Trials & Litigation

Former Biden judicial pick faces possible sanctions for alleged 'countless hours wasted' in bias case

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An assistant New York attorney general who was once nominated for a federal judgeship is defending his litigation decisions after a federal judge ordered him to show cause why he shouldn’t be sanctioned.

The assistant attorney general, Jorge Alberto Rodriguez, says he shouldn’t be faulted for seeking dismissal of the remaining claim in a health care worker’s bias lawsuit less than two weeks before the scheduled trial date. Rodriguez sought dismissal based on a failure to exhaust administrative remedies; the judge said the issue should have been raised sooner.

President Joe Biden nominated Rodriguez to the U.S. District Court for the Northern District of New York in July to fill the seat that would be vacated when U.S. District Judge David N. Hurd took senior status.

But Hurd rescinded his decision because of fears that Rodriguez would not sit in the courthouse in Utica, New York. Hurd stuck to his decision, even after receiving assurances that this replacement would indeed sit in Utica.

Rodriguez’s nomination will expire at the end of the year, according to the Albany Times Union, which covered the sanctions litigation.

Rodriguez’s potential sanctions stems from litigation involving health care worker Mario Zaja, who was fired in December 2018 by SUNY Upstate Medical University/Upstate Healthcare Center. Rodriguez sought dismissal of Zaja’s claim Nov. 3 because the fired worker didn’t file his complaint with the Equal Employment Opportunity Commission in time.

U.S. District Judge Mae D’Agostino of the Northern District of New York granted the dismissal but said in a Nov. 9 show-cause order Rodriguez shouldn’t have waited so long.

D’Agostino said Rodriguez was responsible for “countless hours wasted” while representing SUNY Upstate Medical University/Upstate Healthcare Center against a civil rights suit.

“This case began over two years ago, and AAG Jorge A. Rodriguez has been representing defendant for more than two years,” D’Agostino wrote.

“By failing to file a motion on this dispositive issue earlier, the attorney general’s office not only wasted their own time and resources but also wasted plaintiff’s counsel’s time and resources and this court’s time and resources,” D’Agostino wrote.

The New York attorney general’s office responded Nov. 22 that it didn’t include the exhaustion argument earlier because the date that the claim accrued was in dispute. The office also relied on “unequivocal representations” in the suit that it met all conditions needed to sue, the response said.

In addition, the defense did not at any point receive a copy of the EEOC charge filed by the plaintiff, Rodriguez said in a declaration submitted with his office’s response.

After D’Agostino dismissed other discrimination claims by the plaintiff, it became clear that there was only one remaining claim of retaliation, and the plaintiff did not file a claim with the EEOC within the required 300-day window, Rodriguez said in his declaration.

D’Agostino hadn’t issued a decision on sanctions by Nov. 28.

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