2d Department holds operating room abuse is not an "adverse employment action"

The Appellate Division Second Department has issued its first decision interpreting the Supreme Court's ruling in Muldrow v. City of St. Louis, which two years ago relaxed the standard for "adverse actions" in employment discrimination cases. In this ruling, the Court finds that a doctor who physically abused and verbally assaulted a nurse during an operating room procedure did not subject the plaintiff to an adverse action under Section 1983.

The case is Chamale-Eustace v. SUNY Stony Brook, issued in January 21. I briefed and argued the appeal. In Muldrow, 601 U.S. 346 (2024), the Supreme Court rejected the rule that adverse actions must materially alter the terms and conditions of the plaintiff's employment. Instead, the Supreme Court said, the plaintiff need only prove the defendant subjected her to "some harm respecting an identifiable term or condition of employment." The harm need not be significant or even material, but the adverse action “must have left [the plaintiff] worse off.” Put another way, the plaintiff must show the employer's actions “brought about some ‘disadvantageous’ change in an employment term or condition.” This language draws from Muldrow.

In this case, the plaintiff alleged as follows:

On or about August 14, 2021, the plaintiff, a female surgical technologist employed by the defendants State University of New York at Stony Brook, Stony Brook University Hospital, and Stony Brook Medicine, assisted in a surgery performed by the defendant Matthew Berchuck, a surgeon employed by the Stony Brook defendants. 

The plaintiff alleged that during the surgery, Berchuck, inter alia, struck the plaintiff in the arm with a closed fist while holding a surgical instrument, threw surgical instruments and needles at her, and screamed and cursed at her. In addition, the plaintiff alleged that Berchuck belittled other female staff members who were assisting in the surgical procedure, but he did not treat male staff members in a similar manner. Further, the plaintiff alleged that the Stony Brook defendants were aware of and failed to address similar incidents of misconduct by Berchuck in the past. 

The Appellate Division rules that, as asserted in the complaint, these allegations do not establish an adverse employment action. In support of this holding, the Second Department cited inter alia Franco v. City of New York, 2025 WL 964014 (E.D.N.Y. 2025), which held that the plaintiff's allegations in that case -- repeated acts of sexual assault -- sounded more like a hostile work environment than disparate treatment and therefore Muldrow did not apply. The other citations in support of this holding predate Muldrow and applied the now-rejected "materiality" test.

Another holding is that the defendant cannot be sued as an "aider and abettor" under the New York Executive Law because a defendant cannot aid and abet his own discrimination. The law on this issue is all over the place in New York. In Tomka v. Seiler, Corp., 66 F.3d 1295 (2d Cir. 1995), the Second Circuit said a defendant may be held liable for aiding and abetting allegedly unlawful discrimination by the employer even where the defendant's actions are the predicate for the employer's vicarious liability. But the Appellate Division has gone back and forth on this issue. 

Despite ruling against Chamale-Eustace on this point, the Second Department cited Elco v. Aguiar, 226 A.D.3d 649, 651 (2d Dept. 2024), which held that defendant Freeborn "failed to establish that the plaintiff did not have a cause of action against him under the NYSHRL pursuant to an aiding and abetting theory of liability." The Court added, "contrary to Freeborn's contention, the plaintiff sufficiently alleged that Freeborn had aided, abetted, and incited this alleged harassment" as "the harassing conduct by her superiors was instigated by Freeborn sending her harassing text messages and contacting her superiors both about her personal relationships and to make false accusations regarding custody issues and her work performance. The plaintiff sufficiently alleged that, without Freeborn's conduct, there is no indication that her superiors would have subjected her to inferior terms of employment." 

Can Chamale-Eustace be reconciled with Aguiar? I suppose the argument might be that, in Aguiar, others were also harassing the plaintiff, and in Chamale-Eustace, the individual defendant was the sole harassing party, although she argued that management was responsible for this conduct. 

 

The rare Circuit Court ruling that takes the case out of mandatory arbitration

Plaintiffs will do what they have to do to avoid arbitration. While arbitration is a legal proceeding that will resolve the case one way or the other, plaintiffs (and their lawyers) will tell you until they are blue in the face that the courthouse is far more preferable, as a sympathetic jury is a better fact-finder than a stuffy arbitrator, the damages in court will often be higher than in arbitration, court proceedings are public (unlike arbitration) and usually allow for more discovery, arbitrators are not required to always follow the law, no appeals are available from arbitration, and the employer usually pays the arbitrator for their time, which never happens in court. Hence, cases like this.

The case is Silva v. Schmidt Baking Distribution, issued on December 22. Plaintiffs delivered baked goods on defendant's behalf in Connecticut. But defendant then asked plaintiffs to incorporate their business and sign distribution agreements that contained an arbitration clause stating that any disputes, such as wage-and-hour matters, be resolved in arbitration. The clause also prohibits class action lawsuits. 

Under the Federal Arbitration Act, "contracts of employment" for transportation workers are not subject to arbitration. This is among the few areas that are statutorily exempt from mandatory arbitration. The Supreme Court has held that contracts creating independent contractor relationships fall within the "transportation exception." The Second Circuit (Chin, Nardini and Kahn) holds that the agreement in this case is a contract of employment under the FAA even though they were signed by the two plaintiffs in their capacities as presidents of their respective corporations, rather than in their individual capacities. The Court of Appeals finds that even contracts between two business entities may constitute contracts for employment. 

We have contracts for employment in this case because "the actual work performed by workers under business-to-business contracts may be functionally indistinguishable from the work done in employment relationships." Moreover, the contracts in this case hold the individual plaintiffs personally responsible for the performance of their work, and the plaintiffs had been W-2 employees when defendant told them to create corporations to continue their work as delivery drivers. And once that happened, the work that plaintiffs performed was no different from what they had done before they signed the contracts. Simply put, we are dealing with contracts of employment under the FAA. That brings this case out of arbitration under the transportation exception. This case will be decided in court.

A side note for appellate practitioners. Normally, court orders that the parties proceed to arbitration are not appealable by the plaintiffs unless they can fit their case within the narrow exception to the rule that interlocutory appeals are disfavored in the federal system. This case falls within that exception because the case involves a legal issue with substantial grounds for differences of opinion, and the appeal will materially advance the ultimate termination of the litigation and spare the parties of wasting time through a full arbitration that might have been improper in the first instance. There is no point in waiting for the outcome of that arbitration if the federal appeals court can resolve this issue right now., 

When can the police enter the house without a warrant?

The Fourth Amendment requires the police to get a warrant if they want to search your home or anyplace else within your control. But the Supreme Court has long interpreted the Fourth Amendment to permit warrantless searches in emergency situations. We can talk about this broad exception to the Constitution's plain language and what it means for a constitutional democracy, but this exception is so widely accepted that we don't really debate it any longer, and the issue is now how the warrantless search applies in particular cases. Like this one, in which the Supreme Court finds the search was legal.

The case is Case v. Montana, issued on January 14, one of the first full rulings of the 2025-2026 Term. The police entered the house after getting an alarming phone call from Case's ex-girlfriend, JH, indicating that an erratic Case was going to kill himself. While on the phone with Case, JH heard the gun go off and then dead air, suggesting that Case was dead. JH called the police. 

The police showed up at Case's house; they knew he had mental health issues and alcohol problems and once tried suicide-by-cop. They tried to communicate with Case from outside the house, to no avail. So they entered the house without a warrant, deeming this an emergency. They found Case in the closet, and a shootout followed, injuring Case, who survived. He was charged with assaulting a police officer, but he moved to suppress all evidence obtained from the warrantless search, claiming it violated the Fourth Amendment.

The question is here is the standard of review in determining whether warrantless home searches violate the Fourth Amendment. Some courts, including the Second Circuit, hold that the police need probable cause to enter for purposes of rendering emergency services. Other courts hold the police to a reasonable suspicion standard, which is less burdensome than the probable cause test. 

The Court unanimously holds that the real standard is reasonable suspicion. The probable cause test only applies to criminal investigations, not cases like this, says Justice Kagan. Under the reasonable suspicion test, the search was legal. The officers had an objectively reasonable basis for believing that they had to enter the house to prevent serious harm, i.e., Case's erratic behavior that might result in someone's death or serious injury, including himself. 

Gun dealer has standing to challenge City's "brick and mortar" requirement

This gun rights case involves a New York City law that makes it illegal to purchase more than one gun every 90 days. Another City law under review requires applicants for firearms dealer licenses to maintain a place of business in New York City, what we call a "brick and mortar" location. One challenge succeeds and the other one fails.

The case is Knight v. City of New York, issued on January 13. Plaintiff is a gun dealer in New York City. He challenges the 90-day gun requirement under the Second Amendment, but the Second Circuit says he lacks standing to challenge the law. Standing is a constitutional doctrine that requires proof that you have a personal stake in the outcome of the case; a generalized grievance is not enough. This ensures that the courts resolve actual "cases and controversies," and not hypothetical disputes. You'll find "cases and controversies" in the Constitution itself.

Plaintiff argues that the 90-day rule impacts him personally because he will not sell guns to people who need to obtain a new one that frequently. As a gun dealer, he stands to lose money under this rule. But, the Court of Appeals (Chin, Sullivan and Kahn) says, plaintiff has not identified any New York City customer would buy more than one gun every 90 days. He therefore has no standing to bring this part of the case, as his legal challenge to this rule is academic. Someone else will have to bring such a lawsuit, maybe a gun owner who needs to buy a firearm more frequently than once every 90 days. 

The place-of-business requirement is a different story. Since plaintiff wants to run a commercial gun dealing business in New York City and has taken active steps to make that happen, and because the commercial availability of firearms is related to the Second Amendment, under the City law, he cannot obtain a dealer's license without facing possible criminal prosecution. All of this confers standing upon plaintiff's Second Amendment challenge to the City's gun-control law. The case will return to the trial court to address his legal challenge on the merits: whether the brick-and-mortar requirement is consistent with the Constitutional and the complex legal standards guiding Second Amendment litigation in light of the Supreme Court's Bruen ruling from a few years ago, which asks whether the gun-control law is consistent with the original understanding of the Second Amendment. 

County inmate has a substantive due process claim for arbitrary financial penalty

This pro-se inmate in an upstate county jail wins his appeal in the Second Circuit, which finds that certain fines levied against him may violate the Constitution.

The case is Bass v. Swartwood, a summary order issued on December 22. He sues for substantive due process, a catch-all constitutional claim that allows people to sue under the Fourteenth Amendment when the government engages in uncivilized or outrageous behavior without any rational justification. These cases are hard to win, and since the plain language of the Constitutional does not actually make reference to "substantive due process," you can imagine a day when the Supreme Court does away with these claims altogether. 

But these claims are still with us, and Bass is able to proceed with his case. Bass alleges that the county jail imposed a disciplinary surcharge against him as a form of impermissible punishment. As a pretrial detainee who has not yet been convicted of anything, Bass is able to argue that the Fourteenth Amendment makes it illegal to impose a disciplinary surcharge for reasons unrelated to institutional security, damage to jail property, or any other legitimate purpose. Rather, he claims among other things, the jail imposed a fine against him for telling his fiancee that he loved her. If that is the case, the surcharge was baseless and plaintiff has a claim. The Court of Appeals (Perez and Merriam) reverses the Rule 12(b)(6) dismissal.

The case returns to the Northern District of New York to reconsider plaintiff's claim and to allow the county attorney's office to defend itself. This case may not yield a high damages award, but remember that constitutional claims are not always lucrative, and it's the principle that matters, even if the plaintiff finds himself in the county lockup. 

Pro-choice statute does not apply to medical fraud case against GEICO

After the public learned that the Supreme Court was about to overturn Roe v. Wade, the seminal abortion rights decision, New York enacted a law that makes it illegal to burden the rights protected by New York law. The context was reproductive rights. This lawsuit implicates that statute, but the plaintiff loses.

The case is Clarke v. GEICO, a summary order issued on January 5. In early 2022, someone leaked the ruling in Dobbs v. Jackson Women's Health Organization, which said the Constitution does not protect the right to an abortion. Dobbs overruled Roe. New York responded by passing the Freedom from Interference with Reproductive and Endocrine Health Advocacy and Travel Exercise Act, or the FIRE HATE Act. The legislation was directed at the "risk of civil actions and criminal actions brought in courts outside the state of New York seeking to punish or impose civil liability on individuals traveling to New York" to access an abortion.

In this case, GEICO, the insurance company, brought two civil RICO actions against plaintiff, a doctor, in the Eastern District of New York, alleging that he worked with a medical equipment company to fraudulently bill for unnecessary medical equipment in no-fault insurance claims. So the RICO action involved alleged fraud in medical care. In defending the case GEICO claimed the STOP HATE Act involves "medical care" relating to reproductive or gender-affirming medical care, not unrelated medical treatment.

This is a statutory interpretation case. After reviewing this relatively recent statute, the Court of Appeals (Menashi, Robinson and Perez) holds that plaintiff cannot proceed with this case because the GEICO lawsuits "did not seek to impose liability on Clarke for the provision of medical care -- of any kind -- and therefore the lawsuits did not 'result' from the provision of medical care." This case involves GEICO's lawsuit against plaintiff over alleged false billing for payment rather than his provision for medical care. The Court reasons, "The provision of medical care was not even a but-for cause of the litigation: Clarke could have submitted false bills before he provided the related medical care—and he could have submitted false bills without providing any medical care at all. The actual cause of the litigation was his purported false billing practices rather than his provision of medical care."

Discrimination claim highlights distinction between federal law and NYC Human Rights Law

You don't see too many cases where lawyers are suing their former employers for discrimination. In this case, a lawyer sues Con Edison, claiming she was fired based on age and gender. She loses the case under federal law, but the case is reinstated under the New York City Human Rights Law so that the district court can take another look at her claim under the proper legal framework. This case highlights the differences between federal law and the New York City Human Rights Law.

The case is Goldzweig v. Con Edison, a summary order issued on January 5. The analysis on the federal claim resembles what we often see in these cases: plaintiff argues that management lied about her alleged poor job performance as justification for her termination. But the court will not second-guess negative performance reviews without some affirmative evidence of discrimination. The Court (Park, Perez and Nathan) writes, "The consistency of the viewpoint expressed about Goldzweig's performance supports Con Edison's proffered nondiscriminatory reason for terminating her." We might have a different result if the positive performance reviews turned sour for no objective reason, but that does not seem to be the case here. While plaintiff challenges the credibility of defendant's witnesses, that does not force a trial; the Court holds that "Broad, conclusory attacks on the credibility of a witness will not, by themselves, present questions of material fact." Nor does the Court find contradictions or implausibilities in defendant's justification for firing plaintiff.

On the retaliation claim, same result. Plaintiff did complain about discrimination, and she was terminated afterwards, but that sequence will get you a trial on the retaliation claim without evidence that the justification for plaintiff's termination was knowingly false. The Court says that Con Edison's "sustained, documented criticism of Goldzweig's performance is sufficient to meet its burden ... and Goldzweig has failed to demonstrate that Con Edison's proffered explanation is pretextual. "Although Goldzweig complained about how [supervisor] D'Angelo treated her, documentation of her performance deficiencies long predates these complaints." 

The City law claim is different, as the NYC Human Rights Law carries a more lenient standard for plaintiffs; the City Council did not want the stringent tests under federal law to guide City law claims. On the retaliation claim, the Court notes that the City law "takes a broader approach than Title VII and the ADEA as to what constitutes a protected activity for the purpose of a retaliation claim." While the district court said that one of plaintiff's four complaints qualified as protected activity under federal law, it did not consider whether these complaints qualified under the City law. And, while federal law applies a strict "but for" causation test in retaliation cases, that is not the case under the City law, which recognizes the more lenient "motivating factor" test. Moreover, under the City law, "a plaintiff need not prove that the reason proffered by the employer for the challenged action was actually false or entirely irrelevant to the decision to take adverse action." The authority for this is Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 127 (1st Dept. 2012). The Court adds, 

it is unclear whether the district court independently analyzed the weight accorded to different forms of evidence under New York law.  See, e.g., La Marca-Pagano v. Dr. Steven Phillips, P.C., 129 A.D.3d 918, 921 (2d Dep’t 2015) (concluding that “close temporal proximity between the plaintiff’s protected activity and the adverse employment action is sufficient to demonstrate the necessary causal nexus” for a retaliation claim); Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18, 25 (1st Dep’t 2014) (same); Calhoun v. Cnty. of Herkimer, 114 A.D.3d 1304, 1307 (4th Dep’t 2014) (same).