Lore v. Syracuse, Part II: expert witnesses and immunity

On Monday I wrote about a remarkable decision by the Court of Appeals that conditionally reinstated for trial a discrimination plaintiff's claims only if she agreed to retry her other successful claims. This solution assumed that the jury in the first trial may have given the plaintiff too much money for her successful claims by taking into account bad things that happened to the plaintiff that were not properly before the jury in the first trial. In other words, a massive do-over to make sure the jury gets it right on all claims. There are other holdings in this case, though.

The case is Lore v. City of Syracuse, decided on February 2. My first write-up on this case is here. This is a 78 page ruling with other holdings of interest to lawyers who handle cases like this. The jury awarded plaintiff $250,000 in pain and suffering and reputational damages resulting from the City's retaliation for Lore's EEOC charge. The other holdings are below.

1. Lore used an expert witness, a former police officer and county sheriff who also taught at the state police academy on employment discrimination. The trial court allowed him "to opine that the [Syracuse Police Department's] treatment of Lore reflected retaliation for having filed complaints of discrimination" when defendants prevented her from using certain office space and threatened her with criminal prosecution for photocopying other officers' paychecks in support of her equal-treatment arbitration claim. Trial court expert witness rulings are reviewed for an abuse of discretion. While experts are allowed to testify about the ultimate issue in the case (as this expert did), the Court of Appeals (Kearse, Sack and Lynch) says his testimony was not necessary because the components of a retaliation case "are relatively straightforward." Still, this was harmless error because the jury was able to issue a thoughtful verdict as shown by the complex jury interrogatories. "Contrary to Katsaris's stated opinions, the jury found that Lore had not proven her retaliation claims against three of the four individual defendants under consideration. Further, the jury's answers to the interrogatories reflected a painstakingly focused approach that resulted in no two sets of answers being the same." In other words, the expert testimony did not sway the jury "in any material fashion."

2. After Lore brought an EEOC discrimination charge against the City, its Corporation Counsel, Rick Guy, made untrue and demeaning comments about Lore to the newspaper (including the false claim that she had stolen officers' paychecks). Lore sued Guy under Section 1983 (First Amendment retaliation) and state law (Human Rights Law retaliation). Guy claimed he was entitled to immunity for both claims. He only gets it for the First Amendment claim. When the retaliation happened in 2000, the Second Circuit had not yet held that public officials could be sued for retaliation based on adverse actions unrelated to the plaintiff's employment. In other words, the case law at the time only allowed plaintiffs to sue for work-related retaliation, i.e., a demotion or pay cut, not public defamation or other harmful acts outside the workplace. In 2006, the Supreme Court in a Title VII case (Burlington Northern v. White, 548 U.S. 53) did allow for retaliation claims that did not affect the terms and conditions of the plaintiff's employment. Burlington Northern helps Lore, but it was decided too late. Under qualified immunity, the defendant cannot be sued if the law was not clearly established at the time of the violation.

3. But Lore's state law retaliation claim against Lore from the media outburst survives. New York law has a qualified immunity doctrine, though it is not as well known as Section 1983 qualified immunity. Unlike the Section 1983 immunity, however, New York qualified immunity has a subjective and objective component. Guy was immune from suit under the Section 1983 claim because the unclear case law at the time did not provide an objective basis for him to believe he was violating Lore's rights. But the jury could find that Guy disparaged Lore in bad faith when he spoke to the media. The jury was not asked to decide if Guy disparaged Lore in good faith, and the trial court dismissed this state law claim at trial. But he should not have done so. On Lore's other claims, the jury reached findings that would have entitled Lore to win on this claim against Guy. "The jury, which evidently credited Lore's testimony that she had not taken checks, had not stolen anything, and had only copied pay stubs, was easily entitled to infer that Guy was responsible for the November article's indication that Lore had stolen her fellow officers' paychecks." This claim is reinstated for a new trial.