ENIO R. RIVERA, MICHAEL TALTON, Plaintiffs,
ROCHESTER GENESEE REGIONAL TRANSPORTATION AUTHORITY, Defendant.
DECISION AND ORDER
DAVID G. LARIMER, District Judge.
Plaintiffs Enio R. Rivera ("Rivera") and Michael Talton ("Talton") commenced this action against their employer, defendant Rochester Genesee Regional Transportation Authority ("RGRTA") and several of its employees, including John Tiberio ("Tiberio"), alleging claims of workplace discrimination, harassment, and retaliation based on race and national origin. Talton also alleged causes of action for violations of, and retaliation under, the Family Medical Leave Act. Plaintiffs were at all times represented by attorney Christina Agola ("Agola").
On January 26, 2011, this Court granted a joint motion for summary judgment filed by the defendants, and dismissed the amended complaint. (Dkt. #59). The plaintiffs appealed that judgment, and on December 21, 2012, the Second Circuit reversed this Court's decision in part and remanded the matter, finding that there were material questions of fact relating to Talton's claims against RGRTA, and Rivera's hostile work environment claim against RGRTA. (Dkt. #66).
A dispute among counsel then arose as to whether plaintiff had appealed the summary judgment decision only as to RGRTA, and not as to defendant Tiberio. This Court sought clarification from the Second Circuit panel on that issue and Agola and counsel for RGRTA (Harris Beach), and Tiberio (Paul Keneally, Esq. of Underberg & Kessler), provided correspondence to the Second Circuit outlining their respective positions.
Eventually, counsel for Tiberio (Underberg & Kessler) moved to recall the Circuit's Mandate and by decision entered June 13, 2013, the Second Circuit issued an order recalling the Mandate and directing this Court, on remand, to determine facts relative to the filing of the appeal and as to who did represent Tiberio.
Specifically, the Second Circuit requested a determination of the following questions:
1. In connection with attorney Keneally's November 2008 appearance as counsel for Tiberio:
(a) Was Keneally (or another Underberg attorney or attorneys) substituted for Harris Beach attorneys as Tiberio's counsel?
(b) Was Tiberio instead represented thereafter by both attorneys from Underberg and attorneys from Harris Beach?
2. If the District Court finds that the Underberg attorneys were substituted for the Harris Beach attorneys, did the Clerk of the District Court serve a copy of the appellants' notice of appeal on the Underberg attorneys?
Subsequent to the remand decision of June 13, 2013, this Court met with attorney Agola,  attorney Paul Keneally of Underberg & Kessler and counsel from the Harris Beach law firm. At that conference, which occurred July 17, 2013, the attorneys stipulated that a factual hearing may not be necessary and the parties agreed to submit affidavits and other material pertaining to the issues raised by the Second Circuit. All counsel submitted material by August 1, 2013.
After reviewing all the pertinent documents and affirmations, I make the following factual findings:
1. The Harris Beach law firm represented both RGRTA and defendant Tiberio (and some other defendants) soon ...