Fourth Department sustains $500,000 retaliation verdict

The Appellate Division, Fourth Department, has sustained a retaliation verdict in favor of a state corrections employee who was disciplined and sent off to work in Siberia after he spoke out on malfeasance at the department.

The case is Montgtari v. State of New York, issued on July 24. I briefed the appeal. A.J. Bossan, who also tried the case, argued the appeal. 

Plaintiff was a Captain of the New York State Department of Corrections and Community Supervision and a Deputy Chief of the Sex Crimes Unit (SCU) of the Office of Special Investigations. When plaintiff became the Deputy Chief, he reported overtime abuses and failure to properly investigate allegations concerning sex crimes and/or harassment. He claimed that, in retaliation for this speech, he next suffered harassment, including an administrative suspension, disciplinary charges based on false and manufactured charges, and a disciplinary suspension. After a Civil Service Law § 75 hearing, a hearing officer found that plaintiff was responsible for speeding on the Thruway, but otherwise found that all remaining charges were not sustained. Others in the department would also speed on the Thruway on company time but suffered no punishment.

Although the Hearing Officer recommended that plaintiff be restored to his position of Deputy Chief of the SCU, Annucci reassigned plaintiff to a correction facility that was more than three hours from plaintiff's residence. 

Thew jury returned verdicts in plaintiff's favor on the equal protection and First Amendment claims. The First Amendment verdict is sustained because the complaint asserts that plaintiff spoke on matters of public concern. The equal protection rationale is more complicated. The Fourth Department notes that the U.S. Supreme Court has held that government employees cannot bring "class-of-one" plaintiffs in the equal protection contest. That was the Engquist case from 2008. Class-of-one claims involve the plaintiff arguing they suffered governmental abuse or misconduct so awful that the plaintiff does not need to show he belongs to a protected class of individuals; hence the class-of-one. But there is a split in the Second Circuit on whether government employees can pursue selective enforcement claims, where you are singled out while the government looks the way for other wrongdoers. The Fourth Department adopts the reasoning in cases holding that you can bring such a lawsuit, reasoning:

We note that the Second Circuit has left open that question (see Hu v City of New York, 927 F3d 81, 100 n 5 [2d Cir 2019]) and that there is a split of authority in the district courts, as the parties here recognize (see Alaei v State Univ. of New York at Albany, 2024 WL 2941735, *15 [ND NY, June 11, 2024, No. 1:21-cv-00377(BKS/TWD)]). We are persuaded by the reasoning in Airday v City of New York (2020 WL 4015770, *2-6 [SD NY, July 16, 2020, No. 14-CV-8065 (VEC)]) that selective-enforcement claims survive after Engquist.

Defendants -- some of them the highest ranking officials in the New York correctional system -- also invoked qualified immunity. While they waived that (and other) arguments by not asserting them at trial, even if preserved, that objection fails because the Second Circuit held in 1980 that malice-based selective enforcement claims may be brought under the Equal Protection Clause making this principle clearly-established for qualified immunity purposes.