First Department reinstates retaliation claim arising from Cuomo sexual harassment investigation

The Appellate Division First Department has ruled that an attorney who was fired from his position with Gov. Cuomo's office may proceed with a retaliation claim arising from his testimony to the Attorney General's office that corroborated the sexual harassment allegations that led to Cuomo's resignation.

The case is Herskowitz v. State of New York, issued on December 28. I briefed and argued the appeal.

Plaintiff testified on April 1, 2021. The AG's report on Cuomo issued in August 2021. A few days later, plaintiff was fired after the Governor's office determined, after a half-elbowed investigation, that plaintiff had engaged in sexual harassment. Although the First Department ruling does not explicitly say so, the sexual harassment allegations against plaintiff were quite weak: he asked a female coworker (identified as EA in the case) for her phone number for work-related reasons, and when she said that Cuomo had not harassed her, plaintiff jokingly said that her testimony in the AG's investigation might have cleared the governor. The First Department does say the allegations against plaintiff were "questionable."

The lower court dismissed the retaliation claim, ruling that the complaint did not assert a causal connection between plaintiff's April 1, 2021 testimony and his termination in August 2021. The First Department sees it differently, ruling as follows:

1. Pleading standards in state court are more lenient than in federal court. "Plaintiffs in retaliation cases are held to a lenient notice pleading standard and are generally afforded deference at the pleading stage." Language like this is not found in federal rulings, which rely on the Iqbal standard, which requires "plausible" and non-conclusory allegations.

2. Timing is one way to make out a prima facie case of retaliation. Citing federal cases, the First Department says, "Courts have not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action. This has allowed [the Second Circuit] to exercise its judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases.” The four-month period between plaintiff's testimony and his termination is enough to prove causation. I recall upon briefing this issue that cases in the state system were all over the place on how long is too long to infer causation. The First Department does not settle upon a fixed time period, but it says four months is enough.

3. We also consider whether the employer waited for the right time to retaliate. Federal cases have said this but I have not seen this language in a state appellate ruling. "When analyzing the timing and context of retaliatory actions, courts also consider whether the employer 'waited to exact [its] retaliation at an opportune time' in order to have an explanation for the action."

4. Also consider the size of the employer and whether that might slow down the retaliation apparatus. "'Questions regarding the time gap and causal connection of an alleged retaliatory termination may entail special consideration of the size and complexity of a defendant employer, where termination of employment may involve multiple levels of decisionmakers, as well as the nature of plaintiff’s claims.'”

5. The First Department also considers other factors suggesting that management cut corners to fire plaintiff. Shortly after plaintiff spoke with his coworker about the governor's sexual harassment, he was questioned by the Governor's Office of Employee Relations about his comments, which as noted above, hardly constituted sexual harassment. I framed this issue as a deviation from procedural regularity to prove retaliatory intent. The First Department did not use that phraseology, but it agrees that the sequence of events was suspicious.

During this interview, the GOER officer disregarded plaintiff’s attempts to contextualize the complained-of actions, his friendly working relationship with the EA, and his recollection of a previous, highly inappropriate sexual comment made by the EA.

Plaintiff received a notice of termination for violating the Executive Chamber’s sexual harassment policy on August 12, six days after the GOER interview and only nine days after the AG Report and interaction with the EA. Plaintiff was terminated on August 25; defendant provided plaintiff with a box containing his belongings, which contained a handwritten note stating that he “had it coming.” Finally, to date defendant has not responded to plaintiff’s November 2021 FOIL request for his personnel records or issued a determination regarding his August 23, 2021 complaint to GOER regarding its rushed investigation and disproportionately heavy punishment to the conduct alleged, effectively stonewalling plaintiff’s attempts to obtain defendant’s justification for his termination.