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In July 2012, the Second Circuit held that a Department of Social Services caseworker could be terminated in retaliation for her testimony in Family Court. While the caseworker challenged her termination under the First Amendment, the Northern District of New York and the Second Circuit disagreed, holding that her speech was unprotected under Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds that the First Amendment does not protect speech made pursuant to the employee's job duties.
The case is Kiehle v. County of Cortland, summarized here. I represented Kiehle on appeal. On November 14, 2012, the Yale Supreme Court Clinic, in conjunction with my office, filed a certiorari petition with the United States Supreme Court, asking that the case be heard in light of disagreements among the federal circuit courts about whether the First Amendment prevents public supervisors from disciplining or terminating employees in retaliation for their good faith courtroom testimony. A copy of the petition is here.
Friday, November 30, 2012
Thursday, November 29, 2012
2d Circuit affirms $48 million personal injury verdict
In this horrible case involving an American Airlines employee who was rendered a quadriplegic while riding on a baggage tractor that went awry, the jury awarded the plaintiff over $48 million in damages. The case raises a strange issue of how to assess whether the damages are too high under state law.
The case is Saladino v. American Airlines, Inc., a summary order decided on October 17. In federal cases involving state-law negligence, the defendant will argue that the damages are excessive, that is, they deviate materially from what would be reasonable compensation. That's the standard under CPLR sec. 5501(c). Defendants' counsel argued that the appropriate damages amount should be $5 million for past pain and suffering and $10,000 for future pain and suffering. The Court of Appeals (Newman, Lynch and Lohier) disagrees and upholds the $48 million.
In assessing whether the damages are too high, the federal court will decide the case as the New York State Appellate Division would. Since there are four regional Appellate Divisions in New York, the federal courts have a lot of case law to choose from. What makes this case unusual is defendants' argument: the federal court could only look at cases from the Appellate Division Second Department (which sits in Brooklyn and covers Long Island, parts of New York City and the suburban counties in upstate New York). I am sure that defendants cited some cases from the Second Department that low-balled serious pain and suffering cases. God knows where defendants came up with this argument, but the Court of Appeals rejects it out of hand, emphasizing that courts should take the case law where they can find it in trying to assess high damages awards:
The case is Saladino v. American Airlines, Inc., a summary order decided on October 17. In federal cases involving state-law negligence, the defendant will argue that the damages are excessive, that is, they deviate materially from what would be reasonable compensation. That's the standard under CPLR sec. 5501(c). Defendants' counsel argued that the appropriate damages amount should be $5 million for past pain and suffering and $10,000 for future pain and suffering. The Court of Appeals (Newman, Lynch and Lohier) disagrees and upholds the $48 million.
In assessing whether the damages are too high, the federal court will decide the case as the New York State Appellate Division would. Since there are four regional Appellate Divisions in New York, the federal courts have a lot of case law to choose from. What makes this case unusual is defendants' argument: the federal court could only look at cases from the Appellate Division Second Department (which sits in Brooklyn and covers Long Island, parts of New York City and the suburban counties in upstate New York). I am sure that defendants cited some cases from the Second Department that low-balled serious pain and suffering cases. God knows where defendants came up with this argument, but the Court of Appeals rejects it out of hand, emphasizing that courts should take the case law where they can find it in trying to assess high damages awards:
defendants argue that the district court was legally required to examine only cases arising in the Second Department. But they have failed to point us to any binding authority for this proposition. Given the paucity of cases factually similar to Saladino’s, and in the absence of any evidence that community standards differ between, for example, Manhattan and Queens, we believe it would be odd for a federal court to disregard potentially informative cases arising in other parts of the state. Similarly, although it is true that awards affirmed by the Appellate Division are the most important to a federal court’s § 5501(c) analysis, that does not mean that unappealed state trial court verdicts or federal court verdicts are irrelevant. Thus, the district court did not err by examining federal cases, state appellate cases from outside the Second Department, or a state trial court decision.
Tuesday, November 27, 2012
Trial courts have more power than God
Trial courts have such broad authority to manage their calendars that even unfair decisions about when to proceed with trial are almost unreviewable on appeal. It's been said that federal judges are among the most powerful people in the country. There's some truth to that.
The case is Payne v. Jones, decided on October 3. This is a somewhat wild case alleging police brutality against a police officer who beat up a disabled veteran in the mental health unit of an emergency room. The officer attacked the veteran after the veteran kicked the officer in the groin after the officer insulted the plaintiff's Marine Corps tattoo and said that "Marines are pussies."
Right before trial, the officer-defendant became seriously ill and had to miss the start of trial because he was in the hospital. I imagine that many judges would put the trial over a few weeks. But in this case, the trial court forged ahead, telling the jury that the defendant was not able to make it to trial through no fault of his own. Even after the trial court got confirmation that defendant was in the hospital, he disallowed the jury from hearing this information, saying only that defendant was ill. Jones missed two out of five trial days but was able to testify in his defense.
Jones argues that the trial court abused its discretion in refusing to grant a continuance, or adjournment, of the trial, because the jury must have developed an unfavorable impression of him since Payne was trying his case against an "empty chair" for three days. Since this must have been a close case in light of the fact that Payne provoked Jones to attack him by kicking Jones in the groin, this is not a bad argument. Any advantage for the plaintiff could hurt Jones at trial. But the Court of Appeals affirms the verdict, reminding us that district courts have much latitude in managing trials and, besides, the trial court did tell the jury several times that Jones was unable to attend trial because of illness. If anything, the Court of Appeals (Leval, McLaughlin and Jacobs) says, had the trial court told the jury that Jones was in the hospital, it might have evoked sympathy for Jones, thereby unfairly prejudicing Payne.
The case is Payne v. Jones, decided on October 3. This is a somewhat wild case alleging police brutality against a police officer who beat up a disabled veteran in the mental health unit of an emergency room. The officer attacked the veteran after the veteran kicked the officer in the groin after the officer insulted the plaintiff's Marine Corps tattoo and said that "Marines are pussies."
Right before trial, the officer-defendant became seriously ill and had to miss the start of trial because he was in the hospital. I imagine that many judges would put the trial over a few weeks. But in this case, the trial court forged ahead, telling the jury that the defendant was not able to make it to trial through no fault of his own. Even after the trial court got confirmation that defendant was in the hospital, he disallowed the jury from hearing this information, saying only that defendant was ill. Jones missed two out of five trial days but was able to testify in his defense.
Jones argues that the trial court abused its discretion in refusing to grant a continuance, or adjournment, of the trial, because the jury must have developed an unfavorable impression of him since Payne was trying his case against an "empty chair" for three days. Since this must have been a close case in light of the fact that Payne provoked Jones to attack him by kicking Jones in the groin, this is not a bad argument. Any advantage for the plaintiff could hurt Jones at trial. But the Court of Appeals affirms the verdict, reminding us that district courts have much latitude in managing trials and, besides, the trial court did tell the jury several times that Jones was unable to attend trial because of illness. If anything, the Court of Appeals (Leval, McLaughlin and Jacobs) says, had the trial court told the jury that Jones was in the hospital, it might have evoked sympathy for Jones, thereby unfairly prejudicing Payne.
Monday, November 19, 2012
No ADA remedy for terminated autistic volunteer
The Court of Appeals holds that the Amended Americans with Disabilities Act does not prevent a public nursing home from terminating the volunteer duties of an autistic adult accused of making women in the workplace feel uncomfortable through alleged sexual leering and other behaviors that management deemed erratic and inappropriate.
The case is McElwee v. County of Orange, decided on November 15. I briefed and argued the case. The plaintiff is a 35 year-old man who helped out around the home through its volunteer program. (The case is therefore brought under Title II and not Title I, which covers employment discrimination). Although plaintiff had volunteered there for many years, a female employee complained about his behavior in 2009, and his supervisor investigated and discovered that plaintiff had made employees feel uncomfortable over the years (though no one had lodged any formal complaints). Plaintiff was thus released from the program.
The Court of Appeals assumes that plaintiff is disabled under the Amended ADA, which provides an expanded definition of "disability" in rejecting narrow Supreme Court rulings on the issue. But the Court rejects plaintiff's argument that he was entitled to a reasonable accommodation. Along the way, suggesting this case raises some new issues, the Second Circuit (Chin, Raggi and Carney) cites a number of district court cases as well as extra-Circuit rulings. But the Court also borrows from Title III discrimination cases in holding that the employer is not liable for not accommodating the plaintiff when no such accommodation can work under the circumstances.
Plaintiff argued that management "should have (1) worked with him and his therapist to help him behave more appropriately in the workplace; and (2) worked with the Valley View employees who complained about him to educate them about McElwee's disability so that they would be more tolerant of his behavior." Plaintiff also argued that defendant should have known that he was harmless and did not intend to sexually harass anyone. The Court disagrees. These proposals would excuse past misconduct and, even if his behavior resulted from his disability, the accommodations would not work. "The first accommodation McElwee proposes is that Valley View should have spoken to his therapist or 'encourage[d] him to obtain particularized therapy to help him behave more appropriately in the workplace and . . . better interact with colleagues.' Nothing in the record before us, however, indicates that further therapy would have helped McElwee to refrain from his inappropriate conduct, either immediately or at any time in the near future." Moreover, any proposed accommodation that involves educating co-workers about his disability won't work, either. "This proposed accommodation does not even purport to address McElwee's inappropriate behavior; instead, it simply demands that others be more tolerant. Requiring others to tolerate misconduct, however, is not the kind of accommodation contemplated by the ADA."
The case is McElwee v. County of Orange, decided on November 15. I briefed and argued the case. The plaintiff is a 35 year-old man who helped out around the home through its volunteer program. (The case is therefore brought under Title II and not Title I, which covers employment discrimination). Although plaintiff had volunteered there for many years, a female employee complained about his behavior in 2009, and his supervisor investigated and discovered that plaintiff had made employees feel uncomfortable over the years (though no one had lodged any formal complaints). Plaintiff was thus released from the program.
The Court of Appeals assumes that plaintiff is disabled under the Amended ADA, which provides an expanded definition of "disability" in rejecting narrow Supreme Court rulings on the issue. But the Court rejects plaintiff's argument that he was entitled to a reasonable accommodation. Along the way, suggesting this case raises some new issues, the Second Circuit (Chin, Raggi and Carney) cites a number of district court cases as well as extra-Circuit rulings. But the Court also borrows from Title III discrimination cases in holding that the employer is not liable for not accommodating the plaintiff when no such accommodation can work under the circumstances.
Plaintiff argued that management "should have (1) worked with him and his therapist to help him behave more appropriately in the workplace; and (2) worked with the Valley View employees who complained about him to educate them about McElwee's disability so that they would be more tolerant of his behavior." Plaintiff also argued that defendant should have known that he was harmless and did not intend to sexually harass anyone. The Court disagrees. These proposals would excuse past misconduct and, even if his behavior resulted from his disability, the accommodations would not work. "The first accommodation McElwee proposes is that Valley View should have spoken to his therapist or 'encourage[d] him to obtain particularized therapy to help him behave more appropriately in the workplace and . . . better interact with colleagues.' Nothing in the record before us, however, indicates that further therapy would have helped McElwee to refrain from his inappropriate conduct, either immediately or at any time in the near future." Moreover, any proposed accommodation that involves educating co-workers about his disability won't work, either. "This proposed accommodation does not even purport to address McElwee's inappropriate behavior; instead, it simply demands that others be more tolerant. Requiring others to tolerate misconduct, however, is not the kind of accommodation contemplated by the ADA."
Friday, November 16, 2012
Rule 68: live it, learn it or pay the price
Rule 68 is tricky because if the defendant makes a shrewd Rule 68 settlement offer, the plaintiff has to think long and hard about whether to settle the case or roll the dice. If the plaintiff rejects the offer and wins the case but recovers less money than the Rule 68 offer, then his attorneys fees entitlement stops on the day the Rule 68 offer was made. Yes, the rule is tricky, which is why lawyers have to read the rule carefully and really understand what it means.
The case is Barbour v. City of White Plains, decided on November 14. In this case, things went awry. Which is why the City of White Plains's Rule 68 offer was defective, costing it nearly $300,000 in attorneys fees and costs on a civil rights case valued at $30,000.
Rule 68 says the defendant can offer judgment to the plaintiff as well as a dollar amount. The plaintiff has 10 days to accept that offer. There's a penalty flowing from the rejection. Let's say the Rule 68 offer is in the amount of $30,000. If the plaintiff rejects it and goes to trial but only recovers $20,000, her attorneys fees are cut off from the date of the Rule 68 offer. But that Rule 68 offer should say that the plaintiff recovers $30,000 inclusive of attorneys' fees. The Supreme Court said so in Marek v. Chesny, 473 U.S. 1 (1985):
The Court of Appeals further says that plaintiffs' settlement, $30,000 total, is not trivial or inconsequential such that full attorneys fees are warranted.
I would guess that defendants' counsel thought his Rule 68 offer covered attorneys fees and was surprised when plaintiffs' counsel moved for attorneys fees. The courts don't care. ou have to read the rules and then read the cases interpreting those rules. Reading is free. Not reading may cost you about $300,000.
The case is Barbour v. City of White Plains, decided on November 14. In this case, things went awry. Which is why the City of White Plains's Rule 68 offer was defective, costing it nearly $300,000 in attorneys fees and costs on a civil rights case valued at $30,000.
Rule 68 says the defendant can offer judgment to the plaintiff as well as a dollar amount. The plaintiff has 10 days to accept that offer. There's a penalty flowing from the rejection. Let's say the Rule 68 offer is in the amount of $30,000. If the plaintiff rejects it and goes to trial but only recovers $20,000, her attorneys fees are cut off from the date of the Rule 68 offer. But that Rule 68 offer should say that the plaintiff recovers $30,000 inclusive of attorneys' fees. The Supreme Court said so in Marek v. Chesny, 473 U.S. 1 (1985):
If an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which in its discretion, it determines to be sufficient to cover the costs.In this case, defendant served a Rule 68 Offer of Judgment on three police misconduct plaintiffs in the amount of $10,000 each. The offer did not say that this amount included plaintiffs' attorneys fees entitlement. It only said the offer covered "all claims pending against defendants in this action." Although plaintiffs did seek attorneys fees in this case, attorneys fees are not a claim. The Section 1983 action against the City is the claim. So plaintiffs accepted the offer and moved for attorneys fees in the amount of about $267,000 plus another $13,000 in costs. The district court granted the fees motion. Rejecting defendants' argument that the Rule 68 offer impliedly included attorneys fees, the Court of Appeals (Raggi, Hall and Carney) affirms on authority of Marek v. Chesny.
The Court of Appeals further says that plaintiffs' settlement, $30,000 total, is not trivial or inconsequential such that full attorneys fees are warranted.
I would guess that defendants' counsel thought his Rule 68 offer covered attorneys fees and was surprised when plaintiffs' counsel moved for attorneys fees. The courts don't care. ou have to read the rules and then read the cases interpreting those rules. Reading is free. Not reading may cost you about $300,000.
Tuesday, November 13, 2012
Who gets the tips at Starbucks?
If you buy coffee at Starbucks, there is a tip box on the counter. Management distributes the tips with its employees. Assistant Store Managers don't get those tips, though, only lower-level employees. Shift Supervisors do get tips, to the dismay of Baristas, the line-workers who have to share the tips with them. The question is whether ASM's and Shift Supervisors are eligible for tips under the New York Labor Law.
The case is Barenboim v. Starbucks Corp., decided on October 23. Actually, the case wasn't decided. The Second Circuit sends the case to the New York State Court of Appeals because it involves an open issue of state law. Under the Labor Law sec. 196-d "agents" may not "demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee." Are Shift Supervisors "agents"? What about ASM's? The New York Court of Appeals will have to worry about this, as the Second Circuit certifies the case for review by the state's highest court.
There are two cases here. The first is a putative class action filed by "baristas" who are the line workers that take customers' orders and serve the coffee and tea. They are aggrieved because they have to share the tips with Shift Supervisors, whom the baristas say are agents and therefore ineligible for tips. The second case is a putative class action of Assistant Store Managers who were denied the tips because Starbucks says they are "agents" under the Labor Law.
The Second Circuit is skeptical of the argument that shift supervisors are not entitled to tips, as they perform direct customer service, the kind of service that customers acknowledge when they throw money into the tip jar. But the Court of Appeals (Raggi, Winter and Livingston) is hesitant to reject this argument entirely. This issue is now in the hands of the New York Court of Appeals, which takes on cases like this from federal court when they raise an issue that is unique to state law and may implicate state public policy.
As for the case brought by the ASM's, these employees primarily serve customers and wear the same uniforms as their subordinates. They also have managerial tasks, but lack final authority over store decisions. They help the store manager with job interviews, employee discipline and preparing work schedules. In Starbucks's internal job descriptions, ASM's are listed as retail store support, and only store managers are considered management. This is a colorable argument, but it raises a matter that is unique to state law. "the same interpretative difficulty is present in [both] appeals: What factors should a court consider in determining whether an employee is his employer’s agent and, thus, ineligible to receive distributions from an employer-mandated tip pool? Because the meaning of the word 'agent' in § 196-d is not settled in New York case law, we defer decision and certify this question to the New York Court of Appeals."
The case is Barenboim v. Starbucks Corp., decided on October 23. Actually, the case wasn't decided. The Second Circuit sends the case to the New York State Court of Appeals because it involves an open issue of state law. Under the Labor Law sec. 196-d "agents" may not "demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee." Are Shift Supervisors "agents"? What about ASM's? The New York Court of Appeals will have to worry about this, as the Second Circuit certifies the case for review by the state's highest court.
There are two cases here. The first is a putative class action filed by "baristas" who are the line workers that take customers' orders and serve the coffee and tea. They are aggrieved because they have to share the tips with Shift Supervisors, whom the baristas say are agents and therefore ineligible for tips. The second case is a putative class action of Assistant Store Managers who were denied the tips because Starbucks says they are "agents" under the Labor Law.
The Second Circuit is skeptical of the argument that shift supervisors are not entitled to tips, as they perform direct customer service, the kind of service that customers acknowledge when they throw money into the tip jar. But the Court of Appeals (Raggi, Winter and Livingston) is hesitant to reject this argument entirely. This issue is now in the hands of the New York Court of Appeals, which takes on cases like this from federal court when they raise an issue that is unique to state law and may implicate state public policy.
As for the case brought by the ASM's, these employees primarily serve customers and wear the same uniforms as their subordinates. They also have managerial tasks, but lack final authority over store decisions. They help the store manager with job interviews, employee discipline and preparing work schedules. In Starbucks's internal job descriptions, ASM's are listed as retail store support, and only store managers are considered management. This is a colorable argument, but it raises a matter that is unique to state law. "the same interpretative difficulty is present in [both] appeals: What factors should a court consider in determining whether an employee is his employer’s agent and, thus, ineligible to receive distributions from an employer-mandated tip pool? Because the meaning of the word 'agent' in § 196-d is not settled in New York case law, we defer decision and certify this question to the New York Court of Appeals."
Wednesday, November 7, 2012
Supreme Court: the plaintiffs' lawyers get paid
If you think about it, the law that allows prevailing civil rights plaintiffs to recover attorneys' fees is one of the reasons we still have civil rights in this country. If lawyers are not willing to take on the case because no one can afford to pay them, the plaintiffs cannot challenge those violations. So when the Supreme Court takes on an attorneys' fees case, you should sit up and pay attention.
The case is Lefemine v. Wideman, decided by the Court on November 5. This case was under the radar. The Court issues a brief ruling without oral argument, which means that we did not see it coming and also that the Court thinks the case raises an easy issue on the availability of attorneys' fees when the plaintiff wins an injunction without money damages. Except that the case was not so easy because the Fourth Circuit went the other way on this issue. That Fourth Circuit decision is overturned.
The plaintiffs were anti-abortion protesters. The police told them to take down their signs because they were too graphic. As a result of this warning, the plaintiffs refrained from any further protesting for two years. The district court ruled that defendants violated plaintiffs' rights and it enjoined defendants from doing it again. But the district court denied attorneys' fees "under the totality of the facts in this case," and the Fourth Circuit affirmed.
The Supreme Court did not even bother to have the lawyers brief this case, much less hold oral argument. It says that the injunction altered the legal relationship between the parties by modifying the defendants' behavior in a way that benefits the plaintiff. That means the plaintiffs are prevailing parties, which means they are eligible for attorneys' fees. The Court sums up: "Before the ruling, the police intended to stop Lefemine from protesting with his signs; after the ruling,the police could not prevent him from demonstrating in that manner. So when the District Court 'ordered [d]efendants to comply with the law,' the relief given—as in the usual case involving such an injunction—supported the award of attorney’s fees." The case is remanded on the presumption that plaintiffs get their fees in the absence of special circumstances. Those "special circumstances" rarely exist, so the lawyers will probably get paid.
The case is Lefemine v. Wideman, decided by the Court on November 5. This case was under the radar. The Court issues a brief ruling without oral argument, which means that we did not see it coming and also that the Court thinks the case raises an easy issue on the availability of attorneys' fees when the plaintiff wins an injunction without money damages. Except that the case was not so easy because the Fourth Circuit went the other way on this issue. That Fourth Circuit decision is overturned.
The plaintiffs were anti-abortion protesters. The police told them to take down their signs because they were too graphic. As a result of this warning, the plaintiffs refrained from any further protesting for two years. The district court ruled that defendants violated plaintiffs' rights and it enjoined defendants from doing it again. But the district court denied attorneys' fees "under the totality of the facts in this case," and the Fourth Circuit affirmed.
The Supreme Court did not even bother to have the lawyers brief this case, much less hold oral argument. It says that the injunction altered the legal relationship between the parties by modifying the defendants' behavior in a way that benefits the plaintiff. That means the plaintiffs are prevailing parties, which means they are eligible for attorneys' fees. The Court sums up: "Before the ruling, the police intended to stop Lefemine from protesting with his signs; after the ruling,the police could not prevent him from demonstrating in that manner. So when the District Court 'ordered [d]efendants to comply with the law,' the relief given—as in the usual case involving such an injunction—supported the award of attorney’s fees." The case is remanded on the presumption that plaintiffs get their fees in the absence of special circumstances. Those "special circumstances" rarely exist, so the lawyers will probably get paid.
Monday, November 5, 2012
Summary judgment reversed in disability discrimination case
The Court of Appeals has reversed summary judgment in a disability discrimination case, holding that the jury could find that the plaintiff was disabled under the Americans with Disabilities Act and that her employer offered pretextual reasons for her termination.
The case is Bar-Tur v. Arience Capital Management, a summary order decided on August 3. Plaintiff has Common Variable Immunodeficiency, which interferes with her ability to produce enough antibodies in response to exposure to antigens, resulting in greater vulnerability to viruses and infections. It significantly disrupts plaintiff's sleep and negatively affects her breathing. While the district court held that the disability does not substantially affect plaintiff's breathing in light of her "moderately active lifestyle," this reasoning improperly weighed the evidence. On this record, the jury can find that plaintiff's condition substantially affects her breathing and sleeping. This issue is for the jury.
The jury must also decide if plaintiff was fired because of her medical condition. "The record contained evidence that at the time of her demotion and discharge, Arience employees commented that: (1) Bar-Tur would be able to attend to her 'little doctor's appointments' now that she was relieved of certain responsibilities; (2) the demotion was 'supposed to be a personal opportunity for [Bar-Tur] to take care of some important things in [her] life'; and (3) Arience wanted to give Bar-Tur 'space to work through [her] health issues.'" This is enough to prove management's discriminatory motive, especially since the Second Circuit (Chin, Carney and Underhill [D.J.]) thinks the jury may find that management offered bogus reasons for her discharge in light of plaintiff's positive performance evaluation and numerous complimentary emails about her job performance.
Plaintiff also has a viable retaliation claim. She complained in-house about disability discrimination on November 4, 2008. An hour and a half later, she was ordered to go home without access to email and voicemail, and her computer system was terminated. She was fired two days later. This sequence of events, along with the evidence in support of her discrimination claim, give her a winnable retaliation claim. Summary judgment is reversed.
The case is Bar-Tur v. Arience Capital Management, a summary order decided on August 3. Plaintiff has Common Variable Immunodeficiency, which interferes with her ability to produce enough antibodies in response to exposure to antigens, resulting in greater vulnerability to viruses and infections. It significantly disrupts plaintiff's sleep and negatively affects her breathing. While the district court held that the disability does not substantially affect plaintiff's breathing in light of her "moderately active lifestyle," this reasoning improperly weighed the evidence. On this record, the jury can find that plaintiff's condition substantially affects her breathing and sleeping. This issue is for the jury.
The jury must also decide if plaintiff was fired because of her medical condition. "The record contained evidence that at the time of her demotion and discharge, Arience employees commented that: (1) Bar-Tur would be able to attend to her 'little doctor's appointments' now that she was relieved of certain responsibilities; (2) the demotion was 'supposed to be a personal opportunity for [Bar-Tur] to take care of some important things in [her] life'; and (3) Arience wanted to give Bar-Tur 'space to work through [her] health issues.'" This is enough to prove management's discriminatory motive, especially since the Second Circuit (Chin, Carney and Underhill [D.J.]) thinks the jury may find that management offered bogus reasons for her discharge in light of plaintiff's positive performance evaluation and numerous complimentary emails about her job performance.
Plaintiff also has a viable retaliation claim. She complained in-house about disability discrimination on November 4, 2008. An hour and a half later, she was ordered to go home without access to email and voicemail, and her computer system was terminated. She was fired two days later. This sequence of events, along with the evidence in support of her discrimination claim, give her a winnable retaliation claim. Summary judgment is reversed.
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