Sanctions Are Recommended for 'Rubber Room' Lawyers
Mark Hamblett, New York Law Journal, 12-13-2010

Sanctions for frivolous or baseless claims have been recommended against two attorneys who sued on behalf of New York City teachers banned to the infamous "rubber rooms" while disciplinary actions against them were pending.

In finding that Joy Hochstadt should be sanctioned $21,000 and Nicholas Penkovsky $7,000, Southern District Magistrate Judge Andrew Peck last week said he regretted that he could not force the two lawyers to pay the New York City Law Department for the time it spent responding to a fourth amended complaint that was riddled with flaws.

While Judge Victor Marrero must still decide whether to endorse the recommended sanction, he signaled his low opinion of the amended complaint in a Nov. 18 opinion.

The plaintiffs' lawyers' allegations were "patently frivolous" Judge Marrero said, including claims that the rubber rooms violate the Thirteenth Amendment's prohibition against involuntary servitude and that the rooms constitute a hostile work environment.

The sanctions arose in Adams v. New York State Education Department, 08 Civ. 5996, a lawsuit filed by several teachers who protested their placement in the rubber rooms, so nicknamed after padded cells in old-style mental hospitals but officially known as "temporary reassignment centers."

The city and the teachers union announced an agreement this summer to put an end to the system, where suspended teachers were placed in the rooms, which were often windowless offices or rooms in trailers, doing nothing on full pay for years while their cases were adjudicated by the Department of Education.

According to media reports, around 600 teachers occupied the rooms, wiling away the work week by, among other activities, playing Scrabble, reading books, doing yoga, running small businesses or just sleeping.

The attorney who filed the initial complaint, Edward Fagan, was disbarred, and the plaintiffs filed a second amended complaint, pro se, in February 2009. Mr. Penkovsky began representing the teachers in September 2009 and Ms. Hochstadt replaced him as counsel for two of the teachers in October 2009.

The second amended complaint was dismissed by Judge Marrero. Mr. Penkovsky and Ms. Hochstadt, both solo practitioners, filed a third amended complaint on May 6, 2010, but Magistrate Judge Peck issued an order one week later telling the lawyers to cure a number of problems with the complaint.

He told them to identify which defendants were being sued in each cause of action, attach their Right to Sue letters from the Equal Employment Opportunity Commission and show which letter applies to which plaintiff and which discrimination claim, and specify which claims they were reasserting merely to preserve appellate rights.

Magistrate Judge Peck also warned the lawyers that Rule 11 sanctions would be imposed if they reasserted claims in a fourth amended complaint that had been "previously dismissed without any additional facts or law."

The fourth amended complaint was filed on June 11 and the Law Department moved to dismiss, saying "imposition of sanctions is amply justified."

Magistrate Judge Peck said in his opinion that Ms. Hochstadt had violated Civil Procedure Rule 11 by arguing that city lawyers had "frivolously" invoked the U.S. Supreme Court decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ascroft v. Iqbal, 129 S. Ct. 1937 (2009), in its motion to dismiss the pleadings even though Judge Marrero and Magistrate Judge Peck had cited those cases as setting forth the proper legal standard.

Magistrate Judge Peck found she reasserted dismissed claims without adding anything new, including the fact that she pressed a race discrimination claim under the Thirteenth Amendment despite the fact the lawyers were explicitly warned "there is no direct private right of action pursuant to the Thirteenth Amendment."

Magistrate Judge Peck said Ms. Hochstadt, despite clear law to the contrary, asserted Americans with Disabilities Act claims against individuals when only the employing entity can be sued. He said that she reasserted a hostile work environment claim on the same basis as the one that had been dismissed by Judge Marrero—failing to allege a causal connection between plaintiffs' membership in a protected class and the "hostile" conditions in the rubber rooms.

Mr. Penkovsky, he said, also violated Rule 11 by reasserting hostile work environment claims "without setting forth new facts, or legal analysis, supporting such claims."

Following his order to both attorneys to show cause why they should not be sanctioned, Mr. Penkovsky filed a brief arguing against the imposition of sanctions.

But Ms. Hochstadt, who had already been denied an extension of time, wrote a letter to Magistrate Judge Peck on Nov. 2 asking him to reconsider.

"Bizarrely," he said in his opinion, "Hochstadt stated that although she signed the fourth amended complaint, she 'had no part in writing' it, and was 'shocked' when she 'later reviewed what Penkovsky had affixed [her] name to, with implied, but not explicit authorization.'"

On Nov. 4, the magistrate judge denied her request and said he took her letter as "an admission of guilt."

Judge Marrero followed on Nov. 18 with his adoption of the recommendation that the fourth amended complaint be dismissed—complete with a long list of reasons that Magistrate Judge Peck said in his Dec. 8 opinion are "of particular import to the instant recommendation that Rule 11 sanctions should be imposed."

As to Mr. Penkovsky, Magistrate Judge Peck cited his "persistence in continuing to advance the frivolous hostile work environment claim, thereby unnecessarily wasting significant judicial and defense counsel resources."

And for reasserting claims "without any basis in law or in fact" that were already "frivolous and unsupportable in the first instance," he said Ms. Hochstadt "warrants the imposition of a severe monetary sanction."

The judge took a particularly dim view of her defense in the November letter, when she said "I should not be sanctioned for a complaint I had no part in writing," which he said violated "Rule 11's certification requirement."

Ms. Hochstadt made matters worse for herself because she followed an Aug. 6 conference with the judge by continuing to reassert claims that Mr. Penkovsky had voluntarily withdrawn with respect to his clients.

"In this regard, Hochstadt's conduct is much more flagrant than Penkovsky's; it is highly indicative of subjective bad faith and improper motive," he said.

Neither Mr. Penkovsky nor Ms. Hochstadt returned calls for comment.