Thursday, March 30, 2017

Plaintiffs: don't forget to plead those City law claims.

For years, courts did not accept that Title VII and other federal civil rights statutes had to be interpreted differently from the more expansive New York City Human Rights Law. It got so bad that the City Council in 2005 and again in 2016 had to reaffirm that courts must analyze claims differently under the city law. The courts are getting the hang of it, as shown by this discrimination case that the Second Circuit resolved this week.

The case is Alvarado v. Nordstrom, a summary order decided on March 29. Plaintiff worked as a salesman specializing in high-end fashion. His deteriorating relationship with co-workers led to this lawsuit. He sued management for racial and sexual orientation discrimination, and retaliation. Here is what the Court of Appeals (Katzmann, Pooler and Lynch) did:

1. There is no hostile work environment claim because plaintiff only cites three comments by three co-workers over the course of about one year. In once instance, co-workers Daniel and Dalrymple said Alvarado would cook arroz con polio, a reference to his heritage. Another employee called plaintiff a "little bitch." Dalrymple also told another co-worker that he needed to "choose sides between the real girls and the queens." Other statements in the record show that Daniel called plaintiff a "miserable motherfucker." None of these statements, by themselves, are enough to create a hostile work environment, and in their totality, they are not enough because some of the offenders did not engage in further abusive treatment and, unlike other cases where courts have found a hostile environment, the offensive comments were not made by the same person. The court reaches the same result on the city law harassment claim.

2. Plaintiff also raises retaliation claims under federal and city law. Here is where the analysis diverges. After plaintiff complained about discrimination, he received a written reprimand. Even if the reprimand is an adverse action, it was not a pretext for retaliation under federal and state law, which are interpreted identically. The Second Circuit rejects plaintiff's argument that a comparable co-worker, Daniel, did not receive a reprimand for various acts of workplace misconduct. This is because the co-worker did not engage in comparable bad acts. The Court reasons:

Alvarado points to numerous instances of small acts of insubordination by Daniel, but he does not point to any evidence that would suggest any of these instances involved shouting or aggression towards a manager on the salesfloor comparable to Alvarado’s incident with Gonzales. The most similar instance, which is Daniel’s interaction with Cara Smyth, Jeffrey’s customer service manager, involved Daniel muttering something under her breath about Smyth while on the salesfloor and then denying that she had said anything. While there is little doubt that Daniel engaged in insubordinate conduct numerous times in the past, Gonzales described Alvarado as being “aggressive, assertive, dismissive[,] and insubordinate” towards Gonzales during their altercation on the Jeffrey salesfloor, and alleged that Alvarado put his thumb in Gonzales’s face. We conclude that Alvarado cannot rely on allegations of disparate treatment to support his retaliation claim because he has failed to show that he and Daniel are sufficient comparators when it comes to their actions of insubordination under the causation standard applicable to Section 1981 and NYSHRL claims.
3. The city law retaliation claim is a different story. Here is the standard for city law retaliation claims:

In order to succeed on a NYCHRL retaliation claim, a plaintiff “must show that []he took
an action opposing h[is] employer’s discrimination and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.” “[N]o challenged conduct may be deemed nonretaliatory unless a jury could not reasonably conclude from the evidence that such conduct was reasonably likely to deter a person from engaging in protected activity.” “This assessment should be made with a keen sense of workplace realities, of the fact that the chilling effect of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct.” Under this standard, “summary judgment is [only] appropriate if the record establishes as a matter of law that . . . retaliation played no role in the defendant’s actions.”
Under the more lenient city law test that allows retaliation claims to proceed to trial if retaliation plays some role in the adverse action, plaintiff has a claim, and the district court ruling on this issue is reversed. To be clear, there is a retaliation case if retaliation plays "some" role. Under federal law, including Section 1981, you have to prove that retaliation was the "but for" cause of the adverse action, which is why plaintiff's retaliation claims under Section 1981 and state law were dismissed. There's a big difference between "some" motivation and "but for" motivation." The reasoning follows:

we hold that the question of whether Daniel was a sufficiently close comparator to Alvarado such that their disparate treatment would show Alvarado’s 2012 written reprimand was pretextual is more appropriately one for a fact finder. In reviewing the realities of the Jeffrey’s workplace as shown by the evidence presented at summary judgment, written reprimands seem to have been infrequently given even for bad behavior in public. ... Even though written reprimands were rarely given, and Daniel had engaged in numerous instances of minor insubordinations and other combative behavior vis-à-vis her co-workers for which she had received few written reprimands, Alvarado immediately received a written reprimand for his single act of insubordination towards
Gonzales. Viewing the facts pled in the light most favorable to Alvarado and under the
NYCHRL standard that summary judgment is only appropriate when retaliation plays no role in an adverse employment action as a matter of law, we hold that there exists a question of fact for a jury to determine as to whether retaliation played some role in Alvarado’s written reprimand.

Wednesday, March 29, 2017

No First Amendment rights for private, for-profit law firms

The Court of Appeals has ruled that a for-profit law firm cannot bring a First Amendment challenge to New York's ethical rules that prohibit law firms from partnering with non-lawyers. While the law firm claimed a right to associate with its clients through additional outside funding that would enhance its legal services, the Second Circuit holds that no such First Amendment or associational rights exist for the law firm.

The case is Jacoby & Meyers, LLP v. The Presiding Justices of the First, Second, Third and Fourth Departments, decided on March 24. J&M wants to partner with investors whose additional capital would allow the firm to improve the quality of its legal services, reduce its fees and overall expand its ability to serve its clients. New York ethical rules, however, prohibit lawyers from partnering with -- and taking investment money from -- non-lawyers, on the theory that such partnerships would reduce attorney independence and eliminate incentives for lawyers to put their clients' interests first.

As a side-note, astute readers will recall that J&M rode the first wave of television advertising in the 1970s after the Supreme Court ruled that regulations prohibiting attorney advertising violated the First Amendment. Those of us who wasted the best years of our lives sitting in front of the television will forever recall J&M's slogan, "It's about time." Now J&M brings a constitutional challenge of its own, but the Court of Appeals rejects it.

The Second Circuit (Carney, Lynch and Hellerstein [D.J.]) runs through when law firms have rights under the First Amendment. Those rights are far and few. The Constitution does recognize a right to association under the First Amendment. As the Circuit tells us, "one line of cases involving political advocacy organizations relies on the expressive value of certain types of association litigation," such as NAACP v. Button, a Supreme Court case from 1963, involving a political advocacy organization that promotes anti-segregation. The ACLU also enjoys these associational rights, under In re Primus, a Supreme Court ruling from 1978. Yet another line of cases "recognizes that clients seeking legal representation -- specifically in the context of union activity -- have a right protected by the First Amendment to associate with each other to obtain legal representation and vindicate their rights effectively." That case was Bhd. of RR Trainmen v. Virginia, a Supreme Court ruling from 1964. The collective activity in that litigation allows people "meaningful access to the courts."

Constitutionally speaking, J&M is not the NAACP or the ACLU because its mission does not fall within that narrow line of cases. It is not engaged in political advocacy or expression. "Clients have First Amendment expressive rights for which litigation may provide a vehicle. When the lawyers' own expressive interests align with those rights, the lawyers themselves may have a cognizable First Amendment interest in pursuing the litigation. We are not aware of any judicial recognition of such an interest, however, when it comes to the lawyer's generic act of pursuing litigation on behalf of any client." 

Monday, March 27, 2017

Gay male wins gender stereotyping appeal under Title VII

The Court of Appeals has reinstated a Title VII claim alleging that a gay plaintiff was treated differently because he failed to conform to gender stereotypes. Despite growing interest in this issue and a slew of amicus briefs, the Court expressly declines to find whether sexual orientation discrimination equals sex discrimination under Title VII. Instead, it finds for the plaintiff under the more traditional gender-stereotyping theory.

The case is Christianson v. Omnicom Group, decided on March 27. The facts are the sort you would expect from a workplace filled with people who never graduated from the adolescent world of the male locker room. Plaintiff's supervisor drew sexually-explicit pictures on office whiteboards, Facebook and other places, depicting plaintiff in unflattering, effeminate and sexual poses that made fun of his sexual orientation. This is the world we live in folks, as society continues to devolve in ways that should be apparent to anyone who reads a newspaper. The question is whether this behavior violates Title VII.

Title VII says nothing about sexual orientation. But federal courts lately have been determining whether the sex discrimination provision includes sexual orientation discrimination. The EEOC a few years ago answered that question in the affirmative, and district courts around the country have followed suit. The Seventh Circuit is taking up that issue en banc, and at least three cases remain pending in the Second Circuit on this issue.

Some compelling reasons support the finding that Title VII prohibits sexual orientation discrimination. This discrimination punishes people based on their associations, and since associational discrimination (punishing a while male because of his black fiance, for example) can violate Title VII, the theory goes, it is unlawful to discriminate against gay men because they associate with gay men. Sexual orientation discrimination is also regarded as a form of gender stereotyping, as traditional sex roles assume that men are attracted to men and women are attracted to women. But the Court of Appeals does not take that road in this case, noting that it held seventeen years ago in Simonton v. Runyon (and 12 years ago in Dawson v. Bumble & Bumble) that gays and lesbians are not a protected class under Title VII. Since panel decisions of the Second Circuit are normally not vacated unless the Supreme Court weighs in on the issue or the Circuit hears the issue en banc, the Court of Appeals declines to revisit Simonton and instead finds for the plaintiff under the gender stereotyping theory, a claim that the Supreme Court recognized in the Price Waterhouse decision nearly 30 years ago, albeit in the context of a professional woman who was regarded as insufficiently feminine. The Second Circuit says, "gay, lesbian, and bisexual individuals do not have less protection under Price Waterhouse against traditional gender stereotype discrimination than do heterosexual individuals. Simonton and Dawson merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim."

On this Rule 12 motion, plaintiff makes out a gender stereotyping claim because "Christiansen alleges that he was perceived by his supervisor as effeminate and submissive and that he was harassed for these reasons. Furthermore, the harassment to which he was subjected, particularly the 'Muscle Beach Party' poster, is alleged to have specifically invoked these “stereotypically feminine” traits." The district court's contrary ruling is therefore reversed, and this case heads to discovery.

What makes this case particularly interesting is that two of the three judges on the case issue a concurring opinion. The panel is Judges Livingston, Katzmann and Brodie [D.J.]. But Katzmann and Brodie alone sign off on the concurrence. Which is strange because two judges constitute a majority. Obviously, Judge Livingston wanted no part of the concurrence, which expresses the hope that "when the appropriate occasion presents itself, it would make sense for the Court to revisit the central legal issue confronted in Simonton and Dawson, especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued." That changed legal landscape now recognizes same-sex marriage rights and privacy rights for same-sex couples, as recognized by the Supreme Court, and the fact that "societal understanding of same-sex relationships has evolved considerably" over the years. The concurrence further adopts the EEOC's view that sexual orientation discrimination does in fact constitute gender discrimination because, in part, that discrimination punishes people because of their intimate associates and reinforces gender stereotypes.

Three other cases are pending in the Second Circuit on the issue of whether sexual orientation discrimination violates Title VII. One case was already argued. One of these days, I am sure, the Court of Appeals is going to squarely take on this issue. It will then almost certainly go to the Supreme Court. 




Sunday, March 26, 2017

No Title VII claim for professor who insulted his students

In this Title VII case, the plaintiff was teaching for New York Institute of Technology at its Bahrain campus. Plaintiff is a white, non-Muslim. He was let go after making comments that his students deemed anti-Islamic and offensive. The Court of Appeals says plaintiff has no case.

The case is Balk v. New York Institute of Technology, a summary order decided on March 23. One day, plaintiff met with students who were going to visit New York City. During that meeting, the students complained, plaintiff "gave examples about democracy that insults our religious beliefs and as a professor he should realize that the words he said about our Prophet Mohammed peace be upon him are very sensitive and will never be the definition of democracy." Plaintiff testified that he did admonish the students that "when they go to the west to be able to understand why people might feel uncomfortable with them." He also described a "hypothetical walk down the street where you would pass a mosque or a church, I remember thinking maybe it was Episcopalian where there was a gay congregation and you might see within that church their iconography, their words on the wall where prophets and Gods would be gay."

Plaintiff then began to fear for his safety and moved to Jordan, aware that he was under criticism in that part of the world. The college, meanwhile, decided that plaintiff could not return to Bahrain to teach. The college then declined to renew his contract or offer him a job at its other campuses.

The Court of Appeals (Chin, Lohier and McMahon [D.J.]) agrees with the district court plaintiff has no discrimination case. Plaintiff claims he was fired by deferring to the discriminatory animus of its Muslim students and its faculty members." Such a theory of discrimination exists, but it does not work here, the Court of Appeals says, because the college had good reason to end the employment relationship: he was removed from the Bahrain campus because the college thought it was unsafe for him to remain there and there was no other positions available for him at NYIT. The Court reasons:

Balk himself expressed concern about his safety. Whether there was a basis for their accusations or not, students complained that Balk had used words with them that were ʺextremely rude, humiliating, disrespectful and full of clear racism.ʺ Balk acknowledged using words that some certainly could have found offensive. Again, whether they were accurate or not, articles were published reporting that a professor at a private university had engaged in blasphemous conduct, and Balk acknowledges that, although he was not named, he was widely believed to be the professor in question. As a reasonable jury could only find, these circumstances created an unsafe environment for Balk.

Friday, March 24, 2017

Supreme Court outlines test for judging IEP's in student disability cases

Student disability claims brought under the Individuals with Disabilities Education Act (IDEA) are quite common. Generally speaking, disabled students are entitled to an Individualized Education Plan (IEP) that outlines personalized educational goals for the student. If the parents don't like the IEP and challenge it at a due process hearing, they can recover reimbursement from the school district for the costs of sending the child to a private school. The question is this: how do we know the IEP satisfies the IDEA? The Supreme Court clarifies that question.

The case is Endrew F. v. Douglas County School Dist., decided on March 22. As usual, the IDEA does not provide much guidance on this issue. Congress likes to leave the statutory language vague and allow the courts to deal with its meaning. In this instance, the Supreme Court in 1982 said that the IEP should be "reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." That was the Rowley case. The Court in Rowley declined "to establish any one test for determining the adequacy of educational benefits conferred upon all children."

Post-Rowley, the federal courts have applied different standards governing the adequacy of IEP's. The Second Circuit said in 2008 that "a state need not maximize the potential of handicapped children, but the door of public education must be opened in a meaningful way, and the IEP must provide the opportunity for more than only trivial advancement." That sounds like a low bar. In the Endrew F. case, the Tenth Circuit had a similar test: the IEP must provide "some educational benefit" and the IEP is adequate if it confers an "educational benefit that is merely ... more than de minimis."

A unanimous Supreme Court rejects this "good enough" test and says the IEP must provide an "educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." This test will not be easy to apply, as the IEP will depend on the individual student, and all students are different. As Chief Justice Roberts says, "the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. This absence of a bright-line rule, however, should not be mistaken for an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." In other words, school officials are still entitled to some deference in preparing IEP's.

Thursday, March 23, 2017

Circuit rejects six-figure disability discrimination verdict

This disability discrimination plaintiff won his trial in the Northern District of New York after his employer fired him because he had a needle phobia that made it impossible for him to give customers a flu shot on demand. The Court of Appeals has vacated the verdict, and the employer wins.

The case is Stevens v. Rite Aid Corp., decided on March 21. Plaintiff was a longtime pharmacist for Rite Aid for over 30 years. In 2011, Rite Aid decided to provide flu shots for its customers. Plaintiff was unable to immunize customers because he has a needle phobia, confirmed by his doctor. He was fired because of this. At trial, a sympathetic jury awarded plaintiff $485,000 in back pay, $1.2 million in front pay and $900,000 for pain and suffering. His lawyers got close to $400,000 in attorneys' fees. It is all gone. Here is what the Court of Appeals (Newman, Lynch and Droney) did:

1. Giving these vaccination shots was an essential part of plaintiff's job duties. That means he is not qualified to work as a pharmacist at Rite Aid unless he can perform that duty with or without a reasonable accommodation. While plaintiff argued this task was not an essential job requirement, the Court of Appeals disagrees and says no reasonable jury could find otherwise, since Rite Aid personnel testified without contradiction "that the company made a business decision to start requiring pharmacists to perform immunizations in 2011." The job description was revised to reflect this, and the company in fact had fired another pharmacist who had failed to undergo the immunization training program.

2. Plaintiff could still win the case with proof that the company could have reasonably accommodated his disability. The Court of Appeals emphasizes that "the issue is whether a reasonable accommodation would have enabled him to perform that essential function, not whether, as some of Stevens' arguments appear to suggest, he could perform his other duties as a pharmacist." The Court adds that "A reasonable accommodation can never involve the elimination of an essential function of a job." The Court finds there was no reasonable accommodation, rejecting plaintiff's claim that the company could have offered him desensitization therapy. District courts in this Circuit have ruled -- and the Second Circuit now holds -- that the employer is not required to provide this treatment as a reasonable accommodation. The Court also rejects plaintiff's argument that he could have been transferred to a pharmacy technician position; the record shows that Rite Aid offered plaintiff another position (including that one) that would not require flu shots "and Stevens offered no evidence that he requested, considered, or was open to a position as a pharmacy technician." The Court further rejects plaintiff's claim that the company could have hired a nurse to give the flu shots or sent him to a dual-pharmacist location where another pharmacist could have immunized people. The Court reasons that "those steps would be exemptions that would have involved other employees performing Stevens' essential immunization duties. Rite Aid was not required to grant Stevens these exemptions."Plaintiff also failed to prove that a vacant position at a dual=pharmacist store existed at the time of his termination."

This case has a strange twist. It was Rite Aid that appealed the verdict. Plaintiff cross-appealed. That is because the district court had actually thrown out the reasonable accommodation verdict in a post-trial motion before the case even reached the Second Circuit. Plaintiff appealed from that ruling. But the trial court let stand the wrongful discharge verdict in plaintiff's favor, which is the claim that led to the large damages award. Rite Aid appealed from that particular ruling. The Second Circuit in a footnote says that the failure to prove his reasonable accommodation claim means there cannot be a wrongful discharge claim. In other words, since plaintiff could not perform an essential job function, the company had the right to fire him.

The trial court, then, sustained the wrongful discharge verdict incorrectly. It did this by splitting the baby. It said that while plaintiff could not prove his reasonable accommodation claim, he was still fired because of his disability because plaintiff proved at trial that another pharmacist with needle-phobia was fired after he refused to attend immunization training. The trial court held, "while this pharmacist did not claim to have trypanophobia or make a claim under the ADA, the jury could reasonably have concluded that Rite Aid's decision to termination both pharmacists was because of their respective needle phobias." The trial court further held that plaintiff had a legitimate retaliation claim under the ADA because "evidence was sufficient for the jury to reasonably conclude that there was a causal connection between Plaintiff's protected activity of requesting an accommodation and his discharge." The Second Circuit does not address the wrongful discharge/retaliation reasoning at all. It assumes that if plaintiff cannot perform an essential job duty, there can be no wrongful discharge/retaliation claim.

Wednesday, March 15, 2017

Case not mooted by generous Rule 68 offer

Rule 68 of the Federal Rules of Civil Procedure is a tricky rule that plaintiffs' lawyers have to learn quickly when defendants' counsel serves a Rule 68 offer. Under Rule 68, the defendant offers a judgment to plaintiff for a sum of money. If the plaintiff rejects that amount and then recovers a lesser amount at trial, then plaintiff has to pay the costs that defendant incurred after the Rule 68 offer was served. That does not mean the plaintiff pays out the defendant's attorneys fees. But it does mean that if the case is brought under a fee-shifting statute, such as Title VII or Section 1983, the plaintiff does not recover her attorneys' fees post-Rule 68 offer. This case asks what happens when the defendant offers plaintiff an amount of money that would provide everything that plaintiff was asking for in filing the lawsuit. Does that offer moot out the case?

The case is Geismann v. ZocDoc, decided on March 9. Plaintiff sued ZocDoc under the law that makes it illegal to send out unsolicited faxes, the Telephone Consumer Protection Act. This was brought on as a putative class action, so defendant tried to nip the class action in the bud by offering plaintiff enough money to make the case go away. The Rule 68 offer would give plaintiff $6,100, which is what the plaintiff was suing for. Defendant also deposited the full amount of the plaintiff's claim in an account payable to plaintiff.

Rule 68 offers are only good for 14 days. After that, under the rule, the offer is "withdrawn." In this case, the plaintiff rejected the Rule 68 offer, prompting defendant to argue that the case was now moot. What is the point of proceeding with the case if the defendant offered plaintiff the amount of money to which is entitled, making him whole?

The district court accepted defendant's argument, but the Second Circuit (Sack, Hall and Carney) reverses and reinstates the case, 1.5 years after the case was argued. While this appeal was pending, the Supreme Court took up the same issue, ruling that since the Rule 68 offer is withdrawn once plaintiff rejects it, the case is not moot and the plaintiff may proceed with the lawsuit. That case, Campbell-Ewald, said that because "an unaccepted settlement offer -- like unaccepted contract offer -- is a legal nullity, with no operative effect. ... With no settlement offer still operative, the parties remained adverse; both retained the same stake in the litigation they had at the outset."

In our system, the Supreme Court tells the Circuit courts what to do. The Second Circuit notes that the district court's ruling in this case was understandable. But that was before the Supreme Court handed down Campbell-Ewald. On the basis of that case, Geismann's case is reinstated, and he and his class-action plaintiffs can sue ZocDoc over the annoying faxes that come in that nobody asked for.