Gairy v. The City of New York

• Court: District Court, E.D. New York
• Decided: April 4, 2024
• Docket: 1:23-cv-00802
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ALEXUS GAIRY, Plaintiff, MEMORANDUM & ORDER 23-CV-00802 (NGG) (SJB) -against- THE CITY OF NEW YORK, et al., Defendants. MORRIS LEWIS, Cross Claim Plaintiff, -against- THE CITY OF NEW YORK, et al., Cross Claim Defendants.

MORRIS LEWIS, Third-Party Plaintiff, -against- JERMAINE PHILLIPS, et al., Third-Party Defendants.

NICHOLAS G. GARAUFIS, United States District Judge. Before the court is Defendant Morris Lewis’s second application for a preliminary injunction. (See Not. of Mot. (Dkt. 48); Mem. in Support of Mot. (‘Mot.”) (Dkt. 48-2); Supp. to Mot. (Dkt. 49).) Plaintiff Alexus Gairy has filed a response in opposition to Lewis’s application, (see Gairy Opp. (Dkt. 54)), as have Defendants the City of New York and the New York City Department of Correc- tions (collectively the “City Defendants”). (See City Defs.’ Opp. (Dkt. 53).) For the reasons discussed below, Lewis’s application is DENIED.

I. BACKGROUND The court assumes familiarity with the background of this action brought by Plaintiff Alexus Gairy against the City Defendants, Morris Lewis, and Seeta Doechan alleging gender discrimination and retaliation in violation of various anti-discrimination and re- taliation provisions of federal, state, and local law. (See Compl. (Dkt. 1) 119-198.) On September 14, 2023, Defendant Lewis filed a motion for in- junctive relief wherein he sought to enjoin the pendency of a proceeding before the Office of Administrative Trials and Hear- ings (“OATH”) relating to allegations brought by Gairy, and two non-party individuals, Anne Cronin and Laurice Williams. (See 2023 Mot. for Preliminary Injunction (Dkt. 30) at 1-3.)+ This court denied Lewis’s motion, concluding that he failed to show evidence of irreparable harm. (See Mem. & Order (“M&O”) dated 10/4/2023 at 6-8.)? Lewis comes now before the court in an attempt to revive his ptior preliminary injunction motion, arguing that this court should “temporarily enjoin[]” the New York City Department of Corrections’ (“DOG”) decision to terminate Lewis’s employment. (Mot. at 2, 7.) While targeted at a different agency, the underly- ing request is effectively the same: Lewis asks this court to enjoin the DOC’s decision for fear of its preclusive effect in this case. (id.) Essentially, Lewis argues that the DOC’s decision to termi- nate him was unnecessary and prejudicial and must therefore be

1 Those non-parties have separate civil actions in this district alleging alle- gations of misconduct by Defendant Lewis. See Cronin v. City of New York, 23-CV-1573 (FB) (LB), (E.D.N.Y. Feb. 28, 2023); Williams v. City of New York, 23-CV-836 (NCM) (PK) (E.D.N.Y. Feb. 3, 2023). 2 Notably, the courts in Cronin and Williams also denied Mr. Lewis’s near identical motions on similar grounds. See Cronin, 23-CV-1573 (FB) (LB), 2023 WL 5831166, at *2-3 (E.D.N.LY. Sept. 8, 2023); Williams, 23-CV-836 (BMC) (PRK), 09/26/2023 Order.

enjoined so that he is afforded his First Amendment right to de- fend himself against the underlying claims here in federal court. Ud. at 7.) Il. DISCUSSION A. Legal Standard A preliminary injunction is an “extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Arm- strong, 520 U.S. 968, 972 (1997).° A district court may grant a preliminary injunction when the plaintiff demonstrates: (1) a likelihood of success on the merits; (2) irreparable harm in the absence of an injunction; (3) a balance of hardships tipping in their favor; and (4) that the public’s interest would not be dis- served by issuance of a preliminary injunction. Salinger v. Colting, 607 F.3d 68, 79-80 (2d Cir. 2010). “Trreparable harm ‘is the single most important prerequisite’ for injunctive relief, and ‘in the absence of a showing of irreparable harm, a motion for a preliminary injunction should be denied.” De Jesus Moreno yv. Nielsen, 460 F. Supp. 3d 291, 297 (E.D.N.Y. 2020) (quoting Upal v. New York State Dep’t of Health, 756 F. App’x 95, 96 (2d Cir. 2019) (Summary Order)). “This element is so critical to the Court’s inquiry that the Court need not reach any of the other requirements necessary for the grant of injunctive relief where irreparable harm has not been demonstrated.” Clark v, Childs, 416 F. Supp. 3d 221, 223 (E.D.N.LY. 2017). B. Analysis As was the case when deciding Lewis’s last motion, the court need not address the other elements for preliminary injunction

3 When quoting cases, and unless otherwise noted, all citations and quota- tion marks are omitted, and all alterations are adopted.

because he has failed to demonstrate that he would suffer irrep- arable harm in the absence of injunctive relief. “TJo satisfy the irreparable harm requirement, plaintiffs must demonstrate that absent a preliminary injunction, they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Faively Transp. Malmo AB y. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009), “Where there is an adequate remedy at law, such as an award of money damages, injunctions are unavailable except in extraordinary circum- stances.” Moore v. Consol, Edison Co. of N.Y., 409 F.3d 506, 510 (2d Cir. 2005). Lewis argues that the instant injunction application is not asking to vacate the DOC’s final decision, but rather to “maintain the status quo.” (Supp. to Mot. at 2.) In so arguing, Lewis claims that the DOC’s decision has “obvious preclusive effect” on the “very issues that are being litigated” in the instant proceedings which thereby deny him the right to defend himself against the under- lying claims. (id. at 3.) As this court explained in its last Memorandum & Order, New York state courts give “quasi-judicial administrative fact-finding preclusive effect where there has been a full and fair opportunity to litigate” and “the issue sought to be precluded [is] identical to a material issue necessarily decided by the administrative agency in a prior proceeding.” Locurto v. Giuliani, 447 F.3d 159, 170-71 (2d Cir. 2006) (internal citations omitted). However, courts in this Circuit have wavered on granting factual findings in OATH proceedings issue preclusive effect. Compare James v. N.Y.C. Health and Hospitals Corp., No. 15-CV-6015 (PAE), 2017 WL 3923675, at *8 (S.D.N.Y. Sept. 6, 2017) (declining to grant issue preclusive effect to findings made during an OATH proceeding) and Cortes v. City of New York, 700 F, Supp. 2d 474, 486 (S.D.N.Y. 2010) (same) with Gonzalez v. City of New York, 442 F. Supp. 3d

665, 693 (S.D.N.Y. 2020), affd, 845 F. App’x 11 (2d Cir. 2021) (granting factual findings in an OATH proceeding issue preclu- sive effect) and Quire v. City of New York, No. 19-CV-10504 (RA), 2021 WL 293819, at *6 (S.D.NY. Jan. 28, 2021) (same).* Now that the OATH proceedings have concluded, Lewis argues that the DOC’s decision to terminate him constitutes a final deci- sion that must be afforded preclusive effect in this action. (Mot. at 5.) And if this is a final decision, Lewis further argues that he would therefore be barred from presenting any defense in this action and Plaintiff would necessarily prevail in the absence of a preliminary injunction. dd.) However, “Lewis’s assertion that his constitutional right to pre- sent a defense may be implicated does not absolve him of his burden to show irreparable harm.” (M&O dated 10/4/2023 at 6.) Indeed, Judge Brian Cogan contemplated—and foreclosed— this exact scenario when denying Lewis's first application for in- junctive relief in a related case in which Lewis is a party. See Text Order dated 9/26/2023 in Williams, 23-CV-836 (BMC) (PK).°

4 (See also M&O dated 10/4/2023 at 5.) 5 Judge Cogan explained: Defendant Lewis claims he will be irreparably harmed by the OATH proceeding because the findings of that body will have pre- clusive effect in this case. Lewis’s motion presents two contrary positions, but neither satisfies the “irreparable harm” standard. First, he says he will prevail in the OATH proceedings. In that case, there would be no irreparable harm. Then, he contradicts himself, saying he will lose before the OATH tribunal because the OATH proceedings are unfair, But if that’s the case, and (as Lewis claims) he is unable to present evidence and defend himself, then the OATH proceeding would have no preclusive effect because this Court is only required to credit OATH?’s fact-finding if that body affords Lewis a “full and fair opportunity to litigate.” Lecurto v. Giuliani, 447 F.3d 159, 170 (2d Cir. 2006). Thus, in neither case

The focus of the present motion is on the findings made during and after the OATH proceedings. In the OATH proceedings, the Administrative Law Judge (“ALJ”), Michael D. Turilli, deter- mined after a four-day trial that the DOC (1) “did not establish that [Lewis] sexually harassed Officer Gairy in late 2020” and (2) “did not establish that [Lewis] retaliated against Officer Gairy by removing her from the [Special Search Team] schedule for one day in March 2021.” (Ex. 4 to Mot. (“OATH R&R”) (Dkt. 48-6) at 31.) The ALJ found that the DOC did, however, establish that Lewis sexually harassed and retaliated against other officers and therefore recommended that Lewis be demoted from captain to correction officer. (Id. at 35-36.) The Commissioner of the DOC, Lynelle Maginley-Liddie, after reviewing the ALJ report, ulti- mately rejected the ALJ’s recommendation to demote Lewis and instead concluded that Lewis must be terminated for what she considered to be repeated misconduct toward female officers. (Ex. 3 to Mot. (“Action of the Comm’r”) (Dkt. 48-5) at ECF 7-8.) Lewis appears to argue that the DOC’s decision to terminate him was all unnecessary overstep that is inextricably linked to find- ings of gender discrimination in the case of Gairy and findings of sexual harassment as to other officers such that he will be pre- cluded from presenting a defense in this action, (Mot. at 2, 4, 8.) In attempting to parse Lewis’s argument, the court first recounts the findings regarding Plaintiff Gairy’s allegations, and then con- siders the DOC’s decision to terminate, rather than demote, Lewis. The ALJ’s findings relate to Gairy because the ALJ found that Lewis “punched Officer Gairy in her injured arm on one oc- casion in October 2020” but there was no evidence to conclude

can Lewis establish that he will suffer irreparable injury in the ab- sence of an injunction. See Salinger v. Colting, 607 F.3d 68, 79-80 (2d Cir. 2010); see also Clark v. Childs, 416 F, Supp. 3d 221, 223 (E.D.N.Y. 2017) Id. (emphasis added).

that the punch was “flirtatious behavior.” (OATH R&R at 20.) Despite this finding, the ALJ concluded that “neither [Lewis’s] comment about her injury nor the context of the interaction es- tablished that the punch to her injured arm was more likely than not based on her gender.” (fd.) The ALJ went further to conclude that this conduct failed to constitute misconduct even under the DOC’s rules. Ud. at 21 n.3.) Moreover, the Commissioner, in jus- tifying Lewis’s termination does not rely on any individual factual findings with respect to Plaintiff Gairy. The Commissioner in- stead discusses the “egregious” behavior of Lewis with respect to conduct aimed at non-party Williams and another officer. (Action of the Comm’r at ECF 8.) Thus, contrary to Lewis’s argument, nothing in the record suggests that the OATH or the DOC deter- minations would be preclusive as they do not appear to relate to gender discrimination as to Plaintiff Gairy. As Judge Cogan pre- dicted, Lewis cannot show irreparable harm where the allegations against him were found to be unsubstantiated. Text Order dated 09/26/2023 in Williams, 23-CV-836 (BMC) (PK). □ Lewis also makes a convoluted argument that attempts to shift the focus to the DOC’s decision to terminate him as creating ir- repatable harm. (Mot. at 4.) Yet, he simultaneously argues that his injunction application is not aimed at annulling the termina- tion, but rather maintaining the status quo by preserving his ability to present a defense in this case. (Supp. to Mot. at 3.) This argument is not clear, but Lewis seems to insinuate that the DOC’s decision to terminate him effectively overrides the findings of the ALJ. In other words, by terminating Lewis, the DOC ig- nored the findings of the ALJ and concluded that Lewis was guilty of all the acts that the three female officers alleged. (See id. at 4.) This argument does not hold water for the reasons already discussed. The Commissioner determined that the substantiated allegations were repeated acts of misconduct and found that ter- mination was appropriate under the circumstances. (Action of the Comm’r at ECF 8.) Without a showing that Lewis lacked a

full and fair opportunity to contest the issues relevant to this case, the court cannot discern how the status quo would support an injunction. Lewis will still be able to raise any defense against Plaintiff Gairy and may even benefit from the findings of the ALJ in mounting said defense. To the extent Lewis is arguing that the termination itself consti- tutes irreparable harm, this too lacks merit. The loss of employment is compensable by monetary damages and therefore does not constitute irreparable harm. See Bagley v. Yale Univ., No. 13-CV-1890 (CSH), 2014 WL 7370021, at *7 (D. Conn. Dec. 29, 2014) (noting that termination of employment, even if discrimi- natory, cannot constitute irreparable harm where the possibility of adequate compensation or other relief is available); see also Oliver v. New York State Police, 812 ¥. App’x 61, 62 (2d Cir. 2020) (“As a general matter, because monetary injury can be estimated and compensated, the likelihood of such injury usually does not constitute irreparable harm.”). Moreover, the fact that Lewis has already been terminated further weighs against injunctive relief because it “suggests that there is, in fact, no irreparable injury.” Citibank N.A. v. Citytrust, 756 F.2d 2.73, 277 (2d Cir. 1985). As Lewis cannot establish irreparable harm, his motion must be DENIED.°

6 In the event this court granted injunctive relief, Defendant Lewis also sought “affordable reasonable accommodation” for injuries sustained dur- ing an inmate assault where the DOC “may attack Mr. Lewis's request for temporary accommodation.” (Mot. at 9.) Because this court declines to grant injunctive relief, this request is also DENIED. The court separately notes that even if the motion were granted, a conclusory and speculative request for accommodation would be wholly insufficient to warrant relief. See Calcano v. Swarovski N. Am. Lid., 36 F.4th 68, 74 (2d Cir, 2022) (“[Alllegations of possible future injury are not sufficient.”) (quoting Am. Civ, Liberties Union v. Clapper, 785 F.3d 787, 800 (2d Cir. 2015)) (empha- sis in original).

Tl. CONCLUSION For the foregoing reasons, Defendant Lewis’s request for a pre- liminary injunction is DENIED.

SO ORDERED.

Dated: Brooklyn, New York April 4, 2024 s/Nicholas G. Garaufis Nik ‘HOLAS G. GARAUFIS United States District Judge