Muhammad v. Wal-Mart Corp
Filing
39
DECISION AND ORDER re 30 Order to show cause.,. Ms. Agola is hereby sanctioned pursuant to FRCP 11(c)(3) and and 28 U.S.C. § 1927. Ms. Agola is reprimanded for making misrepresentations to the Court as discussed above. Ms. Agola is further required to pay a monetary sanction of seven thousand, five hundred dollars ($7,500.00) into Court within thirty days of the issuance of this Decision and Order. Signed by Hon. Charles J. Siragusa on 11/27/2012. (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ABIDAN F. MUHAMMAD,
Plaintiff,
-vs-
DECISION and ORDER
10-CV-6074-CJS
WAL-MART STORES EAST, L.P.,
Defendant.
APPEARANCES
For Plaintiff:
Christina A. Agola, Esq.
Steven LaPrade, Esq.
Christina A. Agola, PLLC
1415 Monroe Avenue
Rochester, New York 14618
For Defendant:
Michael S. Hanan, Esq.
Fox Rothschild LLP
997 Lenox Drive, Bld. 3
Lawrenceville, New Jersey 08648
INTRODUCTION
This was an action for employment discrimination under the Americans With
Disabilities Act and Title VII. Now before the Court is the Court’s sua sponte Order to Show
Cause directing Plaintiff’s attorney, Christina Agola, to show cause why she should not be
sanctioned for making misrepresentations to the Court. As set forth below, Ms. Agola is
sanctioned.
1
BACKGROUND
The underlying facts of this action were set forth in the Court’s prior Decision and
Order (Docket No. [#30]). The Court will only restate those facts which pertain to the Order
to Show Cause.
Plaintiff Abidan Muhammad is a male who identifies his race as “black.”1 Plaintiff was
employed by Defendant Wal-Mart for only seven months, including two months spent on
medical leave. Plaintiff was hired as an Overnight Deli Stocker. In June 2008, Plaintiff
experienced pain in his hands. On July 12, 2008, Plaintiff requested an initial one-month
leave of absence for carpel tunnel syndrome, which Defendant granted. On July 14, 2008,
Plaintiff completed an application for worker’s compensation benefits. After Plaintiff’s initial
medical leave expired, Defendant granted him two additional extensions of medical leave.
On September 10, 2008, Plaintiff returned to work, with a doctor’s note stating:
“[Plaintiff] may not do repetitive use of hands and may not lift [greater than] 25
pounds...these restrictions will last until October 1st, 2008.” In response to the doctor’s note,
Defendant assigned Plaintiff to the position of Greeter during his usual overnight hours. As
the title implies, a Wal-Mart Greeter’s primary duty is to welcome customers as they enter
the store.
There was already another employee, Shanelle Cherry (“Cherry”), who was working
as a Greeter due to her own medical restrictions. Plaintiff and Cherry both worked as
Greeters at the same time. Occasionally, though, both were required to perform “re-shops,”
which involved taking returned or otherwise un-purchased merchandise from the front of the
1
Pl. Deposition at 260.
2
store and returning it to the store’s shelves, at their own pace. The exact number of times
that Plaintiff actually performed re-shops is unclear, but it appears it was infrequent, and in
any event, he worked as a Greeter a maximum of only twenty days. See, Def. Summary
Judgment Motion [#22], Ex. M at p. 18 (“I had been assigned to the front door as a greeter.
Sometimes they would have me do reshops sometimes.” [sic]) (emphasis added). 2
When performing his re-shopping duties, if Plaintiff came across an item which
weighed more than 25 pounds, he simply “just didn’t lift it” and left it in the cart. Plaintiff
never violated his lifting restriction, and was never disciplined for failing to re-shelve heavy
items. Plaintiff maintained, though, as part of this action, that re-shelving items generally
violated his doctor’s restriction on repetitive use of hands. In that regard, Plaintiff claimed
that he twice told his supervisors that re-shelving items violated his repetitive-use limitation.
However, Plaintiff’s prior sworn testimony on this point suggested that he did not expressly
complain to anyone about repetitive motion. In any event, Plaintiff was able to perform his
re-shopping duties, and did not suffer any ill effects from doing so.3
September 30, 2008 was the last day that Plaintiff worked for Defendant. Plaintiff
arrived at work at 10 p.m. and punched in, using his magnetic name badge, in the usual
manner. When Plaintiff arrived at the Greeter’s station, Cherry said that she was surprised
to see him, since she had heard a rumor that he had been fired. Plaintiff advised Cherry
that he had not been fired. At 11:45 p.m., Plaintiff took a 15-minute break, during which he
2
Plaintiff argued that his deposition, at pp. 129-130, established that he was “frequently” assigned to
do re-shops. See, Pl. Memo of Law [#26] at p. 7. However, the record did not support such an inference.
3
Apart from the conclusory statement in the Complaint that working “caused [his] preexisting injury
to become more exastribated [sic] than usual.” Complaint [#1], ¶ 19.
3
tried to access Wal-Mart’s intranet system to request a transfer to a different store,
purportedly because he no longer felt comfortable at the Chili Ave. location. Employees
were entitled to access the intranet system on their breaks for that purpose. Plaintiff tried
to log onto the intranet three times, but according to him, he could not log on because the
system did not recognize him as being “clocked in” that evening. Plaintiff maintains that he
attempted to again swipe his identification card to “punch in,” but the system did not accept
his card.
Immediately thereafter, while still on his break, Plaintiff approached Assistant
Manager Frank Henry (“Henry”). Plaintiff did so, since he was concerned about the status
of his employment, based on Cherry’s comment about him being fired, and based upon the
fact that his identification badge did not seem to be functioning. Henry, who was standing
and talking with Assistant Manager Dan Berner (“Berner”) and Support Manager Frank
Costello (“Costello”) by the cash registers when Plaintiff approached, stepped aside to talk
with Plaintiff. Plaintiff asked Henry if he was fired, to which Henry responded, “not to my
knowledge.” Plaintiff then asked why his badge did not seem to be working. Henry
indicated that he did not know why Plaintiff’s badge was not working, and said that he would
“look into that.” At that point, it was a few minutes before midnight, and Henry told Plaintiff
that he should return to work because his break was over.
Plaintiff returned to his Greeter’s post for approximately one minute, then walked back
to where Henry was still speaking with Berner and Costello. An exchange followed, which,
significantly, was captured on the store’s video cameras, and was submitted to the Court as
Exhibit J to Defendant’s motion. The video file did not provide sound, but Plaintiff testified
at deposition concerning what was said.
4
The video showed Plaintiff briskly approaching Henry from behind, while Henry was
still speaking with Berner and Costello. Plaintiff threw his identification badge and lanyard
to floor, and exclaimed, “This shit don’t work!” This abrupt interruption caused Henry to turn
quickly and retreat several steps from Plaintiff, who is much larger physically than Henry.
Plaintiff pursued and stood directly in front of Henry in a confrontational manner. Plaintiff
admitted that he was upset because he felt that Henry had acted dismissively toward him
in their prior conversation. As Plaintiff was confronting Henry, Berner yelled “Abidan, back
off!”, but Plaintiff yelled, “No. You back off!” while pointing at Berner. Plaintiff walked away
a few steps, then returned and stood directly in front of Berner and said, “My name is
Abidan...I’m a man...I’m a grown man. You want to talk to me like a grown man...I’m tired
of the way y’all treat people around here.” Plaintiff also accused store officials of “trying to
play him.” Berner then told Plaintiff to leave the store, to which Plaintiff replied, “I said what
I had to say, I’m out of here,” and left the store. The incident took place at the front of the
store, during business hours, with customers nearby.
Earlier that evening, another incident had occurred at the store, involving a black
female associate named Chastity Travis. As Travis was arriving at the store for her shift,
she and her boyfriend were standing outside, when the boyfriend suddenly shoved her,
knocking her through the store’s door. A store employee observed that, after Travis got up
from the ground, she and her boyfriend yelled profanities at each other, and each called the
police to complain about the other. Travis’ boyfriend had a welt and blood on his face,
though it is unclear how he became injured. Store management provided police with
videotape of the incident, which did not show any physical altercation leading up to Travis
being shoved through the door. Defendant did not take any disciplinary action against
5
Travis for violating the store’s anti-violence policy, because it viewed her as being the victim
of domestic violence.
On October 7, 2008, Wal-Mart notified Plaintiff that he was being terminated for
violating the company’s workplace violence policy, by intimidating, yelling at, and attempting
to bully his supervisors.
On October 27, 2008, Plaintiff filed a complaint with the New York State Division of
Human Rights (“NYSDHR”), which was cross-filed with the Equal Employment Opportunity
Commission (“EEOC”). The complaint alleged that Defendant fired Plaintiff because of his
race and disability, and failed to accommodate him. With regard to race, Plaintiff stated, in
pertinent part: “No black people in senior management position that could be sensitive to
the needs of black employees. . . . Intimidating all of the minority associates[.] [They] told
me they were intimated by me.” As for disability, Plaintiff wrote, in pertinent part: “Suffer
from carpal tunnel syndrome, diabetes and hypertension still made to violate doctor’s orders
no repetitive motion made to do reshops in store.” [sic]
The NYSDHR complaint further stated: “I was terminated for voicing my opinion in a
loud voice.” When asked to explain why he believed that he was discriminated against,
Plaintiff gave two examples. First, he stated that a female employee, Travis, had been
involved in a physical altercation with her boyfriend on Wal-Mart property, and was
suspended but not terminated. Second, Plaintiff indicated that Berner had raised his voice
to him when telling him to “back off” from Henry, but Berner had not been disciplined. On
April 24, 2009, NYSDHR issued a “No Probable Cause” determination, dismissing Plaintiff’s
claims.
On September 18, 2009, Plaintiff filed a complaint with the Workers’ Compensation
6
Board (“WCB”), alleging that he was terminated in retaliation for filing a Workers’
Compensation claim. On July 16, 2010, following a trial, the WCB Judge dismissed the
complaint, finding that Plaintiff’s “angry confrontation” with his supervisors provided an
adequate reason to fire him. Plaintiff appealed, and on December 14, 2010, a WCB Panel
upheld the dismissal, finding that Plaintiff had not produced “any evidence” that he was
terminated by Defendant in retaliation for filing for workers’ compensation benefits.
On February 10, 2010, Plaintiff, proceeding pro se, filed the instant action. The
Complaint [#1] indicated that Plaintiff was suing pursuant to Title VII and the ADA. On the
form complaint, Plaintiff checked lines indicating that the discrimination involved Defendant
terminating his employment, failing to accommodate him, and retaliating against him.
Although Plaintiff had checked the box for Title VII and ADA, the only factual allegations in
the Complaint pertain to Plaintiff’s alleged disability. Specifically, when asked to briefly state
the facts of his claim, Plaintiff wrote: “Was forced to work in a position of which continually
caused my preexisting injury to become more exa[cerbated] than usual.” Complaint [#1] ¶
19.
Attached to the complaint is a document entitled “Notice of intent to sue for
discrimination,” which, again, mentions only Plaintiff’s alleged disability, and states, in
pertinent part:
The claim is founded in negligence on the part of the Wal-Mart Corp. for
discrimination. Claimant states that the Wal-Mart Corp. did in fact not provide
the claimant with reasonable accommodations for an injury sustained in the
plaintiff’s employment capacity pursuant to Title VII of the Americans with
Disability Act of whom acted in a Discriminatory manner against the Claimant
by not adhering to the ADA. The policy was being applied arbitrarily, in
refusing to follow the ADA. The plaintiff also alleges that the Wal-Mart Corp.
was discriminatory with respect to the New York Executive Law and the City’s
Administrative Code.
7
Complaint, Docket [#1] at p. 6 (emphasis added). Clearly absent from the Complaint is any
factual allegation of discrimination based on race, sex, religion or any other factor. In fact,
on the form complaint that Plaintiff used, which provided lines for litigants to indicate the
basis for their discrimination claim, he marked the line for “disability,” but left the lines for
“race,” “color,” “sex” and “religion” blank. Complaint [#1] at ¶ 14. Moreover, the NYSDHR
complaint that Plaintiff had filed on October 27, 2008 was not attached to the Complaint [#1].
One month after Plaintiff commenced this action, and prior to Defendant being
served, attorney Christina Agola appeared on Plaintiff’s behalf.4 Ms. Agola never sought to
amend Mr. Muhammad’s pro se Complaint, even though a pre-trial scheduling order gave
her five months to do so. See, Scheduling Order [#16] (Granting parties until August 23,
2010 to file motions to amend pleadings.). Accordingly, the pro se -drafted Complaint [#1],
which Ms. Agola adopted and chose to proceed on, is the operative pleading in this action.5
The parties then conducted pretrial discovery. At his deposition, Plaintiff expressed
his belief that Defendant had discriminated against him in a variety of ways that were not
discussed in the Complaint. Afterward, though, Ms. Agola did not attempt to amend the
Complaint to include any of the matters about which her client testified.
Following the completion of discovery, Defendant filed a motion for summary
4
Ms. Agola filed her Notice of Appearance [#5] on March 15, 2010. Defendant was not served until
March 27, 2010. See, Docket No. [#6]. Ms. Agola purportedly agreed to represent Plaintiff pro bono.
5
See, Hanna v. Brown, 93 C 3105, 1995 WL 103789 at * 2 (N.D.Ill. Mar. 6, 1995) (“[O]nce [plaintiff]
retained an attorney, his original pro se status no longer entitled him to a liberal interpretation of his pleadings.
Although plaintiff initiated the complaint to the MSPB pro se, counsel could and should have added the charge
of racial discrimination by amending the complaint, filing a post hearing pleading, or by alleging racial
discrimination in the subsequent EEOC charge.”). The Court can only assume that in deciding whether to take
Plaintiff’s case, Ms. Agola reviewed the Complaint that had already been filed in this Court. Since she made
no attempt to amend the Complaint, the Court further assumes that she believed it accurately set forth
Plaintiff’s claim against Defendant.
8
judgment, which naturally focused on Plaintiff’s disability claim. Defendant also addressed
a potential race discrimination claim, apparently because Plaintiff had checked a box for
“Title VII” discrimination on the form complaint, and because during his deposition he
claimed to have been discriminated against on the basis of his race. See, Def. Memo of Law
[#22-2] at p. 8. As mentioned already, however, the Complaint contained no factual
allegations of racial discrimination, and the line marked “race” was left blank.
In opposition to Defendant’s motion, Agola began, disingenuously,6 by arguing that
although Defendant had not addressed it, Plaintiff had a meritorious gender discrimination
claim: “Plaintiff has sufficiently established a claim for discrimination on the basis of gender
in violation of Title VII.” Pl. Memo of Law [#26] at p. 2. In spite of the facts set forth above,
Ms. Agola argued that Plaintiff had “clearly” pleaded a gender discrimination claim. See id.
at 3 (“Plaintiff has clearly also alleged discrimination based on gender.”) (emphasis added).
Ms. Agola stated that it was “unclear” why Defendant would think Plaintiff had not pleaded
a
gender discrimination claim, “since neither the Complaint, nor any other
evidence/testimony in this case, have so limited the ground(s) upon which Plaintiff seeks
relief under Title VII.” Id. at 2 (emphasis added). In that regard, Ms. Agola seemed to make
the novel and meritless argument that, although the Complaint did not plead a gender
discrimination claim, Plaintiff could nonetheless pursue such a claim, or any possible claim
under Title VII, as long as the Complaint did not “limit” or exclude it, since the “Title VII” box
was checked on the form complaint. Ms. Agola further contended that Plaintiff could pursue
6
This frivolous argument perhaps resulted after it became evident that the actual theory pleaded, i.e.
disability discrimination, had no merit. Such a move, while disingenuous, might have at least made some
sense if Plaintiff actually had a meritorious but unpleaded gender discrimination claim. However, as the Court
explained in its prior Decision and Order [#30], there was no colorable gender discrimination claim, which
makes Ms. Agola’s attempt to use such a claim to avoid summary judgment all the more meritless.
9
such claim because he claimed, at his deposition, to have suffered gender discrimination
in relation to the treatment that Travis received,7 even though she never sought to amend
the Complaint to include a gender discrimination claim. Id.8
On August 2, 2012, the Court issued a Decision and Order [#30], granting summary
judgment on the merits, and ordering Agola to show cause why she should not be
sanctioned. On that point, the Court wrote, in pertinent part:
Plaintiff’s Attempt to Raise Unpleaded Claims at Summary Judgment Stage
As discussed above, the only claim that is arguably pleaded in the Complaint
[#1] is that Defendant discriminated and retaliated against Plaintiff because of
a disability. In attempting to defeat summary judgment, Plaintiff is now
attempting to raise claims and instances of discrimination based on race, sex,
and even religion. This attempt must fail. See, Valentine Properties Assocs.,
LP v. U.S. Dept. of Housing and Urban Dev., 785 F.Supp.2d 357, 372
(S.D.N.Y. 2011) (collecting cases denying plaintiffs’ attempts to raise
unpleaded claims at the summary judgment stage); Thomas v. Egan, 1
Fed.Appx. 52, 54, 2001 WL 30667 at *1 (2d Cir. Jan. 10, 2001) (“A claim must
be set forth in the pleadings, in order to give defendants fair notice of the
nature of the plaintiff's claim. Thus, it is inappropriate to raise new claims for
the first time in submissions in opposition to a summary judgment motion.”)
(citations omitted).
Plaintiff’s counsel acts as though she can pursue any possible claim under
Title VII, despite the absence of any supporting factual allegations in the
Complaint, merely because the “Title VII” box on the form complaint is
checked. Clearly, that is not the law. See, DiProjetto v. Morris Protective
7
See, Pl. Memo of Law [#26] at p. 5-6 (Arguing that Travis should have been disciplined because she
was “involved in a physical altercation at the store on the same date as the Plaintiff’s alleged incident [and]
was not disciplined at all.”) (emphasis in original).
8
Contrary to Ms. Agola’s argument, a Complaint is not amended by making new allegations at
deposition. See, e.g., Edwards v. Bezio, No. 9:08-CV-256 (LEK/RFT), 2010 WL 681369 at *3, n. 4 (N.D.N.Y.
Feb. 24, 2010) (“A plaintiff may not amend his complaint by making new allegations in his deposition, or in
response to a motion for summary judgment.”).
10
Serv., 489 F.Supp.2d 305, 308–309 (W.D.N.Y.2007) (Merely checking a box
on a form discrimination complaint is not sufficient to state a plausible claim
under Title VII or the ADA), affirmed, 306 Fed. Appx. 687, 2009 WL 102751
(2d Cir. Jan. 15, 2009).
It is bad enough that Plaintiff is attempting to raise these unpleaded claims
now, after passing up the opportunity to amend the Complaint. Even worse
is that these claims, even if they were pleaded, are completely frivolous. For
example, Plaintiff’s purported racial discrimination is based only on his selfserving opinion that because his supervisors were white, they could not be
“sensitive to the needs of black employees.” Similarly, the alleged instance
of religious discrimination claim is based on the fact that on one occasion,
after accepting a job that obviously required him to work with all kinds of meat,
Plaintiff stated that he could not touch pork.9 Moreover, his purported gender
discrimination claim is based on his belief that he should not have been
terminated for aggressively and rudely confronting his supervisors for no good
reason, since a female employee, who was assaulted and thrown through the
front door of the store by her boyfriend, and who was therefore obviously not
similarly situated, was not disciplined.
To summarize, the only claim that is properly before the Court is a
discrimination claim under the ADA. Any other claim that Plaintiff is now
attempting to assert is unpleaded and therefore not part of this action.
Decision and Order [#30] at pp. 14-15. The Court continued:
Sanctions
For the reasons discussed above, the Court finds it necessary to raise the
issue of sanctions sua sponte. While more than one aspect of Ms. Agola’s
representation in this case could be sanctionable, the Court will limit itself to
the most obvious, which is her attempt to raise an unpleaded and
unmeritorious gender discrimination claim at the summary judgment stage.
Specifically, in response to Defendant’s summary judgment motion, Ms. Agola
stated to the Court that “Plaintiff has clearly also alleged discrimination based
9
This alleged instance of religious discrimination was not even raised, much less exhausted, at the
administrative level.
11
on gender.” Pl. Memo of Law [#26] at p. 3. However, on that point, the issue
before the Court was not what Plaintiff might have alleged in a prior
administrative complaint, or what he might have alleged in his deposition. The
issue was whether a gender discrimination claim was pleaded in this action,
and it clearly was not. Therefore, Ms. Agola’s statements on this point were
misrepresentations to the Court.
Ms. Agola’s conduct in this regard is not atypical of her practice before this
Court. She has in the past pursued meritless claims, making baseless
arguments to avoid summary judgment. See, e.g., Rojas v. Roman Catholic
Diocese of Rochester, 783 F.Supp.2d 381 (W.D.N.Y. 2010) (Disregarding
sham evidence submitted by Agola in opposition to summary judgment),
affirmed, 660 F.3d 98 (2d Cir. 2011); Colombo v. East Irondequoit Cent. Sch.,
No. 07–CV–6270 CJS, 2010 WL 6004378 at *10, n. 8 (W.D.N.Y. Dec. 17,
2010) (“Factual misstatements are a recurring problem with Ms. Agola’s
submissions to the Court.”) (collecting cases); Gilderhus v. Concentrix Corp.,
825 F.Supp.2d 414, 417, n.2 (W.D.N.Y. 2011) (Referring to Agola’s “feeble
attempt” to avoid summary judgment by mis-characterizing deposition
testimony).
Accordingly, the Court will require Ms. Agola to show cause in writing why
sanctions should not be imposed on her for violating Federal Rule
11(B)(1),(2),(3) and (4), and 28 U.S.C. § 1927,10 for acting in bad faith in
connection with her argument that Plaintiff had a meritorious gender
discrimination claim.11 See, In re Pennie & Edmonds LLP, 323 F.3d 86, 89-91
(2d Cir. 2003) (Holding that court must apply “bad faith” standard where it
10
28 U.S.C. § 1927 provides that “[a]ny attorney or other person admitted to conduct cases in any
court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably
and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys'
fees reasonably incurred because of such conduct.”
11
When Ms. Agola filed her notice of appearance after Plaintiff had filed the Complaint pro se, she
did not file a separate Rule 11 certification. However, such fact does not insulate her from Rule 11 sanctions.
See, Turner v. Sungard Bus. Sys., Inc., 91 F.3d 1418, 1421 (11th Cir. 1996) (“[I]t is well established that Rule
11 applies to all papers filed in a suit. The district court found that “from the moment he appeared on the
plaintiff's behalf, Penick [plaintiff’s attorney] had actual knowledge that there was no merit to the plaintiff's
assertions, or, at the very least, he consciously decided not to inquire of the merits.” That the only “paper”
Penick signed and submitted to the court in prosecuting Plaintiff's claim was the notice of appearance is
unimportant. By appearing in this case, Penick affirmed to the court that the case had arguable merit. In this
sense, it was as if Penick had refiled the complaint.”).
12
raises Rule 11 sanction issue sua sponte, when attorney no longer has
opportunity to withdraw the offending submission); see also, Arclightz and
Films Pvt. Ltd. v. Video Palace, Inc., No. 01 Civ.10135(SAS), 2003 WL
22434153 at *7 (S.D.N.Y. Oct. 24, 2003) (“Bad faith conduct may include
pursuing frivolous contentions, frivolous motions,or intentionally dilatory
conduct.”) (citations and internal quotation marks omitted).
Id. at pp. 22-24.
On August 17, 2012, Ms. Agola filed a 69-page response [#32] to the Order to Show
Cause. Many of the documents pertain to administrative proceedings that took place
outside of this action. The Court observes that to the extent that those documents mention
alleged gender discrimination, they were not part of the Complaint in this action.
Significantly, Plaintiff did attach parts of the administrative record to his Complaint, but only
those portions pertaining to disability discrimination. Ms. Agola also submitted portions of
Plaintiff’s deposition transcript, but again, to the extent that Plaintiff may have alluded to
gender discrimination at his deposition, Ms. Agola never amended the Complaint to raise
such a claim.
Apart from those documents, Ms. Agola’s response to the Order to Show Cause
consists primarily of her own five-page declaration [#32].12 Ms. Agola defends her actions
by arguing that Mr. Muhammad had included allegations of gender discrimination in
documents that he filed with the NYSDHR, and that such fact necessarily resulted in a
12
One might assume that when responding to a U.S. District Judge’s sua sponte Rule 11 Order to
Show Cause, an attorney might be particularly careful. Not Ms. Agola. Instead, Ms. Agola’s declaration
begins, typically enough for her, with an example of her careless cut-and-paste editing, upon which this Court
has commented many times: “I make this Declaration in opposition to Defendant’s Motion for Summary
Judgment in the above captioned matter.” Id., [#32] at ¶ 2. Of course, the Court had already granted
Defendant’s summary judgment motion weeks earlier, and Ms. Agola had, in the interim, filed a Notice of
Appeal. Therefore, it should have been obvious to her that her declaration had nothing to do with opposing
Defendant’s summary judgment motion.
13
gender discrimination claim being “pled” in this action, even though it was not included in the
Complaint [#1] filed in this action. Specifically, Ms. Agola states, in pertinent part:
These allegations were sufficient to have put the EEOC on notice of a
potential sex discrimination claim that was ‘reasonably related’ to his
retaliation claim pled in his federal complaint, even though on his charge of
discrimination there was no ‘check’ in the box marked ‘Sex.’
That is because under well settled Second Circuit precedent, ‘it is the
substance of the charge, and not the label that controls.’ Mathirampuzha v.
Potter, 548 F.3d 70 (2d Cir. 2008).
In his federal pro se complaint filed on February 10, 2010, the Plaintiff
checked the box entitled ‘Title VII’ which includes ‘race, color, gender, religion,
national origin.’
Plaintiff also checked the box that read: ‘Retaliation because I complained
about discrimination or harassment directed toward me.’
Plaintiff annexed a ‘Notice of Intent to Sue for Discrimination’ where ¶ 4 he
alleges, inter alia: ‘The plaintiff also alleges that Wal-mart Co. was
discriminatory with respect to the New York State Executive Law . . . [sic]
Plaintiff also incorporated by reference his underlying NYSDHR and EEOC
Notice of Right to Sue to his federal pro se complaint.13
Because the factual underpinnings of a gender discrimination claim were
presented in the complaint made to the NYSDHR, they were administratively
exhausted, and allow for ‘loose pleading’ under well settled Second Circuit
precedent. Williams v. New York City Housing Authority, 458 F.3d 67 (2d Cir.
2006).
Accordingly, it was objectively reasonable for the Plaintiff to believe that he
13
This assertion is unsubstantiated, since the Complaint itself does not indicate that it is incorporating
these documents by reference. Actually, since Muhammad attached administrative materials to the Complaint
[#1] that pertain only to disability discrimination, there would be no reason for anyone to suspect that he was
also intending to pursue an unpleaded gender discrimination claim based on administrative materials that
were not attached to the Complaint.
14
had set forth claims for gender discrimination under Title VII and the New York
State Human Rights Law, Executive Law § 290 et seq.14
***
15
Your Declarant is quixotically subject to sanctions under Rule 11 for raising
issues that were indeed raised administratively by a pro se Plaintiff, were
incorporated by reference to a pro se federal complaint, were duly addressed
at the Plaintiff’s deposition, and were briefed substantively by opposing
counsel in any event.16
In light of the Second Circuit precedent which allows for ‘loose pleading’ for
claims raised below at the administrative level, and for the reasons set forth
herein, it is respectfully requested that the Court decline to issue sanctions for
doing that which is objectively reasonable under Second Circuit precedent.
Id. at ¶ ¶ 5-12, 16-17 (citations omitted). Agola further argues that other attorneys have
committed “far more egregious conduct.” Id. at ¶ 13.
As will be discussed further below, Ms. Agola’s understanding of “loose pleading” in
the Title VII context is entirely incorrect. Nevertheless, it should be noted that the supposed
“gender discrimination claim” in Plaintiff’s administrative complaint, which Agola maintains
put the EEOC on notice of a gender discrimination claim, is the following sentence:
“Associate named Chassidy got in physical altercation same night with boyfriend on Walmart
property she got suspended not terminated
manual of Walmart fighting automatic
14
The Court disagrees that it would have been reasonable for Mr. Muhammad to believe that, since
the Complaint [#1] that he filed in this action did not mention gender discrimination. Moreover, it is irrelevant
what the pro se Plaintiff may have thought when he commenced this action. The issue before the Court is
whether Agola misrepresented to the Court that the Complaint in this action contained a gender discrimination
claim.
15
The word “quixotic” means: “1: foolishly impractical especially in the pursuit of ideals; especially:
marked by rash lofty romantic ideas or extravagantly chivalrous action. 2: Capricious, unpredictable.”
http://www.merriam-webster.com/dictionary/quixotic
16
Here, Agola attempts to suggest that Defendant’s counsel was aware that she was pursuing a
gender discrimination claim. However, Defendant’s counsel addressed the issue in a reply memo only after
Agola attempted to defeat summary judgment based on the unpleaded claim.
15
termination not her I was fired.” [sic] Notably, in that same administrative complaint, when
asked to specify the grounds for his complaint, Plaintiff circled “disability” and “race,” but did
not circle “sex.” Accordingly, even if the administrative complaint was incorporated by
reference, which it was not, or even if the administrative complaint was attached to the
Complaint [#1] in this action, which it was not, it is not likely that any reasonable person
reading the Complaint [#1] would understand that Muhammad was attempting to assert a
gender discrimination claim.
In any event, on October 23, 2012, after the deadline imposed by the Court to
respond to the Order to Show Cause, Ms. Agola filed a “Supplemental Declaration” [#36]
from Mr. Muhammad. The content of the declaration only further illustrates Ms. Agola’s
misunderstanding of the pleading standards in federal court. That is, the declaration offers
that when Mr. Muhammad filed his administrative complaint and his Complaint [#1] in this
action, he believed that he was asserting a gender discrimination claim. Curiously, Mr.
Muhammad fails to explain why, if that were true, he failed to check the “sex discrimination”
box on either complaint, or why he failed to include any factual allegation of sex
discrimination in the Complaint [#1] in this action, despite having been directed to set forth
the factual basis for his claims.17 But in any event, Mr. Muhammad’s subjective beliefs are
irrelevant to whether the Complaint [#1] actually pleaded a gender discrimination claim.
17
The form complaint that Muhammad used contained the following direction: “19. State here as
briefly as possible the facts of your case. Describe how each defendant is involved, including dates and
places. Do not give any legal arguments or cite any cases or statutes. If you intend to allege a number of
related claims, number and set forth each claim in a separate paragraph.” In response, Muhammad stated:
“Was forced to work in a position of which continually caused my preexisting injury to become more
exastribated [sic] than usual.”
16
On October 25, 2012, the Court heard oral argument on the Order to Show Cause.
Ms. Agola did not appear in person. Instead, her associate Steven Laprade appeared. At
that time, the Court carefully explained the concept of “loose pleading” in Title VII actions,
and why Ms. Agola’s legal argument essentially turned the concept on its head, since she
was insisting that a Title VII complaint in federal court does not need to specifically set forth
a gender discrimination claim, as long as the underlying administrative complaint put the
EEOC on notice of such a claim. The Court then asked Mr. Laprade whether the Complaint
[#1] in this action pleaded a gender discrimination claim. Twice, Mr. Laprade evaded the
question by responding only that “the box [for gender discrimination] was not checked” on
the Complaint [#1]. However, when the Court persisted, and asked, “So, it was not pleaded,
is that correct?”, Laprade responded, “Yes.” See, As Yet Untranscribed Audio Recording of
Oral Argument, October 25, 2012, at 3:54:23.
Mr. Laprade’s recognition, at oral argument, of the fact that a gender discrimination
claim is not pleaded in the Complaint [#1] in this action, was really not important to the
factual record, since the fact was obvious in any event. Put another way, Mr. Laprade could
not plausibly deny the fact that no gender discrimination claim was pleaded in the Complaint
in this action, since the Complaint is devoid of any such claim. The Court was therefore
astonished to learn that a mere six days after such oral argument, Ms. Agola told the
Honorable Richard Arcara, United States District Judge, that the Muhammad Complaint [#1]
in fact pleaded a gender discrimination claim. Specifically, on October 31, 2012, in the case
of Rankin v. City of Niagara Falls, 1:09-cv-00974-RJA-JJM, in her Objections to a Report
and Recommendation of the Honorable Jeremiah McCarthy, United States Magistrate
Judge, recommending that she be sanctioned under Rule 11 for making misrepresentations
17
to Judge McCarthy, Ms. Agola, through her attorney, stated, in pertinent part:
In Muhammad v. Wal-Mart Stores, Dock. No. 10-cv-6074, 2012 WL 3201668,
at *11 (W.D.N.Y. 2011), Judge Siragusa admonishes Ms. Agola, who handled
the matter pro bono, for raising a purportedly baseless claim that her client
had actually raised in his pro se Complaint, though not formally. In the factual
allegations of the Complaint, the pro se plaintiff made factual allegations of
sex discrimination, but failed to check off ‘sex’ in the paper work.18 In short,
there is no question that the EEOC was placed on notice of the substantive
claim. Thus, Judge Siragusa’s opinion that Ms. Agola made a ‘baseless
argument to avoid summary judgment’ should be re-evaluated.
Rankin v. City of Niagara Falls, 09-CV-00974, Objections [#105] at p. 16, footnote 9. This
statement is significant for at least two reasons. First, it shows that Ms. Agola persists in
arguing, incorrectly, that the relevant issue here is whether the EEOC was put on notice of
a potential gender discrimination claim in the administrative complaint. And second, it
shows that Ms. Agola continues to insist, incorrectly, that the Complaint [#1] contains factual
allegations of gender discrimination. Consequently, despite everything, Ms. Agola persists
in maintaining that she was correct in raising gender discrimination in opposition to WalMart’s summary judgment motion, and in representing to this Court that the Complaint [#1]
“clearly” contained such a claim.
DISCUSSION
The issue before the Court is whether it should sanction Ms. Agola, under FRCP
11(B)(1),(2),(3) and (4), and 28 U.S.C. § 1927, for acting in subjective bad faith in
connection with her argument that Plaintiff had a meritorious gender discrimination claim.
See, In re Pennie & Edmonds LLP, 323 F.3d 86, 89-91 (2d Cir. 2003) (Holding that court
18
This statement is indisputably false, as the Complaint [#1] contains no such factual allegations.
18
must apply “bad faith” standard where it raises Rule 11 sanction issue sua sponte, when
attorney no longer has opportunity to withdraw the offending submission); see also, Arclightz
and Films Pvt. Ltd. v. Video Palace, Inc., No. 01 Civ.10135(SAS), 2003 WL 22434153 at
*7 (S.D.N.Y. Oct. 24, 2003) (“Bad faith conduct may include pursuing frivolous contentions,
frivolous motions,or intentionally dilatory conduct.”) (citations and internal quotation marks
omitted). Here, the Court finds that Ms. Agola should be sanctioned, since she made the
misrepresentations discussed above to this Court, in subjective bad faith, in an attempt to
avoid summary judgment.
Ms. Agola insists that it was proper for her to argue a gender discrimination claim in
opposition to summary judgment, because of the concept of “loose pleading” She is
incorrect. “Loose pleading” before the EEOC is permitted, because it is understood that
EEOC complaints are usually filed pro se.
However, this is not a loose pleading situation.
The “loose pleading” principle
pertains to exhaustion of administrative remedies, which is not an issue in this case.
A
loose pleading situation would arise if Mr. Muhammad had pleaded a gender discrimination
claim in this action, but had not specifically included such a claim in his EEOC Complaint.
See, Deravin v. Kerik, 335 F.3d 195, 200-201 (2d Cir. 2003).
Here, by contrast, we had the opposite situation. In this action, we had a Complaint
[#1] which clearly failed to raise a gender discrimination claim. Nevertheless, Ms. Agola
continues to argue that such a claim should be considered part of the Complaint [#1] in this
action, since Plaintiff arguably alluded to gender in his EEOC Complaint. Ms. Agola
therefore has the “loose pleading” principle entirely backward. See, Rule 11, Advisory
19
Committee Notes to the 1993 Amendments (Indicating that Rule 11 subjects “litigants to
potential sanctions for insisting upon a position after it is no longer tenable;” here, Ms. Agola
continues to make a legal argument that was never tenable).
The fact is that in this action, Plaintiff filed a Complaint which alleged discrimination
based on disability only. There is no suggestion in the Complaint [#1] that Plaintiff was suing
because of gender. None of the documents attached to the Complaint [#1] refer to gender.
Nevertheless, Ms. Agola incorrectly states that a gender discrimination claim was
“incorporated by reference” into this action. Agola Decl. ¶ 16.
In the Court’s opinion, no attorney could have reviewed the Complaint [#1] in this
action and concluded, in good faith, that it pleaded a claim of gender discrimination.
Moreover, any competent attorney who intended to pursue a gender discrimination claim
would have amended the Complaint to plead such a claim, which Ms. Agola did not do.
Accordingly, the Court finds that Ms. Agola acted in subjective bad faith when she
represented to the Court that the Complaint [#1] “clearly” asserted a gender discrimination
claim.
As mentioned above, the Court makes this finding, based on the facts set forth above
and on Ms. Agola’s history in this Court and in the Second Circuit Court of Appeals.19 This
finding is further supported by Ms. Agola’s frivolous legal argument in response to the
Court’s Order to Show Cause, and by her Objections submitted to Judge Arcara in the
Rankin case, in which she refuses to concede the obvious fact that the Complaint [#1] in this
action does not plead a gender discrimination claim.
19
See, In re Agola, No. 10-90061-am, 2012 WL 2025389 (2d Cir. Jun. 6, 2012).
20
In deciding upon an appropriate sanction, the Court takes into account the fact that
Ms. Agola does not appear to be the slightest bit contrite about her misrepresentations to
the Court. To the contrary, Ms. Agola characterizes the Court’s view on this point as
“quixotic,” and complains to Judge Arcara that this Court is being unfair to her, while
misstating the facts of this case to him. Ms. Agola’s lack of candor or contrition is especially
troubling given the number of times that this Court has admonished her over the years for
committing similar infractions. As demonstrated over a period of years in numerous cases,
Ms. Agola’s approach to motion practice is to avoid dismissal at all costs, even if that means
misrepresenting the facts or the law. Unfortunately, since Ms. Agola’s cases very often lack
the merit needed to legitimately survive a dispositive motion, situations such as this have
become commonplace.
Having considered all of the relevant factors under Rule 11 and 28 U.S.C. § 1927,
the Court imposes the following sanctions on Ms. Agola. First, Ms. Agola is formally
reprimanded for making a misrepresentation to the Court. In addition, Ms. Agola is required
to pay a monetary sanction of seven thousand, five hundred dollars ($7,500.00) into Court.
The Court imposes this sanction because lesser sanctions previously imposed have failed
to deter this type of conduct.20
20
The Court previously sanctioned Ms. Agola in the amount of five thousand dollars ($5,000.00). See,
Geiger v. Town of Greece, 2008 WL 728471 (W.D.N.Y. Mar. 18, 2008) (“Plaintiff's counsel argue[s] that Rule
11 sanctions are not warranted because ‘the parties to the settlement agreement [Assurance] did not intend
it to be an admission of guilt.’ (Pl. Memo of Law [# 33] at 4). However, this argument has no merit, since the
Assurance agreement, which was accurately described by the Attorney General's press release, is clearly an
admission of guilt by Mr. Geiger. Nevertheless, despite the clear wording of the Assurance, Plaintiff's counsel
[Ms. Agola] obstinately refuse[s] to admit that the Assurance says what it says. In short, the Court finds that
Plaintiff's counsel violated Rule 11(b)(2) & (3) by pursuing a frivolous defamation claim.”).
21
CONCLUSION
Ms. Agola is hereby sanctioned pursuant to FRCP 11(c)(3) and and 28 U.S.C. §
1927. Ms. Agola is reprimanded for making misrepresentations to the Court as discussed
above. Ms. Agola is further required to pay a monetary sanction of seven thousand, five
hundred dollars ($7,500.00) into Court within thirty days of the issuance of this Decision and
Order.
SO ORDERED.
Dated: November 27, 2012
Rochester, New York
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
22
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