Anti-feminist lawsuit tossed on standing grounds

So this fellow sued the Institute for Research on Women and Gender at Columbia University and other educational officials because the Women's Studies Program and the corresponding lack of any Men's Study Program discriminates against men as a class by promoting "misandry-feminism" and promotes feminism as a religion. The case is dismissed, though the Court does not have a chance to rule on the merits.

The case is Hollander v. Columbia University, decided by summary order on April 16. The case was dismissed because Hollander lacks standing as to all defendants; the claims of harm are too speculative under traditional Article III standing principles. So this is a procedural knockout for Hollander.

The procedural knockout may have been a blessing for Hollander. The Court of Appeals (Calabresi and Straub) has "grave doubts" about the merits of the case. Hollander has serious problems with gender studies at Columbia, using the kind of language you hear on talk-radio to describe his opposition. Unfortunately, the decision does not go into detail about the case. For that, you have to look for media coverage:

A New York lawyer has gone to court in a bid to shut down Columbia University’s women’s studies programme as part of his “jihad” against feminism.

Roy Den Hollander, a graduate of the Ivy League university’s business school, contends Columbia’s Institute for Research on Women and Gender is discriminatory and unconstitutional because there is no equivalent “men’s studies” programme.

In a class action suit in federal court, he calls the women’s institute “a bastion of bigotry toward men.” “The Feminist agenda, curriculum and practices at Columbia... are motivated by prejudice toward men that leads to sex-based stereotyping of males by depicting them as the primary cause for most, if not all, the world’s ills throughout history. Females, on the other hand are credited with inherent goodness who were oppressed and colonized by men,” the suit says.

The class action is the final move in a trio of lawsuits by the self-proclaimed anti-feminist, who was once married to a Russian stripper.

Mr Den Hollander is suing New York’s top nightclubs for charging women lower entrance fees on “Ladies’ Nights” and offering them free drinks.

He has also taken issue with provisions in US immigration law that allow foreign women to remain in America after divorcing their US husbands by alleging abuse.

“The long-range goal of my law suits is that I am, in my own small way, trying to give all those feminists equality - not the equality of all the best in life, but the equality of the worst in life.

“Make them register for the draft, make them go to war and die, make them work in the worst occupations,” he said.

“They do not want equality. They want preferential treatment. It’s just the same old pedastal. they say, ’I am a female. I want to be the CEO of a company.’ I want to be on a pedestal.” A former associate of the prestigious Cravath, Swain & Moore law firm, Mr Hollander married to a Russian woman he met while working in Moscow as a private investigator and brought her to America.

But he is now determinedly single after divorced her when she began working as a stripper at a club in New York.

“Now all I am looking for is superficial temporary escapades with pretty young ladies,” he said. “It’s harder than it was when I was younger. I only go after girls who are in their athletic prime. But it’s okay.” Mr Den Hollander’s suit against the New York nightclubs began when he went in search of such women after his divorce. He found that many clubs offered women cut-price entry.

The word of the day is "deference"

If you practice administrative law, the only word you need to know is "deference." That is, deference to administrative law judges, deference to agency decisions. You can challenge an agency decision in court, but courts will for the most part defer to that agency's expertise.

The case is Wasser v. New York City Office of Vocational and Educational Services, decided on April 28. Michael Wasser is a disabled attorney who received services from VESID, a government entity that provides vocational assistance and services to disabled people. As a law student, Wasser received services including computers and transportation, and VESID also paid a portion of his law school tuition. When he graduated law school and joined the New York City Department of Law, VESID stopped providing services, and an impartial hearing officer upheld that determination over Wasser's objections.

Wasser is allowed to challenge VESID's adverse decision in federal court, but the factual conclusions reached by the administrative hearing officer are entitled to deference in federal court. Remember what I said about deference? Aggrieved persons who lose hearings under the Individuals with Disabilities in Education Act (IDEA) -- which applies to public school students who want certain services -- can also challenge those decisions in federal court, but the courts will defer for the most part to the findings reached by the impartial agency hearing officers, who are deemed experts.

Borrowing from IDEA cases that defer to agency determinations for disabled public students, the Court of Appeals (Walker, Straub and Livingston) now holds that the same deference applies to VESID determinations. Here is the governing standard:

“While federal courts do not simply rubber stamp administrative decisions, they are expected to give ‘due weight’ to these proceedings, mindful that the judiciary generally ‘lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.’”

Wasser is not only the plaintiff, he is his own lawyer. He knows enough to try to distinguish the IDEA cases. He argues that while courts may defer to the educational judgments of experts under the IDEA, the standard of review in VESID cases is "de novo" (or no deference at all) because "courts are uniquely positioned to evaluate the vocational rehabilitation services necessary for an individual to become a lawyer, which was plaintiff’s employment goal." The Court of Appeals is not buying this. VESID does not just provide services to people who want to become lawyers; it "provides services to individuals so that they 'can improve their ability to become gainfully employed' without regard to the type of employment sought by the individual. Thus, the only fair and workable standard to be applied is one that is the same regardless of the aggrieved party’s employment goal."

Rare Commerce Clause decision reverses trial court verdict

Everyone in law school learns about the Dormant Commerce Clause, a portion of the Constitution that sets forth governmental authority to regulate commerce. This is one of the most important provisions in our national charter, but relatively few cases actually address this issue, especially at trial.

The case is Francarl Realty v. Town of East Hampton, a summary order decided on May 3. The trial court sided with defendant in this case after a bench trial. The Court of Appeals reverses the judgment and sends it back to the trial judge. It is unusual to see a verdict overturned on summary order, by the way.

Town law regulating ferry service banned "fast" (or high speed) and "vehicle" ferries. The plaintiffs want to operate these ferry services, but Town law prohibits it. The plaintiffs argued that these limitations violated the Commerce Clause because they shifted the burden of traffic from local drivers onto interstate drivers, because local drivers benefit from reduced traffic volume on the local roads while interstate travelers are denied the most direct route to Town through the ferry. If you know the Town of East Hampton, you know that traffic is no picnic, and I guess non-locals were being denied the best way to travel through Town, and ferries from Connecticut to East Hampton are probably a Godsend to motorists who want to reach this resort Town without spending half the weekend driving through New York City and Long Island.

After a bench trial, the district court said that these ferry limitations did not have an incidental burden on interstate commerce and were therefore constitutional. The Court of Appeals (Miner, Cabranes and Wesley) sees it differently, finding that it would be inconsistent for the district court to say that (1) the bans reduce interstate travel in the Town and (2) the bans were effective in mitigating traffic congestion by reducing interstate travel in the Town.

For the Town to win the case, it would have to show that the ferry limitations mitigate traffic congestion. But the Court of Appeals says the evidence shows no real link between the Fast Ferry Ban and the claimed benefit of mitigating traffic congestion, primarily because it would not create a traffic burden on the Town if plaintiff lives up to its promise to limit transportation to 1,342 passengers per day. What this all means is that the Fast Ferry Ban might not actually prevent additional traffic in Town, and any incidental burden on interstate commerce might clearly exceed the benefits under a traditional Commerce Clause analysis.

"We don't need no stinkin' badges!"

New York City makes it illegal to walk into certain federal buildings with bogus police badges. The police effort to crack down on these lawbreakers is called Operation Stinking Badges. The Court of Appeals rejects a constitutional challenge to the program.

The case is Dickerson v. Napolitano, decided on May 14. As this case involves First Amendment principles, Judge Sack (a free speech lawyer in his practice days) gives us a workout in this area (along with a footnote YouTube link to the movie clip from The Treasure of the Sierre Madre which contains the famous outcry, "We don't need no stinkin' badges").

Plaintiff were arrested for bringing fake badges into certain federal buildings, including 26 Federal Plaza. They did not intend to convey any message, and their criminal cases were dismissed, an outcome that gives the plaintiffs a ticket to the federal courthouse. That doesn't mean they win the case, and they don't.

For very technical reasons that only a First Amendment lawyer can love, the Court of Appeals (Sack, Jacobs and Hall) decides that plaintiffs are limited to an as-applied challenge to Operation Stinking Badges. For some reason, plaintiffs waived a facial challenge to the law, which is too bad since the Court of Appeals suggests they could have won that challenge since the law's prohibition against the possession of certain items "in any way resembling" a police uniform, insignia or shield could reach as far as kids playing cops and robbers or the souvenirs sold in the police department gift shop.

Plaintiffs can only win the "as-applied" challenge if the statute as applied to the things they were bringing into the buildings violated First Amendment principles. They lose the case. Judge Sack finds, "even if there is ambiguity as to the margins of what conduct is prohibited under the statute, we are of the view that an ordinary person would understand the statute to prohibit the possession of items that could be used by an adult to impersonate a police officer." In other words, the law gives fair notice that fake badges that look like police shields are prohibited.

The plaintiffs come close to winning the case in a different argument, i.e., that language in the statute prohibiting items that "in any way resemble" legitimate police badges gives the police too much discretion to enforce the statute without clear guidelines to prevent arbitrary arrests. This legal theory is grounded in settled Supreme Court authority. The Court of Appeals likes this argument, but it cannot pull the trigger because the rule against plaintiff's bogus badges falls within the statute's "core concerns," that is, to prevent impostors from trying to impersonate police officers in order to commit crimes. No case law is cited in support of the "core concerns" exception to the rule against standardless speech restrictions, and I am wondering if this is the first time the Court of Appeals is applying it.

In loco parentis comes to the Second Circuit

Remember college administrators telling you that they were not "in loco parentis"? That's Latin for "we are not your parents." In loco parentis found its way to the Second Circuit in a tragic case involving young students who died from an accident on a lake at Paul Smith College in upstate New York.

The case is Guest v. Hansen, decided on April 20. While visiting the college, Kristine Guest and a friend were snow-mobiling on a lake situated on campus but owned by the state. They crashed into a peninsula, a piece of land owned by the campus, causing their deaths. College officials knew that students partied at this lake all the time and that these get-togethers included a lot of drinking and other ill-advised activity, like snowmobiling along the frozen lake. State police told campus officials to call them if they saw any dangerous or illegal activity, but a college official ignored that directive, in part, because she did not want to "cause a riot."

So are college officials liable for these deaths? Had they called the police, the wild parties might have stopped that night and no one would have died on the lake. But here is what we learn in law school: the law does not always require the fairest outcome. The Court of Appeals (Parker, Raggi and Calabresi) rules in favor of the college. The college owed the students no duty. Citing decisions from the New York Court of Appeals, the Second Circuit says:

Under New York law, colleges have no legal duty to shield students or their guests from the harmful off-campus activity of other students. They do not act in loco parentis. Similarly, a defendant has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control. Nor does a defendant assume such a duty by observing, but failing to stop dangerous activity.

These principles cut against the family. Maybe the college could have saved the victims, but it had no legal duty to do so. Interesting footnote at the end of the decision: Judge Calabresi, who wrote the majority opinion (including a section that allows the victim's non-lawyer father to handle the case pro se), actually does not agree with the liability analysis and would certify the case to the New York Court of Appeals to clarify the legal rules governing this case.

Scintilla of evidence not enough to save discrimination case

What does it take to win an employment discrimination claim? Is it enough for a supervisor to admit that you were the victim of discrimination? Your instincts may tell you "Yes," but the Court of Appeals says "No," at least in this case, which actually defines the phrase that we see in summary judgment decisions all the time: "scintilla of evidence."

The case Fincher v. Depository Trust, decided on May 14. Fincher believed her employer was discriminating against her because of her race. A supervisor, Hudson, told Fincher that she was in fact the victim of discrimination. The district court chose not to credit Fincher's testimony because Hudson denied saying it and Fincher had no other evidence to support that admission. This was wrong, the Second Circuit (Sack, Livingston and Lynch) holds, because "as a general rule, a district court may not discredit a witness's deposition testimony on a motion for summary judgment, because the assessment of a witness's credibility is a function reserved for the jury." This ruling is not enough for Fincher to win the appeal, but it does provide an interesting diversion.

Judge Sack then provides a useful summary of why the district court should have credited Fincher's testimony about Hudson's admission. Discrimination cases often rely on "he-said she-said" evidence, and on a summary judgment motion, we have to take the plaintiff at her word. If she said that Hudson told her she was the victim of discrimination, at this stage of the case, since plaintiff's testimony about this conversation is not facially implausible, we presume that Hudson made that admission even if he swears otherwise on a stack of bibles.

Fincher's discrimination case is dismissed even though the Court of Appeals credits her testimony that Hudson admitted there was discrimination. That is because she has no other evidence of discrimination. By itself, an off-hand and conclusory managerial admission that the plaintiff was discriminated against is not enough to win the case. "Summary judgment cannot be defeated by the presentation by the plaintiff of but a 'scintilla of evidence' supporting her claim. Moreover, even as a purported concession the disputed remarks were indirect, with Hudson referring vaguely to the discriminatory motives of others at the company, not his own, as compelling his actions toward Fincher."

Importantly, Hudson's comment was not itself discriminatory in that, for example, he did not make a racist comment to her in the context of her ill-treatment at work. The Court of Appeals reasons, "the disputed remarks were, moreover, a purported concession that Fincher was discriminated against; they were not themselves discriminatory. Summary judgment might not have been justified were Hudson's alleged remarks themselves imbued with discriminatory animus, rather than a report of purportedly discriminatory action."

Does the City Human Rights Law provide broader retaliation protections than Title VII?

If you handle employment discrimination cases in New York City, you know that the New York City Human Rights Law extends far greater protections to employees than Title VII or the New York State Human Rights Law. The City law is not co-terminus or redundant. The Court of Appeals suggests that a plaintiff's failure to raise a City claim in a retaliation case could have been deadly.

The case is Fincher v. Depository Trust, decided on May 14. As I outlined in this post, the Court of Appeals held that management's failure to investigate an in-house discrimination complaint does not constitute an adverse employment action sufficient to predicate a lawsuit. The failure to investigate is not serious or "material" enough and is not deemed sufficiently punishing to allow the Title VII case go move forward.

But that does not mean that Fincher has no case under the City law. Over the last few years, State appellate courts have issued a series of rulings faithful to the New York City Council's intent to broadly interpret the City law such that, for example, hostile work environments do not require "severe or pervasive" sexual harassment, and, also unlike Title VII, management is strictly liable for supervisory harassment. The below excerpt from Fincher v. Depository Trust provides a good overiew of what's going on these days:

New York State courts and district courts in this Circuit have concluded, to the contrary, that the retaliation inquiry under the CHRL is "broader" than its federal counterpart. See Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 71, 872 N.Y.S.2d 27, 34 (1st Dep't 2009). Under the CHRL, retaliation "in any manner" is prohibited, and "[t]he retaliation ... need not result in an ultimate action with respect to employment ... or in a materially adverse change in the terms and conditions of employment." N.Y.C. Admin. Code § 8-107(7); see also Williams, 61 A.D.3d at 69-72, 872 N.Y.S.2d at 33-35; Sorrenti v. City of New York, 17 Misc. 3d 1102(A), 851 N.Y.S.2d 61 (Table) (N.Y. Sup. Ct., N.Y. Cty. 2007) (unreported decision) ("[T]he City Council enacted a less restrictive standard [than the federal and state standard] to trigger a [CHRL] violation in that it is now illegal to retaliate in any manner."); Pilgrim v. McGraw-Hill Cos., Inc., 599 F. Supp. 2d 462, 469 (S.D.N.Y. 2009) ("The prima facie standard for retaliation claims under the CHRL is different [from the federal and state standard], in that there is no requirement that the employee suffer a materially adverse action. Instead, the CHRL makes clear that it is illegal for an employer to retaliate in 'any manner.'").

The State courts are still working out any functional differences between State and Federal retaliation law, however. The Appellate Division in Manhattan "rejects a materiality requirement," while under the Supreme Court's interpretation of Title VII, federal retaliation claims must involve an action by the employer that is "materially adverse." In a case like this, "the proper inquiry under the CHRL is whether a jury could 'reasonably conclude from the evidence that [the complained-of] conduct [by the employer] was, in the words of the [CHRL], reasonably likely to deter a person from engaging in protected activity,' without taking account of whether the employer's conduct was sufficiently deterrent so as to be "material[]."

This is all very interesting, to be sure, and the Second Circuit is surely enjoying the intellectual feast raised by this issue, so much so that it cites an unpublished State trial court decision to outline the possible scope of the City law. But the Court of Appeals does not decide whether Fincher has a retaliation claim under the City law because she did not pursue that issue on appeal, for whatever reason. Waiver in the Second Circuit carries the same definition in everyday life. You snooze, you lose.

Failure to investigate in-house discrimination claim is not "adverse employment action" under Title VII

The Court of Appeals holds that management's failure to investigate the plaintiff's in-house racial discrimination complaint is not an "adverse employment action" under the civil rights laws.

The case is Fincher v. Depository Trust, decided on May 14. For the uninitiated, you cannot win a discrimination case without an adverse action. This is a term of art that ensures that not every negative decision at work predicates a lawsuit. Here is the standard in retaliation cases:

The anti-retaliation law "protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). [A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. We speak of material adversity because we believe it is important to separate significant from trivial harms.

Fincher told personnel that black workers did not receive the same training as white employees. Management did not investigate the complaint. Adopting the reasoning from district courts in our jurisdiction, the Court of Appeals holds, "at least in a run-of-the-mine case such as this one, an employer's failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discrimination complaint."

Here is how the Court of Appeals sees it: adverse employment actions typically involve affirmative efforts to punish the worker for engaging in protected activity. But in failing to investigate plaintiff's in-house discrimination complaint, she is no worse off than if she had not made the complaint at all, or if management had investigated the complaint and rejected it. "Put another way, an employee's knowledge that her employer has declined to investigate her complaint will not ordinarily constitute a threat of further harm, recognizing, of course, that it would hardly provide a positive incentive to lodge such a further challenge."

The Court does say that management's failure to investigate a complaint may constitute an adverse action in other contexts, i.e., the Court cites a case from the D.C. Circuit Court of Appeals where the employer did not investigate a death threat against the employee in retaliation for the employee's prior, unrelated complaint of discrimination. What distinguishes that case from this case is that the failure to investigate in the D.C. case was once removed from the plaintiff's discrimination complaint. Here is how Judge Sack makes the distinction:

in Rochon v. Gonzalez, 438 F.3d 1211 (D.C. Cir. 2006), the refusal to respond to the employee's complaint of a death threat was allegedly in retaliation for his separate and earlier complaint of discrimination. The employee contended that if he had never complained of discrimination, his complaint of a death threat against him would have been investigated. Making the initial complaint allegedly resulted in the separate retaliatory failure to investigate a subsequent complaint.

Title VII practitioners know that nearly all employment discrimination law is judge-made. The judges have to balance their view of Title VII with the consequences of a contrary interpretation. Judge Sack suggests that an opposite result might encourage mediocre employees to lodge frivolous discrimination complaints and then pursue litigation when management does not investigate.

No hostile environment in school harassment case

Student harassment cases parallel workplace harassment cases in that both require evidence that the plaintiff endured a hostile environment. It's harder to win cases against public schools under Title IX because you have to show the school was deliberately indifferent to known harassment, as opposed to the more lenient burden in Title VII harassment cases, which requires proof that management was negligent in handling the problem. But let's talk about the hostile environment requirement.

The case is R.S. v. Hastings on Hudson School District, a summary order decided on April 9. The ninth-grade student, S.S., received three emails during a 10-day period. These emails were most offensive. As the Second Circuit (Hall, Raggi and Sack) puts it:

Originating from the email account of M.X., a classmate, the first message was profane and disparaged S.S.’s appearance; the second (sent the next day) contained a crude sexual request; and the third declared, in explicit terms, the author’s intent to have sex with S.S. S.S. promptly reported the emails to School District staff, including defendant Assistant Principal Michael Rossi, who had been informed of similar emails sent to at least one other female student from the same account at about the same time. School District staff discussed the emails with S.S.’s parents and questioned M.X., who denied sending the emails and claimed other students had gained access to his email password.

The courts borrow the analysis from Title VII employment cases in deciding whether the sexual harassment at school was severe or pervasive enough to create an hostile educational environment. The Supreme Court came around to recognizing peer harassment claims in the late 1990s, and by now there are enough student harassment cases that provide guidance under Title IX. This decision cites a few disgusting cases of student assaults and harassment from the district courts in the Second Circuit that sufficed to violate Title IX. But this particular case is not pervasive enough for the plaintiff to win (even assuming the school was deliberately indifferent to the harassment).

"While lamentable," these emails "do not rise to the level of actionable sexual harassment under federal law, the Second Circuit concludes. The Court of Appeals reflects the plaintiff's claim that she endured a "months-long campaign of intimidation and humiliation." Three emails like this are not enough, and the Second Circuit will not take into account any of the non-sexual arguments that R.S. had with M.X.

For the Title IX mavens out there, the full story about the deliberate indifferent element of this case is found in the district court ruling, found on Google Scholar. Judge Gardephe ruled in a lengthy footnote that the district was deliberately indifferent to the harassment. Here is a snippit:

Courts have found that a school does not act with deliberate indifference toward harassment where it "promptly investigates, institutes corrective measures, and subsequently continues to monitor the situation." Here, the Court cannot find as a matter of law that the District took any such steps. There are genuine factual disputes as to how promptly the District took obvious and basic steps such as questioning M.X.; interviewing the students identified by M.X. as having access to his account; changing M.X.'s password; and disabling M.X.'s District e-mail account. Moreover, there is no evidence that the District directly asked M.X. whether he sent the offensive e-mails to S.S.; that it took any steps to gather and preserve information about use of its network that might have assisted in determining who sent the e-mails; or that it monitored the use of M.X.'s account after the first inappropriate e-mails were sent from the account.

There is also evidence that the District chose to respond much more quickly and thoroughly to other incidents of harassment. For instance, Rossi testified that when the word "nigger" was found spray painted on a locker, it was photographed and then removed within an hour, and the police were called within a day. The school brought in a former student who was African-American to speak to the student body, and also brought in a facilitator from the U.S. Department of Justice to meet with students. Similarly, when a pornographic picture was e-mailed to the school librarian five or six years earlier, the District traced the e-mail within a week, and identified and suspended the student responsible. Here, the District did not seek to obtain or preserve network system logs that could have facilitated tracing the offensive e-mails until months after the e-mails were sent. By that time, the logs had been destroyed.

This is what Iqbal "implausibility" looks like

When the Supreme Court decided in Ashcroft v. Iqbal, 129 S.Ct. 137 (2009), that "plausibility" would be the standard governing motions to dismiss, lawyers worried that trigger-happy courts would more closely scrutinize legitimate claims and throw them out because they were not plausible in a judge's subjective assessment. That may be, but Iqbal plausibility also allows the courts to throw out claims that are simply implausible and can never be won.

The case is McCracken v. Brookhaven Science Associates, a summary order decided on May 12. Plaintiff filed this case pro se. He claims that experiments conducted at Brookhaven National Laboratory released radiation that gave him thyroid cancer.

The Court of Appeals (Lynch, Miner and Trager [D.J.]) says that claims like this are not implausible on their face. But it does not survive the Iqbal plausibility test. The Court says that plaintiff does not support this claim with any specific factual allegations "to draw the inference that Brookhaven was liable. Appellant never worked at Brookhaven; he alleges only that 'he has for thirty-three (33) years resided in the vicinity of' Brookhaven; and he gives no hint in his pleading of any fact suggesting that Brookhaven, or any other defendant for that matter, was responsible for the alleged leaks." In a footnote, the Court notes that "Appellant’s closest residence to Brookhaven was over twenty miles away in Commack, New York, where he claims he lived for four years."

While most plaintiffs are allowed to amend their dismissed complaints to cure any defects, the Court of Appeals denies that opportunity to plaintiff. The Court explains, "courts must dismiss in forma pauperis complaints that are frivolous or fail to state a claim." Basically, the Court of Appeals does not believe that plaintiff will ever be able to prove his case and that the complaint on its face is implausible as a matter of law.

No individual liability in ADA retaliation claims

Can you sue an individual under the Americans with Disabilities Act? The Second Circuit says you cannot, borrowing its analysis from cases interpreting Title VII.

The case is Spiegel v. Schulmann, decided on May 6. Plaintiff was fired from his job at a karate school, allegedly because he was obese. When he told management he was going to file a charge of discrimination, defendants fired Spiegel's friend, Schatzberg, and sued both of them in state court for interfering with the karate school's contracts. Plaintiffs then sued Schulmann for retaliation under the ADA.

At first glance, the ADA allows plaintiffs to sue the individual for retaliation. The ADA's retaliation provision reads:

[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

See that? It says "no person" shall retaliate. But the statutory text is not the last word. The ADA also says that "the powers, remedies, and procedures set forth" under Title VII apply to the ADA. However, although ADA claims are generally resolved under Title VII principles, the plain text of Title VII's retaliation provision does not carry the same language as the ADA's retaliation provision. Title VII reads:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a) (emphasis supplied).

While Title VII says an employer cannot retaliate, the ADA says "no person" shall retaliate. Although the statutes contain different language about who cannot retaliate, the Second Circuit says the Title VII analysis still applies. The Court of Appeals has long held that Title VII does not authorize individual liability (Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995)). And so while the Court of Appeals notes that its holding in this case "is arguably contrary to a literal reading of" the ADA's retaliation provision, applying Tomka to ADA claims, the Court of Appeals (Hall and Livingston) knocks out the individual retaliation against Schulmann.

If you handle sexual harassment cases in NYC, you'd better read this

Sexual harassment law under Title VII changed when the Supreme Court held in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), that the employer can win the case if it promptly investigates and remedies supervisory harassment. That is also the law under the New York Human Rights Law, which is co-terminus with Title VII. But that is not the law under the New York City Human Rights Law.

The case is Zakrzewska v. The New School, decided by the New York Court of Appeals on May 6. This case originated in federal court, which certified the case for interlocutory appeal with the Second Circuit on the ground that it was not clear whether the Faragher affirmative defense applied under the New York City Human Rights Law. in turn, the Second Circuit threw up its hands, certifying this state-law issue for the New York Court of Appeals.

Under the plain terms of the City law, the employer is automatically liable when a supervisor sexually harasses a subordinate. If management takes the complaint seriously, the plaintiff may recover fewer damages, but unlike Title VII and the New York State Human Rights Law, prompt remedial action does not absolve management of liability. Under the City law,

[a]n employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision one or two of this section only where:

(1) the employee or agent exercised managerial or supervisory responsibility; or

(2) the employer knew of the employee's or agent's discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deemed to have knowledge of an employee's or agent's discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or

(3) the employer should have known of the employee's or agent's discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct.

The State Court of Appeals does not provide extensive analysis. The terms of the law are clear. Management is automatically liable for supervisor sexual harassment. This is how the City Council wanted it, according to the legislative history. While the defendant in this case argued that this law cannot circumvent the Faragher scheme that applies under the New York State Human Rights Law, the judges here rule that the City law does not violate state policy because it "merely creates a greater penalty for unlawful discrimination." The defendant further argues that the City law impedes deterrence of workplace harassment and therefore thwarts public policy because the affirmative defense under Faragher was designed to stop harassment before it happens. But, the Court of Appeals holds, this is a policy choice legitimately expressed by the City Council. The City law is legal.

Caught in the crosshairs of a legislative amendment

Did you know that it's illegal in New York to deny someone a job because of his criminal record? It's been the law since 1976. The law said precisely that. It is unlawful to reject an application or license for employment because of a criminal record (with some exceptions). In 2007, the state legislature amended the law to also say that it's unlawful to fire someone because of his criminal record. This amendment created a dilemma for a plaintiff who was fired prior to the amendment in 2007.

The case is Noble v. Career Education Corp., a summary order decided on April 29. I briefed and argued the appeal, so I'll try to be objective here. Noble's case raised an interesting issue of statutory construction. The plain terms of the 1976 law did not protect him because he was fired prior to the 2007 amendment which would have protected him. But two of the four appellate divisions in New York seemed to hold that the pre-2007 law also covered post-hiring decisions and therefore outlawed terminations because of a criminal record. The First Department in Manhattan came right out and said it: "The same public policy that prohibits discrimination in hiring on the basis of a criminal record prohibits discrimination in terminating employment on the basis of a criminal record."

On the other hand, if the state legislature in 2007 amended the law to protect people from conviction-related terminations, doesn't that mean that the 1976 law was never supposed to reach that far and the appellate rulings over the years that broadly interpreted the law had overreached? Then again, maybe the 2007 amendment simply codified the existing case law that had already prohibited wrongful discharge. The New York Court of Appeals never got around to that issue, so the Second Circuit took up that issue on its own.

The Court of Appeals (Raggi and Hall) rules for the employer, strictly construing the 1976 law to prohibit only failure to hire. As for the state appellate rulings that went the other way, the Court of Appeals finds that the cases are not that clear, and that the Fourth Department seems to have gone both ways on the issue. The Third Department, on the other hand, did interpret the 1976 law to only prohibit failure to hire. The Second Circuit also interprets the 2007 amendment (and the sponsor's memorandum accompanying the amendment) to mean that the law was never supposed to protect plaintiffs like Noble, until now. For Noble, it's too late. The law is not retroactive, and the case is dismissed.

No copyright infringement in sneaky cookbook for kids

Cookbooks are like exercise equipment. We all have them, but we do not always use them. Some of us have them and do not use them at all. That doesn't mean we don't buy them. Cookbooks are a lucrative market for publishers. Which is why The Sneaky Chef, Inc., sued Jessica Seinfeld.

The case is Lapine v. Seinfeld, decided by summary order on April 28. This is a copyright infringement case. Plaintiff published a cookbook called, The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals. The idea was that kids need to be tricked into eating healthy food. Four months later, Jessica Seinfeld (Jerry's wife) published Deceptively Delicious: Simple Secrets To Get Your Kids Eating Good Food, which also focused on how to sneak vegetables into food. Did Seinfeld commit a copyright violation?

No, says the Court of Appeals (Raggi and Hall). The books carry similar concepts, but "Stockpiling vegetable purees for covert use in childrens' food is an idea that cannot be copyrighted." Ideas, concepts and processes are not covered under the copyright law. The Court adds:

to the extent the two works have general and abstract similarities – including their vaguely similar titles and inclusion of illustrations of prepared dishes, health advice, personal narrative, descriptions of how to make purees, instructions for preparing dishes, and language about children’s healthy eating – the district court correctly concluded that these elements do not raise a fact issue for trial because they are “scènes à faire,” or “unprotectible elements that follow naturally from [the] work’s theme rather than from [the] author’s creativity.”

In addition, both books contain a different concept and feel. The Sneaky Chef contains extensive discussion of child behavior, food philosophy and parenting. The Seinfeld book does not. Seinfeld's book is also more colorful with more photographs. The Sneaky Chef also seems to be more sophisticated when it comes to cooking.

Iqbal plausibility and the First Amendment

When the Supreme Court handed down the Iqbal decision in 2009, it changed the pleading standard for attorneys filing lawsuits in federal court. It is not enough to plead a claim for relief. You have to plead a plausible claim. The Court of Appeals finds that a First Amendment claim against New York City is plausible, and it therefore reinstates the lawsuit.

The case is Kregler v. City of New York, decided on May 3.

Here is the standard under Iqbal, a standard that plaintiffs' lawyers are going to have to memorize: “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Aschroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).

Kregler is a City firefighter who wanted to be a City Marshal. He publicly announced his support for a candidate in a heated political campaign. He alleged in his lawsuit that "employees of the New York City Fire Department induced contacts at the Department of Investigation to prevent his appointment as a City Marshal." This case poses the question: is Kregler's claim sufficiently plausible to survive a motion to dismiss?

The answer is Yes, the Court of Appeals (Calabresi, Kearse and Jacobs) holds in a summary order:

This allegation is neither a legal conclusion nor asserts a claim that is implausible on its face. Kregler’s claim that political animus caused certain defendants to lie about or mischaracterize Kregler’s disciplinary record, and that that same political animus caused other defendants to accept their misrepresentations is not implausible on its face and therefore not susceptible to a motion to dismiss.

The plausibility theory of Complaint drafting requires the trial judge to decide whether the allegations in the lawsuit are, well, plausible. This standard requires the court to draw upon its experience in deciding whether the allegations are enough to initiate the discovery process, including depositions, document review, et al. Here, the question was an easy one, which is why the Court of Appeals issued this case as a summary order, not a published opinion. Retaliation against public employees for associating with political candidates happens all the time. Ain't nothing implausible about retaliation in this context.