October 2022 - Parks & Recreation - 31

protection violation, the court acknowledged
" the burden of justifying
the classification shifts to
the defendant, and the justification
must be 'exceedingly persuasive.' "
As described by the court, an exceedingly
persuasive justification
would require the City Defendants
to " show at least that the challenged
classification serves important governmental
objectives and that the
discriminatory means employed are
substantially related to the achievement
of those objectives. " Absent
such a showing at this preliminary
stage of the proceedings, the court
found dismissal of Viau's Equal
protection claim against the City of
Troy was " not warranted. "
Section 1983 Supervisory
Liability
Having addressed the City of Troy's
motion for summary judgment
on Viau's Section 1983 claim, the
court then considered the claims
against the individual defendants,
Mercer and Bo. In the absence of
an official policy or custom, the
court acknowledged " a municipality,
like the City of Troy, may not be
held vicariously liable [i.e., legally
responsible] for the actions of its
employees under Section 1983. "
In her complaint, Viau did not
allege that Mercer or Bo were directly
involved in " the segregation
of K.V. or the other children participating
in the soccer camp. " Instead,
Viau had claimed " Mercer
and/or Bo should be held liable
based solely on their supervisory
roles. " The court rejected this argument.
According
to the court, " supervisory
liability cannot attach under
Section 1983 where the allegation
of liability is based upon a mere
failure to act. " On the contrary,
the court found " supervisory liability
under Section 1983 requires
a plaintiff to show that the supervisor
encouraged or condoned the
specific incident of misconduct or
in some other way directly participated
in it " :
At a minimum, then, a Section
1983 plaintiff must show
that a supervisory official implicitly
authorized, approved,
or knowingly acquiesced in the
unconstitutional conduct of the
offending subordinate.
Since " each defendant is liable
only for his or her own conduct, "
the federal district court would,
therefore, " analyze Mercer's and
Bo's potential Section 1983 liability
separately. "
Recreation Supervisor
Viau alleged that she had complained
to Mercer in his capacity as
" Recreation Supervisor " regarding
" the practice " of dividing the children
based on race. In response,
Viau claimed Mercer had informed
her that " the game had been played
for 'years' and the children loved
it and requested it. " In so doing,
Mercer also had allegedly admitted
that the game might need a
" name change. " Based upon these
allegations in Viau's complaint, the
court found " it can reasonably be
inferred that Mercer knew of the
practice, approved of it and acquiesced
in it. "
In his sworn affidavit, Mercer
claimed " he first became aware
that Bomb the Country was being
played when he reviewed a July
11, 2019 email from Viau that she
had sent to the Troy Recreation
Department. " As a result, Mercer
contended " he neither knew of, approved,
or acquiesced the alleged
practice and/or John Doe's act of
dividing children based on their
race and ethnicity. "
Mercer further claimed Viau's
email did " not complain that there
was any discrimination or segregation
based on race or national
origin. " Instead, in Mercer's view,
Viau's email " was only complaining
about the violent implications
of playing a game, called Bomb the
Country, " not a complaint about
" any discrimination or segregation
based on race or national origin. "
According to the court,
" supervisory liability cannot
attach under Section 1983
where the allegation of
liability is based upon a
mere failure to act. "
Upon reviewing Viau's email,
Mercer further stated he had " forwarded
it to Brian Zawislak with
the Troy School District since he
was the person most familiar with
the coaches and lesson plans for
the soccer camp. " In response, Zawislak
had informed Mercer that
" no person had ever complained
about the game " before Viau's
email. While acknowledging the
game " Bomb the Country " was
" a camp favorite and had been
played for many years and that
kids requested it, " Zawislak informed
Mercer " they could come
up with a name change. " Mercer
subsequently informed Viau of
Zawislak's response.
Based upon the following assertions
in Viau's email, the court
found " one could reasonably reach
the opposite conclusion " that Viau
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October 2022 - Parks & Recreation

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