Second Circuit holds an award of attorney’s fees pursuant to 42 U.S.C. §1988 is not appropriate where it is based on pre-litigation conduct

A temporary contract employee [Plaintiff] at a CUNY institution, was notified that a student at another CCNY institution had accused him of sexual harassment. A CCNY Title IX Coordinator investigated the student's claim and substantiated several of the allegations. Plaintiff was advised that the Coordinator's findings had been accepted and that he "was terminated effective immediately, thirteen business days before his contract was to expire.

Plaintiff initiated an arbitration proceeding seeking a fact-finding or "name clearing" hearing as to whether Plaintiff had violated CUNY’s sexual harassment policy.  On the eve of the arbitration CCNY notified Plaintiff that his termination was rescinded and that he would be paid "for the remaining thirteen business days of his term of employment". In addition, Plaintiff was advised that CUNY would remove any reference to the incident from Plaintiff's personnel file.

Based on these actions, CUNY moved to dismiss the arbitration as moot. CCNY's motion was granted by the arbitrator, who concluded that CUNY’s actions resolved Plaintiff’s grievance and that he was not entitled to a name-clearing hearing because he had no constitutionally protected property interest in his temporary position.

Plaintiff then initiated the instant 42 U.S.C. §1983 action in a federal district court naming CUNY and certain named individuals [herein after CCNY] as defendants, alleging violations of his Fourteenth Amendment right to due process. In an amended complaint, Plaintiff sought more than $45 million in compensatory and punitive damages, a name-clearing hearing, and vacatur of the arbitration award. 

A federal district court granted CCNY's motion for summary on all but one of Plaintiff's claims, Plaintiff's “stigma-plus”* claim against CUNY.  

At trial Plaintiff sought over $4 million in damages. A jury determined that Plaintiff had been unlawfully denied a name-clearing hearing but awarded him only $1 in nominal damages. The district court entered a final judgment in that amount, $1.00", whereupon Plaintiff sought attorney’s fees totaling nearly $120,000. 

The district court awarded Plaintiff $75,000 in fees, reasoning that Plaintiff was “entitled to a significant part of his attorney’s fees,” in part due to CUNY’s “questionable behavior” in “moot[ing] [Plaintiff's] right to have the legitimacy of his termination decided in his arbitration proceeding,” which forced him to engage in “protracted and costly litigation.” 

CCNY appealed and the Circuit Court of Court vacated the award because "the district court had failed to adequately explain its decision based on the considerations identified in the governing fee-award cases, particularly view of other nominal damages cases cited by the Circuit Court in its decision and remanded the matter to the district court with instructions "to reconsider its decision in light of those cases".

On remand, the district court acknowledged that certain of the cases cited by the Circuit Court "strictly limit the circumstances in which fees may be awarded in nominal damages cases and that this case did not meet any of the recognized bases for awarding such fees," but "reasoned that a fee award was warranted because CUNY acted in 'bad faith' in mooting the arbitration rather than allowing Plaintiff to pursue a name-clearing hearing." CCNY appealed the district court's ruling.

The Circuit Court vacated the judgment of the district court and remanded the matter to it with instructions to deny Plaintiff's application for attorney’s fees, explaining that it concluded that the district court abused its discretion in relying on CUNY’s alleged bad faith in its conduct giving rise to the lawsuit as a basis for awarding fees. 

The Circuit Court's decision noted the decisions it earlier cited did not "identify a party’s bad faith in the underlying conduct which was the subject of the litigation as justifying an award of fees under §1988 to a prevailing plaintiff who recovers only nominal damages" nor was it aware of any Second Circuit decision holding an award of attorney’s fees is appropriate under §1988 based on pre-litigation conduct although bad faith can be a basis for an award of attorney’s fees as a sanction for litigation-related conduct, citing Rossbach v. Montefiore Med. Ctr., 81 F.4th 124.

In the words of the Circuit Court: "The mere fact that CUNY sought to moot the arbitration proceedings is insufficient to support the [district] court’s finding on this point. What the [district] court characterized as a 'mootness gambit' .... could just as well have been a tactical decision by CUNY to resolve its dispute with [Plaintiff] rather than engage in a potentially protracted arbitration. The jury obviously concluded that CUNY thereby deprived [Plaintiff] of a name clearing hearing to which he was entitled, but [the Circuit Court said it is] not aware of any basis for concluding that CUNY proceeded with deliberate intent to violate [Plaintiff's] constitutional rights."

* Citing DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003), the Circuit Court of Appeals noted "A 'stigma-plus' claim involves an alleged injury to one’s reputation (the stigma) coupled with the deprivation of some ‘tangible interest’ or property right (the plus), without adequate process”.

Click HERE to access the Circuit Court's decision posted on the Internet. 

Failing to comply with the employer's vaccine mandate constitutes a failure to satisfy a condition of employment not subject to a pretermination disciplinary procedure

The Commissioner of the New York City Department of Health and Mental Hygiene issued an order [The Vaccine Mandate] requiring employees of the New York City Department of Education [DOE] to be vaccinated against COVID-19 and provide proof of such vaccination. 

The United Federation of Teachers [UFT], the employer organization representing a majority of teachers in New York City public schools, filed a demand for arbitration challenging  the implementation of the Vaccine Mandate. The arbitrator issued an award [Impact Award] establishing a process for the implementation of the Vaccine Mandate. The Impact Award provided, among other things, that "[any] unvaccinated employee who has not requested an exemption ..., or who has requested an exemption which has been denied, may be placed by the DOE on leave without pay." 

The Impact Award further provided that "[employees] who become vaccinated while on such leave without pay and provide appropriate documentation ... prior to November 30, 2021, shall have a right of return to the same school," and "beginning December 1, 2021], the DOE shall seek to unilaterally separate such employees who remained on leave without pay".

A tenured teacher [Petitioner] employed by DOE was placed on leave without pay after failing to submit proof of vaccination by the deadline. DOE subsequently terminated Petitioner's employment. Petitioner then commenced the instant "hybrid proceeding" pursuant to CPLR Article 78 seeking judicial review of the Impact Award, alleging that, among other things, it was issued in violation of Civil Service Law §209(3)(f), and asked Supreme Court to annul DOE's determination to terminate her employment as being arbitrary and capricious. 

Supreme Court, however, granted DOE's cross-motion and dismissed Petitioner's "proceeding/action". Petitioner appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division said with respect to the Petitioner's seeing review of the Impact Award, it should have have been denominated a CPLR Article 75 proceeding and, citing Matter of Baksh v New York Racing Assn., Inc., 225 AD3d 689 and other decision, noted that "[Appellate] courts are empowered to convert a civil proceeding into one which is proper in form under CPLR 103(c), making whatever order is necessary" and  then converted its review of the Impact Award into a proceeding pursuant to CPLR Article 75. 

The Court then opined that as Petitioner was not a party to the arbitration between the DOE and the UFT, she did not have standing to seek judicial review of the Impact Award. The Appellate Division also observed that Petitioner's cause of action to recover damages for breach of contract arising from a collective bargaining agreement between the DOE and the UFT was properly dismissed by the Supreme Court as "A union member generally has no individual rights under a collective bargaining agreement which he or she can enforce against an employer".

Turning to Petitioner's argument that the Impact Award violated the disciplinary hearing procedures set out in Education Law §§3020 and 3020-a, the Appellate Division opined that such an argument was "without merit" as Petitioner "was not entitled to the hearing procedures outlined in Education Law §§3020 and 3020-a before being terminated for failure to comply with the vaccine mandate, because the mandate is a condition of employment".

Accordingly, the Appellate Division concluded that Supreme Court properly granted the DOE's cross-motion and dismissed the Petitioner's "proceeding/action".

Click HERE to access the Appellate Division's decision posted on the Internet.

Selected items posted on Blogs during the week ending June 13, 2025

Artificial Intelligence and the legal profession -- An item recently posted by  Rochester, New York attorney Nicole Black, indicates that the legal profession is falling behind with respect to artificial intelligence while other industries move ahead. Click to Read the whole entry 

New York State Has Fallen Behind in NG911, Audit Says New York State’s Comptroller Thomas P. DiNapoli places the situation on New York’s homeland security agency, and urges it to provide more guidance. NG911 is among the main drivers of the public safety technology industry. READ MORE  

How Trump's Drone Orders Will Impact State, Local Government New executive orders seek to boost the use of drones in public safety, mandate the use of AI to speed up the drone waiver process and provide funding opportunities to boost anti-drone tech access. READ MORE

Maryland Targets Tech for Hundreds of Millions in Savings Changes to procurement, cybersecurity and even "legacy" landlines will help the state save $250 million in the next five years, according to Gov. Wes Moore. It’s all part of his modernization plan. READ MORE 

Feds Release BEAD Program Rules After Months of Review Federal officials have unveiled widely anticipated revisions regarding the Broadband Equity, Access, and Deployment Program. States had paused some activities in anticipation of the changes. READ MORE

Information of Nearly 300,000 Compromised in TxDOT Breach Personal data from more than a quarter-million Texas Department of Transportation reports was accessed improperly through a compromised account. It originated in Crash Records Information System documents. READ MORE

Elevating Government: New IT, New Strategies, New Efficiencies Join us for this dynamic virtual summit designed specifically for government and education leaders who are ready to modernize operations, enhance service delivery, and build resilience for the future. WATCH NOW  

Keeping Mission-Critical Data Accurate, Reliable, and AI-Ready Watch this webinar to learn how to break down the essentials of data integrity--what it is, why it matters, and how automated solutions can help ensure your data remains mission-ready. WATCH NOW 

Defending Today's Government Workforce Against Cyber Threats Learn how to protect your workforce and maximize limited cybersecurity resources against growing threats. WATCH NOW

Selected press releases posted on the Internet by the New York State Comptroller's Press office during the week ending June 13, 2025

Comptroller DiNapoli Releases Analysis of Enacted State Budget The Enacted Budget for State Fiscal Year 2025-26 is projected to total $254 billion, a 5.2% increase in spending at a time when new federal actions on funding and policy may change the relationship between the federal government and states. Actions that have already occurred at the federal level, paired with potential Congressional action, may mean that in the upcoming months New York will see challenges to the recently Enacted State Budget, according to a report by Comptroller DiNapoli. “The stakes are high for New York if the cuts being discussed in Washington occur,” DiNapoli said. “The state needs to do what it can to stabilize finances, build reserve funds, focus on efficient service delivery and develop a strategy for how to contend with federal changes. The final budget had some measures built into help navigate this uncertainty, but the state needs to do what it can to prepare in a transparent manner before our options are even more limited.” Read More NYC’s Finances Benefiting From Better Than Expected Revenues Stronger than anticipated revenues and lower costs for asylum seekers will help New York City balance its $118 billion fiscal year 2026 budget, according to a report by Comptroller DiNapoli. However, potential fiscal challenges are emerging, including continued uncertainty regarding federal policy and economic conditions, and fiscal risks from anticipated federal budget cuts. These challenges could limit the city’s potential revenue upside and make it harder to continue to fund recent spending additions for discretionary programs and maintain services. “New York City’s fiscal outlook has improved since January as revenues have surpassed the city’s expectations, supported by the financial industry’s strong performance,” DiNapoli said. “But the economic conditions that drove higher revenues may be softening and local fiscal pressures could be exacerbated by decisions made at the federal and state levels. Boosting budget contingencies and setting money aside in its Rainy Day Fund would help the city manage fiscal challenges that may arise and help mitigate the impact to public services.” Read More

Physical and Financial Conditions at Selected Mitchell-Lama Developments in New York City (Follow-Up) Comptroller DiNapoli released a follow-up report on the physical and financial conditions of selected Mitchell-Lama developments in New York City. This report assesses the extent to which previous recommendations to protect residents' health and safety and ensure proper use of funds have been implemented. Read More

Concerning professional disciplinary proceedings conducted by the New York State Department of Education's Office of Professional Discipline

Citing Matter of St. Hill v New York State Bd. for Professional Med. Conduct, 166 AD3d 1092, the Appellate Division opined that there is no statute of limitations and the doctrine of laches does not apply to professional disciplinary proceedings conducted by the New York State Department of Education's Office of Professional Discipline [OPD]."

With respect to satisfying a minimum number of members on a OPD disciplinary panel required to satisfy a quorum for the transaction of business, §6510[3][b] of the Education Law prescribes the specific composition of members to serve on an OPD hearing panel to conduct a professional disciplinary proceeding.

Observing that it was undisputed that relevant ODP panel was otherwise authorized by statute to conduct the underlying investigation and to hold the professional disciplinary proceedings at issue, the Appellate Division concluded that Supreme Court correctly determined that the granting of Petitioners' petition seeking the extraordinary remedy of a writ of prohibition was not warranted.

Click HERE to access the Appellate Division's decision posted on the Internet.