is claiming to be discriminated against as a “class of one,” the judge wrote in Neilson v. d’Angelis, 03-9074, the degree of similarity between the plaintiff’s circumstances and those of a person whom the plaintiff claims was more favorably treated must be “extremely high.” Winter also quoted a 7th Circuit ruling, requiring that the comparative circumstances must be “prima facie identical in all relevant respects.” A stringent standard needs to be used when no suspect class is involved, Winter wrote, because otherwise litigants who are in a suspect category would abandon their race discrimination claims — the core of equal protection � in favor of an easier-to-establish claim that they have been singled out for improper treatment. When comparing Neilson’s circumstances to those of the other two officers, the judge wrote, there was a rational basis for affording the other officers more lenient treatment. While some reasonable jurors might conclude that the offenses of the two officers were more egregious, others, equally rational, might reach the opposite conclusion, he wrote. Besides, he added, both of the other officers had acknowledged their transgressions while Neilson falsely denied displaying his gun and forced the disciplinary case he later complained about. Judges Robert A. Katzmann and Reena Raggi joined in the ruling. D’Angelis and Bianculli were represented by Assistant Solicitor General Jean Lin and Senior Assistant Solicitor General Marion Buchbinder, both of the state Attorney General’s Office. Neilson was represented by Richard J. Cardinale of Cardinale Heuston & Martinelli.

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