Plaintiff was served with Civil Service Law §75 disciplinary charges. After a Civil Service Law §75 hearing, a Hearing Officer found that Plaintiff was guilty a charge of speeding on the Thruway but found that all remaining disciplinary charges were not sustained.
Although the Hearing Officer recommended that Plaintiff be restored to his position, Plaintiff was reassigned to another facility, more than a three hour drive from Plaintiff's residence.
Plaintiff sued his Employer and other named individuals [Defendants] alleging that he was subjected to retaliation and other actions acts by Defendants including being served with disciplinary charges based on "false and manufactured charges", and a disciplinary suspension. The matter proceeded to trial and a jury considered the following three causes of action:
(1) Deprivation of Plaintiff's 14th Amendment right to equal protection pursuant to 42 USC §1983;
(2) Retaliation in violation of 42 USC §1983; and
(3) Tortious interference with business relations.
The jury found for Plaintiff and awarded Plaintiff $500,000 in damages for "pain, suffering, and emotional distress, harm to reputation, and loss of enjoyment of life".
Supreme Court awarded Plaintiff $185,392 in attorneys' fees.
Defendants appealed the Supreme Court's ruling, contending Supreme Court erred in denying that part of their CPLR 3211 motion seeking dismissal of Plaintiff's equal protection cause of action. The Appellate Division rejected that contention.
Defendants, citing Engquist v Oregon Dept. of Agriculture (553 US 591), also argued that "a class-of-one equal protection claim is unavailable in the public employment context, and an equal protection claim based on selective enforcement, such as alleged by [Plaintiff], is likewise barred. Noting that the Second Circuit has left open that question and that there is a split of authority in the district courts, the Appellate Division said it was "persuaded by the reasoning in Airday v City of New York (2020 WL 4015770), that selective-enforcement claims survive after Engquist.
Defendants' further argued that, "even if selective-enforcement claims survived Engquist, they are entitled to qualified immunity under 42 USC §1983". The Appellate Division said that such an argument was not preserved for its review, and, in any event, is without merit, observing that "Public officials may invoke qualified immunity under 42 USC §1983 unless, inter alia, the unlawfulness of their conduct was clearly established at the time." Further, opined the Appellate Division, malice-based selective-enforcement claims premised on the violation of equal protection were recognized at the time of Defendants' actions and thus Defendants were aware of the purported unlawfulness of their conduct.
Defendants next contend that, with respect to Plaintiff's equal protection cause of action, Plaintiff failed to identify "a materially similar comparator whom [Defendants] treated differently and [Defendants] are therefore entitled to a directed verdict on that cause of action". The Appellate Division held that "[Defendants'] contention [was] not preserved for [its] review inasmuch as [Defendants] did not raise that issue in their motion for a directed verdict."
Defendants also argued that Supreme Court erred in denying that part of their CPLR 3211 motion seeking to dismiss the retaliation cause of action because Plaintiff's speech was not protected inasmuch as it was speech he made as an employee, not as a citizen. The Appellate Division rejected that argument, noting that "To establish a claim for retaliation under the First Amendment, a plaintiff 'must demonstrate that (1) [their] speech addressed a matter of public concern, (2) [they] suffered an adverse employment action, and (3) a causal connection existed between the speech and the adverse employment action, so that it can be said that [their] speech was a motivating factor in the determination'".
In contrast, the Appellate Division noted that "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline".
The Appellate Division said it agreed with Defendants that the court lacked subject matter jurisdiction over the tortious interference cause of action, observing that "Generally, actions against [New York] State officers acting in their official capacity in the exercise of governmental functions are deemed to be, in essence, claims against the State and, therefore, suable only in the Court of Claims".
Finally, the Appellate Division rejected Defendants' contention that the matter should be remitted to Supreme Court for a recalculate the award of attorneys' fees and unanimously affirmed the Supreme Court's judgment without costs.
Click HERE to access the Appellate Division's decision posted on the Internet.