Huge pay cut may equal constructive discharge

In our jurisdiction, it is difficult to prove constructive discharge. The courts don't like it when people up and leave their jobs and then sue for lost wages. The working conditions have to be so intolerable that any reasonable person would leave his position. That theory can work in sexual harassment cases, but it can also work when professionals suffer a dramatic pay cut.

The case is Scott v. Harris Interactive, a summary order decided on February 20. This is a breach of contract claim. Scott was offered a job that would pay $220,000 per year. He was an at-will employee, which means he could be fired for any reason. But the contract also said that if Harris Interactive fired Scott without cause, he would recover six months' salary and health care benefits. Scott quit his job because, within one year, his pay was decreased to $150,000. If Scott was constructively discharged, he could recover the benefits that come with a termination without cause. Is a pay cut like this equal to a constructive discharge? The district court said no, reasoning that the pay reduction was not so dramatic as to amount to termination. But the Court of Appeals (Raggi, Leval and Livingston) says that Scott has a case, and now we all go to trial.

Insofar as our precedent recognizes that "loss of pay or change in title" may amount to constructive discharge, the question of discharge versus resignation cannot be resolved simply by concluding, as the district court did here, that the reduced amount compares favorably to the earnings of other accomplished persons in the national workforce. The percentage of a reduction and the reasonable expectations of the parties are also relevant to the factual determination whether an employee was forced into an involuntary termination.

(The Second Circuit notes that other cases hold that a $60,000 salary reduced to $26,000, and an $89,000 salary reduced to $25,000, could also amount to constructive discharge)

Since Scott's salary was cut by one-third and management also altered his title and responsibilities, and management also told Scott that he had the option to resign (suggesting that they wanted Scott to leave), the jury can find that he was constructively discharged.

Ineffective criminal assistance makes defendant a free man

This poor guy was convicted of a crime because he did not present alibi witnesses at his trial to show that he was somewhere else when the crime was allegedly committed. Federal courts don't like to overturn state-court convictions, but they will grant a habeas corpus petition if the attorney did not provide competent counsel at trial. That's what happened here.

The case is Harrison v. Cunningham, a summary order decided on February 21. Harrison was convicted of criminal possession of a weapon. Harrison had two alibi witnesses who could tell the jury that Harrison was leaving a party when the crime took place. Harrison's lawyer did not comply with the rules requiring him to timely notify the prosecution about these alibi witnesses. So the jury was left with a credibility fight between Harrison -- who said he did not commit the crime -- and the arresting officer, who said he was certain that Harrison was guilty as sin. There was no physical evidence tying Harrison to the scene of the crime, so these alibi witnesses were the potential tiebreakers. But since Harrison's lawyer dropped the ball and did not produce these witnesses, the jury went with the police officer's account and convicted Harrison.

The lawyer said he did not comply with this obligation because he was new to the case and the alibi witness deadline had passed. That excuse does not work. Although the State Appellate Division, in upholding the conviction, said that "defendant failed to demonstrate good cause for his untimely alibi notice," the Second Circuit says there are ways to file a late alibi witness notice under state law.

As the Second Circuit (Katzmann, Lynch and Mauskopf [D.J.]). writes, "After Harrison testified, at the relevant time, he was leaving a party with two friends, his credibility depended on the presentation of supporting testimony by the two friends to whom he had referred. His counsel's failures prevented the presentation of such testimony, thereby suggesting to the jury that his friends declined to support his story because it was false." In all likelihood, the Court of Appeals says, Harrison would have won the criminal trial had these alibi witnesses testified. So the Second Circuit affirms the district court's ruling granting habeas corpus to Harrison, making Harrison a free man.

How to plead an FLSA overtime claim

Pleading requirements under Iqbal will result in a Rule 12 dismissal unless the complaint alleges a plausible claim. The Court of Appeals provides guidance on how Iqbal applies to overtime claims under the Fair Labor Standards Act.

The case is Lundy v. Catholic Health System, decided on March 1. The plaintiffs alleged that the Catholic Health System "used an automatic timekeeping system that deducted time from paychecks for meals and other breaks even though employees frequently were required to work through their breaks, and that CHS failed to pay for time spent working before and after scheduled shifts, and for time spent attending training programs." The plaintiffs tried on numerous occasions to amend the complaint to avoid Rule 12 dismissal, but the district court dismissed the case on various grounds, including that plaintiffs did not sufficiently allege an employer-employee relationship, the automatic timekeeping deductions did not cost the plaintiffs overtime and the plaintiffs did not allege that their compensable time exceeded 40 hours, as required under the FLSA.

The Court of Appeals affirms on the ground that the plaintiffs did not adequately allege in the complaint that they worked more than 40 hours per week. This case, therefore, provides guidance about how to plead a claim like this without having it tossed aside under the pleading requirements set forth in the Supreme Court's Iqbal ruling, which requires plaintiffs to allege a plausible claim in order to proceed to discovery.

The Court of Appeals (Jacobs, Walker and retired Supreme Court Justice Sandra Day O'Connor) says, "we conclude that in order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours." Nowhere in the complaint do the plaintiffs actually allege that they worked enough hours for an overtime claim. Here are the particulars as to why the complaint fails:

Wolman was “typically” scheduled to work three shifts per week, totaling 37.5 hours. She “occasionally” worked an additional 12.5-hour shift or worked a slightly longer shift, but how occasionally or how long, she does not say; nor does she say that she was denied overtime pay in any such particular week. She alleges three types of uncompensated work: (1) 30-minute meal breaks which were “typically” missed or interrupted; (2) uncompensated time before and after her scheduled shifts, “typically” resulting in an additional 15 minutes per shift; and (3) trainings “such as” a monthly staff meeting, “typically” lasting 30 minutes, and respiratory therapy training consisting of, “on average,” 10 hours per year.

She has not alleged that she ever completely missed all three meal breaks in a week, or that she also worked a full 15 minutes of uncompensated time around every shift; but even if she did, she would have alleged a total 39 hours and 45 minutes worked. A monthly 30-minute staff meeting, an installment of the ten yearly hours of training, or an additional or longer shift could theoretically put her over the 40-hour mark in one or another unspecified week (or weeks); but her allegations supply nothing but low-octane fuel for speculation, not the plausible claim that is required.

Iwasiuk “typically” worked four shifts per week, totaling 30 hours. She claims that “approximately twice a month,” she worked “five to six shifts” instead of four shifts, totaling between 37.5 and 45 hours. Like Wolman, Iwasiuk does not allege that she was denied overtime pay in a week where she worked these additional shifts. By way of uncompensated work, she alleges that her 30-minute meal breaks were “typically” missed or interrupted and that she worked uncompensated time before her scheduled shifts, “typically” 30 minutes, and after her scheduled shifts, “often” an additional two hours.

Maybe she missed all of her meal breaks, and always worked an additional 30 minutes before and two hours after her shifts, and maybe some of these labors were performed in a week when she worked more than her four shifts. But this invited speculation does not amount to a plausible claim under FLSA.

Lundy worked between 22.5 and 30 hours per week, and Plaintiffs conceded below--and do not dispute on appeal--that he never worked over 40 hours in any given week

"The facts of this case are undoubtedly tragic"

The case is tragic because police officers shot and killed the dog after they entered someone's home on a no-knock warrant. The case went to trial and the plaintiff lost on her Fourth Amendment seizure claim. The Court of Appeals affirms.

The case is Carroll v. County of Monroe, decided on March 12. With a no-knock warrant, the police barge inside the abode without warning, and they have to move fast so the occupant cannot fire back at them or destroy evidence. The police officer shot the dog in the head when it got too close to him, barking and growling. Prior to the search, the police did not discuss a plan for controlling the dog or neutralizing any threat it might pose, and the County did not train its officers for handing encounters like this.

While the unreasonable killing of a companion animal may constitute a seizure of personal property under the Fourth Amendment, that does not mean the plaintiff will always win the case. The jury ruled in the officers' favor, and the Court of Appeals (Katzmann, Winter and Lynch) affirms, reasoning: 

A reasonable jury certainly could have found—based on the evidence presented—that no amount of planning or training would have changed the unfortunate outcome in this case. The plaintiff offered no evidence that any non-lethal means of controlling her dog would have allowed the officers to quickly escape the “fatal funnel” and effectively execute the no-knock warrant. In other words, the jury could have reasonably found that Deputy Carroll would still have needed to shoot the plaintiff’s dog even if the officers had developed a non-lethal plan to restrain the dog.

Plaintiff argued that the police could have used pepper spray, a taser or a catch pole, but plaintiff did not show that these non-lethal means would not have been effective or that it would have been unreasonable for the officers not to use them. One Deputy had never heard of using pepper to restrain a dog, and the department did not own a taser at the time. A catch pole would have delayed the search, allowing the occupants to destroy evidence or arm themselves. So, while the failure to plan adequately for the presence of dogs during a search may contribute to a Fourth Amendment violation in some circumstances, there is no such violation here.

Believe it or not, the plaintiff has no case here

The plaintiff in this case raises a serious allegation: that, in retaliation for complaining about her son's education, the district submitted a false report to Child Protective Services, which initiated a proceeding against her. That proceeding was then withdrawn, and a CPS worker apologized to plaintiff because the agency relied on bad information. Think she alleges a cause of action?

The case is McCaul v. Ardsley Union Free School District, a summary order decided on February 26. The district court dismissed the claim, and the Court of Appeals affirms, ending the case. This case arrives at the Court of Appeals in a Rule 12 posture, so whatever the plaintiff says in the complaint is true at this stage of the case. So how can it be that someone who was accused of child neglect and placed on the Statewide Central Register of Child Abuse and Maltreatment has no case? Because not every wrong violates the law.

Under substantive due process, you can sue the government if its misconduct is outrageous or conscience-shocking. For this constitutional claim, there also has to be the loss of a liberty interest. There is no such interest here because plaintiff did not no custody of her child. While she was placed on the central register, which impeded her ability to pursue a career around children and senior citizens and to adopt a child, there is no substantive due process claim simply by arguing that your reputation was damaged. You also have to show "stigma plus," or stigma plus some other harm. She does not allege any tangible burden beyond damage to her reputation, i.e., she does not say that she was denied a job or the opportunity to adopt a foster child as a result of her listing on the registry.

What's left for plaintiff? She also sues for malicious prosecution. That's gotta work, right? Wrong. The Second Circuit (Winter, Chin and Droney) says that she does not allege any "special injury," some interference with the plaintiff's person or property beyond the ordinary burden of defending a lawsuit. Here is how the Court of Appeals handles that issue:

Here, McCaul alleges that as a result of the neglect proceeding initiated on the basis of "bad information," she spent thousands of dollars to retain an attorney and suffered distress and anxiety. She does not, however, allege any special injury beyond the ordinary physical, psychological, or financial demands of defending herself in the civil neglect proceeding. Thus, the district court properly dismissed her malicious prosecution claim.

Cursing out a police officer - not always illegal

Can you be arrested for disorderly conduct for cursing out a police officer? The New York Court of Appeals has thrown out a conviction because the defendant's profanity did not create any public disturbance.

The case is People v. Baker, decided on February 7. A woman was videotaping the police on a public street. The police asked her what she was doing and then ran a license check on her car, which showed that the license plate was registered to a different car. At this point, defendant came outside and cursed out the police. He was arrested for disorderly conduct. The Court of Appeals is too classy to cite the profanity, but the oral argument transcript says that the defendant said "don't fuck with me." He also said "fuck you."

Judging from the Court of Appeals' decision, few cases address when someone can get away with cursing at a police officer in public. This will be one of the leading cases in this area. Disorderly conduct convictions require proof that the defendant intended to create a public disturbance. "The significance of the public harm element in disorderly conduct cases cannot be overstated." Relevant factors include the time and place of the episode, the number of other people in the vicinity and whether they are drawn to to the disturbance.

The police had no probable cause to arrest this guy for disorderly conduct. There was no public harm. This happened in daytime and he made two abusive statements to the officer who was sitting in the patrol car and did not feel threatened by the defendant. While a few bystanders had gathered nearby, they did not endeavor to get involved.

What really makes this case noteworthy is the Court's conclusion that police officers in many instances have to put up with foul language directed at them.

[T]his case includes one more factor worthy of consideration. Here, both at its inception and conclusion, the verbal exchange was between a single civilian and a police officer. The fact that defendant's abusive statements were directed exclusively at a police officer -- a party trained to diffuse situations involving angry or emotionally distraught persons -- further undermines any inference that there was a threat of public harm, particularly since the police officer was in a position of safety and could have closed his windows and ignored defendant. We do not suggest that the public harm element can never be present in such encounters; ... But isolated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a sufficient basis to infer the presence of the "public harm" mens rea necessary to support a disorderly conduct charge.

Inmate gets a trial on his retaliatory prison transfer

This inmate gets the benefit of the doubt on his claim that his jailors retaliated against him for complaining that a fellow inmate was beaten up. The retaliation took the form of a transfer to another prison.

The case is Smith v. Levine, a summary order decided on January 31. Smith filed a grievance complaining that several guards had beaten up a Muslim inmate because of his religion. Smith was then shipped off to another prison and placed in confinement. He says this transfer happened because the guards wanted to prevent someone from the New York Inspector General's office from interviewing him. He sues under the First Amendment.

The district court threw out the case, but the State Attorney General's office now concedes that Smith properly alleges a First Amendment claim. You don't see concessions like that very often, particularly when the district court ruled the other way. So, a tip of the hat to the AG's office for picking and choosing their battles.

But the State argues that Smith has no clear right to be free from a retaliatory prison transfer. The Court of Appeals (Cabranes, Wesley and Livingston) notes, however, that the Second Circuit has recognized such a right since 1998. And, the Court notes, Smith can show that conditions at the new jail were worse than the old jail. He can take this case to a jury.

Smith also goes after two guards who, he says, retaliated against him. The evidence against these guys is thin, so thin that the Court of Appeals wonders if Smith can win the case at trial. The Second Circuit views the evidence in the light most favorable to Smith in reversing summary judgment. This legal reasoning represents summary judgment logic at its most pro-plaintiff:

Although Smith’s amended complaint may not contain the specificity desired in all contexts, given the “special solicitude” accorded to pro se complaints, we hold that the District Court erred in dismissing the amended complaint against Kelly and Levine. In particular, Smith alleges that it was Kelly who instructed the guards to place him on the 72 hour investigation, one day prior to his transfer. The obvious inference to be drawn from the sequence of Smith’s allegations is that the investigation was a precursor to his transfer and that, inasmuch as Kelly ordered the investigation, he had a direct role in the transfer. As for Levine, Smith alleges that he was the guard who actually removed him from his cell and put him on his way to Auburn. Smith further alleges that Levine told the guards at Auburn that the transfer was executed as punishment for his written complaints to NYSIG, and that, as a direct result, the guards at Auburn placed him in the SHU. We find that these allegations are sufficient to “suggest” Kelly and Levine’s direct involvement in the alleged retaliation.

Foolish comment goes to waste

Employment discrimination cases usually depend on circumstantial evidence: the plaintiff suffers an adverse action under suspicious circumstances and management offers a false reason for it. Direct evidence therefore can really give the plaintiff something to work with. But not always.

The case is Bir v. Pfizer, Inc., a summary order decided on January 31. Plaintiff worked under a guy named Welch, who made an obnoxious statement about women. Welch said, “when women get married and have children, their priorities change and they don’t work as hard.” That's direct evidence, for sure, but plaintiff's promotion denials are not discriminatory because Welch did not participate in the adverse actions. Welch's sexist comment goes to waste.

Plaintiff also sues over an hostile work environment. Again, she points the finger at Welch, who treated her like garbage. The Court of Appeals summarizes the evidence:

Welch falsely accused her of antagonizing her customers and lying about her schedule; interfered with the distribution of product samples to her; reduced her budget for educational programs; assigned her a less-desirable sales territory than similarly-situated male sales representatives; screamed at her; and subjected her to more frequent field-visit supervisions, for which he provided less warning than he did similarly-situated male sales representatives. Plaintiff also avers that Welch often socialized with male representatives, but that he never did the same with female representatives. Furthermore, plaintiff asserts that in the months leading up to her wedding in 2005, Welch made the comment described above about married women. Plaintiff also testified that Welch “threatened [her] never to go to” Pfizer’s human resources department to complain about his conduct.

This all has the makings of a decent hostile work environment case, but the Court of Appeals sustains summary judgment. Most of the harassment was gender-neutral. That kind of harassment can support a Title VII claim if the totality of the circumstances suggests the harasser was motivated by gender. The Court does not see that in this case, notwithstanding Welch's statement about married women. In addition, Welch was what we call an equal-opportunity harasser. He treated everyone like garbage.

Plaintiff offers the testimony of a female co-worker, Donovan, who says that Welch did treat women worse than men and that he threatened her just as he threatened plaintiff. The Court of Appeals rejects this testimony. Welch treated Donovan this way through 1997, however, and after that, he treated her favorably. And, while Donovan left Pfizer in 1997, Welch treated plaintiff poorly in 2005. That gap in time undercuts the hostile work environment claim.

Summary judgment affirmed in dual Title VII and First Amendment retaliation case

A fight in a late-night cafe cost a police officer a promotion. He sues under Title VII and the First Amendment. He loses both claims.

The case is Garcia v. Hartford Police Department, decided on January 28. Garcia was a sergeant who went to a cafe in Hartford when a fight broke out, resulting in some arrests. One of the officers beat the hell out of one of the fight participants. When Garcia told the Police Chief that the officer used excessive force, the Chief told the press that Garcia's concerns were overstated. Garcia then held a press conference "responding to what he deemed to be Chief Croughwell's attempt to assail his reputation."

Garcia continued to rub management the wrong way. He was later charged with two violations in connection with his alleged failure to take appropriate action during the cafe dispute. Then, Garcia used vulgarities in speaking with the press. So when promotion time came around, while Garcia was a high-ranking candidate in light of his examination score for the position, he was the only one out of 12 candidate to receive a promotion (he ranked third on the list). He lost his arbitration after a hearing into the alleged misconduct. A state court upheld the adverse arbitration findings. During Garcia's suspension, he was again charged with other misconduct. A subsequent round of promotions also left Garcia out in the cold, and he was found guilty of that misconduct afterwards.

The Title VII case fails because, although Garcia was among the few eligible minority candidates for the positions that went to other white officers, the City had a legitimate reason to deny him the promotion: the Chief did not want to promote someone who was under suspension at the time. There is no evidence to suggest this justification was offered in bad faith, and one of the sergeants promoted over Garcia was also Hispanic. While Garcia says that the department investigated his alleged misconduct because of his race, there is also not evidence to support this claim, either, as the investigator was just doing his job and he even found one allegation against Garcia to be without merit and recommended that the matter be closed.

The First Amendment claim also dies. The district court erred in saying that Garcia's public speech was not protected under the First Amendment because he spoke out for personal reasons. This is wrong, the Second Circuit (Lohier, Katzmann and Kearse) says. "Whether or not Garcia held the press conference solely out of a desire to protect his reputation, he spoke about a matter of public concern, namely, whether the police department was discriminating against Hispanics." As "the core of Garcia's dissatisfaction was with the Department's handling of allegations of discrimination against Hispanics," this was protected speech. But Garcia still loses because the adverse actions that followed his protected speech were undertaken legitimately by management. The analysis under Title VII also applies under plaintiff's First Amendment claim. So while Garcia gives other plaintiffs a decent ruling on the free speech claim, he loses the case.  

Workplace fight not enough to dismiss retaliation case

Is fighting with co-workers a legitimate reason for fire someone? Usually, yes. In this case, no.

The case is Asabor v. Archdiocese of New York, an Appellate Division First Department case decided on January 22. Plaintiff is a Nigerian-born woman who worked as a mental health nurse at a mental health facility in Staten Island. She alleges that co-workers, including Quattrachi and Mascara, subjected her to endless racial harassment. Plaintiff complained to management about this, but very little was done to stop the harassment. One day, a patient at the facility started hallucinating and called the police. As the First Department puts it:

Mascara called Kimberly Flory, Beacon's senior program supervisor, who advised her to call the patient's therapist. Plaintiff thought that she should be involved, because she was a nurse, but Mascara told her to leave the area. Plaintiff got angry, a fight began and it quickly escalated. At some point Quattracchi got involved. One or more doors were pushed into various individuals, and both plaintiff and Mascara suffered injuries. Flory had advised Mascara that plaintiff should be asked to leave the unit. Morgan eventually called plaintiff and asked her to leave the premises. Plaintiff followed his directive, but questioned the fairness of singling her out as the only one asked to leave. Plaintiff testified that she told Morgan that she was contacting counsel to address the racism at Beacon and the manner in which defendants condoned it.

So this dispute over how to respond to this patient emergency resulted in a fight between plaintiff and her two antagonists. All three were fired for engaging in this altercation. Plaintiff filed a lawsuit under the State Human Rights Law (but not the New York City law) for retaliation because she had earlier complained about discrimination at work. State Supreme Court dismissed the case, finding that the jury could only conclude that plaintiff was fired for the altercation, not her discrimination complaints. The Appellate Division disagrees. It notes that "Defendants proffered a legitimate nondiscriminatory basis for terminating plaintiff — the prohibition against workplace altercations." But the jury could see things differently:

However, the fight was the direct result of 13 months of escalating hostility of which defendants were aware, and which the record reflects stemmed from racial animus. It is arguable that by firing all three participants in the fight — plaintiff, Quattracchi and Mascara — defendants were acting in a race neutral manner. An equally plausible inference, given the nature and degree of unaddressed racial animus at Beacon, is that defendants were motivated by a justified fear of liability stemming from an insufficient response to plaintiff's complaints.

I can say with confidence that the Second Circuit would never interpret Title VII this way. But this case is filed in state court, so plaintiff can take her claims to trial. The dissenting justice says this reasoning is "preposterous." He says:

the majority reinstates plaintiff's retaliatory discharge claim notwithstanding unrefuted evidence that she was terminated for violating her employer's prohibition on conduct clearly intolerable in the workplace (fighting), a policy that the employer applied equally to the other employees involved in the same incident who did not threaten to sue (and who were not members of plaintiff's protected class). In so doing, the majority sends the message that an employee who commits workplace misconduct may deter the employer from taking disciplinary action by the simple expedient of threatening to sue before a penalty is imposed. I do not believe that the Human Rights Law was intended to afford such protection to employees who engage in misconduct in the workplace, as the record shows plaintiff did here. It is simply preposterous to suggest that the Human Rights Law was meant to call an employer to task for dismissing an employee at a mental health facility who involves herself in a physical altercation at work.

Punctuality is not always an essential job requirement under the ADA

The Americans with Disabilities Act continues to find ways to confound us. In this case, the Court of Appeals asks when an employer must accommodate someone whose disability makes him tardy for work. Does the ADA require the employer to adjust his work schedule?

The case is McMillan v. City of New York, decided on March 4. Plaintiff, a case manager for the City's Human Resources Administration, takes medication for his disability that makes him sluggish and drowsy. As the Second Circuit writes, "Rodney McMillan's severe disability requires treatment that prevents him from arriving to work at a consistent time each day." For 10 years, management allowed plaintiff to arrive late. Eventually that leeway ended, and plaintiff was suspended. The district court granted the City's motion for summary judgment, concluding that an timely arrival to work is an essential function of the job. The Second Circuit (Walker, Livingston and Droney) reverses and remands for trial.

Under the ADA, the employer must provide the disabled employee with a reasonable accommodation, but the employee must still be able to perform the essential job functions. This fact-intensive analysis depends on the unique nature of each job. Or "penetrating factual analysis," the Court of Appeals says. It may be that plaintiff does not have to come in on time. He was able to arrive late to work for years and still get his work done. The employer has a flex-time policy that lets employees arrive and leave within a one-hour window, which "implies that punctuality and presence at precise times may not be essential." The Court of Appeals says for the first time that "physical presence at or by a specific time is not, as a matter of law, an essential function of all employment. While a timely arrival is normally an essential function, a court must still conduct a fact-specific inquiry, drawing all inferences in favor of the non-moving party. Such an inquiry was not conducted here." A jury can find in plaintiff's favor on this issue.

Plaintiff also identifies a reasonable accommodation that would not pose an undue hardship for the City: he can work during lunch and also work late. The City already allows employees to "bank" any hours they work in excess of seven hours per day and apply banked time toward late arrivals. In other words, the City permits flexible hours for its employees. While supervisors cannot work past 6:00 p.m., plaintiff was unsupervised when he made home visits or worked past 7:00 pm. The City also lets people work during lunch with advance approval.

Finally, the district court should not have required the plaintiff to prove that the City offered a pretextual reason for his punishment. If the plaintiff is disciplined because of his disability, you don't have to show pretext, which is only useful when the plaintiff's case turns on circumstantial evidence. The Court says, "it is undisputed that McMillan was tardy because of his disability and that he was disciplined because of his tardiness. In other words, McMillan was disciplined because of his disability." Pretext is not the issue. The issue is whether plaintiff can show that, with reasonable accommodations, he could have performed the essential functions of the job.

This is how pretext works under Title VII

Pretext remains the backbone of nearly every Title VII case. The plaintiff has to show that the employer's reason for mistreating her was false, permitting the inference of discrimination or retaliation. For the judge, this is not a legal question, but a factual one. Each judge brings her own views into this puzzle.

The case is Summa v. Hofstra University, decided on February 21. There are many ways to attack the employer's justifications as pretextual. Very often these efforts don't work. The plaintiff is either nitpicking or the employer genuinely had good reason to terminate or demote the plaintiff. In this case, the Court of Appeals (Raggi, Pooler and Lynch) takes the pretext analysis as far as I've seen it lately, concluding that a jury may find that a Hofstra University graduate student who also worked for the University was denied certain positions in retaliation for complaining about sexual harassment. There were three positions at issue.

1. After complaining about harassment, Summa was denied the position of team manager of the school's football team, a position she had previously held. The college argued that it was unaware that Summa wanted the position for the spring 2007 football season. However, "Summa presented evidence that she had repeatedly discussed the spring season with the football coaching staff and, more tellingly, presented an e-mail that listed her stipend for the year as 'Fall: $700 Spring: $300.'” And, the fact that Summa waited until just before the spring season to request the team schedule "corroborates her account that she had been told she had the position already lined up, thus obviating any need to contact the department at an earlier time." This is what we call drawing all inferences favorable to the plaintiff on a motion for summary judgment.

2. Summa was also denied a graduate assistantship position. The human resources director (who knew about plaintiff's sexual harassment complaint) encouraged the hiring official, Connolly, to re-interview plaintiff for the position after she had already been offered the job. HR also encouraged Connolly to then deny plaintiff the position. And, when plaintiff was told to meet with Connelly, she was not informed that the job offer was in danger of being revoked if the interview did not go well; plaintiff was simply told to "meet" with Connolly. Plaintiff was the only potential graduate assistant who had an interview with Connolly and she was the only one whose references were contacted. Contrary to its usual practice, HR also involved itself in this hiring process more substantially than usual. This kind of disparate treatment is evidence of pretext.

3. In addition, Summa was denied student employment privileges because she had double-booked some hours, contrary to the rules. But HR admitted that she had never looked into the billing practices of any other student, and student employment privileges had never been previously terminated for this practice. When double-billing had happened in the past, it was not the student but the supervisor who was terminated. So why was Summa terminated in this instance? The jury may infer retaliatory pretext.

Pretext is a funny thing. In straight disparate treatment cases, the Second Circuit remains a pretext-plus court, which means that pretext alone usually will not get you a trial, though there are some exceptions. There has to pretext plus, i.e., sexist comments or a racially-biased reduction in force. Pretext plus does not usually apply in retaliation cases like Summa v. Hofstra University, though. If the plaintiff makes out a prima facie case of retaliation, and she is able to cast doubt on the employer's justification for the adverse action, the case will probably go to trial.