$1 million selective enforcement verdict is thrown out post-trial

This case reminds us that the case is not over when the jury returns a verdict. Clients don't know this, and jurors definitely don't know this, but the parties may continue litigating long after the jury goes home. That may be OK for the winning party so long as the winning party remains the winning party when the post-trial work ends. But that is not always the case. It was not the case here.

The case is Airday v. City of New York, issued on July 18. Plaintiff sued for selective enforcement after he was fired as a New York City marshal. Plaintiff won the selective enforcement claim at trial. The jury awarded him $1,385,160 in damages on that claim. The case did not end, however. The City filed a motion to vacate (or throw out) the verdict in its entirety, claiming there was never really a case to start with. The trial court granted that motion, and the Court of Appeals affirms. The million-dollar verdict is gone.

What happened? Plaintiff convinced the jury that he was singled out when the City fired him and that other employees who had engaged in similar alleged misconduct were not fired. But to show you were "similarly situated" with other favored employees, the comparison must be a tight one. Courts want to ensure you were really singled out. So you have to prove everyone was similarly situated "in all material respects." What it means for plaintiff is that while the other comparators were all City marshals who committed some infraction, their misconduct was not of comparable seriousness to that of plaintiff, who was arrested for violation of a court order and possession of an unlicensed firearm. 

The comparators were not really comparable.I am quoting from the district court ruling:

The first comparator, Howard Schain, paid a fine because his subcontractor, without his knowledge, towed vehicles improperly, including allegedly towing a vehicle with a child inside. Unlike Plaintiff, he was never arrested, he was not accused of having violated a court order, and he did not possess any unlicensed handguns, the possession of which had never been disclosed to DOI. Mr. Schain simply did not engage in misconduct that was similar to Mr. Airday's.

 

The second comparator, Charles Marschisotto, was arrested once for harassment and stalking, and an order of protection was entered against him. Mr. Marschisotto surrendered his gun, and there was no evidence that he continued to possess a gun in violation of the Order of Protection or that he was ever in possession of an unlicensed gun, the ownership of which had not been disclosed to DOI, and he did not fail to cooperate in DOI's investigation. In contrast, Plaintiff failed to surrender all of his guns following a domestic violence arrest and entry of an Order of Protection, was in possession of an unlicensed and undisclosed gun, was charged with violating the Order of Protection, and failed to cooperate in DOI's investigation. The key details that Mr. Marschisotto surrendered all of his firearms in compliance with the Order of Protection and did not refuse to cooperate in DOI's investigation prevent him from being similarly situated to Mr. Airday.

 

The third comparator, Jeffrey Rose, seized a car while it was stopped in traffic, violated record-keeping rules, and seized a vehicle that was not tow-eligible. It would stretch the meaning of “comparable” beyond any plausible definition to consider this conduct similar to the unlawful possession of a gun, to violating an Order of Protection, and to refusing to cooperate in a DOI investigation.

 

Finally, the fourth comparator, Joel Shapiro, who allegedly used physical force during the course of an eviction, voluntarily resigned from his position as a City Marshal. As a result, there is simply no way to evaluate whether Mr. Shapiro would have been subjected to different treatment than Mr. Airday.

Do you see the level of detail this inquiry entails? The courts want a tight fit when comparing your misconduct to other employees who were not similarly disciplined. The oddity here is that the jury obviously thought these people were legitimate comparators and awarded plaintiff more than million dollars in damages for his troubles. I am sure the jury believed it did a good job in resolving this case. It probably has no idea that the verdict was thrown out completely.

 

The first comparator, Howard Schain, paid a fine because his subcontractor, without his knowledge, towed vehicles improperly, including allegedly towing a vehicle with a child inside. Unlike Plaintiff, he was never arrested, he was not accused of having violated a court order, and he did not possess any unlicensed handguns, the possession of which had never been disclosed to DOI. Defs. Mem. at 9; Trial Tr. at 186–88. Mr. Schain simply did not engage in misconduct that was similar to Mr. Airday's.¹³ Ruiz, 609 F.3d at 493–94.

The second comparator, Charles Marschisotto, was arrested once for harassment and stalking, and an order of protection was entered against him. Mr. Marschisotto surrendered his gun, and there was no evidence that he continued to possess a gun in violation of the Order of Protection or that he was ever in possession of an unlicensed gun, the ownership of which had not been disclosed to DOI, and he did not fail to cooperate in DOI's investigation.¹⁴ Defs. Mem. at 9–10; Trial Tr. at 130–32. In contrast, Plaintiff failed to surrender all of his guns following a domestic violence arrest and entry of an Order of Protection, was in possession of an unlicensed and undisclosed gun, was charged with violating the Order of Protection, and failed to cooperate in DOI's investigation. Trial Tr. at 216–18. The key details that Mr. Marschisotto surrendered all of his firearms in compliance with the Order of Protection and did not refuse to cooperate in DOI's investigation prevent him from being similarly situated to Mr. Airday. Ruiz, 609 F.3d at 493–95 (noting that similarly situated employees must have “engaged in comparable conduct”) (internal quotation marks and citation omitted).

*6 The third comparator, Jeffrey Rose, seized a car while it was stopped in traffic, violated record-keeping rules, and seized a vehicle that was not tow-eligible. Defs. Mem. at 10; Trial Tr. at 192–98. It would stretch the meaning of “comparable” beyond any plausible definition to consider this conduct similar to the unlawful possession of a gun, to violating an Order of Protection, and to refusing to cooperate in a DOI investigation.

Finally, the fourth comparator, Joel Shapiro, who allegedly used physical force during the course of an eviction, voluntarily resigned from his position as a City Marshal. Defs. Mem. at 10–11; Trial Tr. at 198–200, 213. As a result, there is simply no way to evaluate whether Mr. Shapiro would have been subjected to different treatment than Mr. Airday

Est. of Airday v. City of New York, No. 14-CV-8065 (VEC), 2022 WL 1265940, at *5–6 (S.D.N.Y. Apr. 28, 2022), aff'd, No. 22-1081-CV, 2023 WL 4571967 (2d Cir. July 18, 2023)

The first comparator, Howard Schain, paid a fine because his subcontractor, without his knowledge, towed vehicles improperly, including allegedly towing a vehicle with a child inside. Unlike Plaintiff, he was never arrested, he was not accused of having violated a court order, and he did not possess any unlicensed handguns, the possession of which had never been disclosed to DOI. Defs. Mem. at 9; Trial Tr. at 186–88. Mr. Schain simply did not engage in misconduct that was similar to Mr. Airday's.¹³ Ruiz, 609 F.3d at 493–94.

The second comparator, Charles Marschisotto, was arrested once for harassment and stalking, and an order of protection was entered against him. Mr. Marschisotto surrendered his gun, and there was no evidence that he continued to possess a gun in violation of the Order of Protection or that he was ever in possession of an unlicensed gun, the ownership of which had not been disclosed to DOI, and he did not fail to cooperate in DOI's investigation.¹⁴ Defs. Mem. at 9–10; Trial Tr. at 130–32. In contrast, Plaintiff failed to surrender all of his guns following a domestic violence arrest and entry of an Order of Protection, was in possession of an unlicensed and undisclosed gun, was charged with violating the Order of Protection, and failed to cooperate in DOI's investigation. Trial Tr. at 216–18. The key details that Mr. Marschisotto surrendered all of his firearms in compliance with the Order of Protection and did not refuse to cooperate in DOI's investigation prevent him from being similarly situated to Mr. Airday. Ruiz, 609 F.3d at 493–95 (noting that similarly situated employees must have “engaged in comparable conduct”) (internal quotation marks and citation omitted).

*6 The third comparator, Jeffrey Rose, seized a car while it was stopped in traffic, violated record-keeping rules, and seized a vehicle that was not tow-eligible. Defs. Mem. at 10; Trial Tr. at 192–98. It would stretch the meaning of “comparable” beyond any plausible definition to consider this conduct similar to the unlawful possession of a gun, to violating an Order of Protection, and to refusing to cooperate in a DOI investigation.

Finally, the fourth comparator, Joel Shapiro, who allegedly used physical force during the course of an eviction, voluntarily resigned from his position as a City Marshal. Defs. Mem. at 10–11; Trial Tr. at 198–200, 213. As a result, there is simply no way to evaluate whether Mr. Shapiro would have been subjected to different treatment than Mr. Airday

Est. of Airday v. City of New York, No. 14-CV-8065 (VEC), 2022 WL 1265940, at *5–6 (S.D.N.Y. Apr. 28, 2022), aff'd, No. 22-1081-CV, 2023 WL 4571967 (2d Cir. July 18, 2023)