Sep 25


Appellate court reinstates OTB ‘whistleblower’ lawsuit

Former executive had sued, claiming he was fired after cooperating with investigators looking into allegations of wrongdoing at the state public benefit corporation.

A federal appeals court has overturned a lower court’s decision and reinstated a lawsuit filed by a former executive of the Western Regional Off-Track Betting Corp. who claimed he was fired after he agreed to cooperate with state and federal investigators who were examining the inner-workings of the organization. 

In a ruling issued Monday, U.S. Second Circuit Court of Appeals determined that U.S. District Court Judge William Skretny erred in his October decision to dismiss as untimely the lawsuit filed by former OTB Chief Operating Officer Michael Nolan.

In his earlier ruling, Skretny determined that Nolan’s claims of First Amendment retaliation were “time barred” as they were filed last August despite the alleged retaliation occurring before April 30, 2019. According to the judge’s ruling, the lawsuit fell outside a statute of limitations requiring such claims to be filed within one year and 30 days from the date of the first alleged incident.

In vacating and reversing the lower court’s dismissal, the U.S. Second Circuit Court of Appeals found that the district court applied the incorrect statute of limitations and determined that Nolan’s August 2021 complaint was timely because he alleged retaliatory conduct beginning in 2019. 

“Accordingly, the district court erroneously dismissed Nolan’s 1983 claims on statute-of-limitations grounds,” according to the decision from the appeals court.

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Nolan was employed at OTB for nearly three decades before he was dismissed in December 2020. His lawsuit argued that the experience caused him significant “emotional distress” and personal financial cost.

The lawsuit singled out OTB’s President Henry Wojtaszek and the organization’s former board chairman Richard Bianchi, contending they “swiftly, aggressively, and austerely” retaliated against Nolan for cooperating with investigators and testifying before a grand jury. As a result, Nolan said he was wrongfully denied a raise, forced to work weekends and stripped of various responsibilities, including his role as OTB’s Freedom of Information officer.

Nolan’s lawsuit seeks $14.5 million compensation. He also asked the court to reinstate him to his old job.

Nolan’s attorney, Steven Cohen, told The Buffalo News: “Despite Henry Wojtaszek’s political influence, we will see to it that he, Mr. Bianchi and the Western Regional Off-Track Betting Board of Directors are brought to justice and Michael Nolan is made whole.”

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Wojtaszek and other OTB officials previously characterized the claims in Nolan’s lawsuit as “baseless” and as a “frivolous attack” by a former employee with an “ax to grind.”

On Monday, Aaron Saykin, an attorney who is defending OTB against Nolan’s lawsuit, said the summary order from the Second Circuit was “not a surprise at all” and that his office had been expecting the ruling since January.

Soykin said the appeals court decision only affects one basis to dismiss one of the claims filed by Nolan and he noted that OTB has asserted multiple bases to dismiss all of the claims, which have yet to be considered.

In its decision, the appeals court ruled that it will be up to Skretny to consider the “alternative grounds for dismissal.” 

“We are very encouraged that the second circuit remanded the case to the district court to consider all of those other bases, which we feel are very strong,” Soykin said.

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