Employment Law Daily Denied dismissal of former assistant AG’s disability bias action not immediately appealable
Tuesday, February 9, 2016

Denied dismissal of former assistant AG’s disability bias action not immediately appealable

By Cynthia L. Hackerott, J.D. A federal district court’s denial of a state governmental entity’s motion to dismiss the disability discrimination claim of a former employee did not qualify as an immediately appealable order under the collateral order doctrine, the Second Circuit ruled. The district court had rejected the employer’s arguments that the employee’s complaint should be dismissed for lack of subject matter jurisdiction pursuant to the federal Government Employee Rights Act of 1991 (GERA), finding that the employee did not work at a policymaking level, and therefore, GERA was not applicable to her claims. On appeal, the employer argued that GERA is akin to immunity provisions and thus, a ruling regarding GERA, like that regarding immunity provisions, would qualify as an immediately appealable order under the collateral order doctrine. But, the Second Circuit disagreed (Fischer v. New York State Department of Law, February 5, 2016, Kearse, A.). For over a decade beginning in November 1999, the plaintiff, an attorney, was employed as an Assistant Solicitor General (ASG) in the Office of the Attorney General of the State of New York (OAG) in its Division of Appeals and Opinions. In 2003, after being counseled by her supervisors about her attendance and her failure to timely submit briefs to OAG reviewers, she informed them that she suffered from Chronic Fatigue Syndrome, which interfered with her work. As an accommodation, her supervisors allowed her to work at home for up to three days a month. The accommodation was originally for a three-month period but was repeatedly renewed during the next seven years. In the spring of 2011, the OAG terminated her employment. District court rulings. In 2012, the plaintiff sued the OAG, an entity that, at all relevant times, was receiving federal financial assistance under Section 504 of the Rehabilitation Act of 1973. She alleged that when she requested a further extension of the accommodation in October 2010, the OAG did not grant it and never responded or communicated with her about her request. The lack of continued accommodation, together with an increased workload, caused her condition to deteriorate, she alleged, and in March 2011 she went on an unpaid medical leave; while she was on that leave, the OAG terminated her employment. Following nearly a year of discovery, the OAG moved for summary judgment, which the district court denied finding that there were genuine issues of fact as to whether an accommodation had been granted in 2010 and whether, with a reasonable accommodation, the plaintiff could perform the essential functions of her ASG job. About two months later, the OAG unsuccessfully moved to dismiss the case for lack of subject matter jurisdiction, arguing that GERA required her to pursue her claim initially through administrative agencies, with a right of review in a federal court of appeals, rather than initiating suit in the district court. GERA. GERA applies to any individual chosen or appointed, by a person elected to public office in any state or political subdivision of any state by the qualified voters thereof: (1) to be a member of the elected official's personal staff; (2) to serve the elected official on the policymaking level; or (3) to serve the elected official as an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. Here, the plaintiff had been appointed by New York State's Attorney General, an elected official. The OAG asserted that as an ASG who made recommendations as to what courses of action should be pursued, determined various positions to be taken in an appeal, and drafted opinions that were issued to state agencies and local governments, the plaintiff was employed in a policymaking position. As such, the OAG argued, she was required to initiate her claim before the appropriate administrative agency, which would be the EEOC. Nature of ASG position. The record indicated that there were numerous ASGs working for the OAG in the Division of Appeals and Opinions and that there were at least two levels of management between the plaintiff and the Attorney General. Specifically, the plaintiff reported to a Deputy Solicitor General, who served under the Solicitor General, who, in turn, was appointed by the Attorney General. The plaintiff herself had no supervisory or management authority. A policy question would normally be directed by the Attorney General to the Solicitor General; an ASG would receive an assignment to research or write on such an issue from the Solicitor General; and if an ASG were called on to make a presentation on the issue to the Attorney General, the ASG would be accompanied by the Solicitor General or another supervisor. Moreover, an ASG's briefs and opinions were reviewed by the Solicitor General or at least one Deputy Solicitor General. Therefore, the district court denied the OAG’s motion, concluding that the plaintiff could not properly be considered a policymaker. The OAG appealed from that decision, and the plaintiff, noting that there has been no final judgment, moved to dismiss the appeal for lack of appellate jurisdiction. Opposing the motion, the OAG cited the collateral order doctrine. Collateral order doctrine. Under the collateral order doctrine, the order at issue must: (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment. The collateral order doctrine, the Second Circuit pointed out, has been held not applicable to permit immediate appeal of decisions denying motions to dismiss on the ground that the plaintiffs' claims should be adjudicated in a different forum. Accordingly, the Second Circuit determined that it need not decide whether the first two of the requisite conditions for appealability under the collateral order doctrine were met, because it concluded that the third was not met; the order rejecting the OAG's contention—that the plaintiff’s claim can be pursued only by commencement of an administrative proceedingcould be effectively reviewed on appeal from a final judgment. GERA is not like immunity. The OAG noted the immediate appealability of district court decisions denying absolute or qualified immunity to a sued government official or refusing to recognize the sovereign immunity of states and foreign nations, and argued that, because the plaintiff’s suit impinges on the OAG's "dignitary" interests, its claim that GERA deprives the district court of jurisdiction over the plaintiff’s suit is similar to a claim that a government officer is entitled to qualified immunity, or that a state government is entitled to Eleventh Amendment immunity. But the Second Circuit noted that this argument would equate a direction that there be no suit at all with a direction that suit be brought in a particular forum. In addition, neither the history and purposes of GERA nor the procedures employed under GERA are designed to provide state employers with an entitlement not to stand trial or face the other burdens of litigation. Indeed, GERA removed the states' previous exemptions from Title VII suits brought by the categories of employees covered under GERA, which the Second Circuit referred to as “special level employees.” Thus, as to Title VII actions, GERA “is the very antithesis of an immunity statute” in regard to the employees covered by it, the Second Circuit observed. Moreover, the Rehab Act has never provided an exemption for special level appointees, the court pointed out. Finally, although the OAG states that GERA provides "a special procedure” for adjudicating the claims of a state's special-level appointees, the administrative proceeding in fact strongly resembles civil litigation in federal court, as state defendants are neither excused from participating in pretrial discovery, motion practice, and trial, nor spared the possibility of being held liable and ordered to provide substantial relief, the Second Circuit noted. Accordingly, GERA's forum change for claims of disability discrimination, contrary to the OAG's assertions, does not provide the state with a status anything like immunity. Because there was no important interest such as immunity at issue, the district court’s ruling that it has subject matter jurisdiction—based on its assessment that the plaintiff was not employed at a policymaking level—could be adequately reviewed on appeal from the final judgment in the action, the Second Circuit held. The right to be sued only in a particular forum is not sufficiently important to overcome the policies militating against interlocutory appeals, the court concluded, even when the right not to be tried in a particular court has been created through jurisdictional limitations established by Congress.

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