Wednesday, December 19, 2018

Retaliation case against City of Ithaca goes to trial a fourth time

This case has been around for quite some time. Plaintiff was a police officer for the City of Ithaca. The case was filed in 2010 and went to trial in 2012, when the jury awarded $2 million on the Title VII retaliation claim. After the trial court granted the City a new trial, the case went to trial again in 2015, when the jury awarded plaintiff $480,000 in damages, including $220,000 for pain and suffering relating to retaliatory "beat assignments." The trial court said the damages for the beat assignments were too high and the plaintiff could either take $50,000 on remittitur or have a new trial on damages on that claim (while also sustaining a separate damages award in the amount of $260,000 arising from a retaliatory notice of discipline). Most plaintiffs take the reduced amount, but this plaintiff opted for a new trial. So another trial on damages took place in 2016, and the jury awarded him less money than the remittitur, $20,000, on the beat assignments claim. The City appeals, and the Second Circuit finds the jury was not properly instructed on both retaliation claims, so the third verdict is now gone, as the Court of Appeals orders a fourth trial.

The case is Miller v. City of Ithaca, a summary order issued on December 18. When the liability portion of the case originally went to trial in 2012, the district court charged the jury that plaintiff can win the retaliation case if he shows his protected activity under Title VII was a motivating factor for the various adverse actions that plaintiff endured. The problem is that, since that verdict came down, the Supreme Court in University of Texas Medical Center v. Nassar, 570 U.S. 339 (2013), said the motivating factor standard does not govern Title VII retaliation cases and that, to win, the plaintiff has to show the retaliatory intent was the "but-for" cause of the retaliation. Motivating factor is a more plaintiff-friendly standard, as it does not have to be the factor that makes the difference in the personnel decision. Under the but-for test, the plaintiff has to show the retaliatory intent by itself made a difference, even if it was not the sole cause.

What it means for Miller is that, after all this time, this case proceeded in the district court under a liability standard that the Supreme Court has since repudiated. After three trials in this case, a fourth trial is now warranted, under the new jury charge. The beat assignment and notice of discipline claims will again go before a jury.

On this appeal, the City did try to prevent a fourth trial altogether, claiming that plaintiff did not actually suffer any adverse actions. The Second Circuit rejects that argument ruling that the beat assignments that the City ordered plaintiff to take on were sufficiently adverse because they usually went to junior officers and were seen as "punishment" beats when given to senior officers like plaintiff. It is that ruling -- that plaintiff did suffer an adverse action -- that allows this case to return to trial a fourth time, as there is still something worth suing for.

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