United States District Court, N.D. New York
AJ BOSMAN, ESQ., Bosman Law Office, Rome, NY. for the Plaintiff.
PAUL E. WAGNER, ESQ., Stokes, Roberts Law Firm, Ithaca, NY, for the Defendants.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
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 1964 and the New York Human Rights Law. (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.
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 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, 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).
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 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 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.Appx. 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. (Dkt. No. 558, Attach. 1 at 13-15; Dkt. No. 569 at 3-4.) 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 ...