The New York Law Journal by Daniel Wise - April 30, 2009
An attorney who was fired after working six years as a staff lawyer at the 1st Department's disciplinary committee may proceed with a $10 million damage lawsuit that she was discharged in retaliation for claiming her superiors were "whitewashing" cases, a Southern District of New York judge ruled Monday. However, the judge, Shira A. Scheindlin, threw out the attorney's claim that she had been fired because she is black, in ruling on a summary judgment motion brought by the Office of Court Administration. Christine C. Anderson contended that her June 2007 firing was in retaliation for complaints she made to her superiors at the disciplinary committee that at least nine cases had been handled too leniently because the lawyers being investigated were politically connected or were represented by attorneys who had previously worked for the committee (NYLJ, Oct. 30, 2007). Anderson, who was born in Jamaica, also claimed the committee had discriminated against her on the basis of race, color and national origin.
The disciplinary committee operates under the aegis of the Appellate Division, First Department, and Anderson sued the OCA; Thomas J. Cahill, the committee's chief counsel during the years Anderson was employed there; Sherry K. Cohen, who became deputy chief counsel and Anderson's supervisor in 2003; and David Spokoney, the 1st Department's deputy clerk. With the exception of Cahill, who resigned in 2007 after 10 years in the post (NYLJ, July 23, 2007), the other individual defendants remain at their jobs. The 1st Department's disciplinary committee polices the conduct of attorneys practicing in Manhattan and the Bronx.
In allowing Anderson to proceed with her retaliation claim, Scheindlin found that her contention that the committee had "whitewashed" as many as nine cases touched upon a subject of public concern and was protected under the First Amendment. A jury will have to determine whether the defendants fired Anderson because of the concerns she raised or because she had been insubordinate, as the defendants contend, Justice Scheindlin concluded in Anderson v. State of New York, 07 Civ. 9599. Scheindlin noted that Anderson in a "host" of e-mails had made "evident" her "hostility toward" and "refusal to cooperate" with Cohen, her supervisor. Nonetheless, Scheindlin ruled that "a reasonable jury could find that the defendants refused to remove Cohen as Anderson's supervisor so they could use Anderson's inevitable resistance to Cohen's continuing supervision as a pretext for firing her."
PRECEDENT DISTINGUISHED
In concluding that Anderson's complaints touch upon matters of public concern, Scheindlin rejected OCA's argument that Garcetti v. Ceballos, 547 U.S. 410, a 2006 U.S. Supreme Court precedent, was controlling. The attorney general's office, which represented OCA and the individual defendants, contended that Anderson's First Amendment claim must be rejected under the authority of Garcetti. The Supreme Court rejected a First Amendment retaliation claim brought by a deputy district attorney who claimed he was fired because he recommended the dismissal of a case. The prosecutor had urged dismissal because a flawed affidavit was used to obtain a search warrant. Rather than raising an issue of public concern, Justice Anthony M. Kennedy wrote in a 5-4 ruling in Garcetti that the prosecutor was acting as a public employee with regard to an internal matter when he "fulfill[ed] a responsibility to advise his supervisor about how best to proceed with a pending case." Scheindlin found Anderson's case to be "patently distinguishable" from Garcetti. "The prosecutor in Garcetti spoke about a single case pending in his office," she wrote, while "Ms. Anderson spoke out about systemic problems at the [disciplinary committee], thereby making her speech protected." "Where a public employee's speech concerns a government agency's breach of trust, as it does here," she wrote, "the speech relates to more than a mere personal grievance and therefore falls outside Garcetti's restrictions."
DISCRIMINATION CLAIMS FAIL
Scheindlin found that none of the three remarks that Anderson alleged Cohen made had any bearing on her bias claims. One alleged remark -- that the homeless are "smelly" -- did not reflect upon a group protected by federal civil rights laws, the judge ruled. The other two alleged comments -- that there are too many blacks in the subway and blacks were moving near Cohen's vacation home -- were not "directed" at Anderson, "unrelated to her discharge" and allegedly uttered about one year before her firing, Scheindlin wrote.
Anderson also presented deposition testimony from three present or former minority employees who had expressed views that Cohen was biased. Two of those witnesses, one of whom was a lawyer, expressed views that reflected subjective beliefs that are "devoid of any factual circumstances linking Cohen to any discriminatory conduct," Scheindlin found. The testimony of the third minority witness, Kenneth Van Lew, an investigator who left the office at the time of his deposition, provided "concrete instances in which he believes he was treated less favorably by Cohen than similarly situated Caucasian employees," Scheindlin wrote. But even though Van Lew's testimony provided "some credible evidence" of discrimination, the bias-based claims had to be dismissed, Scheindlin concluded, because "there is simply no evidence" that any alleged bias had tainted the decision of the ultimate deciding authority, the 1st Department's justices serving upon the court's Departmental Disciplinary Liaison Committee. The state defendants were represented by Assistant Attorneys General Lee A. Alderstein and Wesley E. Bauman. The attorney general's office did not respond to a request for comment. Anderson was represented by John A. Beranbaum of Beranbaum Menken Ben-Asher & Bierman.
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