SDNY judge allows sexual orientation discrimination case to proceed

The law is evolving quickly on the question whether Title VII makes it illegal to discriminate against employees based on their sexual orientation. While Second Circuit precedent continues to hold that Title VII does not prohibit this kind of discrimination, two en banc petitions are pending that would change that. In the meantime, a Southern District judge has refused to dismiss a sexual orientation discrimination case under Title VII.

The case is Philpott v. State of New York, 16 Civ. 6778, 2017 U.S. Dist. LEXIS 67591 (S.D.N.Y. May 3, 2017), decided by Judge Hellerstein. In 2000, the Second Circuit held in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), that sexual orientation discrimination is not sex discrimination, noting that Title VII says nothing about sexual orientation. Therefore, under Simonton, gay and lesbian employees had no recourse under Title VII. Since that time, the Supreme Court has recognized the right to same-sex marriage, and the Seventh Circuit Court of Appeals has (only recently) jettisoned its own Simonton-style precedent in ruling en banc that Title VII does in fact prohibit sexual orientation discrimination. See Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). Hively arose in part because in 2015 the EEOC determined for the first time that Title VII makes this kind of discrimination illegal. 

Earlier this year, the Second Circuit resolved two cases that allege sexual orientation discrimination under Title VII. In Christianson v. Omnicom, 852 F.3d 195 (2d Cir. 2017), the Court of Appeals said it was bound by Simonton and rejected the plaintiff's claim that he was fired because of his sexual orientation (although it did sustain the plaintiff's claim for sex stereotyping under the Supreme Court's Price Waterhouse decision, holding that Title VII makes it illegal to stereotype people based on gender). Two judges concurred in Christianson, stating that it was time for the Second Circuit to take a hard look at Simonton en banc. Shortly thereafter, in Zarda v. Altitude Express, ___ F.3d ___,
2017 U.S. App. LEXIS 6578 (2d Cir. April 18, 2017), the Court of Appeals again declined to overturn Simonton. (I am co-counsel to the plaintiff in Zarda, along with lead counsel Gregory Antollino, Esq.). En banc petitions have been filed in both Christianson and Zarda, so the Court of Appeals now has an opportunity to change course and follow the Seventh Circuit in holding that Title VII prohibits sexual orientation discrimination.

Judge Hellerstein notes this recent Title VII activity in this sexual orientation discrimination case. In declining to dismiss the plaintiff's sexual orientation discrimination claim, Judge Hellerstein writes that "The law with respect to this legal question is clearly in a state of flux, and the Second Circuit, or perhaps the Supreme Court, may return to this question soon. In light of the evolving state of the law, dismissal of plaintiff's Title VII claim is improper." This means that, for now, Judge Hellerstein is bucking Second Circuit authority. He writes:

In Christiansen, Chief Judge Katzmann wrote a concurring opinion, which was joined by Judge Margo Brodie (who was sitting on the Second Circuit by designation). See Christiansen, 852 F.3d at 201 (Katzmann, C.J., concurring). Judge Katzmann's majority concurrence persuasively outlines why sexual orientation discrimination is a form of sex discrimination and should therefore be cognizable under Title VII. See id. 201-06. Judge Katzmann articulated three distinct justifications for this conclusion, but his central point was that "sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex." This is because "sexual orientation cannot be defined or understood without reference to sex." Id. at 202.

Judge Katzmann also explained that sexual orientation discrimination is a form of sex discrimination  because "such discrimination is inherently rooted in gender stereotypes." Id. at 205. In fact, the Second Circuit had previously suggested as much in Dawson [v. Bumble & Bumble, 2d Circuit 2005], when it observed that "[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality." ... In light of this prior observation, Judge Katzmann reasoned that "it is logically untenable for us to insist that this particular gender stereotype" — stereotyping on the basis of sexual orientation — "is outside of the gender stereotype discrimination prohibition articulated in Price Waterhouse." Id. at 205. Judge Katzmann concluded his concurrence by stating that "in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII." Id. at 207. Revisiting this question was warranted "especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued." Id. at 202.

 

No smoking gun in academic discrimination case

This case acquaints us with two well-worn principles of employment discrimination cases. First, academic tenure cases are hard to win under the antidiscrimination laws. Second, evidence that looks like a smoking gun may fizzle out when motion practice rolls around.

The case is Baldwin v. State University of New York at Buffalo, a summary order decided on May 10. Baldwin was a lecturer in the health and wellness department. She was up for tenure. Under the university's standards, plaintiff had to show that she had published enough scholarly articles. The college was concerned that plaintiff had not in fact published enough. While this was all shaking out, plaintiff spoke with the head of her department, Roberts, about student complaints about allegedly inappropriate things that Roberts had said in class. Plaintiff also reported these student complaints elsewhere in the college hierarchy.

So we have two motives here for the tenure denial. Was it because plaintiff had not published enough? Or was it because plaintiff had exercised her rights under Title VI in reporting student complaints about Roberts' classroom comments? The Court of Appeals (Livingston, Lynch and Walker) upholds summary judgment. As a general matter, courts don't like to second-guess the academic judgments reached by the decisionmakers in making tenure decisions. The Court of Appeals says there is no pretext here because "Roberts's consistent perspective on Baldwin's publication record undermines the reasonableness of any inference that her complaints caused his negative recommendation." What this means for plaintiffs is that if management has harbored concerns about your job performance even before you engage in protected activity, the courts more likely than not are going to find that those concerns are not a pretext for discrimination or retaliation.

Plaintiff did present what would appear to be a smoking gun. The SUNY HR department sent plaintiff an email after she filed the discrimination complaint. The email says, "The College must continue ongoing review process for continuing appointment and promotion in order to meet contractual notification deadlines. However, if you file a discrimination complaint through our internal complaint process in the Office of Equity and Diversity, the outcome of the investigation into your complaint may impact on the ultimate decision regarding your appointment." The Court of Appeals, however, rejects the argument that this email represented a direct threat of retaliation if plaintiff pursued her complaint of discrimination. The Court of Appeals says:

The e-mail links the outcome—not the filing—of Baldwin’s complaint to the tenure decision. And, as the district court stated, the “full context makes plain” that this sentence was merely an explanation of how the timelines for a complaint and Baldwin’s tenure application would interact. Specifically, SUNY-Buffalo could not halt Baldwin’s tenure review because of contractual deadlines, but a finding of retaliation might affect SUNY-Buffalo’s ultimate decision on Baldwin’s application for tenure. Accordingly, the Earshen e-mail does not evidence retaliation and does not alter the conclusion, here, that the district court properly granted summary judgment to the Defendant-Appellee.

Victorious state court plaintiffs may recover attorneys' fees in employment discrimination cases against the state

The New York Court of Appeals has provided guidance on the Equal Access to Justice Act, a New York statute that allows certain victorious plaintiffs to recover attorneys' fees when they prevail against the state. The issue here: can the winning plaintiff recover fees if she wins a sexual harassment case under the Human Rights Law against the State of New York?

The case is Kimmel v. State of New York, decided on May 9. The plurality says the plaintiff can recover fees. This case resulted in a big win for the plaintiff, who received a jury award of more than $700,000, including 87,000 in past pain and suffering. At the time this case went to trial, unlike Title VII and other federal civil rights statutes, the Human Rights Law did not provide for attorneys' fees for victorious employment discrimination plaintiffs. (The HRL has since been amended to provide for fees for sex discrimination cases only).

What complicates this case is the wording of the statute, which says that prevailing plaintiffs can recover fees "in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust." The CPLR defines "action" as "any civil action or proceeding brought to seek judicial review of any action of the state." Except for cases brought in the Court of Claims. The state in this case argues that "judicial review" under the statute modifies "any civil action" and "proceeding" and therefore restricts EAJA fees to Article 78 proceedings and other cases seeking review of a state administrative action.

The Court of Appeals rejects that narrow statutory construction. Chief Judge Fiore says that, under this interpretation, since Article 78 and injunctive relief actions the statutory exclusion for cases brought in the Court of Claims would have no meaning, as that Court cannot entertain Article 78 proceedings. We do not want to interpret statutes in a way that would leave its provisions superfluous. The Court of Appeals employs other methods of statutory interpretation (and looks to the legislative history of the EAJA) in finding that Human Rights Law claims against the state entitle the prevailing plaintiff to attorneys' fees.

Close call in religious harassment case goes to the jury

This case alleges the plaintiff was subjected to a hostile work environment because of her national origin. The trial court granted summary judgment for the employer, stating that this case is "right on the knife's edge of either granting summary judgment or allowing the case to go the jury." The Court of Appeals sends the case to the jury.

The case is Ahmed v. Astoria Bank, a summary order decided on May 9. When is a close case good enough for the jury? When is the close case not close enough for the jury? Do you have to ask? If it's a close case, it's probably best to let the jury decide what happened. That's what the Court of Appeals (Walker, Lohier and Lynch) concludes in stating that "a reasonable jury could find that Ahmed was subjected to discriminatory harassment that was 'sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment, and that a specific basis exists for imputing the objectionable conduct to [Astoria Bank].'”

In particular, plaintiff put foward evidence that a senior supervisor, Figeroux had done the following:

(1) “constantly” told Ahmed to remove her hijab, which he referred to as a “rag,” (2) demeaned Ahmed’s race, ethnicity, and religion “[o]n several occasions,” and (3) made a comment during Ahmed’s interview on September 11, 2013 that Ahmed and two other Muslim employees were  “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything.” 

Along with evidence that another supervisor, Russo, had used inappropriate hand gestures in speaking with plaintiff and spoke to her "very slowly" could lead a reasonable jury to find that Ahmed was subjected to “a steady barrage of opprobrious racial” and anti‐Muslim comments and conduct constituting a hostile work environment.

Justice Sotomayor speaks out over failure to take up excessive force case

In a little-noticed exchange among Supreme Court Justices last month, Justice Sotomayor lamented how the Supreme Court rarely intervenes when lower courts wrongly give police officers the benefit of the doubt in excessive force cases. Justice Sotomayor says this practice harms "society as a whole."

The case is Salazar-Limon v. Houston, issued on April 24. In this case, a Houston police officer shot the plaintiff in the back. While the plaintiff claimed the officer shot him as he tried to walk away from a confrontation with the officer, in contrast, the officer said the plaintiff turned toward him and reached for his waistband, as if for a gun, before the officer fired a shot. The lower courts said the officer is entitled to qualified immunity, dismissing the suit. Justice Sotomayor says the lower courts had actually resolved disputed factual issues in favor of the officer, contrary to the rules governing summary judgment. She says the parties' accounts "flatly contradict each other," necessitating a trial.

The Supreme Court did not vote to take this case, exercising its discretion in denying certiorari. But this case did not escape Justice Sotomayor's notice, who dissents from the certiorari denial by laying out the disputed facts and reminding the Court about the rules governing summary judgment that require a trial when the facts are disputed. She writes:

Only Thompson and Salazar-Limon know what happened on that overpass on October 29, 2010. It is possible that Salazar-Limon did something that Thompson reasonably found threatening; it is also possible that Thompson shot an unarmed man in the back without justification. What is clear is that our legal system does not entrust the resolution of this dispute to a judge faced with competing affidavits. The evenhanded administration of justice does not permit such a shortcut.

Our failure to correct the error made by the courts below leaves in place a judgment that accepts the word of one party over the word of another. It also continues a disturbing trend regarding the use of this Court’s resources. We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force. But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases. The erroneous grant of summary judgment in qualified-immunity cases imposes no less harm on “‘society as a whole,’" than does the erroneous denial of summary judgment in such cases.

Justices Thomas and Alito write in support of the Court's decision not to take the case, stating that "whether or not one agrees with the grant of summary judgment in favor of Officer Thompson, it is clear that the lower courts acted responsibly and attempted faithfully to apply the correct legal rule to what is at best a marginal set of facts" They add that "this Court applies uniform standards in determining whether to grant review in cases involving allegations that a law enforcement officer engaged in unconstitutional conduct." In the end, these Justices write: "regardless of whether the petitioner is an officer or an alleged victim of police misconduct, we rarely grant review where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case. The case before us falls squarely in that category."

Managerial outburst following discrimination complaint is not retaliation

Not everything bad that happens at work is an adverse employment action allowing you to sue for discrimination under Title VII or the other employment discrimination laws. This case drives that point home.

The case is Dickens v. Hudson Sheraton Corp., a summary order decided on May 4. Plaintiff brings a retaliation claim. He says that after he participated in a union-sponsored meeting in which he "was attempting to oppose what he reasonably viewed as on-going discrimination," a supervisor, Mituza, engaged in "intimidation and threatening behavior" at the meeting and plaintiff was then denied bartending shifts. As plaintiff argues the case, these were the adverse employment actions.

Under the law, it's an adverse action if management's response to your good-faith discrimination complaints would dissuade a reasonably firm person for speaking out again. Sort of like icing out the whistleblower by doing something to him that will make him shut up in the future. The Supreme Court devised that test in the Burlington Northern case in 2006. What the Second Circuit (Hall, Lynch and Droney) reminds us, however, is that there must be "material adversity to separate significant from trivial harms" as "an employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience," except, of course, for federal judges who really don't have to put up with any crap from anyone.

The outburst at the November 2013 union meeting is not an adverse action under Title VII, because "it did not concern or affect Dickens's employment status. Nor did it reach the level of dissuading a reasonable worker from making a complaint." As for the bartending denial, the Court says, there are not enough facts in the record to connect that to the November 2013 protected activity.

Inmate's pro se appeal overturns prison disciplinary finding

As a law student, I interned for a prisoners' rights office that, among other things, challenged the discipline meted out to inmates who were engaged in misconduct inside the prison. I learned that these adverse findings are difficult to challenge and that the hearings themselves are not the due process endeavors we associate with the outside world. Still, some inmates won their cases.

The case is In the Matter of Jackson v. Annucci, an Appellate Division ruling dated April 26. Here's how it works. When prison officials charge inmates with misconduct -- such as insubordination, fighting, whatever -- they are served with a misbehavior report. The inmate then gets a hearing where they are confronted with only some of the evidence against them. The inmate can also call witnesses. The inmates' rights often give way to security concerns. You can't call certain witnesses because that would disrupt jail operations, and there may be a confidential informant whose information will be used against you. That CI will not testify at the hearing, but the hearing officer has to make a determination that the CI is reliable. The inmate does not get a lawyer for these hearings. He has to defend himself.

In this case, the inmate was charged with using marijuana inside the prison. The inmate failed two urinalysis tests that tested positive for cannabinoids. It was also agreed upon by all parties that the inmate's medication produces false positives for cannabinoids in urinalysis tests. In ruling against the inmate, the hearing officer noted the positive urinalysis tests and a correction officer's testimony that he smelled the odor of marijuana near the inmate, who acted nervous and fidgety when asked about the odor. Other inmates were present in the outdoor area when the correction officer approached the inmate.

The Appellate Division overturns the hearing officer's findings against the inmate. The inmate handled this appeal pro se, by the way. The findings are not supported by "substantial evidence," the standard necessary to sustain adverse findings in the prison disciplinary context. Here is the reasoning:

Since the hearing officer stipulated that the petitioner’s medication produces false positives for cannabinoids in urinalysis tests, and since no evidence was submitted to contradict the petitioner’s evidence, the positive urinalysis tests results were of little probative value in establishing that the petitioner used cannabinoids. While the correction officer’s observations were sufficient to raise suspicion that the petitioner had violated the prison disciplinary rule, they were not adequate to reasonably support the conclusion that the petitioner had, in fact, violated the rule, especially since the correction officer’s detection of the marijuana odor was made outdoors where there were other inmates in the immediate vicinity of the petitioner. Accordingly, we find that the hearing officer’s determination was not supported by substantial evidence.