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Eugene MARGERUM, Joseph Fahey, Timothy Hazelet, Peter Kertzie, Peter Lotocki, Scott Skinner, Timothy Reddington, Timothy Cassel, Matthew S. Osinski, Mark Abad, Brad Arnone, and David Denz, Plaintiffs, v. CITY OF BUFFALO, Defendant.
Pending before the Court are four (4) motions. Plaintiffs have filed a motion for partial summary judgment as well as a motion seeking preclusion. Plaintiffs assert that since the matter concerning the validity of the 1998 Lieutenants exam has been litigated and resolved, Defendant (hereinafter “The City”) should be collaterally estopped from offering any evidence or testimony suggesting that the exams were invalid. The City has similarly filed a motion seeking summary judgment as well as a motion to strike all pleadings and documents used by Plaintiffs that refers to the MOCHA litigation dated after February 3, 2006. The Court's decision is as follows.
STATEMENT OF FACTS & PROCEDURAL HISTORY
Given this case was commenced in 2007, it has a lengthy history. A recitation of the facts and procedural history is indeed both helpful and necessary for the purposes of the record.
To address the instant action, it is important to note a federal court action which has become linked to the present matter. In 1998, the Members of Color Helping All (hereinafter “MOCHA”) commenced a class-action law suit against the City of Buffalo alleging racially discriminatory practices in the U.S. District Court for the Western District of New York (“hereinafter “District Court”). More specifically, the MOCHA plaintiffs maintained that the civil service test used for promotion by the City of Buffalo Fire Department purportedly had an illegal and disparate-impact against African–American firefighters. The City of Buffalo, the defendant in that action, disagreed and insisted that the tests were valid. A second District Court action was filed in 2003, wherein the plaintiffs alleged that “the 2002 administration of the exam had the same discriminatory impact as the 1998 exam.” Margerum v. City of Buffalo, 24 NY3d 721 (2015). This matter was referred to as MOCHA II.
In 2007, the instant action was commenced. The Plaintiffs, white firefighters who were denied promotions, alleged that the City engaged in reverse discrimination when it permitted certain promotion eligibility tests to expire. Had the City not terminated the lists, the Plaintiffs maintain they would have received promotions. The City moved to dismiss the complaint while Plaintiffs immediately moved for partial summary judgment. In 2007, Justice John Michalek denied the City's motion to dismiss, but granted Plaintiff's motion for partial summary judgment; however, the District Court stayed the state court matter while the MOCHA litigation proceeded in federal court.
Subsequently, the District Court dismissed the plaintiffs' Second Amended Complaint to the extent that it sought relief under Title VII “based on the City of Buffalo's use of the results of the 1998 Lieutenant's Exam to promote Buffalo firefighters to the rank of lieutenant.” MOCHA Society Inc. v. City of Buffalo, 2009 U.S. Dist. LEXIS 20070; 2009 WL 604898 (W.D. NY March 9, 2009). Thereafter, the District Court lifted its stay on the state action and, in 2010, the District Court dismissed the MOCHA II litigation.
After the District Court stay was lifted, in 2009, the Appellate Division, Fourth Department (hereinafter “Appellate Division”) modified Justice Michalek's 2007 decision, concluding that the trial court erred in granting summary judgment. The Appellate Division held that Plaintiffs failed to establish that the City's actions “were not narrowly tailored to meet a compelling interest.” Margerum v. City of Buffalo, 63 AD3d 1574, 1579 (4th Dept. 2009). More specifically, the Appellate Division concluded that although the Court correctly denied Defendant's motion to dismiss, it reversed the trial court's grant of summary judgment, finding the record was “insufficient to determine whether Defendant's plan trampled the interests of non-minority Plaintiff's and a full exploration of disputed issue [was] warranted.” Id. Moreover, the Appellate Division rejected Defendant's argument that a notice of claim was necessary as a condition precedent to commencing its action against the City.
Subsequent to the Appellate Division's determination, the United States Supreme Court issued its decision in Ricci v. DeStefano wherein it held that “before an employer can engage in intentional discrimination for the asserted purposes of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” 557 U.S. 557, 585 (2009). This precedent became particularly important in weighing the claims as presented by the Plaintiffs here.
Following remand of the matter to the trial court, Justice Michalek again granted Plaintiff's summary judgment on the issue of liability. On appeal, this decision was affirmed by the Appellate Division, which held that “[the] City of Buffalo did not have a strong basis in evidence to believe that they would be subject to disparate-impact liability if they failed to take the race conscious action i.e. allowing the eligibility tests to expire, inasmuch as the examination question were job-related and consistent with business necessity.” Margerum v. City of Buffalo, 83 AD3d 1575, 1576 (4th Dept. 2011). The trial court subsequently held a damages hearing and awarded compensation to twelve (12) of the Plaintiffs. This award was ultimately reduced by the Appellate Division and a final judgment of $1,621,607 was entered. Margerum v. City of Buffalo, 108 AD3d 1021 (4th Dept. 2013). The Court of Appeals granted both Plaintiffs and Defendant leave to appeal.
The Court of Appeals modified the Appellate Division's decision and remanded the matter back to the trial court. 24 NY3d 721 (2015). The Court of Appeals rejected the Defendant's argument that a notice of claim was necessary, holding that it was widely understood that the General Municipal Law did not encompass a cause of action based on the Human Rights Law and, as such, “service of a notice of claim [was] therefore not a condition precedent to commencement of an action based on the Human Rights Law in a jurisdiction where General Municipal Law §§ 50–ee and 50–I provide the only notice of claim criteria.” Id. at 730. As Human Rights Law claims were not considered tort actions under 50–e and not personal injury, wrongful death or damage to personal property claims under 50–i, a notice of claim was not necessary.
With respect to the summary judgment determination on liability, the Court of Appeals held that such a determination should not have been decided at the summary judgment stage. While the Court concluded that it was “undisputed that the Plaintiffs made out a prima facie case of discrimination, as the City chose not to promote white candidates from the eligibility list,” it was less clear as to what the City's motives or intentions were. Id. at 732. The Court observed, “[w]e proceed with caution when deciding whether summary judgment is appropriate in employment discrimination cases because intent is usually a central issue.” Id. Ultimately, the Court of Appeals noted that the City's litigation posture in the MOCHA litigation could not be taken at face value, holding that “there must be a credibility assessment of the City's position as to the validity of the examinations, the prospects in the federal litigation, and the reasons for its decision to expire the promotion eligibility lists.” Id. Noting differences in testimony of key witnesses that conflicted with testimony provided in the MOCHA litigation, the Court of Appeals concluded that whether the City had a “ ‘strong basis in evidence to believe it [would] be subject to disparate-impact liability’ at the time that it terminated the promotion eligibility lists while the MOCHA litigation was still pending raises issues of fact that cannot be determined on motions for summary judgment.” Id.
The matter was once again remitted to Supreme Court for further proceedings. The Defendant moved for a protective order and the trial court denied the motion. On appeal, the Appellate Division modified the trial court's decision and held that a protective order limiting the disclosure of any privileged or confidential material generated after February 3, 2006 was warranted. Margerum v. City of Buffalo, 148 AD3d 1755 (4th Dept. 2017). The Appellate Division held that the trial court “erred in denying the portion of [the City's] motion that sought to limit disclosure to documents that were reviewed and/or relied upon by Leonard Materese before he made the decision to allow the applicable Civil Service promotion lists to expire.” Id. at 1758. Only those documents generated before February 3, 2006, the date the City permitted the lists to expire, were relevant to determine whether the City had a “strong basis in evidence to believe [the City][would] be subject to disparate-impact liability at the time that it terminated the promotion eligibility tests.” Id. Regarding privileged materials, the Appellate Division held that this determination would be made by the trial court during an in camera examination and denied Defendant's request for a blanket protective order.
Thereafter, the City brought its current motion for summary judgment as well as a motion to strike. Plaintiffs also sought partial summary judgment on the issue of liability, as well as issue preclusion.
Motions for Summary Judgment
Each party now seeks summary judgment, yet again, maintaining that there exists no triable issues of fact. It is well-understood that on a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial. Winegrad v. NYU Medical Center, 64 NY2d 851 (1985); Zuckerman v. City of New York, 49 NY2d 557 (1980). Only if this burden is met, will the burden then shift to the party opposing summary judgment, who must then establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial. If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68 NY2d 320, (1986); Ayotte v. Gervasio, 81 NY2d 1062 (1993).
Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1977). The court's function on these motions is limited to “issue finding,” not “issue determination.” Sillman v. Twentieth Century Fox Film, 3 NY2d 395 (1957). When only issues of law are raised in connection with a motion for summary judgment, the court may and should resolve them without the need for a testimonial hearing. Hindes v. Weisz, 303 AD2d 459 (2d Dept. 2003).
To examine the issue of summary judgment, this Court must heed the Court of Appeals' decision that addresses the very issue that now is present before the Court. In its decision, as to the issue of liability, the Court of Appeals very clearly concluded that the trial court improperly decided summary judgment at the stage at which it did. Margerum v. City of Buffalo, 24 NY3d at 730. However, Defendant submits the record is now far more developed than it was previously and thus ripe for summary judgment determination. The Plaintiffs likewise submit that re-considering summary judgment at this time is appropriate.
Defendant insists that the holding in Ricci, which permits an employer to take “remedial action, provided it has a ‘strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race conscious, discriminatory action,” entitles them to summary judgment. 557 U.S. at 585. Defendant maintains that based on the record, which has been expanded upon over the many years this case has been pending and subject to extensive appellate scrutiny, that is indeed the case here and, as such, there exist no issues of fact. This Court is of the opposite opinion.
Contrary to Defendant's argument, there remain several issues of fact that must be the province of a jury to decide. The conflicting testimony of Leonard Matarese, the former Human Resources Commissioner for the City of Buffalo, as to the validity of the subject tests and the reason why he decided to “kill” the promotion lists remain disputed issues of fact in this ligation. For instance, during the MOCHA litigation, Defendant insisted that the tests at issue were valid and would not subject the City to disparate impact liability. However, in subsequent depositions, Mr. Matarese deviated from this position and testified that the tests were invalid and had he not terminated them, the City would be subject to potential exposure for disparate impact liability. Also, former Mayor Anthony Masiello's deposition testimony on the timeline concerning the termination of the lists is at odds with the testimony of Commissioner Matarese. Matarese testified that he briefed the Mayor before the lists were terminated. However, Masiello testified that he asked Maltese “why are we killing a list with blacks on it?” (See Plaintiff's Affirmation in Opposition, Exhibit “E”) This does not sound like a comment you would expect from someone who was briefed or, at the very least, on board with the Commissioner's decision to terminate the lists.
The memorandum from Attorney Kathleen Sellers, an associate who was working with Hodgson Russ Partner Adam Perry, is also at odds with the position the City now adopts. In her settlement conference statement filed in federal court regarding the MOCHA lists, Sellers wrote there was no proof of discrimination. (See Plaintiff's Memorandum of Law, Exhibit “K”). If this was indeed true, why did Matarese allow the lists to expire? This seems to conflict with the Defendant's position now. Further, why did the Defendants continue to assure Judge Curtin in the federal court action that the tests were valid when now they insist that they purportedly knew all along that they were not? (See Plaintiff's Memorandum of Law, Exhibit “M”).
Also, the City's expert Nancy Abrams contradicts herself in her testimony. In her affidavit she maintained she warned the City about the substantial risk the MOCHA plaintiffs would prevail. (See Defendant's Motion for Summary Judgment, Exhibit “51”). However, in her deposition testimony, she acknowledged she never reviewed the 1998 or 2002 exams nor was she ever asked her opinion as to whether the lists should be extended or killed. (See Plaintiff's Memorandum of Law, Exhibit “D”). As the Court of Appeals noted, the reason “why” [emphasis added] Matarese and the City allowed these lists to expire remains a crucial question to answer. However, the conflicting testimony of Materese and the City in the MOCHA litigation and the instant litigation [Margerum cases] raise a number of issues of fact that require denial of the Defendant's motion.
As stated previously, the Court of Appeals in Margerum found it inappropriate to grant summary judgment. In its decision, the Court of Appeals held,
“[T]he issue of liability turns on the factual circumstances behind the City's actions, the strength of its justifications and its motivations. It is undisputed that the plaintiffs here made out a prima facie case of discrimination, as they City chose not to promote white candidates from the eligibility list. The burden then shifted to the City to prove that it had a ‘strong basis in evidence’ to justify its race conscious action.”
Margerum, 24 NY3d at 731. In this broad pronouncement, the Court cited Christopher v. Adams' Mark Hotels, an 8th Circuit case that held that courts should “proceed with caution when deciding whether summary judgment [was] appropriate in employment discrimination cases because intent is usually a central issue.” 137 F.3d 1069 (8th Cir. 1998). Like the Court of Appeals and the 8th Circuit, this Court agrees that summary judgment is not appropriate.
What the Court of Appeals held in 2015 remains applicable to the current record. The City's position regarding its motives concerning MOCHA and now Margerum “cannot be taken at face value.” Margerum, 24 NY3d at 731. This Court agrees that there “must be a credibility assessment of the City's position as to the validity of the examinations, the prospects in federal litigation, and the reasons for its decision to expire the promotion eligibility lists.” Id. What was true then is very much true now. Questions still abound as to “Why” Matarese allowed the lists to expire in 2005 and 2006. Indeed, his intent in allowing the lists to expire is the crucial—and very much disputed—fact underlying this extensive litigation. In light of the conflicts in Materese's testimony, and the other glaring contradictions in this record, this Court agrees with the Court of Appeals that these issues of fact cannot be determined on motions for summary judgment. As such, Defendant's motion is hereby DENIED.
Turning to the Plaintiff's motion for summary judgment, the record before the Court is so muddled that partial summary judgment is also inappropriate. Plaintiffs simply attempts to cast the positions offered by Defendant as false and, as such, argues they should be disregarded. These heavily contradicted issues are—plainly—for a jury to decide. As many of the determinations will be those based on credibility, these issues must be addressed by a jury. Accordingly, the Plaintiff's motion for partial summary judgment is hereby DENIED.
With respect to Defendant's requests to have Plaintiff's constitutional claims dismissed, there does not appear to be significant dispute. During oral argument, Plaintiffs inasmuch conceded the point. Notwithstanding the notice of claim requirement, Defendant is correct that “constitutional tort for employment discrimination is unavailable under the New York Constitution because the Human Rights Law already provides a private cause of action for the same conduct.” Muhammad v. New York City, 450 F. Supp.2d 198, 212 (E.D.NY 2006). Given the Plaintiffs here have availed themselves of that option, and because there is no cognizable constitutional claim, the claims should be DISMISSED. See also Menes v. City Univ. of New York, 578 F. Supp.2d 598 (S.D.NY 2010).
Defendant's Motion to Strike
The Defendant seeks to strike from Plaintiff's submissions “all pleadings (and references to such pleadings) from the MOCHA litigations, which are dated post-February 3, 2006.” (Defendant's Summary of Arguments, February 8, 2018, p. 20). Defendants contend that because the Appellate Division already held that “only those documents generated before February 3, 2006, the date on which Materese let the last list expire, are relevant to the determination [of] whether defendant's had a ‘strong basis in evidence to believe [the City would] be subject to disparate-impact liability’ at the time that it terminated the promotion eligibility lists,” any other documents are irrelevant. Id.citing Margerum, 148 AD3d at 1758. Plaintiffs insist that these documents are relevant and should not be struck as they are not confidential nor are they covered by the protective order referred to by Defendant. More specifically, Plaintiffs suggest the Appellate Division decision did not address court filed documents, but only privileged documents.
The Court must, at least for now, DENY this motion without prejudice to renew. The Court finds the Defendant's requests too broad and lacking in specificity to adequately address the relief requested. A blanket request to strike every document, without knowing more about the documents themselves, is inappropriate. Instead, each document must be evaluated on a case-by-case, or document-by-document, basis. Each document should be weighed as to its admissibility upon being offered and the application of the Appellate Division's most recent decisions. To that end, it is premature to make the wholesale and sweeping decision Defendant now seeks. Accordingly, Defendant can renew their motion to the admissibility of documents offered when it believes it is appropriate.1
Plaintiff's Motion to Preclude
Plaintiffs seek an order precluding Defendant from disputing the validity of the 1998 Lieutenant's exam as same has been fully resolved and litigated. (Plaintiff's Summary of Argument, dated February 8, 2018, p. 2). Defendant opposes the relief requested, maintaining that Plaintiffs presume too much as to what it intends to offer in its defense. Defendant contends its witnesses and proof go to the issue of whether the City had a strong basis in evidence to believe it was subject to disparate-impact liability.
As this is a central issue to this litigation, like the Defendant's motion to strike, it is unwise to make a decision in a vacuum without seeing the context upon which evidence and testimony is offered. The Defendant has a right to offer its own defense and the Court is not in a position, based on the record and arguments before it, to grant such a drastic remedy.
However, as with the Defendant's motion to strike, the Court will DENY the Plaintiff's motion without prejudice to renew and evaluate such requests to preclude on an as-needed basis.
1. It should be noted that that at the time this decision was issued, Defendant filed a motion in limine to address the very same issue it raised in its motion to strike.
Emilio Colaiacovo, J.
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Docket No: 2007–1462
Decided: February 28, 2018
Court: Supreme Court, Erie County, New York.
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