Kleehammer v. Monroe Cnty.

STEPHANIE KLEEHAMMER, Plaintiff,

v.Monroe County and Patrick O'Flynn, Monroe County Sheriff, In His Official and Individual Capacities, Defendants.

09-CV-6177-CJS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: March 20, 2013

DECISION & ORDER

APPEARANCES

For Christina A. Agola, Esq.:

Paul Cambria Jr., Esq.

For Howard A. Stark, Esq. &

Jennifer M. Sommers, Esq.:

Michele Romance Crain, Esq.

Assistant Monroe County Attorney

INTRODUCTION

Siragusa, J. This case is before the Court for a determination under Federal Rule of Civil Procedure 11. In its Decision and Order, Nov. 27, 2012, ECF No. 42, granting Defendants' summary judgment, the Court, sua sponte, directed Christina A. Agola, Esq., to show cause why sanctions should not be imposed. For the reasons stated below, the Court, after conducting a hearing, determines that Christina A. Agola, acting in bad faith, violated Rule 11.

BACKGROUND

A brief procedural history of the case is of assistance in providing context for the matter presently before the Court. Plaintiff's complaint, filed April 16, 2009, ECF No. 1, alleged six causes of action. The FIRST alleged a hostile work environment claim pursuant to Title VII of the Civil Rights Act of 1964, as amended. The SECOND alleged a hostile work environment claim pursuant to New York State Human Rights Law, Executive Law Section 290 et seq. The THIRD alleged retaliation in violation of Title VII. The FOURTH alleged retaliation in violation of New York law. The FIFTH alleged sexual harassment in violation of the Equal Protection clause pursuant to 42 U.S.C. § 1983. The SIXTH alleged a Monell¹ claim, pursuant to 42 U.S.C. § 1983.

By Decision and Order entered on September 30, 2010, ECF No. 16, the Court granted Defendants' motion for judgment on the pleadings as to all but the two retaliation claims. In allowing the retaliation claims to go forward, the Court wrote:

At oral argument, however, Plaintiff's counsel represented that the basis for her client's claim was not the letter from Sommers, but something else. Defense counsel was unaware of anything other than the Sommers letter that could be construed as retaliatory and the Court determined that the Sommers letter is too remote in time and insufficiently adverse ... for a plausible basis for a retaliation complaint under either Federal or State law. In the complaint, Plaintiff alleges that, "defendant [sic] has denied Plaintiff Z time² and has otherwise compelled her to return to work under the threat of discipline despite the fact that she remains on leave due to a compensable worker's [sic] compensation claim." (Compl. ¶ 45.) The Court inquired of Plaintiff's counsel about any further factual information, since she denied that the Sommers letter formed any basis for this retaliation claim, but counsel knew nothing but what was alleged in the complaint. Though bare of amplifying factual allegations, Plaintiff's complaint, does allege that she engaged in a protected activity, and doesallege that as a result of engaging in a protected activity she suffered an adverse action through the denial of Z time and through being required to return to work notwithstanding her alleged disability. Therefore, the complaint meets the standard set by Twombly and Iqubal with regard to the Third and Fourth causes of action. Accordingly, Defendants' motion to dismiss must be denied with regard to the Third and Fourth causes of action.

Decision and Order at 18-19. "Sommers" refers to Jennifer M. Sommers, the Sheriff's Counsel. Appearing for Ms. Agola at oral argument was her employee, Seeta Persaud, Esq., then a member of the Agola law firm. However, the papers submitted in opposition to Defendants' motion for judgment on the pleadings, including a declaration, memorandum of law, and certificate of service, were signed by Christina A. Agola, Esq. Also included in the Court's decision was the following:

The Court cautioned counsel on the record that she needed a good faith basis for pleading the retaliation claim, especially since she denied that the Sommers letter was the basis for that claim. The Court repeats that Federal Rule of Civil Procedure 11 requires all counsel, as officers of the court, to make only those claims that are supported by a good faith factual basis. In that regard, the Court reminds counsel that:

By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation ordiscovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. P. 11(b). After the 1983 amendment, which added the language requiring a reasonable inquiry on the part of an attorney, the Second Circuit, in Eastway Const. Corp.v. City of New York, 762 F.2d 243 (2d Cir. 1985), wrote that,

[i]n light of the express intent of the drafters of the new Rule 11, and the clear policy concerns underlying its amendment, we hold that a showing of subjective bad faith is no longer required to trigger the sanctions imposed by the rule. Rather, sanctions shall be imposed...against an attorney and/or his client when it appears that a pleading has been interposed for any improper purpose, or where, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.

Eastway Const. Corp., 762 F.2d at 254. The Court will not hesitate to consider sanctions if warranted.

Decision and Order at 19-20, Sept. 30, 2010, ECF No. 16.³ The point the Court is trying to make in relating the procedural history, prior to Defendants' summary judgment application, which gave rise to this sanctions inquiry, is this: In the context of this specific case and the remaining retaliation claims, Ms. Agola was explicitly placed on notice of the requirements of Federal Rule of Civil Procedure 11, and cautioned about the importance of adhering to such requirements.

Subsequently then, on March 29, 2012, ECF No. 25, Defendants brought a motion for summary judgment on the two remaining retaliation claims. In opposing Defendants' application for summary judgment, Ms. Agola essentially argued that Ms.Sommers' explanation that Plaintiff was denied 207-c benefits because she did not file a requisite MB #4 form was, pretextual. More specifically, Ms. Agola filed a supplemental declaration, October 19, 2012, ECF No. 38, in which she swore, in relevant part, that:

6. Rather, the pertinent facts established here by Plaintiff, and not controverted by the Defendants, establish the following in support of Plaintiff's retaliation claims:

a. Plaintiff was denied section 207-c benefits, ostensibly because she failed to complete and submit a "form MB#4" (which, as shown below, is not a valid reason for denial)....

Agola Supp'l Dec'l ¶ 6. In support of her argument that Sommers' basis for denial was pretextual, Ms. Agola referenced a case before the Honorable David G. Larimer of this Court, in which she represented another Sheriff's Deputy, Sergeant Thomas Zembiec. In that regard she stated the following in her supplemental declaration filed in this case:

15. As an example, this firm represents Thomas Zembiec, a deputy sheriff employed in the jail bureau (like Plaintiff in this action) with respect to Mr. Zembiec's pursuit of section 207-c benefits.

16. I have personally represented Mr. Zembiec in all related legal proceedings relative to his application for 207-c benefits and am fully familiar with the pertinent facts and circumstance of the same.

17. In Mr. Zembiec's case, Dr. Shmigel issued an employee work status report for Mr. Zembiec in which he indicated Mr. Zembiec "May NOT Return to Work." See Exhibit "C".

18. Pursuant to Dr. Shmigel's determination that Mr. Zembiec could not return to work, I submitted on Mr. Zembiec's behalf a letter on December 4, 2009 to then-Undersheriff Gary Caiola, requesting section 207-c benefits. A true and correct copy of the December 4, 2009 letter is annexed hereto as Exhibit "D".

19. Prior to applying for section 207-c benefits, Mr. Zembiec (who had been out of work for months) did not complete a form MB #4.

20. The Sheriff's Department did not respond to my December 4, 2009 written request for section 207-c benefits for Mr. Zembiec, so I submitted another letter, to then-Undersheriff William Sanborn, on July 13, 2010, again reiterating my request for section 207-c benefits as originallyrequested on December 4, 2009. See Exhibit "E".

21. The Sheriff's Department responded in the form of a July 19, 2010 letter from the Sheriff's counsel, Jennifer M. Sommers, to me in which Ms. Sommers denied Mr. Zembiec's application for section 207-c benefits. A true and correct copy of Ms. Sommers' July 19, 2010 letter is annexed hereto as Exhibit "F".

22. In her July 19, 2010 letter, Ms. Sommers cited various reasons why the Sheriff's Department was denying Mr. Zembiec's application for section 207-c benefits, including the following: fitness for duty "is not dispositive relative to GML §207-c benefits"; the fact certain prior request(s) for benefits had been denied by N.Y. State Supreme Court Justice

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