2d Circuit clarifies reasonable accommodations under the ADA

This case raises an issue that the Second Circuit not previously resolved under the Americans with Disabilities Act: is the plaintiff entitled to a reasonable accommodation if he she can perform the essential functions of her job without an accommodation? 

The case is Tudor v. Whitehall Central School District, issued on March 25. Plaintiff is a teacher with  PTSD, whose symptoms have affected her neurological functioning, interfered with her ability to perform daily tasks, induced a stutter, and causes severe nightmares. Her employer gave plaintiff an accommodation that allows her to leave campus for a 15 minute break during her morning and after noon prep periods. A new school administrator then directed that no teachers can leave school grounds during prep periods. Under the arrangement that led to this lawsuit, plaintiff would leave during afternoon study hall. Plaintiff's lawsuit alleges that defendant's refusal to guarantee a 15 minute afternoon break violated the ADA. Defendant argued, and the district court agreed, that plaintiff cannot win this case because she is able to perform her job without the accommodation.

The Court of Appeals goes back to the basics in this case, reviewing the reasonable accommodation cases that have developed over the last 30 years, when the ADA was enacted. The Court reaches this conclusion based on the statutory language:

an employer must, absent undue hardship, offer a reasonable accommodation--such as a modified work schedule--to an employee with a disability if that employee is capable of performing the essential functions of her job with or without the accommodation.  

Under a straightforward reading of the phrase “with or without,” the fact that an employee can perform her job responsibilities without a reasonable accommodation does not mean that she must: she may be a “qualified individual” entitled to reasonable accommodation even if she can perform the essential functions of her job without one.

Other Circuits have held as such, and the Second Circuit joins in that interpretation of the ADA. Adding to its analysis, the Court of Appeals says, "To say that an accommodation must be strictly necessary to be reasonable would run counter to this purpose; if Congress had wanted employers to make only necessary accommodations, rather than reasonable ones, it could have said so.  But Congress did not require 'necessary accommodations'; the ADA plainly directs employers to make 'reasonable accommodations.'” Per se rules are inapplicable in the ADA context, the Court of Appeals adds, as the "reasonableness of an employer's accommodation is a fact-specific question." Bottom line: "An employee may qualify for an accommodation even if it is not strictly necessary to her performance of the essential functions of her job."

One other point, as the Second Circuit remands this case to the district court for trial. The Court says that while the defendant may argue that "that the requested accommodation would impose on it an undue hardship," plaintiff's "long history of receiving her requested accommodation and [defendant's] evolving policies indicate that Tudor’s requested accommodation may have been reasonable, notwithstanding that she performed her essential job functions without it." This is significant: many ADA plaintiffs argue that a longstanding accommodation was rejected by new supervisors. This language allows plaintiff to argue that the longstanding arrangement is inherently reasonable and cannot be altered for the time being.

Second Circuit rejects Bivens case against Metropolitan Detention Center

These federal inmates sued the government over the conditions of their confinement. The claims fail under a limited Supreme Court doctrine created in 1971 to allow plaintiffs to sue federal officials under the Constitution.

The case is Crespo v. Carvajal, a summary order issued on February 27. In 1971, the Supreme Court said in the Bivens case that you can sue federal defendants for constitutional violations if our legal system provides no other remedy for the violation. You will lose a Bivens claim even if the other, available remedies are limited and do not provide the same relief as a full-blown constitutional claim. Bear in mind that, when we sue state and local officials under 42 U.S.C. 1983, that statute does not guide claims against federal defendants. There is no Section 1983 counterpart in the federal system, and the way things are going in our world, there probably never will be.

For this reason, most Bivens claims fail. There is usually some administrative or other remedy available to the victim of a violation at the hands of a federal official or employee. One way to win a Bivens claims is alleging employment discrimination. Certain actions against federal police officers are also available under Bivens. But the state of Bivens litigation over the last 40 years has been predictable. Lawyers are always trying to convince the courts that their particular case creates the proper exception to the general prohibition against Bivens claims, and the courts usually reject that argument. That is what happened here.

Plaintiffs, inmates that the Metropolitan Detention Center in Brooklyn, allege that inmates denied adequate air, sunlight, and food in violation of the Eighth Amendment, which requires that even convicted criminals must be afforded some dignity, even if the jails do not have to rise to the level of a Holiday Inn. The Court of Appeals (Cabranes, Lohier and Sullivan) holds that plaintiffs lose because relief is available outside the Eighth Amendment: they can file a grievance with the Bureau of Prisons, which has authority to deal with the problem.

I am sure there are law review articles that prove that the grievance process at most prisons and jails do not provide inmates with the relief they need. But that will not sway the courts into abandoning the Bivens analysis. The Supreme Court has been hinting over the years that it may dispense with the Bivens doctrine overall and require Congress to deal with its absence through legislation. My guess is that Bivens will no longer be with us within the decade, as the Court may already have the votes to overrule Bivens. If that happens, it will be up to Congress. Without a clear political movement to help plaintiffs sue federal officials (not just in the jail context, mind you), that may spell the end of certain constitutional litigation against federal officials.

Supreme Court said the government may regulate mail-order gun kits

The Supreme Court has taken its gun jurisprudence into the modern age, holding that a gun-control law from 1968 allowed the Biden administrate to regulate gun kits that you can receive in the mail. 

The case is Bondi v. Vanderstock issued on March 26, The Court rules 7-2 that these gun kits are covered under the 1968 law. That means the administration can regulate them. The Gun Control Act of 1968 requires those engaged in importing, manufacturing, or dealing in firearms to obtain federal licenses, keep sales records, conduct background checks, and mark their products with serial numbers. The Act defines “firearm” to include “(A) any weapon . . . which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; [and] (B) the frame or receiver of any such weapon.” 

You may ask, what is a gun kit? You get the gun parts in the mail. Then you put the gun together on your own. As the Supreme Court states:

Recent years, however, have witnessed profound changes in how guns are made and sold. When Congress adopted the GCA in 1968, “the milling equipment, materials needed, and designs were far too expensive for individuals to make firearms practically or reliably on their own.” With the introduction of new technologies like 3D printing and reinforced polymers, that is no longer true. Today, companies are able to make and sell weapon parts kits that individuals can assemble into functional firearms in their own homes.

These do-it-yourself guns are all over the place. The Court says, “[P]olice departments around the Nation have confronted an explosion of crimes” involving these 'ghost guns.' In 2017, law-enforcement agencies submitted about 1,600 ghost guns to the federal government for tracing. By 2021, that number jumped to more than 19,000. Efforts to trace the ownership of these weapons, the government represents, have proven 'almost entirely futile.'” This is why the last administration regulated the gun kits.

Over two dissents, Justice Gorsuch rejects the facial challenge to the Biden regulation and holds the gun kits may be regulated under the statute. The gun kit qualifies as a “weapon” under the 1968 law because: (1) artifact nouns like “weapon” often describe unfinished objects when their intended
function is clear, as with a disassembled rifle; (2) the statute treats starter guns as weapons though they require conversion work; and (3) the statute contemplates that items other operable firearms qualify as “weapons.” The kit also satisfies the statute’s second requirement, as it requires no more time, expertise, or specialized tools to complete than a starter gun, which the statute treats as readily convertible into a functioning firearm.

Inmates win constitutional claim against State prison system

The Court of Appeals has upheld a permanent injunction against the New York State prison system, agreeing with the district court that DOCCS did not provide necessary medication to inmates in violation of the Constitution.

The case is Daniels v. Moores, a summary order issued on March 21. The plaintiffs, who obtained class certification, have chronic pain. Under DOCCS's old policy, strict rules guided administration of their medication, but a new policy was later implemented that eased up those restrictions to allow inmates to get their medication even though these pills can be subject to abuse; certain monitoring rules were put in place to prevent such abuse. But the preliminary injunction hearing revealed that the DOCCS was still following the older, more restrictive policy. The trial court ordered DOCCS to comply with the more recent policy.

Under these factual findings, the fact that DOCCS was still adhering to the prior policy did not render the case moot. The agency was not following the new policy. As for the Eighth Amendment issue of whether defendants were depriving plaintiff of access to necessary health care, the trial court found, and the Court of Appeals (Jacobs, Merriam and Calabresi) agrees, that plaintiff were suffering severe pain (a necessary element under the Fourteenth Amendment) and the defendants deprived plaintiffs of the necessary medication with the culpable state of mind, that is, they did so after ignoring plaintiff's complaints of debilitating pain. This kind of deliberate indifference, a legal standard created by the Supreme Court decades ago to give prison doctors and officials latitude to run their facilities without significant and potential meddlesome constitutional oversight, violates the Constitution.

Other procedural issues: the trial court properly granted plaintiffs' application for a class action, not an easy result to achieve with this many potential class plaintiffs. The Court of Appeals also finds the trial court had authority to award plaintiffs' lawyers attorneys' fees for successfully litigating this case. Winning a permanent injunction, as opposed to a mere preliminary injunction (due to a recent Supreme Court case) will get you those fees, as the plaintiffs have achieved an enforceable judgment on the merits, altering the legal relationship between the parties.

Lawyer properly convicted of threatening his former partners

When does the First Amendment allow you to make threats against other people? When do these threats become "true threats" that are not protected under the Constitution? A lawyer who threatened his former colleagues just found out.

The case is United States v. Dennis, issued on March 21. Defendant was charged with cyberstalking his former law firm partners. They had a falling out of some kind. The jury found him guilty. On appeal, he argues that his missives were not enough to convict because they were not a "serious expression of an intent to commit an act of unlawful violence," a legal standard clarified in Virginia v. Black, 538 U.S. 343 (2003). The Court of Appeals partially agrees with Dennis, but the overall guilty verdict remains.

After Dennis was ousted from the partnership in 2019, he sent electronic communications to his former partners: "u r going to get yours," "you are going to wish you never met me," he would "chase down" his former partner's minor children for the "sins of the father," and "people will be dying daily for the next year," and the children's school will "watch . . . daily along with me." He told another partner that she was "toast," he was "coming for" her, and she should "sleep with one eye open." There were many other such comments.

The Second Circuit (Raggi, Wesley and Khan) joins other circuits in stating that the cybercrime statute must be interpreted under the "true threats" principle to avoid any free speech intrusions. Under this principle, the conviction against Dennis for his communications for Bicks, a former partner, is sound. 

Some of the comments referenced above were sent to Bicks, among thousands that Dennis sent to him, as many as a hundred in a single day, sometimes late at night. The comments were just plain violent and threatening in a biblical way and made reference to mass shootings and Bick's children. These comments left Bicks terrified. Dennis's threats against another partner, Bostick, were similar, and also constituted true threats, the Court says. Some of the comments were racist. There is no way the federal courts are going to tolerate threats like this. 

Bad comments to another former partner, Cottle, however, were not enough to convict Dennis of cyberstalking because these comments, while distressing, were not a true threat in that, for example, Dennis accused Cottle of ingratitude and said, I cannot wait until the next time I hear you talking about brotherhood with someone."

Other issues: the jury charge was not perfect, but Dennis never objected to it, so the standard of review is plan error, a difficult standard to meet. No new trial is warranted because the court finds that even if the jury were properly charged, it still would have rendered a verdict against Dennis. While Dennis also makes evidentiary challenges, those fail under the "abuse of discretion test." While Dennis claims the judge made prejudicial comments about him at trial (having to do with Dennis representing himself pro se after firing his court-appointed lawyers and provoking the judge to correct some of Dennis's mid-trial comments to the jury), that argument is rejected as well under the difficult standard of review guiding such an appellate claim.

Two justices want to revisit McDonnell Douglas in Title VII cases

Two justices on the U.S. Supreme Court want to alter the 52-year-old framework for resolving employment discrimination claims, arguing that the so-called McDonnell Douglas model is unworkable and confusing.

The case is Hittle v. City of Stockton. On March 10, Justices Thomas and Gorsuch issued a decision dissenting from the Court's decision not to hear the case. Having lost their case in the lower courts, Hittle's lawyers filed a petition for Supreme Court review. But even the other conservative justices on the Court evidently do not want to revisit McDonnell Douglas. Still, the dissent provides insight into how two of the Justices approach this issue. When even one Justice wants to revisit or overrule a major precedent, it's important news.

Every employment discrimination lawyer knows about McDonnell Douglas v. Green, 411 U.S. 792 (1973). In cases involving circumstantial evidence, the plaintiff has to make out a minimal prima facie case, usually through proof they were qualified for the position and were terminated or demoted under circumstances creating an inference of discrimination, i.e., a Black employee was replaced by a white employee, or there was something fishy about the adverse action. If the prima facie case is made out, the employer has to articulate a reason for termination or demotion (or other adverse action). Employers almost always satisfy that minimal requirement, as well. The burden then shifts to the plaintiff to prove the real reason was discrimination, usually proven through evidence that the employer's articulated justification was a knowing falsehood. The pretext fight is usually where the action is.

Thomas and Gorsuch write that this framework "has been widely criticized" over the years as confusing and inefficient, having "taken on a life of its own" as it was originally designed for bench trials but now guides summary judgment motions and jury trials. They note that the Supreme Court devised this evidentiary framework "out of whole cloth," though to be fair to the McDonnell Douglas model, most Supreme Court doctrine is devised by the justices to help apply statutory and constitutional principles. Title VII, when enacted in 1964, said nothing about how courts and litigants were supposed to apply it in the real world. Maybe the thinking back then was that discrimination was often so blatant that you did not need a complex evidentiary model to determine if someone was really the victim of discrimination. By 1973, however, employers got wise and knew that direct evidence of discriminatory intent would doom their chances in court, and that more subtle means of discrimination were in order. McDonnell Douglas takes the latter approach into account.

Here are the problems with McDonnell Douglas, as Thomas and Gorsuch see it:

Because the McDonnell Douglas framework was designed for use in a bench trial, the language this Court has used to describe the framework does not neatly track the plaintiff ’s summary-judgment task. or example, the first step requires a plaintiff to “establis[h] a prima facie case.” And, the third step requires the plaintiff to show, “by a preponderance of the evidence,”  that the employer’s stated reason “was in fact pretext” for discrimination. But, a plaintiff need not establish or prove any elements—by a preponderance or otherwise—to survive summary judgment. At that stage, he need only offer enough evidence to create a genuine dispute of material fact.

In addition, 

Our precedent makes clear that the framework is, at most, a “procedural device, designed only to establish an order of proof and production” when evaluating circumstantial evidence. Put another way, it is “‘merely’” a “‘way to evaluate the evidence’” that bears on the ultimate finding of liability. Yet, some courts treat McDonnell Douglas as a substantive legal standard that a plaintiff must establish to survive summary judgment or to ultimately prove a claim.

There is more:

Some courts also fail to appreciate that McDonnell Douglas is necessarily underinclusive. The framework sets forth criteria that, if satisfied, will allow a plaintiff to prove a Title VII violation. But, satisfying McDonnell Douglas is not the only way or even the best way to prove a claim. The McDonnell Douglas Court itself explained that “[t]he facts necessarily will vary in Title VII cases” and the prima facie proof required in one case “is not necessarily applicable in every respect to differing factual situations.” Yet, some courts treat the McDonnell Douglas framework as the exclusive method for evaluating evidence at summary judgment.

Thomas and Gorsuch rely heavily on a Ninth Circuit concurring opinion from December 2023 that questions the McDonnell Douglas framework. Concurrences like this will often find their way into Supreme Court rulings and dissents, and the judges write them as a message to the Supreme Court and other circuit courts to reevaluate some legal principle. 

Another issue that Thomas does not reference, which I have observed, is that the prima facie portion of the three-part framework is "not onerous" and "de minimus" under settled case law. But courts do not so instruct the jury, which may rule against the plaintiff for not having a preponderance of the evidence in support of one of the prima facie elements even though the cases hold the plaintiff to a lower standard. Relatedly, the Second Circuit has said that you should not charge the jury with the prima facie elements, but that rule is not settled; some cases say you have to do it. Yet another quandary is this: the circuit courts have not settled upon how to resolve when pretext alone is enough to prove discrimination. Some circuits, including the Second Circuit want more than just pretext; we call that pretext-plus. Other circuits say evidence of pretext alone is enough to support a jury verdict.

In the 1990's, some federal judges began to question to McDonnell Douglas framework, abandoning the prima facie analysis and turning directly to examining the evidence as a whole to see if there is enough evidence to support the plaintiff's case. That is how juries do it; trial judges charge them on pretext, but I wonder if jurors go beyond the step-by-step instructions and just ask themselves if there is enough to prove discrimination. I have not seen trial judges lately abandon the prima facie test.

I don't know what alternatives the Court may adopt in place of McDonnell Douglas. While the ultimate question for the plaintiff is whether the defendant discriminated against her, the jury probably needs some kind of framework to facilitate its deliberations. For one, thing resolving cases involving circumstantial evidence are not easy and forcing the employer to articulate a reason, and allowing the plaintiff an opportunity to prove that articulated reason is a knowing falsehood certainly focuses the jury's attention on the main issues in the case. Juries may rationally find that if the employer's reason for the plaintiff's termination is a knowing falsehood, that deception may very well prove discrimination. Why else would the employer lie in court?

If the Supreme Court abandons the McDonnell Douglas framework, that will be a major event in the lives of employment discrimination attorneys, sort of like when the Court revised the employer liability standards in sexual harassment cases in 1998, when it issued the the Faragher and Ellerth rulings that upended the case law through the circuit courts. That only two Justices want to revisit McDonnell Douglas means the framework is safe for now. Both Thomas and Gorsuch are outside-the-box thinkers. But Supreme Court case law has been changing very quickly over the last 10 years. Litigants will continue to ask the Court to review this issue, I am sure.

Employer cannot publicly attack plaintiff who won her prior lawsuit

The Court of Appeals holds that an employer, in the course of a long-running lawsuit, must be enjoined from further publishing identifying information about a wage-and-hour plaintiff after she won her case. Publishing such information is unlawful retaliation.

The case is Williams v. Harry's Nurses Registry, Inc., a summary order published on March 18. After plaintiff won her initial FLSA case, the defendant repeatedly challenged the judgment by, among other things, trying to reopen the case, taking up a frivolous appeal, and trying to get the Judicial Panel on Multidistrict Litigation to transfer the case to a federal court in Missouri. The employer also attacked the plaintiff, her lawyer, and the judge online, calling the plaintiff a scammer and a criminal. Defendant also posted plaintiff's date of birth and Social Security number online. The Court refers to this as personal identifying information, or PII. Hence, this retaliation lawsuit.

Retaliation may include adverse actions that post-date the plaintiff's employment. The district court ordered the defendant to remove the identifying information. The Court of Appeals finds the posting of such information was a retaliatory act, as “An employment action disadvantages an employee if it well might have dissuaded a reasonable worker from making or supporting similar charges.” That is black-letter retaliation law under the FLSA and other employment laws. While the employer said he did not post plaintiff's identifying information, plaintiff was able to prove otherwise in the district court.

The trial court also found, and the Second Circuit (Bianco, Park and Nardini) agrees, that defendant intended to retaliate against plaintiff. "The sequence, timing and nature of events surrounding the publication of the information reinforces that its predominant purpose was to get back at Williams. More specifically, the district court found that 'sufficient evidence based on defendant[s’] own words in the postings, [their] rantings about having lost at the district court and Court of Appeals level, and [their] railing against all of the participants in that process, even the judges . . . makes it so clear that . . . at least the primary purpose was to get back at everybody involved in this,' including Williams." While defendant argued that he posted this information to prevent other people from committing identity fraud to obtain employment, the court disagrees and finds :there is no reason [defendant] has to use this forum in this way to police who applies to [defendant] and whether they provide [defendant] with truthful information," as the employer can privately verity the employment information it receives.

Plaintiff also has to prove irreparable harm to win the injunction. She can do so, and therefore recover relief right now and not at the end of the case, the Court of Appeals holds, because "so long as Williams’s PII remains publicly displayed on HNR’s website, she suffers  an ongoing harm that cannot be adequately remedied by a retrospective award of monetary damages, especially when it exposes Williams to 'identity theft and misuse of personal information.'”

There is now way any court is going to put up with this kind of retaliation against a plaintiff who won her lawsuit against a prior employer. For this reason, the Court holds, the balance of hardships and the public interest favor plaintiff's position and not defendant's position. These factors are also relevant to the preliminary injunction analysis. As the trial court held, "the district court found that HNR has no 'real or genuine or . . . non-delusional reason' to post Williams’s PII on its website."