Wierzbicki v. County of Rensselaer, New York et al

Filing 15

MEMORANDUM-DECISION and ORDER - That defendants' 6 Motion for Summary Judgment is DENIED. That defendants' 6 Motion to Dismiss for Failure to State a Claim is GRANTED IN PART and DENIED IN PART as follows: GRANTED as to any Title V II and ADEA claims based on events occurred prior to January 26, 2013 and those claims are DISMISSED. GRANTED as to Wierzbicki's NYSHRL claims asserted against the County and Bauer in her official capacity and those claims are DISMISSED. GRANT ED as to Wierzbicki's Title VII and ADEA claims asserted against Bauer in her individual capacity and those claims are DISMISSED. GRANTED as to Wierzbicki's claim brought pursuant to Article 1, Section 11 of the New York State Constituion and that claim is DISMISSED. DENIED in all other respects. That defendants' 6 Motion to Disqualify Counsel is DENIED with leave to renew upon further discovery. That the parties notify Magistrate Judge Randolph F. Treece to schedule furth er proceedings in accordance with this Memorandum-Decision and Order. That the Clerk provide a copy of this Memorandum-Decision and Order to Magistrate Judge Randolph F. Treece, so that he may monitor Wierzbicki's counsel's potential conflict of interest. Signed by Chief Judge Gary L. Sharpe on 8/12/2015. (jel, ) Modified on 8/12/2015 (jel, ).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
GERARD WIERZBICKI,
Plaintiff,

1:14-cv-950
(GLS/RFT)

v.
THE COUNTY OF RENSSELAER,
NEW YORK et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Bosman Law Office
6599 Martin Street
Rome, NY 13440

AJ BOSMAN, ESQ.

FOR THE DEFENDANTS:
Napierski, Vandenburgh Law Firm
296 Washington Avenue Extension
Albany, NY 12203

SHAWN F. BROUSSEAU, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Gerard Wierzbicki commenced this action against
defendants the County of Rensselaer, New York, Laura Bauer, director of
probation of Rensselaer County, and John and Jane Doe(s), alleging

employment discrimination on the basis of sex under Title VII of the Civil
Rights Act1 and the New York State Human Rights Law (NYSHRL),2 age
discrimination under the Age Discrimination in Employment Act (ADEA)3
and NYSHRL, violations of his Fourteenth Amendment right to equal
protection—a claim brought pursuant to 42 U.S.C. § 1983—and a violation
of the Equal Protection Clause of the New York State Constitution.4 (See
generally Compl., Dkt. No. 1.) Pending is defendants’ motion to dismiss,
for summary judgment, and for disqualification of counsel. (Dkt. No. 6.)
For the reasons that follow, the motion is granted in part and denied in
part.
II. Background5
In November 1997, Wierzbicki, a male over the age of fifty, was hired
by the County as a probation officer. (Compl. ¶¶ 15, 19.) Since then, he

1

See 42 U.S.C. §§ 2000e-2000e-17.

2

See N.Y. Exec. Law §§ 290-301.

3

See 29 U.S.C. §§ 621-634.

4

See N.Y. Const. Art. I, § 11.

5

Although Wierzbicki’s motion is one for both summary judgment and to dismiss, (Dkt.
No. 6), as more fully explained below, his motion for summary judgment is denied as
premature. Thus, the facts are drawn from Wierzbicki’s complaint and presented in the light
most favorable to him.

2

has “consistently performed his job duties in a satisfactory manner,” and,
aside from one incident, never violated work rules. (Id. ¶ 16.) In or around
2009, Wierzbicki sought to become a senior probation officer. (Id. ¶ 17.)
To that end, he took the Civil Service examination, and received the
highest score, which placed him first on the Civil Service list. (Id. ¶¶ 1718.)
Despite his success on the Civil Service examination, Wierzbicki
claims that Bauer consistently passed him over for promotions, beginning
in or about August 2009 and continuing through August 2013. (Id. ¶ 20.)
He further claims that Bauer opted instead to offer the promotions to
employees who were female and younger, all of whom “have less seniority,
experience and lower Civil Service test scores than” he does. (Id.)
Specifically, with the exception of one male employee who is in his thirties,
all of the approximately six individuals who Bauer promoted are female.
(Id. ¶ 21.) In addition to her promotion decisions, Wierzbicki alleges that
this preferential treatment toward women has similarly been displayed in
Bauer’s hiring decisions. (Id. ¶¶ 21, 23.)
Wierzbicki claims that the promotion decisions were based, at least
in part, on the “gender and/or age of the employee[s],” such that Wierzbicki
3

has been discriminated against based on his gender and age. (Id. ¶ 22.)
He further alleges that this preference for women is systemic within the
County and “is part of a custom, policy, and/or practice of discrimination.”
(Id. ¶ 23.) Thus, on or about November 22, 2013, Wierzbicki filed a
complaint of discrimination/retaliation with the United States Equal
Employment Opportunity Commission (EEOC). (Id. ¶ 12.) He was issued
a right to sue letter on or about April 29, 2014, (id. ¶ 13), and, on July 29,
2014, he commenced this action. Shortly after this action was filed,
defendants filed the pending pre-answer motion to dismiss, (Dkt. No. 6),
which the court now considers.
III. Standard of Review
The standard of review applicable to Fed. R. Civ. P. 12(b)(6) motions
is well settled and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Ellis v. Cohen &
Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010), abrogated on
other grounds by Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191
(2d Cir. 2015).
IV. Discussion
In their motion, defendants seek dismissal of most of Wierzbicki’s
4

claims against the County and Bauer, on both substantive and procedural
grounds. (Dkt. No. 6, Attach. 10 at 6-18.) Alternatively, defendants seek
entry of summary judgment on Wierzbicki’s first, second, fifth, and sixth
causes of action. (Id. at 20-24.) Finally, defendants contend that, if the
case is not dismissed, Wierzbicki’s counsel should be disqualified due to a
conflict of interest. (Id. at 18-20.) Wierzbicki opposes defendants’ motion.
(Dkt. No. 11.) Each of defendants’ arguments, and Wierzbicki’s
responses, are addressed below.
A.

Motion for Summary Judgment
The court first addresses defendants’ arguments in support of the

entry of summary judgment on Wierzbicki’s first, second, fifth, and sixth
causes of action. (Dkt. No. 6, Attach. 10 at 20-24.) Wierzbicki contends,
and the court agrees, that any motion for summary judgment is premature
and must be denied. (Dkt. No. 11 at 14-17.)
“[S]ummary judgment should only be granted [i]f after discovery, the
nonmoving party has failed to make a sufficient showing on an essential
element of [its] case with respect to which [it] has the burden of proof.”
Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000)
(internal quotation marks and citation omitted); see Celotex Corp. v.
5

Catrett, 477 U.S. 317, 323 (1986)). Prior to responding to a motion for
summary judgment, “[t]he nonmoving party must have had the opportunity
to discover information that is essential to his opposition,” Trebor
Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989)
(internal quotation marks and citation omitted), and “[o]nly in the rarest of
cases may summary judgment be granted against a plaintiff who has not
been afforded the opportunity to conduct discovery,” Hellstrom, 201 F.3d at
97 (citations omitted).
Here, as of the date Wierzbicki filed his opposition to defendants’
motion, no discovery had been conducted. (Dkt. No. 11, Attach. 3 ¶ 3.) In
fact, after defendants filed their motion, the Rule 16 conference was
adjourned without a date, which means that even the mandatory
disclosures have not been exchanged. Without the benefit of even the
most basic discovery, Wierzbicki is at a great disadvantage in his ability to
properly respond to a motion for summary judgment. Moreover,
defendants have not even attempted to explain to this court why this case
is one of the “rarest of cases” in which a summary judgment motion should
be granted against a plaintiff who has not yet had the opportunity to
conduct discovery. Hellstrom, 201 F.3d at 97 (citations omitted).
6

Accordingly, defendants’ motion for summary judgment is denied as
premature.
B.

Pre-2013 Title VII and ADEA Claims
Defendants next contend that, under the 300-day EEOC statute of

limitations, all claims asserted by Wierzbicki which arose prior to 2013 are
barred as untimely. (Dkt. No. 6, Attach. 10 at 6-8.) In response,
Wierzbicki does not actually dispute that any pre-2013 claims are timebarred, but instead argues that any promotions that he was denied prior to
2013 may be introduced as background evidence. (Dkt. No. 11 at 2-3.)
The court agrees with both parties.
As a prerequisite to commencing a discrimination claim under Title
VII or the ADEA, a claimant must file a charge with the EEOC within 300
days of the allegedly unlawful employment action. See Valtchev v. City of
N.Y., 400 F. App’x 586, 588 (2d Cir. 2010) (citing 42 U.S.C. § 2000e5(e)(1); 29 U.S.C. § 626(d)(1)). Where the act in question is discrete, or
easy to identify—such as “failure to promote, denial of transfer, or refusal
to hire,” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114
(2002)—neglecting to file a timely EEOC charge is fatal. See Valtchev,
400 F. App’x at 588. Absent some exception, “only events that occurred
7

during the 300-day period prior to filing . . . are actionable.” Van Zant v.
KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996).
Here, Wierzbicki’s EEOC charge was filed on or about November 22,
2013, (Compl. ¶ 12), extending the reach of the 300-day statute of
limitations to January 26, 2013. Within that period, Wierzbicki claims that
he was passed over for at least one promotion in August 2013. (Id. ¶ 20.)
That claim is timely. However, Wierzbicki also alleges that he was denied
promotions prior to January 26, 2013, beginning as early as August 2009.
(Id.) Those claims are untimely, and must be dismissed. Nevertheless,
the court agrees with Wierzbicki, (Dkt. No. 11 at 2-3), that any time-barred
acts alleged in the complaint “‘may constitute relevant background
evidence’” in future proceedings involving the remaining claim. Morgan,
536 U.S. at 112 (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558
(1977)).
C.

NYSHRL Claims
Next, defendants contend that the NYSHRL claims asserted against

the County and Bauer—Wierzbicki’s fifth and sixth causes of action,
(Compl. ¶¶ 39-45)—must be dismissed because Wierzbicki failed to file a
timely notice of claim. (Dkt. No. 6, Attach. 10 at 15-16.) Wierzbicki
8

seemingly concedes that the NYSHRL claims asserted against the County
must be dismissed, but argues that his claims against Bauer survive. (Dkt.
No. 11 at 11-12.) The court agrees that the claims against the County and
against Bauer in her official capacity must be dismissed, but the claims
against Bauer in her individual capacity survive.
Under New York law, the service of a notice of claim is a condition
precedent to the commencement of a tort action against a county or its
agents, officers, or employees, and must be filed within ninety days of the
incident giving rise to the claim. See N.Y. County Law § 52; N.Y. Gen.
Mun. Law §§ 50-e, 50-i. Moreover, pursuant to Section 50-i, a plaintiff
must plead in the complaint that: (1) the notice of claim was served; (2) at
least thirty days have elapsed since the notice of claim was filed and
before the complaint was filed; and (3) in that time the defendant has
neglected or refused to adjust or satisfy the claim. See Horvath v. Daniel,
423 F. Supp. 2d 421, 423 (S.D.N.Y. 2006). “Notice of claim requirements
are construed strictly by New York state courts. Failure to comply with
these requirements ordinarily requires a dismissal for failure to state a
cause of action.” Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789,
793-94 (2d Cir. 1999) (internal quotation marks and citations omitted). The
9

notice requirements apply even to employment discrimination claims
brought against a county pursuant to the NYSHRL. See Johnson v. Cnty.
of Nassau, No. 10-CV-06061, 2014 WL 4700025, at *23 (E.D.N.Y. Sept.
22, 2014) (citing cases). Finally, the notice of claim requirements apply to
claims asserted against individuals sued in their official capacities, but do
not apply to claims asserted against individuals sued in their individual
capacities. See id. at *24.
Here, Wierzbicki’s complaint is devoid of the requisite notice of claim
allegations. (See generally Compl.) Even in his response to defendants’
motion, he seemingly concedes that a notice of claim was never filed.
(Dkt. No. 11 at 11-12.) By failing to comply with this condition precedent,
Wierzbicki’s NYSHRL claims against the County and Bauer in her official
capacity must be dismissed.
Wierzbicki correctly contends, however, that his claims against Bauer
in her individual capacity, at least at this juncture, should survive. (Id.)
With respect to county employees sued in their individual capacities, “the
requirements of Sections 50-e and 50-i are not conditions precedent . . .
unless the county is required to indemnify such person,” and “[t]he
County’s duty to indemnify these employees turns on whether they were
10

acting within the scope of their employment.” Wharton v. Cnty. of Nassau,
No. 10-CV-0265, 2013 WL 4851713, at *15 (E.D.N.Y. Sept. 10, 2013)
(internal quotation marks and citations omitted); see Bielski v. Green, 674
F. Supp. 2d 414, 428 (W.D.N.Y. 2009). Given that defendants have not
addressed this point in their motion, and there has not yet been any
briefing or evidence submitted as to whether Bauer was acting within the
scope of her employment, it would be premature to dismiss the NYSHRL
claims against Bauer in her individual capacity at this juncture.6
D.

Sex and Age Discrimination Claims
Defendants next contend that Wierzbicki’s allegations fail to state

valid claims of sex and age discrimination. (Dkt. No. 6, Attach. 10 at 8-13.)
Wierzbicki counters, and the court agrees, that he has met his pleading
burden. (Dkt. No. 11 at 3-9.)

6

The court notes that Wierzbicki’s NYSHRL claims asserted against Bauer and the
Doe defendants—his sixth cause of action, (Compl. ¶¶ 42-45)—also encompasses an aiding
and abetting theory, (id. ¶ 44). Again, the court, at this juncture, declines to dismiss this
allegation. Although defendants argue that this claim must fail because Bauer could not have
aided or abetted her own alleged conduct, (Dkt. No. 6, Attach. 10 at 16), in stating this
proposition, defendants fail to acknowledge that a disagreement exists between the district
courts of this Circuit on the question of whether “an individual can be held liable as an aider
and abettor even though it was primarily her actions that make the employer liable.” MacBain
v. Smiley Bros. Inc., No. 1:10-CV-1561, 2013 WL 621932, at *13-14 (N.D.N.Y. Feb. 19, 2013)
(collecting cases). In light of this split, and defendants’ cursory treatment of this issue, their
motion on this point, though it may be renewed at a later date with adequate legal argument, is
denied.

11

To state a claim of sex and age discrimination under Title VII, the
ADEA, the NYSHRL,7 and § 1983, “a complaint need not establish a prima
facie case of employment discrimination[;] however, the claim must be
facially plausible and must give fair notice to the defendants of the basis for
the claim.” Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d
210, 215 (S.D.N.Y. 2010) (internal quotation marks and citation omitted)
(reconciling Ashcroft v. Iqbal, 556 U.S. 662 (2009), Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007), and Swierkiewicz v. Sorema N.A., 534 U.S.
506 (2002)). Claims of employment discrimination brought under Title VII,
§ 1983, the NYSHRL, and the ADEA are subject to a largely identical
analytical framework. See Lore v. City of Syracuse, 670 F.3d 127, 169 (2d
Cir. 2012); Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010);
Leibowitz v. Cornell Univ., 584 F.3d 487, 498 & n.1 (2d Cir. 2009)
(describing the framework for age discrimination claims under Title VII, the
ADEA, and the NYSHRL), superseded by statute on other grounds, Local
Civil Rights Restoration Act of 2005, N.Y.C. Local L. No. 85, as recognized
in Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d

7

Discussion of the NYSHRL is relevant only as applied to those claims asserted
against Bauer in her individual capacity, as the NYSHRL claims asserted against the County
and Bauer in her official capacity have been dismissed. See supra Part IV.C.

12

Cir. 2013); see also Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 22427 (2d Cir. 2004) (articulating differences between Title VII and sections
1981 and 1983).
To establish a prima facie case of discriminatory failure to promote, a
plaintiff must demonstrate that: “(1) [he] is a member of a protected class;
(2) [he] applied and was qualified for a job for which the employer was
seeking applicants; (3) [he] was rejected for the position; and (4) the
position remained open and the employer continued to seek applicants
having the plaintiff’s qualifications.” Estate of Hamilton v. City of N.Y., 627
F.3d 50, 55 (2d Cir. 2010) (internal quotation marks and citations omitted),
abrogated on other grounds by Mihalik v. Credit Agricole Cheuvreux N.
Am., Inc., 715 F.3d 102, 108-09 (2d Cir. 2013). “[I]n establishing a prima
facie case the plaintiff must show that ‘[he] . . . was rejected [for the
promotion] under circumstances which give rise to an inference of unlawful
discrimination.’” Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir.
1998) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981)).
1.

Elements Common to all Sex and Age Discrimination Claims

13

As a male over the age of forty,8 Wierzbicki has adequately pleaded
the first element of a discrimination claim—membership in a protected
class. (Compl. ¶¶ 1, 19.) Wierzbicki has also sufficiently alleged the
second, third, and fourth elements—that he was qualified, applied, and
rejected for promotions in favor of others who had his qualifications.
Specifically, he alleges that, throughout his employment with the County,
he “consistently performed his job duties in a satisfactory manner,”
“committed no infraction of work rules,” and “scored [first] on the Civil
Service list,” but, after applying for promotions, he was consistently passed
over in favor of younger and/or female employees. (Id. ¶¶ 16, 18, 20-21.)
Although defendants contend that Wierzbicki’s score on the Civil Service
exam “does not give [him] a vested right to the appointment to a position,”
(Dkt. No. 6, Attach. 10 at 10-11), Wierzbicki is only required to allege that
he was qualified for the position he sought, not that he was entitled to it,
and the court is satisfied that earning the highest score on the Civil Service
exam, coupled with his experience and history of satisfactory performance,
renders him qualified.

8

The protections of the ADEA are “limited to individuals who are at least [forty] years of
age.” 29 U.S.C. § 631(a).

14

Finally, despite defendants’ arguments to the contrary, (id. at 9, 1112), Wierzbicki has also, at this juncture, sufficiently alleged facts giving
rise to an inference of discrimination. The Second Circuit has held that,
when a plaintiff applies for and is denied a position, the fact that the
position was filled by someone outside of the plaintiff’s protected class is
itself enough to give rise to such an inference. See Zimmermann v.
Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001); see also
Soderberg v. Gunther Int’l, Inc., 124 F. App’x 30, 31 (2d. Cir. 2005)
(summary order) (noting that the burden to establish a prima facie case of
discrimination is de minimis, and the filling of a position by an employee
twenty years junior to the plaintiff was enough to support an inference of
age discrimination); Diaz v. N.Y.C. Transit Auth., 98 F. App’x 58, 59 (2d
Cir. 2004) (summary order) (finding an inference of discrimination where
the defendant hired two younger white men instead of the forty-eight-yearold African-American plaintiff); Ellis v. Century 21 Dep’t Stores, 975 F.
Supp. 2d 244, 271 (E.D.N.Y. 2013) (finding an inference of discrimination
where the plaintiff expressed interest in a position, which was offered to a
candidate outside the plaintiff’s protected class a few days later). Here,
Wierzbicki has alleged that all of the individuals who were promoted were
15

either female or younger, and, therefore, outside of his protected class.
(Compl. ¶¶ 20-21.) Given this Circuit’s standard, the complaint, although
otherwise barren of factual allegations indicative of discrimination, has
pleaded a prima facie case of discriminatory failure to promote.
Accordingly, to the extent that it seeks dismissal of Wierzbicki’s age
and sex discrimination claims for insufficient pleading, defendants’ motion
is denied.
2.

Section 1983

In addition to their insufficiency-of-the-pleadings argument as to all
discrimination claims, defendants seek dismissal specifically of
Wierzbicki’s section 1983 claims—his third and fourth causes of action, (id.
¶¶ 31-38)—for failing to plead the deprivation of a constitutional right and
for failing to plead the existence of a municipal policy or custom. (Dkt. No.
6, Attach. 10 at 13-14.) The court is not persuaded by either argument.
“To prevail against a municipality on a [section] 1983 claim, a
plaintiff must demonstrate both an injury to a constitutionally protected right
and that the injury was caused by a policy or custom of the municipality or
by a municipal official responsible for establishing final policy.” Hartline v.
Gallo, 546 F.3d 95, 103 (2d Cir. 2008) (internal quotation marks and
16

citations omitted). With respect to defendants’ first argument, Wierzbicki
alleges that, as a result of defendants’ discriminatory failure to promote, his
rights to equal protection under the Fourteenth Amendment have been
violated. (Compl. ¶¶ 32-33.) With respect to defendants’ second
argument, Wierzbicki’s complaint alleges that Bauer is a final policy-maker
and, through her actions, created a custom, policy, or practice of age and
sex discrimination in both hiring and promotions. (Compl. ¶¶ 8, 10, 22-23.)
These allegations are sufficient, at this stage of the litigation, to survive.
3.

ADEA and Title VII Individual Capacity Claims

Finally, defendants seek dismissal of Wierzbicki’s sex and age
discrimination claims under Title VII and the ADEA to the extent they are
asserted against Bauer in her individual capacity. (Dkt. No. 6, Attach. 10 at
11, 13.) Because neither Title VII nor the ADEA provides for individual
liability, the court agrees, and those claims are dismissed against Bauer in
her individual capacity, but survive to the extent they are asserted against
her in her official capacity. See Patterson, 375 F.3d at 221; Cherry v.
Toussaint, 50 F. App’x 476, 477 (2d Cir. 2002) (summary order) (citing
Parker v. Metro. Transp. Auth., 97 F. Supp. 2d 437, 452 (S.D.N.Y. 2000));
Henriquez-Ford v. Council of Sch. Supervisors & Adm’rs, No. 14-CV-2496,
17

2015 WL 3867565, at *4 (S.D.N.Y. June 23, 2015).
E.

Claims Pursuant to New York State Constitution
Defendants lastly seek dismissal of Wierzbicki’s eighth cause of

action asserting a violation of his right to equal protection under Article I,
Section 11 of the New York State Constitution. (Dkt. No. 6, Attach. 10 at
17-18; Compl. ¶¶ 46-48.) The court agrees with defendants that this claim
is duplicative of his § 1983 claims and must be dismissed.
Where, as here, adequate remedies are available under § 1983, a
plaintiff has “no private right of action under the New York State
Constitution.” G.D.S. ex rel. Slade v. Northport-E. Northport Union Free
Sch. Dist., 915 F. Supp. 2d 268, 280 (E.D.N.Y. 2012) (internal quotation
marks and citations omitted) (dismissing equal protection claim brought
pursuant to Article 1, Section 11 of New York State Constitution where an
adequate federal remedy was available under § 1983 and citing cases);
see Felmine v. City of N.Y., No. 09-CV-3768, 2012 WL 1999863, at *6
(E.D.N.Y. June 4, 2012) (“New York courts will only imply a private right of
action under the state constitution where no alternative remedy is available
to the plaintiff.”).
In this case, Wierzbicki brings equal protection claims under the
18

Fourteenth Amendment to the United States Constitution pursuant to
§ 1983, (Compl. ¶¶ 31-38), which, as noted above, see supra Part IV.D.2,
survive this motion. Based upon a reading of the complaint, those claims
are identical to the one he brings under the New York State Constitution’s
Equal Protection Clause, (Compl. ¶¶ 46-48), and, in his opposition to
defendants’ motion, Wierzbicki does not identify how his New York State
constitutional claim differs from his § 1983 claims, (see generally Dkt. No.
11). Thus, “[b]ecause all state constitutional law claims are also asserted
as Section 1983 claims, all such claims are dismissed.” Krug v. Cnty. of
Rennselaer, 559 F. Supp. 2d 223, 248 (N.D.N.Y. 2008).
F.

Motion for Disqualification
Finally, defendants move to disqualify Wierzbicki’s counsel on the

basis of a conflict of interest. (Dkt. No. 6, Attach. 10 at 18-20.) Wierzbicki
responds that there is no basis on which to grant the motion. (Dkt. No. 11
at 12-14.) At this juncture, the court agrees with Wierzbicki.
Motions to disqualify counsel “are subject to fairly strict scrutiny” and
“the courts must guard against tactical use of motions to disqualify
counsel.” Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989).
Historically, the Second Circuit has shown considerable reluctance to
19

disqualify attorneys “despite misgivings about the attorney’s conduct,” Bd.
of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979), because
disqualification has an “immediate adverse effect on the client by
separating [him] from counsel of [his] choice,” In re Methyl Tertiary Butyl
Ether Prods. Liab. Litig., 438 F. Supp. 2d 305, 307 (S.D.N.Y. 2006)
(internal quotation marks and citation omitted). While disqualification is
subject to the court’s discretion, generally, a district court may “disqualify
counsel where necessary to preserve the integrity of the adversary
process,” typically in the following situations: (1) where an attorney’s
conflict of interests in violation of New York’s Rules of Professional
Conduct “undermines the court’s confidence in the vigor of the attorney’s
representation of his client”; or (2) “where the attorney is at least potentially
in a position to use privileged information concerning the other side
through prior representation, . . . giving [her] present client an unfair
advantage.” Nyquist, 590 F.2d at 1246 (citations omitted); see Grant v.
Harvey, No. 09 Civ. 1918, 2012 WL 1958878, at *1 (S.D.N.Y. May 24,
2012).
Here, defendants contend that a conflict is present due to
Wierzbicki’s counsel’s concurrent representation of Lisa Karam (“Karam”),
20

and her husband, James Karam, in another discrimination lawsuit currently
pending against the County. (Dkt. No. 6, Attach. 10 at 19-20); see Karam
v. County of Rensselaer, No. 1-13-CV-1018. Lisa Karam, defendants
argue, “participated in the decision-making that resulted in the denial of the
two promotions to [Wierzbicki],” and, therefore, “is an important witness
[and] a potential Jane Doe defendant” in this case. (Dkt. No. 6, Attach. 10
at 19.) Wierzbicki responds that, because Karam is not a defendant in this
case, there is no actual conflict of interest. (Dkt. No. 11 at 13.) Further,
Wierzbicki argues that disqualification is inappropriate because “Karam is
merely a derivative plaintiff in the Karam case; James Karam, her husband,
is the principal plaintiff and the allegations in the Karam case do not pertain
to this lawsuit.” (Id.) Finally, Wierzbicki contends that, even if Karam were
a witness in this case, that alone is not grounds for disqualification. (Id. at
13-14.)
As an initial matter, at least at this stage of the litigation, Karam is not
a defendant. Discovery has not yet commenced, and, even if it turns out
that Karam did have some role in the promotion decisions, whether she will
be named as a Doe defendant is purely speculative at this point, and
“[m]ere speculation will not suffice.” All Star Carts & Vehicles, Inc. v. BFI
21

Canada Income Fund, No. CV 08-1816, 2010 WL 2243351, at *4 (E.D.N.Y.
June 1, 2010) (internal quotation marks and citation omitted). To be sure,
however, if Karam is eventually named as a defendant here, Wierzbicki’s
counsel would be precluded from concurrently representing both clients.
See N.Y. Rules of Professional Conduct 1.7(b)(3) (making clear that a
lawyer may not represent a client if “the representation . . . involve[s] the
assertion of a claim by one client against another client represented by the
lawyer in the same litigation or other proceeding before a tribunal”).
Further, the court is similarly unpersuaded that the fact that Karam
may be a nonparty witness warrants disqualification. Under New York’s
Professional Rules of Conduct, “a lawyer shall not represent a client if a
reasonable lawyer would conclude that . . . the representation will involve
the lawyer in representing differing interests.” N.Y. Rules of Professional
Conduct 1.7(a)(1). “Concurrent representation of a party and a non-party
witness constitutes a conflict of interest only if the witness is expected to
give testimony adverse to the client.” Farb v. Baldwin Union Free Sch.
Dist., No. CV 05-0596, 2011 WL 4465051, at *13 (E.D.N.Y. Sept. 26, 2011)
(citing Ritchie v. Gano, No. 07 Civ. 7269, 2008 WL 4178152, at *10 n.5
(S.D.N.Y. Sept. 8, 2008); George v. City of Buffalo, 789 F. Supp. 2d 417,
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434 (W.D.N.Y. 2011) (“In the case of representation of a non-party witness
and a party, disqualification . . . occurs where . . . the attorney . . . suffers
from an actual conflict based on the witness’s expected testimony adverse
to an attorney’s client such that the attorney’s duty of loyalty and zealous
representation to the client and witness is thereby impaired.”)). Again, at
this point, whether Karam will be a witness, and, if she is, the scope and
substance of her testimony, is entirely speculative.
In sum, at this point, all that is known is that a potential conflict
exists, and, given the harsh remedy that is disqualification, “[t]he possibility
that future conflicts of interest may arise does not require disqualification.”
All Star, 2010 WL 2243351, at *4-5 (internal quotation marks and citations
omitted) (declining to disqualify counsel where counsel concurrently
represented party and non-party witness). Under these circumstances, the
court declines to grant defendants’ motion at this point. However, the
parties are directed to focus their discovery on this potential conflict, and
the Clerk of the Court is directed to bring this decision to the attention of
Magistrate Judge Randolph F. Treece, so that he may monitor this matter

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accordingly.9
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
6) is DENIED; and it is further
ORDERED that defendants’ motion to dismiss (Dkt. No. 6) is
GRANTED IN PART and DENIED IN PART as follows:
GRANTED as to any Title VII and ADEA claims based on
events that occurred prior to January 26, 2013 and those
claims are DISMISSED;
GRANTED as to Wierzbicki’s NYSHRL claims asserted against
the County and Bauer in her official capacity and those claims
are DISMISSED;
GRANTED as to Wierzbicki’s Title VII and ADEA claims
asserted against Bauer in her individual capacity and those
claims are DISMISSED;

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Additionally, the court highlights Rule 1.7(b)(1) of the New York Rules of Professional
Conduct, which permits an attorney to represent a client, even if a concurrent conflict exists,
only if “the lawyer reasonably believes that [she] will be able to provide competent and diligent
representation to each affected client.” It should go without saying that the court fully expects
Wierzbicki’s counsel to self-police and abide by this mandate.

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GRANTED as to Wierzbicki’s claim brought pursuant to Article
1, Section 11 of the New York State Constitution and that claim
is DISMISSED; and
DENIED in all other respects; and it is further
ORDERED that defendants’ motion for disqualification (Dkt. No. 6) is
DENIED with leave to renew upon further discovery; and it is further
ORDERED that the parties notify Magistrate Judge Randolph F.
Treece to schedule further proceedings in accordance with this
Memorandum-Decision and Order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to Magistrate Judge Randolph F. Treece, so that he
may monitor Wierzbicki’s counsel’s potential conflict of interest; and it is
further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
August 12, 2015
Albany, New York

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