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November 21, 1995

COUNTY OF RENSSELAER; W. WARREN McGREEVY; RENSSELAER COUNTY SHERIFF; JOHN MAY Sergeant; EDWARD PHILLIPS, Undersheriff; CHARLES WALKER, Captain; HAL SMITH, Lieutenant; and RENSSELAER EMPLOYEES, Agents, Servants, and/or Employees of the County of Rensselaer, Defendants.

The opinion of the court was delivered by: HURD


 On February 7, 1989, plaintiff Linda Sagendorf-Teal was terminated by the defendant Undersheriff Edward Phillips ("Phillips"), from her probationary position as a Corrections Officer with the Rensselaer County Sheriff's Department. She brought suit pursuant to 42 U.S.C. § 1983 claiming that she was terminated because of exercise of her First Amendment right to free speech. On September 22, 1995, a jury awarded her damages in the amount of $ 76,889.44 in back pay plus interest against Phillips. The action was dismissed against the other defendants. The Court denied plaintiff's request for reinstatement to her former position. Judgment was entered on September 25, 1995.

 Phillips has filed post trial motions. He seeks judgment in his favor as a matter of law pursuant to Fed. R. Civ. P. 50(a), or a new trial pursuant to Fed. R. Civ. P. 59, or in the alternative a remittitur in the award of damages. The plaintiff moves for an award of front pay. Oral argument was heard on November 9, 1995, in Utica, New York. The court reserved decision.


A. Defendant's Motions

 Defendant's motions for judgment as a matter of law, for a new trial, or for a diminution in damages, stem from several arguments. Defendant first argues that the Court improperly charged the jury with regard to missing witnesses. He next avers that the Court erred in responding to the jury's question asking for a clarification of the Court's charge. Third, defendant puts forth the position that he is entitled to qualified immunity, and finally, he posits that plaintiff does not have a protected property interest in employment beyond the probationary period, and thus her damages should be reduced accordingly.


 The Court charged that Matthew Plumley, Thomas Job, Scott Ryan, Ronald Fountain, and James Karam were not called to testify and could be viewed as missing witnesses. Because these people were "equally available" to both parties, the defendant claims error.

 The trial court carries sound discretion in determining whether to issue a missing witness charge. United States v. Mittelstaedt, 31 F.3d 1208, 1215 (2d Cir. 1994), cert. denied, U.S. , 115 S. Ct. 738 (1995); United States v. Adeniji, 31 F.3d 58, 65 (2d Cir. 1994); United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988). "All that a party needs to show is that there is some evidence supporting the theory behind the instructions so that a question of fact may be presented to the jury." Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).

 Plaintiff denies even subpoenaing these five witnesses, and disputes the argument that because she subpoenaed past and present employees of the County, the missing witnesses (who were both past and present employees), should be deemed equally available. "'"Availability" of a witness . . . depend[s] . . . on all the facts and circumstances bearing upon the witness's relation to the parties, rather than merely on physical presence or accessibility.'" United States v. Myerson, 18 F.3d 153, 158 (2d Cir. 1994) (quoting Torres, 845 F.2d at 1170), cert. denied, U.S. , 115 S. Ct. 159 (1994).

 Of the five witnesses addressed in the charge at issue, three were still employed by the County at the time of trial. Defendant does not dispute that subpoena power alone does not give the plaintiff equal control over an employee of the County. Only the former County employees, Plumley and Fountain, fall close enough to merit a review of their availability. Applying the above-cited test, all five were not equally available. Plumley, Fountain, Karam, and Ryan were all involved in the so-called Palmer incident. Testimony described corrections officers as a group to be close and bonding. Each of the corrections officers involved, including Plumley and Fountain, gave conflicting statements to that of plaintiff, accusing her of improper conduct. In sum, Plumley and Fountain bore significant interest in a favorable outcome for the defense: through their support of former co-workers and through their own personal involvement.

 More important, any error was harmless. "To succeed on a challenge to a district court's jury instructions, an appellant must show that the requested charge accurately reflected the law, and that viewing the charge actually given as a whole, he was prejudiced." Mittelstaedt, 31 F.3d at 1215. These "missing witnesses" were expected to testify regarding plaintiff's various rules infractions. However, the defendant did not rely on these violations as justification for plaintiff's termination. Rather, the justification relied upon was that she failed to assure him of a complete disassociation from a prisoner. The charge accurately displayed the jurors' options in ...

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