Miller v. City of Ithaca, New York et al

Filing 572

MEMORANDUM-DECISION and ORDER - That defendants' 558 Motion for Summary Judgment is DENIED. That the case is trial ready and the Clerk shall issue a trial scheduling order in due course. Signed by Chief Judge Gary L. Sharpe on 1/28/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CHRISTOPHER MILLER,
Plaintiff,

3:10-cv-597
(GLS/DEP)

v.
CITY OF ITHACA, NEW YORK et
al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Bosman Law Office
6599 Martin Street
Rome, NY 13440
FOR THE DEFENDANTS:
Stokes, Roberts Law Firm
903 Hanshaw Road
Ithaca, NY 14850

AJ BOSMAN, ESQ.

PAUL E. WAGNER, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Christopher Miller commenced this action against defendants
City of Ithaca, New York, Edward Vallely, John Barber, Pete Tyler, Lauren
Signer, Andrew Navarro, Marlon Byrd, Scott Garin, and John and Jane

Does related to his employment with the City of Ithaca Police Department,
alleging causes of action including, as relevant here, claims of retaliation
pursuant to Title VII of the Civil Rights Act of 19641 and the New York
Human Rights Law.2 (2d Am. Compl., Dkt. No. 88.) Pending is the post
trial “renewed summary judgment” motion of the City, Vallely, Barber, Tyler,
and Byrd (hereinafter “defendants”), which seeks dismissal of all remaining
claims. (Dkt. No. 558.) For reasons explained below, the motion is
denied.
II. Background
Given the extensive motion practice and prior decisions in this action,
the court presumes the parties’ familiarity with the relevant underlying
facts, and includes only those facts it deems pertinent to the pending
motion. This action was commenced in May 2010, and was assigned to
U.S. District Judge Thomas A. McAvoy. (See generally Dkt. No. 1.) In
September 2012, the matter came to be tried before a jury. (Dkt. Nos.
495-515.) The jury found that the City, Vallely, Barber, and Tyler retaliated
against Miller for engaging in protected activity by issuing a June 1 Notice
1

See 42 U.S.C. §§ 2000e-2000e-17.

2

See N.Y. Exec. Law §§ 290-301.
2

of Discipline (NOD), and that Byrd retaliated against Miller by making
certain beat assignments. (Dkt. No. 454 at 3-4.) Damages in the amount
of $2,000,004 were awarded by the jury, (id. at 5), and judgment was
thereafter entered, (Dkt. No. 460).
Among other post trial motions, defendants moved pursuant to Fed.
R. Civ. P. 50 and 59 for judgment as a matter of law or, alternatively, a new
trial. (Dkt. Nos. 472, 474.) Judge McAvoy denied the motion for judgment
as a matter of law in its entirety, but granted a new trial with respect to the
retaliation claim regarding the beat assignments alleged against Byrd.
(Dkt. No. 528 at 9-11.) The verdict with respect to the NOD was not
disturbed, but because the award of damages was general with respect to
both claims of retaliation, a new trial was ordered on non-economic
compensatory damages relevant to the NOD. (Id. at 11-13.) In light of that
ruling, the judgment was subsequently vacated. (Dkt. No. 556.) Among
other things, defendants thereafter sought to file a renewed summary
judgment motion. (Dkt. Nos. 534, 542.) “Without ruling on the propriety of
a renewed post-trial motion for summary judgment or the merits of any
such motion,” Judge McAvoy permitted defendants to file such a motion.
(Dkt. No. 554 at 4.) In the same order that permitted the renewed motion,
3

the court directed the Clerk to transfer the action to another judge for all
further proceedings. (Id.) This court was assigned, (Dkt. No. 557), and
defendants filed the pending renewed summary judgment motion, (Dkt. No.
558).
III. Discussion
Defendants argue that, in light of an arbitrator’s award, which should
be given collateral estoppel effect, and the factual findings of Judge
McAvoy in his order granting a new trial on the beat assignments claim and
damages, they are entitled to judgment as a matter of law on all remaining
claims, and that a second trial is unnecessary. (Dkt. No. 558, Attach. 1 at
15-23.) Miller contends that a posttrial summary judgment motion is
impermissible, the arbitrator’s decision is irrelevant, and that Judge
McAvoy’s factual findings “cannot . . . be used in a belated effort to set
aside the verdict.” (Dkt. No. 562 at 2-15.) After defendants’ motion was
fully briefed, (Dkt. Nos. 558, 562, 569), they filed a letter notifying the court
of University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct.
2517 (2013), (Dkt. No. 571), a then day-old Supreme Court decision
holding that, to be successful on a claim of retaliation brought under Title
VII, the plaintiff must prove his claim “according to traditional principles of
4

but-for causation, not the lessened causation test stated in § 2000e-2(m)”;
in other words, the plaintiff must show “that the unlawful retaliation would
not have occurred in the absence of the alleged wrongful action or actions
of the employer.” Id. at 2533; see Kwan v. Andalex Grp. LLC, 737 F.3d
834, 846 n.5 (2d Cir. 2013) (explaining that, prior to Nassar, pretext could
be proven with evidence that retaliatory motive was “‘a substantial or
motivating factor behind the adverse action’” (quoting Raniola v. Bratton,
243 F.3d 610, 625 (2d Cir. 2001)). For reasons that are apparent below,
the court deals with each of Miller’s remaining claims of retaliation
separately.
A.

Retaliation: The NOD
The court appreciates the apparent impact that Nassar would have

upon the NOD-related claim of retaliation. Because the jury’s verdict was
left intact as to liability on that claim, (Dkt. No. 528 at 11-12), and the time
for raising an argument about a change in law has passed, defendants are
without recourse regarding the standard of causation that now clearly
applies to retaliation claims post-Nassar. As for the instant renewed
summary judgment motion, no authority permits defendants to seek
judgment on the NOD-related claim at this late juncture, and no other
5

avenue—including a motion under Rule 50, 59, or 60, or one seeking
reconsideration of a prior order—affords them that ability either.
1.

Rule 56

While the standard of review applicable to motions brought pursuant
to Fed. R. Civ. P. 56 is well established, see Wagner v. Swarts, 827 F.
Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v. Sprague, 489
F. App’x 500 (2d Cir. 2012), the court’s primary task here is one of
determining whether such a motion may be made given the unique posture
of this case. If there is any authority that would permit a posttrial summary
judgment motion under Rule 56 in a similarly postured case, the
court—after exhaustive searching—is unaware of it. Indeed, defendants
provide support only for the proposition that successive summary judgment
motions may be filed in a given case based upon an expanded record, and
argue that the court is vested with the discretion to permit a posttrial
summary judgment motion for the purpose of avoiding an unnecessary
second trial.3 (Dkt. No. 558, Attach. 1 at 13-15; Dkt. No. 569 at 3-4.)

3

Defendants’ arguments rely heavily upon the notion that Judge
McAvoy’s discussion of the evidence presented at trial constitutes a
binding resolution of factual disputes. Again, the court cannot justify
defendants’ position with decisional law.
6

Aside from the absence of any enabling authority, the scheme of the
Federal Rules of Civil Procedure suggests that a “renewed” summary
judgment, filed post-jury trial, contravenes Rule 50, which expressly
provides for judgment as a matter of law in a jury trial and is governed by
the exact same standard that applies to pretrial motions for summary
judgment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000); This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998).
Understanding that under some circumstances it may be appropriate to
entertain a summary judgment motion under Rule 56 after trial where a
claim or claims remain for adjudication at a subsequent trial—as is the
case with respect to the beat assignments claim, discussed below—it is
not appropriate here, where the jury’s verdict on liability for retaliation
related to the NOD remains intact.
2.

Rules 50 and 59

Judgment as a matter of law may be obtained by moving under Rule
50, which requires that a renewed motion be filed “[n]o later than [twentyeight] days after the entry of judgment.” Fed. R. Civ. P. 50(b). Rule 59
provides an avenue for seeking a new trial following a jury trial. See Fed.
R. Civ. P. 59(a)(1)(A). Such a motion is subject to the same rigid time
7

limitation as that under Rule 50(b): it “must be filed no later than [twentyeight] days after the entry of judgment,” Fed. R. Civ. P. 59(b), and the
courts are without authority to extend the time within which a party may
move under either Rule 50(b) or Rule 59(b), see Fed. R. Civ. P. 6(b)(2).
Here, defendants timely moved pursuant to Rules 50 and 59
following entry of judgment, (Dkt. No. 474), and were partially successful in
that endeavor, (Dkt. No. 528 at 9-12, 20). While Nassar may have
supported relief in the form of a new trial on Miller’s NOD-related claim of
retaliation had it been decided earlier,4 defendants’ pending motion, even if
construed as made under Rule 50 or 59, would be untimely because it was
filed well beyond twenty-eight days after entry of judgment. (Dkt. Nos. 460,
558.)
The pending motion cannot be construed as seeking reconsideration
4

The court in no way considers Judge McAvoy’s factual findings as
resolving the readily apparent factual disputes regarding the NOD-related
claim of retaliation. Indeed, Judge McAvoy specifically noted that “a jury
could reasonably have concluded that the statements in [Miller]’s charges
of discrimination were a motivating factor in [d]efendants’ decision to issue
the [NOD].” (Dkt. No. 528 at 12.) While it is also true that Judge McAvoy
specifically mentioned that there were “legitimate, non-discriminatory
reasons for the issuance of the [NOD],” (id.), which suggests the absence
of but-for causation clearly required by Nassar, that decision cannot now
be used to undo the jury’s finding of retaliation under the old substantial or
motivating factor test.
8

of defendants’ original Rule 50 and 59 motions either. Under the Local
Rules of Practice in this District, a motion for reconsideration must be filed
no later than fourteen days after the entry of the challenged order. See
N.D.N.Y. L.R. 7.1(g). Defendants’ pending motion was filed on May 17,
2013, (Dkt. No. 558), which was nearly six months after entry of Judge
McAvoy’s decision, which, in part, denied their Rule 50 and 59 motions,
(Dkt. No. 528). Even though extensions of time may be granted for
purposes of elongating the period within which to file a motion for
reconsideration, see Fed. R. Civ. P. 6(b), the court does not grant such a
lengthy extension here.
3.

Rule 60

Unlike a motion under Rule 50 or 59, the timing requirements of a
Rule 60 motion are much less strict. Some grounds for relief under Rule
60(b) trigger a one year limitation, whereas others, including relief pursuant
to Rule 60(b)(6), may be pursued “within a reasonable time.” Fed. R. Civ.
P. 60(c)(1). A party may seek relief from a judgment or order for five
specific reasons, none of which apply here, or for “any other reason that
justifies relief” under Rule 60(b)(6). Fed. R. Civ. P. 60(b). Courts routinely
reject the notion that a change in law constitutes “extraordinary
9

circumstances” to trigger Rule 60(b)(6) relief. See Stevens v. Miller, 676
F.3d 62, 69 (2d Cir. 2012) (“[A] change in decisional law rarely constitutes
the ‘extraordinary circumstances’ required to prevail on a Rule 60(b)(6)
motion.”); DeWeerth v. Baldinger, 38 F.3d 1266, 1272-73 (2d Cir. 1994)
(same). Presuming that Nassar constitutes a change in law, a point on
which the parties indirectly disagree, (Dkt. No. 558, Attach. 1 at 20-21; Dkt.
No. 562 at 9-10; Dkt. No. 569 at 4-6), the court declines to find that such a
change in decisional law would warrant relief under Rule 60(b)(6) here.
While it results in a somewhat harsh outcome for defendants, they have no
basis to attack the jury’s finding of retaliation related to the NOD based
upon a change in law or the arbitrator’s award. It is simply too late to do
so. Accordingly, Miller’s claim of retaliation, based upon Title VII and the
New York Human Rights Law, pertaining to the issuance of the NOD will
not be disturbed, and only the question of damages remains for trial. (Dkt.
No. 528 at 12-13.)
B.

Retaliation: Beat Assignments
Even if a renewed motion for summary judgment is appropriate as to

the beat assignment claim, the disputed facts are such that relief is not
appropriate. In support of their motion, defendants contend that the beat
10

assignment claims should be dismissed in light of Judge McAvoy’s finding
that “the evidence at trial was insufficient to show that the assignment of
[Miller] to the Collegetown and Commons beats would have ‘dissuade[d] a
reasonable person from complaining of, or supporting, a charge of
discrimination.’” (Dkt. No. 558, Attach. 1 at 22-23 (quoting Dkt. No. 528 at
9).)5
The fundamental flaw in defendants’ argument is their mistaken
belief that Judge McAvoy’s factual findings resolved disputed issues of fact
that, in actuality, must be determined by a jury at trial. Indeed, the court
was entitled to make factual determinations in deciding whether a new trial
was warranted, see Manley v. AmBase Corp., 337 F.3d 237, 244-45 (2d
Cir. 2003), and Judge McAvoy’s discussion of the evidence is no more
than a sound application of the applicable standard of review, (Dkt. No.
528 at 7-8, 9-11).6 Accordingly, the claim related to Miller’s beat

5

Notably, the award of arbitration does not contemplate Miller’s beat
assignments, (Dkt. No. 558, Attach. 5), and, thus, the issue of whether
preclusive effect should be given to the arbitrator’s factual findings is of no
moment.
6

Moreover, Judge McAvoy specifically found that, viewing the
evidence in the light most favorable to Miller, judgment as a matter of law
was not warranted. (Dkt. No. 528 at 11 n.8.)
11

assignments must be tried.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
558) is DENIED; and it is further
ORDERED that the case is trial ready and the Clerk shall issue a trial
scheduling order in due course; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
January 28, 2014
Albany, New York

12