Sharle v. Greece Central School District
DECISION AND ORDER: Defendant's request (ECF No. 51) to certify an interlocutory appeal under 28 U.S.C. § 1292(b) is DENIED. The parties shall appear on 10/6/17 at 2:30pm to set a trial date. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/26/17. (SCE)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HEATHER ANN SAHRLE,
Case # 10-CV-6631-FPG
DECISION AND ORDER
GREECE CENTRAL SCHOOL DISTRICT,
After the Court granted in part and denied in part Defendant’s summary judgment motion,
Defendant moved this Court to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
ECF No. 51. Specifically, Defendant’s proposed issue on appeal for certification under § 1292(b)
would ask the Second Circuit to clarify whether the “but for” standard of causation should apply
to Plaintiff’s ADA and Rehabilitation Act retaliation claims, in light of the Supreme Court’s
decisions in Univ. of Texas Sw. Med. Ctr. v. Nassar, --- U.S. ---, 133 S. Ct. 2517, 2521 (2013), and
Gross v. FBL Financial Service, Inc., 557 U.S. 167 (2009). Id. at 7. Plaintiff has not responded
to the application in any fashion.
A district court may grant certification under § 1292(b) when it finds that the matter: (1)
“involves a controlling question of law”; (2) “as to which there is substantial ground for difference
of opinion”; and (3) “that an immediate appeal would materially advance the ultimate termination
of the litigation.” 28 U.S.C. § 1292(b). “[T]he power to grant an interlocutory appeal must be
strictly limited to the precise conditions stated in the law.... [O]nly exceptional circumstances will
justify a departure from the basic policy of postponing appellate review until after the entry of a
final judgment.” Klinghoffer v. S.N.C. Achille Lauro Ed Altri–Gestione Motonave Achille Lauro
in Amministrazione Straordinaria, 921 F.2d 21, 25 (2d Cir.1990) (internal quotation marks and
As such, “[i]nterlocutory appeals are strongly disfavored in federal practice.” In re Ambac
Fin. Group, Inc. Sec. Litig., 693 F. Supp. 2d 241, 282 (S.D.N.Y. 2010). Indeed, Section 1292(b)
“was not intended to open the floodgates to a vast number of appeals from interlocutory orders in
ordinary litigation, or to be a vehicle to provide early review of difficult rulings in hard cases.”
Martens v. Smith Barney, Inc., 238 F. Supp. 2d 596, 600 (S.D.N.Y. 2002). As the Second Circuit
has cautioned, district courts should “exercise great care in making a § 1292(b) certification.”
Westwood Pharm., Inc. v. Nat’l Fuel Gas Distribution Corp., 964 F.2d 85, 89 (2d Cir. 1992).
Further, the certification process is a discretionary decision first by the district court, and
if so certified, then by the Second Circuit. See Swint v. Chambers Cty. Commn, 514 U.S. 35, 36
(1995) (§1292(b) confers on district courts first line discretion to certify for immediate appeal
interlocutory orders deemed pivotal and debatable; this provision grants to the court of appeals
discretion to review only orders first certified by the district court.).
Here, the Court finds that Defendant has not satisfied the criteria of §1292(b). While the
Court agrees that the proposed issue “involves a controlling question of law” where “there is
substantial ground for difference of opinion,” the Court cannot find that “an immediate appeal
would materially advance the ultimate termination of the litigation.” Stated simply, even if the
Second Circuit were to hold that the “but-for” standard of causation applies1, the Court still
believes that material issues of fact exist that would preclude granting summary judgment in favor
of Defendant. As such, regardless of the Second Circuit’s determination on any potential § 1292(b)
appeal, this matter is headed for trial. Since the standard of § 1292(b) is not satisfied, the Court
declines to certify the matter for an interlocutory appeal.
To be clear, the Court believes that given the holdings of Gross and Nassar and the similarity of
language in the applicable statutes, “but-for” causation is likely the correct standard to be charged to the
jury at trial. However, the Court will give the parties the opportunity to brief this issue as part of pre-trial
submissions before making a final determination.
For all of these reasons, Defendant’s request (ECF No. 51) to certify an interlocutory
appeal under 28 U.S.C. § 1292(b) is DENIED.
The parties shall appear on October 6, 2017 at 2:30pm to set a trial date.
IT IS SO ORDERED.
September 26, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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