Ageist comment not enough to win discrimination case

The plaintiff sued his former employer who fired him. He said it was because of age. His superior allegedly made a comment about transferring clients to younger bankers. Can the plaintiff win the case? He cannot.

The case is Graves v. Deutsche Bank Securities, a summary order decided on December 4. In discrimination cases, the plaintiff has to make out a prima facie case. In plain English, that means he has to make an initial showing that he was fired because of his age. If he does so, then management has to articulate a neutral reason why the plaintiff was fired. In 99.68 percent of the cases, the employer is able to articulate such a reason, so the plaintiff then has to show that the reason is false and the real reason was age discrimination.

The Second Circuit (Kearse, Jacobs and Straub) says that "Deutsche Bank articulates legitimate, nondiscriminatory reasons for terminating Graves’s employment, including (1) a downward revenue trend and top-heaviness in Graves’s group; and (2) Graves’s low actual and projected revenue as compared to that of other managing directors." The ball is now in Graves' court.

Before we go any further, you should know that straight pretext cases (what lawyers call McDonnell-Douglas cases) do not get far in the Second Circuit these days. Over the past few years, the Court of Appeals has reversed summary judgment in straight pretext cases (not involving retaliation or sexual harassment) on only a handful of occasions. But hope springs eternal, right? Maybe this one's a winner. It's not. Graves comes forward with an ageist comment to prove that he can win the case. The Second Circuit says that "Graves’s rebuttal is based largely on a single alleged remark by his superior about transferring clients to younger bankers." This is the kind of evidence that plaintiffs want. But the Court of Appeals says that "Graves was required to do more than demonstrate that an arguably discriminatory comment was made." The Court cites a case from 2001, Slattery v. Swiss Reinsurance, 248 F.3d 87 (2d Cir. 2001), that affirmed summary judgment despite statements expressing desire for a "younger workforce." Another case from that year, Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456 (2d Cir. 2001), that upheld summary judgment despite "numerous comments about the age of the Pan Am pilot force").

Why is the ageist comment not enough? "The record shows that: (1) the superior (who had hired Graves just a few years prior) was himself almost a decade older than Graves; (2) the so-called “younger” bankers were barely younger than Graves; and (3) Deutsche Bank chose to retain a managing director from the same group who was four years older than Graves." So the Court is weighing the evidence. There is some evidence of ageist bias. But there is more evidence that Graves was fired for a legitimate reason. Graves loses the case.

SDNY upholds NSA phone surveillance program

A federal judge in Manhattan ruled on December 27 that the National Security Agency's broad surveillance practices -- sweeping up metadata from millions of phone calls -- does not violate the Fourth Amendment. The decision stands at odds from a ruling from a federal judge in Washington D.C.

The case is A.C.L.U. v. Clapper.  The judge is William Pauley. This case arises from the whistleblowing of Edward Snowden, an NSA contractor who turned over agency records to a London newspaper and blew the lid on what has to be the largest surveillance program in American history. Judge Pauley notes that, under the program, the NSA since 2006 has collected telephone metadata -- phone numbers and calling patterns but not content [or so they tell us] -- on just about every phone call made in the United States, including your phone calls and mine and the guy next door and your grandmother's calls as well. The program took root after the September 11 attacks, and the government sought to monitor terrorist activity, which cannot take place without monitoring their phone calls and other communications. (The opening paragraphs in Judge Pauley's ruling make reference to 9/11). But since not everyone in America is a terrorist, this program's wide sweep includes a lot of innocent people. Is this legal?

A few weeks ago, granting a preliminary injunction against the NSA, Judge Leon of the District of Columbia District Court held that this surveillance constitutes a "search" under the Fourth Amendment and that it does not pass the "reasonableness" test. So Judge Pauley has to decide if he wants to follow Judge Leon's reasoning. He does not. Judge Pauley sustains the NSA program under the Constitution.

Judges Leon and Pauley have to deal with a Supreme Court ruling from 1979, Smith v. Maryland, where the police installed a "pen register" (or a phone tap) which recorded the numbers dialed from Smith's home. In summarizing Smith, Judge Pauley stated that "individuals have no 'legitimate expectation of privacy' regarding the telephone numbers they dial because they knowingly give that information to telephone companies when they dial a number. Smith's bedrock holding is that an individual has no legitimate expectation of privacy in information provide to third parties." While Smith is the most relevant Supreme Court case in assessing the constitutionality of the NSA program, Judge Leon said that it does not help us resolve surveillance problems in 2013 because tapping one phone number is not like recording telephonic metadata of millions of Americans, who use their cell phones in ways that no one could have anticipated in 1979. Our relationship with cell phones today is such that, in Judge Leon's view, we do have a reasonable expectation of privacy in the calls we make from them. Judge Leon wrote:

When do present-day circumstances – the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies – become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government is now.

In further brushing the Smith precedent aside, Judge Leon noted that “the nature and quality of the information contained in people’s telephony is much greater.” In 1979, 72 million U.S. homes had telephones. In December 2012, there were 326 million mobile subscriber connections in the United States. Of course, these are not just cell phones but cameras, texting devices, music players and computers. “The ubiquity of phones had dramatically altered the quantity of information that is now available and, more importantly, what that information call tell the Government about people’s lives. ... Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago.” Calls and communications are made today that could not have been made in 1979. The metadata from each person’s phone “reflects a wealth of detail about her familial political, professional, religious, and sexual associations” that could not have been gleaned from a data collection in 1979. Judge Leon essentially found that the Smith precedent is outdated for purposes of determining whether the public has a reasonable expectation of privacy in their telephonic metadata. While Smith may allow the police to trace phone calls from a single phone line, it cannot apply in the context of modern telecommunications when the government is trying to collect metadata on the scale of current NSA programs.

Judge Pauley rejects this reasoning. Smith remains good law, he writes, and although several Supreme Court justices in a recent GPS monitoring case raised questions about how the Fourth Amendment applies to modern technological advances, we still apply the reasoning in Supreme Court cases until the Court tells us not to. While the government is now collecting "breathtaking" amounts of data, that does not mean this practice implicates the Fourth Amendment. While the NSA's surveillance practices are like the 1979 "pen register" on steroids, Smith's central holding still applies. That brings us to one of Judge Pauley's central conclusions: "the business records created by Verizon are not 'Plaintiff's call records.' These records are created and maintained by the telecommunications provider." The information does not belong to you; it belongs to the phone company. Under that analysis, the caller does not have a legitimate expectation of privacy in the telephonic metadata, and the NSA program is constitutional. Now that federal judges have applied Smith differently in the NSA surveillance cases, the Supreme Court will have to re-examine Smith and decide again what the Fourth Amendment means in this context.

Public employee wins First Amendment retaliation case

The news here is that a public employee won a First Amendment retaliation case at trial and was not run off the road by the Supreme Court's Garcetti ruling, which makes it difficult but not impossible to win cases like this.

The case is Spencer v. Philemy, a summary order decided on December 19. Spencer was a substitute teacher in New York City. One of her students was a punk who sexually harassed her and basically drove everyone up the wall with his criminal behavior. Spencer complained to the police and the New York City Law Department about this, and afterward she received negative performance evaluations and was denied a full time teaching position. Her supervisors feared these complaints would hurt the school's reputation and lead the public to think it was crime school. The jury awarded Spencer $25,000 for lost wages (but nothing for pain and suffering).

Garcetti junkies may know that the Second Circuit usually rules against the plaintiff in these cases in finding that the speech was not uttered as a citizen but instead grew out of their job duties. Job-duty speech is not protected. In the Second Circuit's most important Garcetti precedent in this area, Weintraub v. Board of Education, the Court of Appeals said that a teacher spoke pursuant to his official duties in filing a grievance about the weak discipline meted out to a belligerent student. The Circuit's formulation in Weintraub as to what constitutes job-related speech is broad, and that's why many of these cases are kicked to the side on motions for summary judgment.

I don't know if the City asked the Court of Appeals to throw out the verdict on authority of Weintraub, but the Second Circuit (Pooler, Lynch and Lohier) does not apply a Garcetti analysis. The City does argue that Spencer's speech was not a matter of public concern. The Second Circuit disagrees, reasoning:

the content and context of Spencer’s communications with the police, New York City Law Department, and Family Court, along with her motivations for speaking, establish that her speech was on a matter of public concern. The content of Spencer’s speech to the police related to the Student’s disruptive behavior and his holding onto Spencer’s driver’s license after he apparently had stolen Spencer’s wallet. In addition, Spencer spoke to the New York City Law Department concerning the Student’s behavior, which led to the Family Court concluding that the Student was guilty of harassment and sexual abuse. Because Spencer’s speech concerned seriously disruptive and criminal behavior on the grounds of a public school, the content of her speech supports a determination that she was speaking on a matter of public concern.

The context of Spencer's speech also shows she engaged in free speech. "Other teachers at the Student’s school, and even Philemy and Mandell themselves, expressed concerns about how the Student’s behavior was negatively affecting the school. Thus, this is not a case in which the plaintiff’s speech related to an individual employment matter that was of little public concern, such as a payroll issue, promotion, or
discipline."

No qualified immunity for the defendants. Qualified immunity junkies will find the analysis interesting, in that it relies in part on precedents from other circuits. The law was clearly established in 2004 (when all of this went down) that public employers cannot retaliate for "public concern" speech, and that the welfare and safety of young students addresses a matter of public concern. Cases that articulate the student welfare angle in this context actually hail from other circuits, but they pre-date the events giving rise to this case and were favorably cited by a Second Circuit case in 2006. And, in 2002, the Second Circuit said that safety in the public workplace constitutes speech on a matter of public concern. All these cases are close enough to Spencer's case to fend off a qualified immunity challenge.

$450k damages award in discrimination case reduced to $50,000

When you read about a huge verdict in the newspaper, you may not realize that the case is not yet over. The trial court can reduce the size of the verdict if the jury gave the plaintiff too much money. The jury is not given much guidance in setting a damages award. They are basically told to give the plaintiff an amount they deem fair. A bewildered jury then has to put a price on the plaintiff's pain and suffering. Not an easy task. Hence the huge jury awards. In this case, the jury awarded the plaintiff $450,000 in an employment discrimination case. The trial court reduced it to $50,000. To the uninitiated, this may seem a shocking reduction. But it's not. The Court of Appeals affirms.

The case is Dotson v. City of Syracuse, a summary order decided on November 27. Plaintiff alleged she was retaliated against for complaining about pornography in the workplace. The jury awarded her a lot of money. According to the district court ruling, "The jury awarded plaintiff $175,000.00 in compensatory damages against the City of Syracuse; $125,000.00 in compensatory damages against defendant Timothy Gay; and $150,000.00 in compensatory damages against Mark McArdle." That totals $450,000. The trial judge granted the defendants' remittitur motion, ruling that if the plaintiff did not accept $50,000 in damages, she would have to proceed to a second trial on damages. That's common in our world: the plaintiff gets such a choice if the jury is too generous. What's not common is that the plaintiff elected for a second trial on damages. 

At the second trial, the jury awarded plaintiff $225,000 in damages. That's less than the $450,000 that the first jury gave the plaintiff, but the defendant again moved to reduce the damages award. This time defendants blew the deadline for doing so, filing the motion too late (they also filed their notice of appeal too late from the judgment, so their appeal to the Second Circuit is dismissed).

The only time you can appeal the remittur that reduces your damages award (I think) is when you proceed to a second trial. Dotson waited it out and now she can ask the Court of Appeals to bring the verdict back to $450,000. The Second Circuit (Raggi, Pooler and Wesley) rejects plaintiff's argument, keeping the damages at $50,000, ruling that the district court properly considered the evidence and verdicts awarded in similar cases in holding that plaintiff was entitled to $50,000. The Court of Appeals provides no guidance on how the district court reasoned its way through this. For that, we have to go right to the source.

There are many district court rulings in this case, but one after the first trial (that awarded plaintiff $450,000) does focus on the appropriate damages award, and that reasoning was probably applied after the second trial and is relevant to employment lawyers. That decision is found at 2011 U.S. Dist. LEXIS 20374 (N.D.N.Y Mar. 2, 2011). Judge Mordue noted that "At trial, plaintiff's evidence of emotional damages was presented through witness testimony only. Plaintiff testified that as a result of defendants' conduct, she felt, 'watched, exposed, naked and embarrassed'." Although she was taking medication for depression, she "did not seek treatment from any physician, psychologist or psychiatrist as a result of the retaliation. Plaintiff did not present any testimony or evidence establishing any income related damages including lost time from work." Her husband testified that plaintiff was no longer energetic. "She definitely [sic] constantly crying, there would be times where I'd be speaking to her, you know, she'd be fine one minute, I'd go away, come back, she'd be in tears and constantly sleeping,  always tired, and she kind of distanced herself from myself and the children." A sergeant testified that "when she told plaintiff that defendants listened to her telephone calls, plaintiff, 'lost it', 'broke down', cried and went to the bathroom to 'throw up', and felt 'betrayed'." She did not put on an expert witness.

After looking at a wide range of employment discrimination verdicts, Judge Mordue concluded that the case is worth $50,000. The Court reasons:

The evidence at trial failed to establish that plaintiff suffered any permanent emotional injuries, debilitation, physical manifestations or alterations to her lifestyle. Plaintiff's testimony and evidence regarding her damages was brief, conclusory and vague. Plaintiff provided no testimony regarding the duration or consequences of her alleged injuries. Plaintiff did not receive any medical or psychological treatment for her alleged emotional injuries as a result of the retaliation. No experts testified and no medical records were offered or received as evidence to support her claim. As a result of the retaliation, plaintiff claimed that she took Cymbalta, however, she admittedly did not begin taking the medication until five years after the retaliation occurred. Moreover, plaintiff's testimony regarding Cymbalta was not corroborated and plaintiff failed to offer any medical documentation or testimony regarding why she began taking the medication, how long she took the medication, whether it was prescribed by a physician or how she obtained the medication and/or prescription.

Plaintiff's husband testified about his wife's emotional state claiming that she was "constantly crying, sleeping and distant". Mr. Dotson also testified about an "incident that gave him great concern" in late 2003. Mr. Dotson's testimony was not corroborated by plaintiff. Plaintiff did not testify that she was depressed or that she had trouble sleeping. Moreover, the incident involving the golf club and bat allegedly occurred once and plaintiff did not mention this incident during her testimony.

Plaintiff presented no evidence regarding any economic loss including lost time from work or any other income related damages. Plaintiff did not establish that she suffered any change in her job duties or schedule as a result of the retaliatory action. Plaintiff has three children and did not testify that the retaliation caused any disruption in her family or personal life. Due to the nature of plaintiff's evidence regarding her damages and the lack of any corroborating proof, her claims can only be described as "garden variety", at best. Even if the Court categorized plaintiff's injuries as "significant", the $450,000.00  award would still be considered excessive. As the previously cited caselaw dictates, verdicts of this magnitude are generally reserved for "egregious" cases. Here, plaintiff did not establish, nor did she even allege, that she suffered any significant impact upon her physical health or lifestyle.

Moreover, even assuming plaintiff produced evidence regarding damages, the proof at trial did not demonstrate that defendants' conduct was "outrageous" or "shockingly discriminatory" sufficient to warrant such a sizeable award. The retaliatory conduct was not ongoing or continuous nor was it a "pattern of conduct". Indeed, the evidence established that the retaliatory act - eavesdropping on one of plaintiff's recorded telephone conversation - was an isolated instance. Moreover, plaintiff presented no evidence which would permit a reasonable jury to conclude that she was "shocked" or "outraged" by defendants' conduct. Plaintiff never complained to anyone at the Syracuse Police Department about the eavesdropping. At trial, Sgt. DeJesus testified that she told plaintiff in "September 2003", that defendants requisitioned and listened to her telephone conversations. On October 16, 2003, plaintiff filed a second EEOC complaint and failed to even mention the eavesdropping issue. Moreover, while plaintiff claims that she felt "watched, naked and exposed" as a result of the eavesdropping, the evidence established that plaintiff was clearly aware that her telephone conversations at the front information desk were recorded. Based upon the evidence, the circumstances surrounding defendants' retaliatory conduct were not so outrageous as to warrant a nearly half-million dollar verdict.

. . . 

It was unreasonable for the jury to award plaintiff nearly half of a million dollars because plaintiff suffered alleged and unsubstantiated "damages" due to defendants eavesdropping on one telephone conversation when the record established that plaintiff knew that her telephone conversations were being recorded. Applying the "least intrusive standard", $50,000.00 is the maximum amount that would compensate plaintiff for her injuries without being excessive. ... This Court finds that defendants' conduct was not "outrageous and shocking" nor did it result in any significant impact upon plaintiff's health.

If you handle cases like this, take a look at this ruling. The case was not egregious enough for the jury to award six figures in damages. Plaintiff still gets money for her troubles, but at a fraction of what the jury thought she deserved.

Don't tase me, bro!

I have litigated cases involving tasers. The universal conclusion is that nothing hurts worse than being tased. Have you ever gone to the dentist and the drill hits a spot on the tooth where the Novocain didn't take? Imagine that pain multiplied by 500. Compared to being tased, quick nerve shock from a dentist drill is like a romp in the park with daisies in your mouth on a summer's day. In this case, the guy was tased. He sues the police, but he loses the case.

The case is MacLeod v. Town of Brattleboro, a summary order decided on November 27. Even though the Taser hurts like the devil, the police can use it if they really need to. In this case, after being pulled over for speeding, the plaintiff led the police on a high-speed chase during pre-dawn hours, a chase that placed others in danger. Now, a high-speed chase might not by itself justify the use of a Taser. But when the joyride ended, the the driver was still a danger to the police. Here's how the Second Circuit (Jacobs, Parker and Chin) writes it up:

MacLeod concedes that “the seriousness of his crimes prior to the use of force was not trivial[,]” but he nonetheless claims that the use of force was unreasonable because he had “voluntarily ceased his criminal conduct and was attempting to surrender at the time he was tased[.]” Whatever MacLeod’s subjective intent, the undisputed facts demonstrate that after suddenly speeding away from an investigating officer on “slick,” dark roads at “a rate of speed higher than the speed limit” to evade arrest, he entered into a deserted a parking lot, exited the vehicle, kneeled on the ground, and then–-contravening clear, repeated instructions that he acknowledges he understood–-rose to his feet, turned to face the officers with his hands free and outstretched, and refused to return to the ground. Rising from the ground rather than submitting to arrest exacerbated a “tense, uncertain, and rapidly evolving” situation that threatened the lives of officers, bystanders, and MacLeod himself.

The leading Supreme Court case on excessive force is Graham v. Connor, 490 U.S. 386 (1989), which articulates an "objective reasonableness" test in determining if the police are liable for excessive force under the Constitution. Here, the objective evidence shows that plaintiff did not engage in passive resistance when the chase ended. He continued to pose a danger. The one-time use of the Taser "to subdue an actively non-compliant suspect reasonably believed to be engaged in dangerous criminal activity and who posed a real and imminent threat to the safety of the officers and any bystanders" was reasonable. Plaintiff ignored repeated and clear commands to return to the ground. "This avoided a 'hands-on' situation with an unrestrained, dangerous individual."

Shifting explanations support liability in Title VII retaliation case

The Court of Appeals has reversed summary judgment in a Title VII retaliation case, highlighting the ways that plaintiffs can exploit a defendant's shifting explanations in proving they were fired for pretextual reasons. The Court also interprets the Supreme Court's "but for" reasoning in retaliation cases for the first time.

The case is Kwan v. The Andalex Group, LLC, decided on December 15. This is a good decision for plaintiffs. But Judge Parker's dissent shows there is much room for disagreement on the Court of Appeals about how to interpret the employer's less-than-clear response to the plaintiff's retaliation claims, and when the jury may find that the employer acted in bad faith in terminating the plaintiff.

Kwan worked as Vice President of Acquisitions for a family-owned real estate management firm.One of her early supervisors said that plaintiff's performance was "very good." A subsequent supervisor complimented plaintiff's work, and she received a performance-based bonus. Nine months after plaintiff got that bonus, she was fired, a day after she left work early. Plaintiff said she had permission to do so; management said she did not. Plaintiff's termination took place three weeks after she told one member of management that she was being discriminated against in respect to salary and bonuses. Another corporate officer fired plaintiff.

Here is why the Court of Appeals (Koeltl [D.J.] and Lohier) reverses summary judgment on the retaliation claim:

1.While someone else made the decision to fire plaintiff, the fact that she complained to a corporate officer about discrimination is enough to show the company knew about her protected activity. Under the "general corporate knowledge" rule, if a corporate officer knows about the complaint, that knowledge is imputed to the corporation as a whole. The Second Circuit has applied "general corporate knowledge" before, but this time it gives a reason why the theory makes sense: "This case is a good illustration of why corporate knowledge is sufficient for purposes of a prima facie case of retaliation. If that were not true, a simple denial by a corporate officer that the officer ever communicated the plaintiff’s complaint, no matter how reasonable the inference of communication, would prevent the plaintiff from satisfying her prima facie case, despite the fact that the prima facie case requires only a de minimis showing."

2. Of course, the employer did articulate a reason why the plaintiff was fired: job performance and business restructuring. Here is where the Court of Appeals untangles the Supreme Court's recent rule that retaliation plaintiffs must show their protected activity was a "but for" cause of the termination. While the new "but for" test creates a higher burden for plaintiffs (the old standard was "motivating factor"), "'but-for' causation does not require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive." Moreover, under traditional tort law, "a plaintiff’s injury can have multiple 'but-for' causes, each one of which may be sufficient to support liability." The Court adds, "Requiring proof that a prohibited consideration was a 'but-for' cause of an adverse action does not equate to a burden to show that such consideration was the 'sole' cause." "But-for" causation is difficult to resolve on summary judgment motions. As part of a monster footnote, the Court says:

In this case, the parties have put forward several alleged causes of the plaintiff’s termination: retaliation, unsuitability of skills, poor performance, and inappropriate behavior. The determination of whether retaliation was a “but-for” cause, rather than just a motivating factor, is particularly poorly suited to disposition by summary judgment, because it requires weighing of the disputed facts, rather than a determination that there is no genuine dispute as to any material fact. A jury should eventually determine whether the plaintiff has proved by a preponderance of the evidence that she did in fact complain about discrimination and that she would not have been terminated if she had not complained about discrimination.   

3. Plaintiff can show that she was fired for pretextual reasons. That allows the jury to find that retaliation was the real reason. In concluding that management offered shifting explanations, the Second Circuit closely scrutinizes management's reasons for plaintiff's termination, starting with a pre-litigation letter that first explained why plaintiff was fired. He said that the business focus had changed and plaintiff (and a non-Asian co-worker) was no longer suitable for the position. The letter also criticized plaintiff's job performance. When plaintiff then filed an EEOC charge, defendant's position statement again mentioned the company's new business focus. The introduction to that statement did not cite poor job performance, and the body of the position statement largely focused on the new business priorities, though it made "brief reference" to her performance deficiencies. As the Second Circuit writes, "any fair reading of Andalex's Position Statement to the EEOC indicates that Andalex claimed that Kwan was fired primarily because its business focus had changed." Then, in deposition, the Chief Financial Officer said that the company's business focus had already changed when plaintiff was hired. He said that plaintiff was not fired because of the new business focus but because of poor job performance. But another member of management testified that "plaintiff's termination was the 'culmination of her poor performance and the fact that ... our business model had begun to change.'" In telling the Court of Appeals why plaintiff was fired, the defendant cites three discrete incidents of poor performance. The problem is that only one of those reasons was cited in the defendant's EEOC position statement.

This is not the first time the Court of Appeals has held that shifting explanations supports a finding of pretext. But it is probably the Court's most thorough application of that principle. In dissent, Judge Parker does not like this reasoning at all. He says that, like non-retaliation cases, the plaintiff must prove the employer's articulated reason was not merely pretext, but pretext for retaliation. The Court of Appeals has never come out and said that pretext-plus is the model for retaliation cases. While Judge Parker promotes that theory, the majority appears to reject it, reasoning that "Andalex's inconsistent and contradictory explanations for the plaintiff's termination, combined with the close temporal proximity between the [protected activity] was a but-for cause of the plaintiff's termination." For straight McDonnell-Douglas discrimination claims we live in a pretext-plus world in the Second Circuit, but the majority reiterates that "A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, non retaliatory reasons for its action. From such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason." In other words, pretext alone can get you a trial in a retaliation case.

The majority also rejects Judge Parker's analysis of the evidence. He finds that the so-called inconsistent explanations are not that inconsistent, and that the prima facie case is quite thin, relying on the legal fiction of "general corporate knowledge" to prove that the decisionmaker knew about her protected activity, and "there is no evidence that Andalex shifted its position for strategic reasons because, for example, new evidence undermined a prior asserted justification. To the extent its position has shifted at all (and I would find ... that it has not), that shift merely reflected a change in the description it applied to a consistent set of facts." These are not shifting explanations, Judge Parker says, but variations on the same evidentiary themes.

   
What does this case tell us? If you represent management, you have to get the story straight when the plaintiff sues your client for discrimination or retaliation. Shifting explanations do not look good to a court or to the jury, and they suggest the employer is dissembling in order to avoid liability. If you represent plaintiffs, look out for this kind of pretext, for the same reasons. Maybe some additional depositions of decisionmakers will bring about different reasons for the plaintiff's termination. This case also tells us that, after several decades of constant litigation alleging discrimination and retaliation, the federal courts -- and some of its most distinguished judges -- cannot agree on basic principles governing Title VII.

You cannot have a "black cat keychain" in New York

Now that we have a rock-solid right to own weapons under the Second Amendment, the federal courts  have to sort through the challenges to various laws that rein in the American impulse to possess guns and other tools of violence. In this case, the Court of Appeals is asked to strike down a law that prohibits the "black cat keychain."

The case is Small v. Rice, a summary order decided on November 26. The New York Penal Law makes it illegal to possess "any firearm, ... plastic knuckles, metal knuckles." Do you see the word "any"? The Court of Appeals says the word "any" means there may be more than one type of "metal knuckles" covered under the statute and that possession of "any" of them is illegal. Plaintiff says the statute is vague and therefore void under the Due Process Clause. He says that it is not clear that the "black cat keychain" is clearly proscribed under the Penal Law. But it is clear, the Second Circuit (Raggi, Pooler and Wesley) says.

The Second Circuit ruling includes a picture of the "black cat keychain." You rarely see visual images in Court of Appeals rulings, but a picture of the keychain is essential to understanding what's going on here. This is the picture from the Second Circuit ruling:

If you look at the keychain solely as a keychain, it looks like a kitty cat. What a cute li'l kitty! But if you see how it fits in your hand, you can see why it's illegal. Stick your fingers in the kitty eyes and the ears become a weapon. The "black cat keychain" is marketed as a self-defense device. You can buy one on Amazon.com. But quoting from a decision from the Supreme Court of Rockland County, the Court of Appeals says that the keychain fits comfortably within the definition of prohibited weapons:

the Supreme Court of Rockland County persuasively concluded that the cat keychain was a set of “metal knuckles” and was proscribed by the statute: "The object has two holes for the fingers and two pointed metal spikes which when worn protrude from the back of the hand and which are obviously designed to enable one to inflict a blow from a fist enclosed by metal spikes for the purpose of enhancing the injury to be inflicted on contact."

The reviews for this keychain on Amazon.com are interesting and highlight to continuing debate in America about the right self-defense and the Second Amendment. One reviewer says "I like it because it's super cute, it's discreet and it's easy to remember to use it because your fingers naturally fit right in the eye-holes. I haven't had to use it yet but it seems like it might hurt." Another says "My husband had this on his keychain at the airport....he was arrested with a misdemenor and has to go to court... they are deciding if federal charges will be filed... This has now cost us an attorney at $600 an hour and lost work for court in another state. DO NOT attach it to a keychain!!!!" Somebody else wrote, " I think it is extra security, and it is strong, but be prepared to RUN. If you do not get someone in the eye to make them stop and pause, it will just make them angrier."