Opinion
1:19-CV-480 (FB) (RML)
10-03-2024
ROGELIO KNIGHTS, JR. Plaintiff, v. THE CITY UNIVERSITY OF NEW YORK, THOMAS A. ISEKENEGBE, and CHRISTOPHER TODD CAROZZA, Defendants.
For the Plaintiff: ROOSEVELT SEYMOUR For the Defendants: SYLVIA O. HINDS-RADIX CHRISTOPHER ARKO Corporation Counsel for the City of New York
For the Plaintiff: ROOSEVELT SEYMOUR
For the Defendants: SYLVIA O. HINDS-RADIX CHRISTOPHER ARKO Corporation Counsel for the City of New York
AMENDED MEMORANDUM AND ORDER
FREDERIC BLOCK Senior United States District Judge
I write in response to the Court's remand “for the District Court to reconsider its award of fees in light of the relevant standards and considerations and, if it again finds that an award of fees is appropriate, to articulate its basis for such a finding.” Knights v. City Univ. of New York, No. 23-7708-CV, 2024 WL 3912895, at *2 (2d Cir. Aug. 23, 2024).
To be sure, as I wrote in my underlying decision awarding counsel fees, I was “mindful of the Supreme Court's holding in Farrar v. Hobby, 506 U.S. 103 (1992), that ‘[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief . . . the only reasonable fee is usually no fee at all.'” Knights v. City Univ. of New York, 697 F.Supp.3d 3, 4 (E.D.N.Y. 2023). And I was “also mindful of the Second Circuit's interpretation of Farrar in Pino v. Locasio, 101 F.3d 235 (2d Cir. 1996), where it held that ‘while there is no per se rule that a plaintiff recovering nominal damages can never get a fee award, Farrar indicates that the award of fees in such a case will be rare.'” Knights, 697 F.Supp.3d at 4 (citing Id. at 238).
Moreover, I recognized that “in Pino, the Court cabined those rare circumstances justifying a fee award to those cases where a tangible result was achieved by the litigation that ‘confers a benefit to society' such as the creation of ‘a new rule of liability that served a significant public purpose.'” Id. And I cited Second Circuit precedent calling for “ground-breaking conclusions of law,” or litigation which “resulted in the granting of injunctive relief” to warrant counsel fees. Id. (citing Pino, 101 F.3d at 239; McGrath v. Toys “R” Us, Inc., 356 F.3d 246, 252 (2d Cir. 2004); and LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir. 1998)).
Why then did I award counsel fees in this case? Although I thought that my decision laid out the bases for my fee award, perhaps in retrospect it was not sufficiently explicit.
Preliminarily, I do not read Farrar or Pino as being preclusive of unusual, rare situations where justice and fairness support an award of fees, especially where, as here, the litigation came about principally because of the defendant's bad acts. See Pino, 101 F.3d at 239 (there is “no per se rule that a plaintiff recovering nominal damages can never get a fee award”).
I found one such example: Judge McMahon's decision in Lee v. McCue, No. 04-CIV-6077 CM, 2007 WL 2230100 (S.D.N.Y. 2007). There the plaintiff made no new law, but nonetheless “prevailed on a significant constitutional claim of false arrest . . . as well as on his state law claims of battery, false arrest, and false imprisonment.” Id. at *7. Although he sought $1.5 million in damages, the jury only awarded nominal damages.
In awarding counsel fees, Judge McMahon reasoned that “the plaintiff achieved a meaningful victory on a significant constitutional claim; moreover, Plaintiff's counsel was also compelled to defend against a patently meritless pretrial motion ....” Id.
The bona-fides of a defendant's litigation strategy causing the plaintiff here to unnecessarily litigate a case which, if not for the defendant's bad acts, might never have happened, should not be countenanced.
Let me explain:
The following facts are largely taken from the arbitration decision rendered on November 7, 2018. See Arbitration Op., ECF No. 15-2 (attached hereto for the Court's convenience).
Knights had been hired on September 6, 2016, by the defendant CUNY as a Substitute Higher Education Associate at Bronx Community College as Student Athletic Manager. His term was to expire on March 5, 2017, but his appointment had been extended until April 5, 2017. He was the subject of a Title IX investigation of sexual harassment of an adult student at LaGuardia College, and was summarily discharged, without a hearing, on March 17, 2017. Exercising his rights under the CUNY collective bargaining agreement he promptly sought arbitration, seeking reinstatement and back pay.
Knights maintained that he was “entitled to a fact-finding hearing based upon the due process protections contained in the fourteenth (14) amendment of the U.S. Constitution and/or a name clearing hearing,” citing the Supreme Court decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), as well as Board of Regents v. Roth, 408 U.S. 564 (1972), and similar cases supportive of his entitlement to a name-clearing hearing “because the government entity's termination has imposed a stigma or disability that prevents him from taking advantage of other employment opportunities.” Arbitration Op. at 6.
Instead of giving him the opportunity to clear his name in a classic “he said, she said” verbal situation, CUNY sought to moot the arbitration. It did so by rescinding his termination with back pay, letting his employment lapse, and then bringing a motion before the arbitrator to abort the arbitration as moot.
Its gambit was successful. The arbitrator held that because Knights was reinstated with back pay there was no justiciable dispute remaining. She held that “the Grievant's contention he is entitled to a fact-finding hearing to clear his name based upon U.S. precedent is misplaced.” She reasoned that “[w]ithout addressing any claim of stigma claimed by the Grievant, these cases apply to public employees with a property interest in their job,” and that he did not have a constitutional property interest in his temporary job. Id. at 9.
The arbitrator was correct that Knights did not have a property interest in his employment but was dead wrong that he was not entitled to a name-clearing hearing. It is almost hornbook law that regardless of whether a property interest is extant, a terminated employee - regardless of whether he was a temporary or permanent employee - who claims that he has suffered a stigma because of his termination has a liberty interest entitling him to a name-clearing hearing. As the Second Circuit has made crystal clear, even if an at-will or temporary employee does not have a property interest in his continued employment, “a probationary employee can ‘invoke the protections of the Due Process Clause' where that employee has suffered a loss of reputation ‘coupled with the deprivation of a more tangible interest, such as government employment.'” Segal v. City of New York, 459 F.3d 207, 212 (2d Cir. 2006) (quoting Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004)).
Surely, CUNY's counsel must have known the law, but counsel never conveyed that basic principle of constitutional law to the misguided arbitrator. Knights had to resort to protracted litigation for the next six years before the jury correctly decided that he was indeed entitled to a name-clearing hearing.
If Knights had received a timely name-clearing hearing before a CUNY decisionmaker, it would have rendered nugatory any prospective trial because he would have received all to which he was entitled. See Patterson, 370 F.3d at 328 (“The remedy for a stigma-plus violation of a government employee's constitutional due process rights is a name-clearing hearing where the employee is given the opportunity to clear his name.”).
To be sure, Knights' lawsuit did not go well for him, and the jury ruled against him on the merits. However, it is understandable why he would seek monetary damages for the employment opportunities that his ubiquitous stigma allegedly caused him throughout the years. They included stigmatizing statements made by CUNY personnel to the New York Daily News, which ran an article on Knights on July 11, 2017. See ECF No. 53-14 (attached hereto). But, once again, it never would have gotten that far if he had been given a prompt opportunity to clear his name. That he understandably sought significant monetary damages was conceptually irrelevant, just as it was in Lee.
I thus believe that CUNY had acted in bad faith in successfully employing its mootness gambit to abort the arbitration and Knights' entitlement to his nameclearing hearing by reinstating him with back pay, thereby precluding him from his constitutional right to tell his side of this “he said, she said” story. I simply could not in good conscience condone CUNY's manipulative behavior and penalize Knights' attorney for engaging in six years of unnecessary litigation without any compensation.
I therefore consider the unique facts of this case to be tantamount to a rare example of when counsel fees are justified for a constitutional violation, even if no new rule of law resulted from the litigation. Moreover, I do not view depriving one of his constitutional entitlement to a name-clearing hearing as inconsequential. The Supreme Court has made it perfectly clear that this liberty interest is a fundamental right, not to be trampled on. Once again, as it stated in Wisconsin v. Constantineau, 400 U.S. 433 (1971), “[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Id. at 437.
As for the size of the fee award, Knights requested $119,700 but he had omitted from his request “hours spent in consultation with witnesses, email exchanges with defendant's counsel, and other non-substantive administrative work.” See Seymour Decl., ECF No. 89 at 2. More importantly, he “eliminated time spent on plaintiff's failed cross-motion for summary judgment on his property interest claim.” Id. Thus, his fee request was limited to his successful liberty interest claim, namely the deprivation of his entitlement to a name-clearing hearing. Nonetheless, I did not give him what he requested for the prosecution of his liberty interest claim because his effort to monetize the consequential damages his client suffered from not having a hearing was unsuccessful.
I also reviewed the Schedule of Legal Services Mr. Seymour performed since 12/10/18, attached to his Declaration, and found them to be most reasonable for the protracted litigation caused by defendant's bad acts. See Ex. 2 to Seymour Decl., ECF No. 89-1 at 5-9. Moreover, I was impressed with the fact that although Mr. Seymour was a skilled federal civil rights litigator, “specializing in employment and labor issues”, Seymour Decl. at 1, his hourly rate was only $350, even though the accepted average hourly rate for such litigation by someone of Mr. Seymour's stature in the Eastern District is $450. See Holloway v. City of New York, No. 21-CV-3858 (AMD) (CLP), 2024 WL 4333761, at *8 (E.D.N.Y. Sept. 27, 2024); Lilly v. City of New York, 934 F.3d 222, 231 (2d Cir. 2019). And finally, I was impressed with Mr. Seymour's consummate professionalism and skillful presentation of his client's case.
I trust that I have explained my decision with sufficient clarity to allow the Court to make its final ruling. Therefore, I once again order that judgment be entered in the sum of $75,000 in favor of Plaintiff Rogelio Knights, Jr. against Defendant City University of New York.
As stated in my prior decision, “there is no formulaic method for prescinding between the time spent by Knights' counsel for his success in prevailing on Knights' name-clearing claim and his failure to be vindicated. In this circumstance, therefore, the Court must use its sound discretion and may ‘simply reduce the award to account for the limited success.'” Knights v. City Univ. of New York, 697 F.Supp.3d 3, at 9 (E.D.N.Y. 2023) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983)).
SO ORDERED.
OPINION
Pursuant to the authority granted under the parties' collective bargaining agreement, I conducted a hearing at the offices of the American Arbitration Association in New York City on August 29, 2018. Roosevelt Seymour, Esq. represented the Grievant, Rogelio Knights. Todd Drantch, Esq. represented CUNY at the hearing.
Prior to the commencement of the hearing, CUNY requested leave to file a motion to dismiss the case on the grounds of mootness. The undersigned permitted the motion and provided the Grievant the opportunity to respond prior to the scheduled hearing date.
The parties met on August 29, 2018 at the offices of the American Arbitration Association in order to make oral argument regarding the motion to dismiss. During the proceeding, the undersigned encouraged the parties to discuss settlement. They agreed to do so. After unsuccessful discussions, they contacted the undersigned to issue a determination on the threshold issue of whether the grievance is moot.
Neither party has raised any objection to the fairness of this proceeding. The evidence and arguments presented by the parties have been fully considered in rendering this Opinion and Award.
Background:
The basic facts, for purposes of this preliminary issue, are not in dispute. The Grievant, Rogelio Knights, was appointed as a Substitute Higher Education Associate at Bronx Community College as a Student Athletic Manager. He was appointed for the period September 6, 2016 until March 5, 2017. His appointment was extended until April 5, 2017.
Following a Title IX investigation dealing with allegations of sexual harassment involving a student at LaGuardia College, the Grievant was discharged on March 17, 2017. The college sent the Grievant a letter entitled, Notice of Immediate Discharge, on September 28, 2017. The letter stated:
Dear Mr. Knights
On September 27 2017, my designee Susan Susan G. Fiore Esq met with you to discuss with you and your attorney Mr. Roosevelt Seymour to discuss the Notice of Intent for
Immediate Discharge the basis for the discharge and the penalty of termination.
I am writing to advise you pursuant to Article 21.8 of the 2010-2017 agreement between the Professional Staff Congress/CUNY and the City University of New York (“PSC/CUNY Agreement”), the College has determined to discharge you for just cause, effective immediately.
In accordance with Article 21.8(e) of the PSC/CUNY Agreement, you may, within fourteen (14) calendar days of service of this Notice of Immediate Discharge appeal by proceeding to disciplinary arbitration in accordance with Section 21.7 of the PSC/CUNY Agreement.
The notice of appeal to disciplinary arbitration shall be filed by service upon the Vice Chancellor for Legal Affairs and the American Arbitration Association, with a copy to me. [See, Grievant Exhibit 4]
The Grievant appealed his termination under the steps of the Grievance Procedure. His grievance read, in pertinent part:
Grievance: Improper Termination without just cause.
Violations: The entire 2010-2017 PSC/CUNY collective bargaining agreement, including but not limited to Article(s) 21.9, the entire CUNY bylaws and all relevant written policies of the Board.
Remedy: Immediate reinstatement with make whole relief.
[CUNY Exhibit C]
The Step II grievance reiterated the same allegations.
[CUNY Exhibit D]
On May 3, 2018, the college sent the Grievant a certified letter which rescinded his termination. It provided, in pertinent part:
Please be advised that Bronx Community College (“the College”) has rescinded your March 17, 2017 termination as Athletics Manager. Your original substitute appointment (09/06/2016-03/05/2017) as Student Athletic Manager was for a six (6) month period. The substitute appointment was then extended for an additional thirty (30) days, from March 6, 2017 to April 5, 2017.
In the interim you were terminated effective March 17, 2017. As stated above, the termination will be rescinded and as a result, the College will process payment to you in the amount of $3,855.26 as full and final payment for the remaining term of the extension of your substitute appointment, or thirteen (13) working days.
Bronx Community College thanks you for your service and wishes you continued success in your career endeavors. [CUNY Exhibit E]
CUNY records demonstrate the Grievant's personnel file reflects his “termination” reason currently reflects “End of Assignment” and no references to discipline or charges or allegations are contained therein. See, CUNY Exhibit G
Positions of the Parties:
CUNY maintains the Grievance filed by Mr. Knights alleging improper termination without just cause is now moot. It maintains the College's action of rescinding his termination, updating his records to reflect end of assignment rather than termination for cause, removal of any derogatory material from his personnel file and payment of lost wages rescinds the personnel action for which the Grievant claimed an improper action under the contract.
CUNY notes the Agreement defines grievance as a breach, misinterpretation or improper application of the collective bargaining agreement. It maintains, “the College sustained the grievance by its own actions.” [CUNY brief p. 4]
According to CUNY, the Grievant is attempting to change his grievance belatedly claiming the Title IX report itself should be expunged. CUNY maintains this is a new and untimely claim. It submitted prior arbitration decisions to support its argument. It argues it is not only a new claim, but a different type of grievance.
Position of the Grievant
The Grievant contends the parties Agreement entitles him to a fact-finding hearing on guilt or innocence on whether he violated CUNY's Sexual Misconduct Policy and whether termination was the appropriate penalty. He cites Article 21.8(3) which provides “the disciplinary arbitrator shall be limited to determining .....” [Joint Exhibit 1] According to the Grievant, the contract provides the right to a fact-finding hearing and the fact that the College rescinded the penalty cannot take away this right. It argues the College has not rescinded the adoption of the findings of the Title IX investigative report, and thus, it maintains the controversy is not moot.
Notwithstanding his rights under the parties' collective bargaining agreement, the Grievant maintains he is entitled to a fact-finding hearing based upon the due process protections contained in the fourteenth (14) amendment of the U.S. Constitution and/or a name clearing hearing. He cites the decision in Cleveland Board of Education v. Loudermill. Likewise, he cites Supreme court jurisprudence under Board of Regents, and similar cases arguing he is entitled to a name clearing hearing, because the government entity's termination has imposed a stigma or disability that prevents him from taking advantage of other employment opportunities.
Decision:
After carefully reviewing the entire record before me and considering all the arguments raised by the parties, I find there is no issue left to arbitrate, which renders the grievance moot. My reasons follow.
The record evidence demonstrates there is no longer a justiciable issue for arbitral determination. In his grievance (both steps I and II), Mr. Knights alleged he was terminated without just cause in violation of Article 21.9, the bylaws and CUNY regulations. On May 3, 2018, CUNY granted the Grievance. CUNY rescinded the termination, made the Grievant whole for all lost wages, and removed any reference to discipline in his personnel file. Based on these actions, there is no longer any issue to adjudicate.
The Grievant's insistence that he has a right to a hearing under the parties' Agreement is misplaced. Article 21.9 allows for the review of disciplinary charges through the disciplinary arbitration procedure outlined in 21.8 of the Agreement. 21.8(4) specifically limits the disciplinary arbitrator's authority to determinations of guilt or innocence and the sufficiency of grounds for the penalty. [Joint Exhibits 1a and b] The contract further provides:
The arbitrator shall not consider alleged violations of any other provision or article of this Agreement, or the University Bylaws or written policies, which shall be subject as applicable, only to the provisions of Article 20 of this Agreement. The disciplinary arbitrator shall not add to, subtract from, or modify the provisions of this Agreement. The disciplinary arbitrator's decision regarding guilt or innocence and the sufficiency of grounds for the penalty shall be final and binding upon the parties. The disciplinary arbitrator may approve or disapprove the penalty or impose other penalties warranted under the circumstances.
As noted earlier, the College has never served charges upon the Grievant and it has rescinded the adverse personnel action it took against the Grievant. Thus, the undersigned has no authority under to decide on the guilt or innocence of the Grievant. The College has rescinded the action, and, clearly it did not terminate the Grievant for just cause.
The Grievant has failed to identify any remedy for which he could be entitled which has not been granted when the College granted his grievance by reversing his termination. The Grievant cites the “adoption” of the Title IX report as an issue. However, under the sexual harassment policy, as noted by the Grievant, alleged violations of the policy may form the basis of charges. If the Grievant had been subject to disciplinary charges, the report could form evidence of the investigation to support an allegation of dismissal for cause. However, the report itself is not a charge and, the undersigned, has no authority based upon the statement of the Grievance to rule upon the report itself.
To the extent, the Grievant is now claiming the report violates a provision of the Agreement or CUNY Regulation or Bylaw, that constitutes a separate grievance. As Arbitrator Viani noted in Wilson Obi, a grievance must state a claim with particularity at the outset. In this case, the Grievant's alleged he was terminated without just cause. Expungement of a report, which is not a charge, is not within the purview of the original grievance. The allegation of an unjust adoption of a report was n subject of the original grievance and the parties' grievance procedure precludes the addition of it n without the full consent of both parties.
Finally, the Grievant's contention he is entitled to a fact-finding hearing to clear his name based upon U.S. Supreme Court precedent is misplaced. Without addressing any claim of stigma claimed by the Grievant, these cases apply to public employees with a property interest in their job. The Grievant does not hold a civil service appointment in his title. Rather, it is undisputed his appointment to the HEO title is a substitute appointment which is specifically limited by contract and has no right or assumption of reappointment. Thus, he has no constitutional property interest in his position.
By reason of the foregoing, I issue the following
AWARD
The Grievance is moot and, therefore, the Grievance is dismissed.
Dated: November 7, 2018
Deborah M. Gaines, Arbitrator
Affirmation
State of New York }
County of New York } ss:
I, DEBORAH GAINES, do hereby affirm upon my oath as Arbitrator that I am the individual described in and who executed this instrument, which is my award.
Signature_________