Friday, May 26, 2017

Don't forget to plead those disparate impact claims

This case had potential to be interesting, but it fizzles out. Plaintiff was denied a job at Sam's Club after he failed the background check, which showed he was convicted of a drug offense. He claims the job denial violates the antidiscrimination laws because the hiring policy that prohibits the company from hiring certain drug offenses has a disparate impact on certain job applicants. The Court of Appeals rejects the claim.

The case is Karagozian v. Sam's East, Inc., a summary order decided on May 22. Plaintiff is a licensed optician who disclosed his felony conviction on the hiring application. But company policy says you cannot work in the department for which plaintiff was applying. Plaintiff says that EEOC statistics show that people are convicted of drug offenses at different rates, causing a disparate impact upon male job applicants. In a disparate impact case, the plaintiff can win if the facially neutral company policy falls heavily against people based on race or gender and the company cannot show a sufficient business necessity for the policy.

Is disparate impact a forgotten cause of action? It was last in the news a few years ago when Sonia Sotomayor was nominated to the Supreme Court. As a Second Circuit judge, she ruled against New Haven firefighters who had failed an exam that had a disparate impact on racial minorities. The case went to the Supreme Court, which ruled in favor of the firefighters. Before that, in 1990-91, when Congress was trying to amend the Civil Rights Act of 1964, the first President Bush objected to the disparate impact language, claiming it would force employers to adopt a quota policy to avoid getting sued for discrimination. He eventually signed the bill, and disparate impact -- originally created by the Supreme Court in 1971 -- is now codified in the Act.

Plaintiff loses this case because he does not actually bring a disparate impact claim. He brings a disparate treatment claim, which is resolved under a different set of standards and requires proof that the employer intended to discriminate. Under disparate impact, the employer can lose the case even if he did not harbor discriminatory intent.

Plaintiff tries to get around this by arguing that the policy bears no relationship to the position. But "that argument fails because disputes as to the wisdom of the employment policy cannot alone raise an inference of employment discrimination." The Court (Winter, Raggi and Hellerstein [D.J.]) then reminds us (as it often does) that it does not sit as a super-personnel department.

Thursday, May 25, 2017

Second Circuit certifies New York City Human Rights Law issue to State Court of Appeals

The New York City Human Rights law is a self-contained statute that provides employees greater protections that its state and federal counterparts. In 2005 and again in 2016, the City Council emphasized that the City law was intended to be more pro-plaintiff than Title VII, the ADEA, the Americans with Disabilities Act and the State Human Rights Law. This means the courts are still working through the City law to determine what it means.

The case is Makinen v. City of New York, decided on May 22. The issue here is whether the City law's disability discrimination provision makes it illegal to discriminate against untreated alcoholics, that is, people who are not in recovery. This case went to trial, and both plaintiffs prevailed. The jury awarded Makinen $16,100 in compensatory damages and $30,000 in punitives. The second plaintiff won $75,000 in compensatory damages and $30,000 in punitives.

This appeal concerns the proper interpretation of the City law. If the courts accept the City's narrow interpretation, the plaintiff may end up losing the case. Under the plain language of the City law, alcoholics who are not in recovery are not protected from discrimination. The statute says that "In the case of alcoholism," the definition of "disability" only applies "to a person who (1) is recovering or has recovered and (2) currently is free of such abuse." But under federal and state law, alcoholics are protected from discrimination even if they are not in recovery. The Court of Appeals says that "[n]either statute is limited to recovering or recovered alcoholics."

We interpret statutes by examining their plain language and their context. The City of New York argues that plaintiffs cannot win their case because they were perceived as alcoholics (they were not actually alcoholics) and were therefore not in recovery. In response, plaintiffs note that the City Council has emphasized that the City law provides broader protections than its state and federal counterparts in every way. Under this theory of statutory interpretation, the City law cannot provide alcoholics (or perceived alcoholics) fewer protections than the Americans with Disabilities Act and the New York Human Rights Law.

The Second Circuit (Lohier, Sack and Livingston) decide to certify this case to the New York Court of Appeals to determine to scope of the City law with respect to protections afforded to alcoholics who are not in treatment. Certification is a way to ensure that the state courts have the first opportunity to definitively interpret state and local laws before the federal court of appeals weighs in on the issue. This is the second time in a year that the Second Circuit has certified a City law issue to the State Court of Appeals. Last September, the Circuit sent Chauca v. Abraham, 841 F.3d 86 (2d Cir. 2016) (a case I am handling), to the State Court of Appeals to determine when plaintiffs in employment discrimination cases may recover punitive damages.

Wednesday, May 24, 2017

Court of Appeals takes away habeas victory

You will not find a more depressing statement of facts than this case, in which an intoxicated man shot and either injured or killed members of his girlfriend's family after his girlfriend told him he was drinking too much. It all happened at the man's birthday party. Of course, the jury convicted him of murder. And, of course, while in jail, the defendant blamed his lawyer, filing a habeas petition claiming ineffective assistance of counsel. A respected federal judge granted that motion, ruling that the defendant received ineffective assistance. The Court of Appeals disagrees, killing off the habeas petition.

The case is Waiters v. Lee, decided on May 22. Waiters' blood-alcohol content was sky-high. His trial counsel argued that Waiters was so intoxicated that he could not form the necessary intent to kill and injure his victims. Legally, this is a legitimate defense. You not only have to prove the defendant committed the unlawful act, but that he intended to do so. Diminished capacity means no intent, or at least diminished intent to cause harm.

Waiters brought the habeas petition pro se, arguing that his trial lawyer was ineffective because he did not call an expert witness to tell the jury that his intoxication was a mitigating factor in the shootings. Ineffective assistance claims can be won post-trial, but those victories are rare. You have to show counsel's performance fell below accepted standards and that that poor performance prejudiced the defense, or caused him to lose. Under federal habeas standards, you also have to show the state courts -- which get first crack on the ineffective assistance claim -- interpreted the Constitution unreasonably. Misinterpreting the Constitution by itself is not enough to win a habeas petition. The state court's interpretation has to be unreasonable. So the state courts can get it a little wrong. This is the state's rights theory of habeas corpus jurisprudence.

Writing for a 2-1 majority, Judge Livingston says Waiters cannot satisfy his burden in showing the state court had unreasonably denied his habeas petition. (Judge Jacobs dissents and would uphold the positive habeas ruling). The Court assumes for the sake of argument that Waiters' lawyer had unreasonably failed to hire an expert. It then says that, even so, that failure did not make a difference in the outcome of the criminal trial. The Court notes that that jury already knew that Waiters had been drinking all day and that he was intoxicated when he fired his gun at the victims. The jury also knew that his intoxication "had not rendered him incapable of purposeful action," including testimony that he went after his girlfriend's son because he was trying to break up the argument. The Court concludes, "we are not persuaded that, had the jury also heard from a medical expert and reviewed the full set of medical records, there is a sufficiently strong probability that it would have found differently such that the state trial court's determination to the contrary was unreasonable. While such evidence could have been proffered, it would not likely have made a difference in light of the strong, specific testimonial evidence indicating that Waiters formed the requisite intent to commit his crimes."

Thursday, May 18, 2017

SDNY judge allows sexual orientation discrimination case to proceed

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

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

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

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

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

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

Monday, May 15, 2017

No smoking gun in academic discrimination case

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

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

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

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

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

Friday, May 12, 2017

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

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

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

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

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

Wednesday, May 10, 2017

Close call in religious harassment case goes to the jury

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

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

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

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

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

Monday, May 8, 2017

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

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

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

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

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

Our failure to correct the error made by the courts below leaves in place a judgment that accepts the word of one party over the word of another. It also continues a disturbing trend regarding the use of this Court’s resources. We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force. But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases. The erroneous grant of summary judgment in qualified-immunity cases imposes no less harm on “‘society as a whole,’" than does the erroneous denial of summary judgment in such cases.
Justices Thomas and Alito write in support of the Court's decision not to take the case, stating that "whether or not one agrees with the grant of summary judgment in favor of Officer Thompson, it is clear that the lower courts acted responsibly and attempted faithfully to apply the correct legal rule to what is at best a marginal set of facts" They add that "this Court applies uniform standards in determining whether to grant review in cases involving allegations that a law enforcement officer engaged in unconstitutional conduct." In the end, these Justices write: "regardless of whether the petitioner is an officer or an alleged victim of police misconduct, we rarely grant review where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case. The case before us falls squarely in that category."

Friday, May 5, 2017

Managerial outburst following discrimination complaint is not retaliation

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

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

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

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

Thursday, May 4, 2017

Inmate's pro se appeal overturns prison disciplinary finding

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

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

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

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

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

Wednesday, May 3, 2017

New research on employment discrimination verdicts and damages awards

A scholarly article written by a mediator who teaches at Columbia Law School provides insight into who wins and who loses their employment discrimination trials, and how much money they get from the jury. This article is useful in sizing up the value of a plaintiff's case. Unfortunately for plaintiffs' attorneys, the article does not provide much good news.

The article is at this link. Vivian Berger examined all employment discrimination cases filed in the Southern and Eastern Districts of New York from 2004 through 2010. This includes retaliation cases. In the SDNY, 70 cases went to trial. In the EDNY, 90 went to trial. Since some cases have multiple plaintiffs, in all, there were 200 plaintiffs. What do the statistics tell us?

First, of the 160 cases that went to trial, 48 resulted in plaintiffs' verdicts, a 30 percent ratio. The defendants won 67.5 percent of the time. Post-verdict adjustments -- thanks to motion practice -- reduce these numbers even further: a 28.1 percent success rate for plaintiffs. Excluding pro se cases, the overall success rate for plaintiffs is 30.3 percent. These numbers are similar in the SDNY (28.6 percent) and the EDNY (31.1 percent).

If we look at the overall number of plaintiffs, which takes into account multi-plaintiff cases, 34.5 percent won at trial in the SDNY and EDNY. Post-trial, that number is reduced to 33.0 percent. These numbers are better than single-plaintiff cases, probably since multiple plaintiffs reinforce each others' cases.

The research also shows that plaintiffs suing private entities (37.0 percent victory rate) tend to fare better than plaintiffs who sue public entities (25.3 percent). However, Berger writes, "the apparent disadvantage suffered by plaintiffs suing the government largely vanishes when the results are examined according to number of plaintiffs." Multiple-plaintiff cases against the government prevail 34.5 percent of the time. That same number applies to multiple-plaintiff cases against the private sector. Overall, retaliation cases (40 percent) fare better than straight discrimination cases. Sex and race/national origin cases prevail 12 to 13 percent of the time. This "suggests the correctness of the common wisdom: it is often easier to win on [retaliation] ground[s] than on a discrimination charge."

As for damages awards, Berger examined damages for pain and suffering and not back pay. Pain and suffering awards are more difficult to predict and stem from the jury's overall sense of fairness as opposed to mathematical calculations about lost income and benefits. These are sobering numbers for plaintiffs. For those who win their trials in the SDNY, the median pain and suffering award is $40,000. In the EDNY, the median number is $69,375. The median number is more realistic than the average number ($200,682 for both districts), which is skewed by outlier verdicts.

Berger also looks at punitive damages. Only 13.8 of the 160 trials even offered the jury a chance to award punitives. The average award was $466,413. In the SDNY, that's $314,250. In the EDNY, that's $583,462. Only 11.3 of the cases that went to trial even resulted in punitive damages. The dollar value goes down post-verdict, to $113,500 in the EDNY and $375,498 in the SDNY. The median award for punitive damages is $125,000 for both districts combined, or $45,000 for the SDNY and $200,000 in the EDNY. Post-verdict, those numbers go down even further: $30,000 in the SDNY and $50,000 in the EDNY.

As Berger notes, the more "extreme" cases tend to settle. That is my experience. But since most cases settle, this research allows litigants to predict with some degree of certainty what their cases are worth. This comes in handy during settlement negotiations, and it gives attorneys some concrete basis in telling their clients what their chances might be at trial and what their cases might be worth. 

Tuesday, May 2, 2017

How do we apportion sanctions under the federal rules?

This little-noticed Supreme Court case examines how to arrive at a precise sanction when a lawyer pulls a fast one in litigation and the court decides to order the offending litigant to pay the other side's legal costs.

The case is Goodyear Tire v. Haeger, decided on April 18. This is a product liability case alleging that Goodyear manufactured a defective tire that caused someone's motor home to drive off the road and flip over, a scary image, no doubt. During contentious discovery, Goodyear dragged its feet in producing test results for the tire, and the case eventually settled. Afterwards, the plaintiff's attorney learned that Goodyear had produced those test results in another case. Those test results showed that the tire got unusually hot at highway speeds, posing a safety risk. Goodyear admitted withholding the test results in this case. The trial court ordered Goodyear to pay the plaintiffs $2.7 million, the entire sum they had spent in legal fees and costs since the moment Goodyear had made its first dishonest discovery response. The Supreme Court says that was too much money and the trial court used the wrong formula in fixing the sanction.

Bad faith litigation behavior will cost you money. But how much money? The Supreme Court has said these sanctions must be compensatory and not punitive. "The fee award may go no further than to redress the wrongful party 'for losses sustained.'" This is a but-for causation fee test that the Supreme Court used in Fox v. Vice, 563 U.S. 826 (2011), a Title VII case where the prevailing defendant in a frivolous case could only recover the fees that it expended directly because of the plaintiff's behavior, which excluded the fees that the defendant expended in dealing with the plaintiff's good-faith behavior, and that "when a defendant would have incurred an expense in any event, he has suffered no incremental harm from the frivolous claim, and so the court lacks a basis for shifting the expense."

Justice Kagan writes that the lower courts in this case did not use the correct legal standard in setting the fine. While the district court dispensed with the correct standard because this was a "truly egregious case," and the Ninth Circuit said the trial court could grant all the attorneys' fees incurred "during the time when Goodyear was acting in bad faith," that does not take into account the surgical test the Supreme Court has previously articulated in sanctioning bad behavior. For one thing, the Supreme Court says, the plaintiffs cannot show that Goodyear's non-disclosure had so permeated the suit that Goodyear was on the hook for all the fees that the plaintiffs had incurred thereafter.

The Court does say that in exceptional circumstances, the but-for standard allows the trial court to shift all of a party's fees.

In exceptional cases, the but-for standard even permits a trial court to shift all of a party’s fees, from either the start or some midpoint of a suit, in one fell swoop. Cham­bers v. NASCO offers one illustration. There, we approved such an award because literally everything the defendant did—“his entire course of conduct” throughout, and indeed preceding, the litigation—was “part of a sordid scheme” to defeat a valid claim. Thus, the district court could reasonably conclude that all legal expenses in the suit “were caused . . . solely by [his] fraudulent and brazenly unethical efforts.” Or to flip the example: If a plaintiff initiates a case in complete bad faith, so that every cost of defense is at­tributable only to sanctioned behavior, the court may again make a blanket award.

Monday, May 1, 2017

Racist tirade by drunk Mayor is not a hostile work environment

Is it a hostile work environment when you boss makes racist comments off-duty? What about when he makes racist comments off-duty, but he is physically inside the workplace? The Court of Appeals resolved these issues in a case involving the Mayor of the Village of Moncticello.

The case is Johnstone v. Village of Monticello, a summary order decided on April 28. I argued the appeal. Johnstone is a white police officer who arrested the Mayor, Jenkins, who is black, for for driving while intoxicated. While Johnstone was processing the Mayor at the police station, Jenkins launched a racial tirade against Johnstone and other white officers. The video of this incident is at this link. Johnstone alleges -- but the Second Circuit ruling does not mention -- that Jenkins also threatened the employment of the white officers. Johnstone sued the Mayor and the Village for a racially hostile work environment.

The district court says Johnstone cannot win the case, and the Court of Appeals (Parker, Jacobs and Walker) agrees. The Court says that "one consideration is the frequency of the alleged abuse, his reliance on a single incident over the course of a nearly 30-year career weighs heavily against
him, although that alone is not dispositive. More significant is that an abusive tirade by a person arrested for driving under the influence is not sufficient "to alter the conditions" of Johnstone's employment. The Court reasons:

Jenkins's alleged comments were severe, but they were not made in the context of an employer addressing an employee in the workplace; they were made by an apparently intoxicated citizen who was belligerent because he was being taken into custody and processed for violating the law. Being subjected to an intoxicated and verbally abusive perpetrator does not alter the conditions of a police officer's employment or create an actionably hostile work environment, even if the person arrested happens to be the mayor.

Friday, April 28, 2017

We review hostile work environment claims as a whole

The Court of Appeals has reinstated a racial and gender discrimination lawsuit, finding that management's use of the N-word and other epithets supports his claim, and that the sexual harassment may have exacerbated the racial harassment. The Second Circuit, however, declines to find as a matter of law that the N-word by itself creates a hostile work environment.

The case is Daniel v. T&M Protection Resources, a summary order decided on April 25. Plaintiff handled the appeal pro se, but the EEOC submitted and amicus brief on his behalf. The EEOC wanted the Second Circuit (Pooler, Wesley and Carney) to find that this racial epithet is enough to prevail in a racial harassment case. The Circuit said in Rivera v. Rochester Genessee Reg'l Transp. Auth., 743 F.3d 11 (2d Cir. 2014), that "perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet of the slur 'nigger' by a supervisor in the presence of his subordinates." But that language was dicta, the Second Circuit says, and therefore not binding on any court. Still, "although we decline to confront the issue of  whether the one-time use of the slur 'nigger' by a supervisor to a subordinate can, by itself, support a claim for a hostile work environment, we conclude that the district court improperly relied on our precedents when it rejected this possibility as a matter of law." So what does this mean? Is the Court of Appeals suggesting the district court can find that the N-word is enough to make out a case? It looks that way.

The Second Circuit also says that, in making out his gender discrimination claim, plaintiff can cite evidence that his supervisor frequently called him a "homo" and told him to "Man up, be a man." This is harassment based on gender stereotypes. While the district court properly considered this evidence in evaluating plaintiff's claim, it improperly declined to consider whether facially-neutral conduct bolstered the harassment claim. "We have held that a plaintiff may rely upon facially neutral conduct to bolster a harassment claim when 'the same individual engaged in multiple acts of harassment, some overtly [based on a protected characteristic] and some not.'” Since plaintiff's supervisor treated him like garbage, that maltreat may be folded into the racial and sexual harassment case, and the jury may conclude that facially-neutral acts of harassment were in fact motivated by plaintiff's gender and race.

The district court also blew it in not evaluating plaintiff's harassment claims as a whole. In fact, plaintiff alleged about 20 acts of harassment during his 15-months of employment, including two severe incidents (the racial comment and the supervisor rubbing himself against plaintiff's buttocks). Viewed as a whole, all of this is enough to win the case. In and of itself, the Circuit says, it does not matter that plaintiff only missed one day of work because of the harassment. What is more, the Court of Appeals says, the evidence of racial, sexual and national origin harassment can be viewed in the aggregate in finding that, i.e., the racial harassment exacerbated the sexual harassment.

Thursday, April 27, 2017

Outrageous vulgarities no basis to fire employee during union fight

The employees at a catering company in New York City were trying to organize a union. Management, of course, was against this. One employee insulted his supervisor on Facebook, using unprecedented vulgarities in also insulting his supervisor's mother. Management, of course, fired him. Is this a case? You're Goddamned right it's a case.

The case is NLRB v. Pier Sixty, LLC, decided on April 21. Two days before the workers voted to unionize, a supervisor by the name of McSweeney addressed them, exhibiting some degree of disrespect for the staff. Shortly thereafter, one employee, Perez, wrote this on Facebook: "Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!" Perez challenged his termination as retaliation for protected union activity. The NLRB agreed, and the Second Circuit (Cabranes, Chin and Kearse) affirms. So the employee does have a case.

Employers cannot fire people for engaging in union activity. "But even an employee engaged in ostensibly protected activity may act in such an abusive manner that he loses the protection of the NLRA." Is Perez's Facebook post sufficiently abusive to warrant his termination? The Court of Appeals says it is not, for the following reasons:

First, even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the “subject matter” of the message included workplace concerns—management’s allegedly disrespectful treatment of employees, and the upcoming union election. Pier Sixty had demonstrated its hostility toward employees’ union activities in the period immediately prior to the representation election and proximate to Perez’s post. Pier Sixty had threatened to rescind benefits and/or fire employees who voted for unionization. It also had enforced a “no talk” rule on groups of employees,
including Perez and Gonzalez, who were prevented by McSweeney from discussing the Union. Perez’s Facebook post explicitly protested mistreatment by management and exhorted employees to “Vote YES for the UNION.” Thus, the [NLRB] Board could reasonably determine that Perez’s outburst was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.
I love this reasoning. It takes an outrageous set of facts and makes it legal. And this is from three judges before whom I have argued many times and I seriously doubt they use language like this even in private conversation.

Moreover, the Court says, the Facebook post is not too offensive because the workplace was rife with this kind of foul language, for which employees are rarely written up. And no one ever gets fired for using this language. McSweeney also talks this way to his employees, calling them "motherfuckers" and "fucking stupid." While "one could draw a distinction between generalize scatology (or even cursing at someone) and, on the other hand, cursing someone's mother and family, ... one could reasonably decide, as the ALJ did in this case, that Perez's comments 'were not a slur against McSweeney's family but, rather, an epithet directed to McSweeney himself." Again, this is my kind of legal reasoning, which footnotes to scholarly works about how "different groups respond to the same words differently" and "among some groups, certain maternal insults could be perceived as 'fighting words.'" One book says that "all over the world groups of people have their ways to insult mothers or use mothers to insult others."

The final round of legal reasoning goes like this:

Third, the “location” of Perez’s comments was an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era. While a Facebook post may be visible to the whole world, including actual and potential customers, as Pier Sixty argues, Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event. Furthermore, Perez asserts that he mistakenly thought that his Facebook page was private and took the post down three days later, upon learning that it was publicly accessible.

Wednesday, April 26, 2017

SDNY issues TRO in FLSA case to prevent retaliation based on immigration status

A Southern District judge has issued a temporary restraining order that prohibits an employer in an FLSA case from "instructing all staff of All City Remodeling, Inc. to "provide an original social security card before collecting [their] weekly check." Plaintiff says this directive constitutes unlawful retaliation and that "this request for social security cards, made shortly after Plaintiffs raised concerns about other retaliatory conduct and shortly before the start of depositions, constitutes an implied threat or intimidation against Plaintiffs' exercise of their rights under the FLSA." Judge Torres grants the TRO,

The case is Alaguachi v. All City Remodeling, 15 Civ. 9688 (AT) (RLE). The TRO was issued on April 20. Judge Torres notes that "the reporting of an employee's immigration status -- as implicitly threatened by Defendants' conduct constitutes an adverse employment action." Also bear in mind that a plaintiff's immigration status is irrelevant in determining whether the plaintiff has a case under the Act. If you do the work, you get paid no matter what. The order is below.

and MARCO MOROCHO, on behalf ofthemselves
and other employees similarly situated,



and JOHN DOES 1-100, the actual names ofsuch
individuals or entities being unknown,


ANALISA TORRES, District Judge:

On April 20, 2017, Plaintiffs filed an emergency motion seeking a temporary restraining order or preliminary injunction against allegedly retaliatory actions by Defendants in this wage and hour action. Letter Mot., ECF No. 128. In particular, Plaintiffs provided an April 18 memorandum sent by Defendant George Tsimoyianis instructing all staff of All City Remodeling, Inc. to "provide an original social security card before collecting [their] weekly check on Friday, April 21, 2017." Id Ex. A. Plaintiffs contend that Defendant's conduct constitutes retaliation in violation of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 215(a)(3), as well as an unfair immigration-related employment practice in violation of 8 U.S.C. § 1324b(a)(6).

The standard for entry of a temporary restraining order ("TRO") "is the same as for a preliminary injunction." Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008). In particular, "a party must demonstrate '(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the  merits to make them a fair grounds for litigation and a balance of hardships tipping decidedly in the movant's favor."' Id (quoting MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 192 (2d Cir. 2004)).

First, as to irreparable harm, ''[t]he Second Circuit has recognized that, depending on the facts and circumstances of a particular case, retaliation and the resulting weakened enforcement of federal law can itself be irreparable harm." Centeno-Bernuy v. Perry, 302 F. Supp. 2d 128, 135 (W.D.N.Y. 2003) (citing Holt v. Cont'! Grp., 708 F.2d 87, 91 (2d Cir. 1983)). Likewise, "[i]t is well established that the anti-retaliation provision of the FLSA is critical to the entire enforcement scheme of the federal wage and hour law." Id. (citing Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960)).

Plaintiffs have sufficiently demonstrated that this request for social security cards, made shortly after Plaintiffs raised concerns about other retaliatory conduct and shortly before the start of depositions, constitutes an implied threat or intimidation against Plaintiffs' exercise of their rights under the FLSA. Without a temporary restraining order, such conduct would cause Plaintiffs irreparable harm. See id.

Second, Plaintiffs have demonstrated a likelihood of success on the merits. To state a prima facie claim for FLSA retaliation, "a plaintiff must show ' (1) participation in protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action."' Id at 136 (quoting Lai v. Eastpoint Int 'l, Inc., No. 99 Civ. 2095, 2000 WL 1234595, at *3 (S.D.N.Y. Aug. 31, 2000)). The present litigation constitutes protected activity on the part of Plaintiffs, and the reporting of an employee's immigration status -- as implicitly threatened by Defendants' conduct constitutes an adverse employment action. See id.; EEOC v. Rest. Co., 490 F. Supp. 2d 1039, 1046, 1050-5 I (D. Minn. 2007); Contreras v. Corinthian Vigor Ins. Brokerage, 103 F. Supp. 2d 1180, 1185 (N.D. Cal. 2000). Finally, as discussed above, the timing of Defendants' conduct in relationship to other events in this litigation is sufficient to infer a causal connection. See Centeno-Beruny, 302 F. Supp. 2d at 136; EEOC, 490 F. Supp. 2d at 1050-51 ("One week after Torres complained to upper management about Centeno's behavior, she was terminated, or at least told that she could not return without proper documentation.").

Having met the standard for a temporary restraining order, Plaintiffs' motion is GRANTED to the extent that:

1. Defendants are prohibited from taking any adverse employment actions or retaliating in any way against Plaintiffs and putative class and collective action members on the basis of their participation in this litigation.

2. Defendants are temporarily restrained from soliciting from Plaintiffs and putative class and collective action members any information regarding immigration status, including requiring the presentation of social-security cards.

3. The parties shall confer at their earliest convenience and contact chambers at (212) 8050292
to schedule a prompt hearing on Plaintiffs' request for a preliminary injunction.

This Order is effective from April 20, 2017, at 7:00 p.m. through May 1, 2017, at 5:00 p.m.
or as further ordered by the Court.


Dated: April 20, 2017
New York, New York

United States District Judge

Tuesday, April 25, 2017

Win some, lose some

This plaintiff has been in litigation against her employer for over a decade. That litigation will continue, thanks to the Court of Appeals, which finds her second lawsuit against the City of Syracuse states a plausible claim for discrimination.

The case is Dotson v. City of Syracuse, a summary order decided on April 24. Dotson is a Community Service Worker who originally sued her employer in 2004, alleging discrimination and retaliation. In 2011, a jury awarded her $225,000 in damages, finding that she suffered retaliation for complaining about pornography in the workplace.

The second lawsuit -- and the subject of this appeal -- was filed in connection with things that happened after the first lawsuit was filed. She claims her suspended in 2012 was discriminatory. The district court rejected that claim from the outset, but the Court of Appeals (Wesley, Kearse and Livingston) reinstates it. The Court of Appeals reminds us that "when evaluating pretext [under Title VII], a court must consider the plaintiff's evidence as a whole, including evidence evidence of discriminatory or disparaging language." The cases in support of these propositions are Walsh v. NYC Housing Authority,. 828 F.3d 70 (2d Cir. 2016), and Danzer v. Norden Systems, 151 F.3d 50 (2d Cir. 1998). Under this standard, plaintiff has a case. The two people who played a role in plaintiff's discipline in 2008 both made stupid comments that reflected hostility toward women. One said that "broads can't work together" because "they'll just be calling for back up all the time." The other said "he could not take hiring another woman" because "he was tired of dealing with their problems." Statements like this will give you a case, and the City of Syracuse now has to either get around these admissions or show that plaintiff can't win her case for other reasons.

But you can't win them all. Plaintiff also says she was suspended in 2012 for complaining about pornography in 2003. That's a nine-year gap. Courts will usually find a nine-month gap too long for retaliation cases. Plaintiff tries to get around this by arguing that the jury verdict in her first lawsuit happened in November 2011 and the discipline took place in February 2012. That certainly narrows the gap, but the Court of Appeals says the verdict is not "protected activity" under Title VII (although it probably threw the City into a rage and gave them an incentive to take it out against plaintiff). The Second Circuit says "the more relevant starting point is the time of the employee's protected activity -- here, the filing of the lawsuit, not its ultimate resolution." That eight-year gap will not cut it, so the retaliation claim is gone.

I can see a jury accepting the timeline proposed by plaintiff. The jury verdict is not protected activity, but it's a major event in the first lawsuit. It is probably enough to trigger a retaliatory impulse, since the City probably thinks it should won the case. But Title VII does not say verdicts constitute protected activity. A loophole that, I'm sure, the drafters of Title VII never thought about.

Friday, April 21, 2017

Yeah, it's legal

The police entered the apartment building with the owner's consent in order to keep the common areas free from drugs and crime. They found the defendant drinking alcohol on the third floor, so they decided to give him a summons for violating New York's open containers law, which prohibits alcoholic beverages in any "public place." The officer frisked defendant and found an illegal firearm. Should the courts suppress the firearm as the fruit of an unlawful search?

The case is United States v. Diaz, decided on April 18. There are two issues here: did the officer have probable cause to search Diaz? And was the warrantless search illegal if the officer did not intend to arrest defendant when he began the search? The Court of Appeals (Sack, Walker and Chim) upholds the search.

Issue number 1 asks if the officer had probable cause to arrest defendant for violating the open container law. This is tricky because the apartment building stairwell is arguably not a public place under the New York City penal code, which defines public place as "a place to which the public or a substantial group of persons has access, including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city." Since the law says nothing about locked residential buildings or common areas, did the officer reasonably believe it was a public place under the law? The Court of Appeals says Yes. The Supreme Court said a few years ago (Heien v. North Carolina) that the police are able to arrest someone based on their reasonable misunderstanding of the law that authorized the arrest. Judge Sack says the City law is ambiguous and the courts have not yet clarified its scope. Some trial courts in New York have interpreted the City law to include apartment building lobbies. For these reasons, the officer acted reasonably under Supreme Court authority, even if the City law did not expressly authorize this search.

Issue number 2 asks whether the police can legally search someone if, at the time of the search, he did not intend to arrest the defendant, and makes the arrest after he finds something illegal, in this case, a gun. The Second Circuit took up this issue in 1977, ruling that a search was legal because the officer had probable cause to arrest the defendant for speeding, regardless of whether or nor the officer intended to arrest the defendant before finding drugs in the car. 1977 was a long time ago, but cases from 1977 can still be good law. While the defendant argues that the 1977 precedent has been repudiated by subsequent precedent, the Second Circuit is not buying it. This arrest was legal.  

Thursday, April 20, 2017

Misplaced chair no basis for prisoners' rights suit

I sometimes wonder what federal judges think of the weaker cases that come before them. This is such a case. The plaintiff is an inmate who "alleged that the prison employee violated his Eighth
Amendment rights by failing to remove a chair from a baseball field. Cintron later ran into the
chair during a game and broke his arm." The Court of Appeals says plaintiff has no case.

The case is Cintron v. Doldo, a summary order decided on April 19. Inmates are allowed to file their own lawsuits. They do have constitutional rights, and without those protections, just imagine what the jails would look like. But if an inmate files too many frivolous suits, the courts can require him to seek pre-filing clearing before bringing another action. Even if the cases are quite weak, someone representing the government still has to do the work, and the courts have to review the matter, taking time away from other cases.

This plaintiff sues under the Eighth Amendment, which prohibits cruel and inhumane jail punishments. The courts have interpreted the Eighth Amendment to cover conditions of confinements inside the jail. Usually, these cases involve bad medical treatment or abusive prison guards. The legal standard is this: "a court should assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.”

The Second Circuit (Katzmann, Jacobs and Leval) says there is no case here. "The placement of the chair on the baseball field did not constitute a 'deprivation . . . sufficiently serious that [Cintron] was denied the minimal civilized measure of life’s necessities,' nor did treatment by prison staff member Mattraw 'deprive [Cintron] of his basic human needs.'” Nor did plaintiff allege that prison staff acted with deliberate indifference.

Wednesday, April 19, 2017

2d Circuit declines to hold that Title VII prohbits sexual orientation discrimination

The Second Circuit has once again declined to rule that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation, ruling that it cannot overrule a Second Circuit ruling from 2000 that said "sex discrimination" does not extend to gays and lesbians.

The case is Zarda v. Altitude Express, decided on April 18. I helped write the brief with lead counsel, Gregory Antollino, who argued the appeal. Zarda was a skydiver who was fired after a customer complained that he told her about his sexual orientation. A straight skydiver was not terminated after telling a customer about his own sexual orientation. The case went to trial in federal on a state-law discrimination claim after the district court ruled that plaintiff could not seek any relief under Title VII. The jury returned a defense verdict and plaintiff appealed the trial court's Title VII ruling, arguing that the EEOC's recent directive that Title VII prohibits sexual orientation discrimination renders the Second Circuit's decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), obsolete.

A few weeks ago, the Second Circuit took up this issue, holding in Christianson v. Omnicom that one Second Circuit panel cannot overrule the decision of a prior panel. Two judges in Christianson issued a concurrence stating the time may be right to bring the Court of Appeals into the modern age and recognize that sexual orientation is in fact sex discrimination. Citing Christianson, the Zarda Court says it cannot overturn Simonton. The Second Circuit is essentially inviting Zarda to seek en banc review on this issue. Astute Title VII aficionados know that the Seventh Circuit recently overruled a prior decision in ruling en banc that Title VII prohibits sexual orientation discrimination. Will the Second Circuit do the same?

An interesting side note. The plaintiff in Zarda lost his sexual orientation claim at trial under state law. Defendant argued that Zarda cannot win his Title VII appeal because the jury has already said there was no discrimination. Zarda got around this by pointing out that the jury charge on the state law claim asked whether Zarda could prove "but for" causation. That is not the standard under Title VII, which asks whether the plaintiff's protected characteristic -- gender, race, etc. -- was a motivating factor in his termination. "Motivating factor" is a more plaintiff-friendly standard than "but-for" causation, so Zarda's Title VII challenge is not mooted by the adverse state-law verdict in federal court.

Monday, April 17, 2017

Supremes rule for plaintiff in Fourth Amendment seizure case

The plaintiff in this case was pulled over for a traffic stop when the police found a bottle in his car containing pills. The police claimed it was drugs, but tests proved otherwise. Still, plaintiff spent 48 days in pretrial detention. He sues for false arrest. The case was dismissed as untimely. It was also dismissed because the court said you can't challenge your pretrial detention under the Fourth Amendment . The Supreme Court finds otherwise and rules in his favor.

The case is Manuel v. City of Joliet, decided by the Supreme Court on March 21. This constitutional case actually looks at our nation's founding document in the most technical manner possible. We start with the Fourth Amendment's protection against "unreasonable seizures." Is that 48-day detention a seizure? If it is, then Manuel can sue.

Writing for the Court, Justice Kagan notes that the Supreme Court said four decades ago that a claim challenging pretrial detention falls within the scope of the Fourth Amendment. Subsequent Supreme Court cases say that pretrial detention can violate the Fourth Amendment not only when it precedes but when it follows the start of legal process in the criminal case. Manuel's criminal case had already started he spent all that time in the slammer. Here is where the technicality comes in. Manuel has a case under the Fourth Amendment and not -- as the Seventh Circuit held -- under the Due Process Clause. Here is the analysis:

Pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case. The Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause. That can happen when the police hold someone without any reason before the formal onset of a criminal proceeding. But it also can occur when legal process itself goes wrong—when,for example, a judge’s probable-cause determination is predicated solely on a police officer’s false statements. Then, too, a person is confined without constitutionally adequate justification. Legal process has gone forward,but it has done nothing to satisfy the Fourth Amendment’s probable-cause requirement. And for that reason, it cannot extinguish the detainee’s Fourth Amendment claim—or somehow, as the Seventh Circuit has held, convert that claim into one founded on the Due Process Clause. If the complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth Amendment.
In other words, it was an unlawful seizure even after the criminal process began because there was no probable cause to detain Manuel. As Justice Kagan writes, "Legal process did not expunge Manuel’s Fourth Amendment claim because the process he received failed to establish what that Amendment makes essential for pretrial detention—probable cause to believe he committed a crime."

The remaining question involves the statute of limitations. The Supreme Court does not take up that issue, instead sending it back for the Seventh Circuit to worry about it. The Supreme Court does summarize the different points of view on this issue. If we treat Manuel's seizure like a malicious prosecution case, then his lawsuit is timely because the statute of limitations would begin on the day the charges were dismissed. But if we treat Manuel's case like a false arrest, then the statute of limitations began the day he was arrested, and this case is untimely.

Sunday, April 16, 2017

Circuit finds black-car drivers are not employees under the FLSA

A huge number of "black-car drivers" bring this Fair Labor Standards Act case against corporate entities that either own a "base license" that allows them to operate a black-car dispatch base in New York City or provide administrative support for the operation of the franchisor's dispatch bases. In other words, the drivers -- who operate a type of for-hire vehicles that provide ground transportation for people -- sue the defendants for unpaid wages. The issue here: did the defendants employ the plaintiffs under the FLSA and state law? The Court of Appeals says the defendants are not employers.

The case is Saleem v. Corporate Transportation Group, decided on April 12. Only employers are liable under the FLSA. If the plaintiffs are independent contractors, they cannot sue for lost wages under the Act. The plaintiffs' black-car franchises are affiliated with defendants, some of whom provide administrative support for the operations. The plaintiffs mostly purchased their franchises from the franchisor defendants, and the franchise agreement has a non-compete clause that prevents them from driving CTG customers without processing payment through CTG. But these agreements do not prevent the drivers from transporting non-CTG customers. While the franchise agreements come with a rule book governing standards of conduct, plaintiffs still enjoyed considerable autonomy in their day-to-day affairs, such as deciding when and how often to drive, where they worked and to accept or decline jobs that were offered. The drivers could also work for other entities.

This back-and forth with respect to driver autonomy and defendant control over them lies at the heart of this case. An employer under state and federal law is able to control the plaintiff. Without sufficient control over the plaintiff, the defendant is not an employer and the plaintiff is merely an independent contractor who cannot invoke the FLSA and state law wage protections. This is a totality of the circumstances test, and the facts are typically quite involved, so much that these decisions can be lengthy and complicated, as reflected in the 14 month time period the Court of Appeals (Livingston, Leval and Carney) took to issue this decision. The Court finds that plaintiffs were independent contractors.

Despite the broad sweep of the FLSA’s definition of “employee,” the record here does not permit the conclusion that Plaintiffs were employees, but instead establishes that they were in business for themselves. As discussed below, Plaintiffs independently determined (1) the manner and extent of their affiliation with CTG; (2) whether to work exclusively for CTG accounts or provide rides for CTG’s rivals’ clients and/or develop business of their own; (3) the degree to which they would invest in their driving businesses; and (4) when, where, and how regularly to provide rides for CTG clients. While none of these facts is determinative on its own, considered as a whole with the goal of discerning the underlying economic reality of the relationship here, the district court correctly determined that Plaintiffs are, as a matter of law, “properly classified as independent contractors rather than employees for purposes of the FLSA.” 

Wednesday, April 12, 2017

Are Rule 68 offers covered by Cheeks v. Pancake House?

Normally, parties settle lawsuits in private and tell the judge the case is over. The judge then "so orders" a stipulation of discontinuance, someone writes a check and we all move on with our lives. That does not apply to cases brought under the Fair Labor Standards Act. In 2015, the Second Circuit held that courts must approve FLSA settlements "to avoid the “potential for abuse,” including “highly restrictive confidentiality provisions in strong tension with the remedial purposes of the FLSA,” “overbroad release[s],” excessive attorney’s fee awards, and inadequate awards. Does this apply to settlements reached under Rule 68?

The case is Yu v. Hasaki Rest., Inc., No. 16-CV-6094 (JMF), 2017 U.S. Dist. LEXIS 54597 (S.D.N.Y. Apr. 10, 2017), a SDNY case decided on April 10. Under Rule 68, the defendant serves an Offer of Judgment on the plaintiff. That offer would pay the plaintiff a sum of money. The plaintiff has a limited time to accept that offer. If the plaintiff rejects the offer and wins less money at trial, then plaintiff has to pay the defendant's post-offer costs. Plaintiff also forfeits attorneys' fees incurred after the offer was sent. In return, the plaintiff gets money and a judgment against defendant.

In this case, Judge Furman holds that Rule 68 settlements are subject to the requirements set forth by the Second Circuit in Cheeks v. Freeport Pancake House, 796 F.3d 199, 200 (2d Cir. 2015), which says the courts must approve FLSA settlements. The judge writes:

In the wake of Cheeks, litigants have increasingly tried to evade the requirement for judicial or DOL approval by entering into settlements pursuant to Rule 68. These litigants have argued — as the parties do in this case — that approval is not required for such settlements because Rule 68 provides that “[t]he clerk must . . . enter judgment” of an accepted offer of judgment and lacks any language comparable to Rule 41’s “applicable federal statute” exception that figured prominently in Cheeks. Fed. R. Civ. P. 68.
Some courts in the Second Circuit say that Rule 68 settlements are not covered by Cheeks. Judge Furman sees it differently. While the judge notes that the clerk "must" enter judgment for the plaintiff upon accepting a Rule 68 offer, allowing parties to avoid Cheeks oversight makes no sense. He writes:

But that foundation — namely, that Rule 68 is, by its terms, mandatory and leaves no room for judicial scrutiny of an accepted offer — crumbles under closer scrutiny. That is, although it is sometimes said that a court “has no choice about entering” a Rule 68 judgment, “this general statement is too broad to encompass all instances in which Rule 68 offers are made.” 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3005 (2d ed. 1996)). Indeed, as one judge on the Eleventh Circuit observed, “[t]here are myriad settings in which a court has an independent duty . . . to review the terms of a settlement offer; Rule 68’s operation does not relieve the court of that duty.” Util. Automation 2000, Inc. v. Choctawhatchee Elec. Co-op., Inc., 298 F.3d 1238, 1250-51 (11th Cir. 2002) (Marcus, C.J., specially concurring). “[I]n the context of class actions,” for example, “Rule 68 offers of judgment are routinely employed despite the fact that all agreements must subsequently be approved by the court after a fairness hearing.” Gordon v. Gouline, 81 F.3d 235, 239 (D.C. Cir. 1996) (citing cases). And as the D.C. Circuit has held, in bankruptcy cases, Rule 68 does not override the requirement that compromises or settlements must be approved by the court. See id. at 239-40. In fact, there are a host of situations in which parties may not, without approval of either or both a government agency and a court, enter into a settlement.
For now, there is a split in the Second Circuit on this issue. The Court of Appeals will no doubt straighten this out some day. Until that happens, each Rule 68 settlement under the FLSA will be handled differently from judge to judge.

Monday, April 10, 2017

New York's credit card surcharge law implicates First Amendment

This is not the most exciting First Amendment case I've ever seen, but a First Amendment case it is. The Supreme Court says that

The case is Expressions Hair Design v. Schneiderman, decided on March 29. We examine credit card pricing in this case. New York makes it illegal for merchants to charge more money if customers want to use a credit card. The credit card companies charge a fee for the use of the cards, so merchants want to encourage customers to use cash. The plaintiffs are merchants who want to impose credit card surcharges. They also want to tell customers that it's not the merchant's fault that they have to raise prices to cover these surcharges. Hence, this First Amendment case.

The Second Circuit ruled against the plaintiffs, finding that this law does not restrict speech and that it instead merely regulates conduct in the form of price controls. The Supreme Court disagrees. The law regulates First Amendment speech because it tells merchants how they can communicate their prices. Chief Justice Roberts writes:

The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices. A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say “$10,with a 3% credit card surcharge” or “$10, plus $0.30 for credit” because both of those displays identify a single sticker price—$10—that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Accordingly, while we agree with the Court of Appeals that §518 regulates a relationship between a sticker price and the price charged to credit card users, we cannot accept its conclusion that §518 is nothing more than a mine-run price regulation. In regulating the communication of prices rather than prices themselves, §518 regulates speech.
The Court does not decide whether this law is constitutional. Now that the Court has found that the law regulates speech, the case is sent back to the Second Circuit to decide if the law is a valid speech regulation or whether it can be upheld as a valid disclosure requirement. The only direction for the Second Circuit is to treat this law as a speech regulation and decide whether it violates the First Amendment.

Wednesday, April 5, 2017

Sexual harassment victim is awarded $25,000 in damages

Employment discrimination cases are not always resolved in federal court. Some plaintiffs file complaints in the State Division of Human Rights and/or the Equal Employment Opportunity Commission, which can investigate and settle the complaints. The SDHR can hold an evidentiary hearing to get to the bottom of things. After someone wins or loses, the case then proceeds to state court.

The case is In the Matter of AMG Managing Partners v. New York State Division of Human Rights, an Appellate Division case issued on March 31. This case went to an SDHR hearing. The SDHR found in favor of the complainant, who alleged she was sexually harassed in violation of the state human rights law. The SDHR awarded her $65,000 in damages for pain and suffering, It also fined the individual defendants $15,000 and ordered him to attend an unlawful discrimination training seminar. The plaintiff also won $5,720 in lost wages arising from her forced resignation, what lawyers call "constructive discharge."

The Fourth Department upholds the finding that the complainant was sexually harassed. Unfortunately, the decision tells us nothing about what actually happened in the workplace, which is one reason why we have few state court decisions that fully outline what harassment is actionable under state law. But we do know that the SDHR awarded the victim $65,000 for pain and suffering. The Fourth Department thinks that amount is too high, and it reduces the award to $25,000. From my experience, the reduced amount is more in line with SDHR practices. The agency does not award the high damages that you'll see in federal court with a jury.

The appellate court notes that plaintiff was not required to corroborate her pain and suffering claims. "In challenging the award for mental anguish and humiliation, petitioners rely heavily on the fact that complainant failed to submit documentary evidence to corroborate her testimony that she sought counseling 33 times in the four months following her constructive discharge. Contrary to petitioners’ contention, such testimony does not require corroboration inasmuch as proof of mental anguish 'may be established through the testimony of the complainant alone.' This is a common defense argument, that the pain and suffering is subjective and cannot be objectively measured. But this case reminds us that plaintiff's testimony on this issue is enough.

What makes this case interesting is that the employer challenged the sexual harassment findings by arguing that the plaintiff was not really harassed because she "may have used sexually inappropriate language or engaged in sexually inappropriate conduct with a longtime person friend who worked in the same office." In other words, the plaintiff was not subjectively offended by the harassment. This defense is not going to cut it these days. People are allowed to have a private life. The Fourth Department cites a Fourth Circuit case from 1987, Swentek v. USAir, Inc., 830 F.2d 552 (4th Cir. 1987), for the proposition that a plaintiff's "use of foul language or sexual innuendo in a consensual setting does not waive her legal protections against unwelcome harassment." There must be few cases on this issue in our jurisdiction, though the Fourth Department also cites a case from the Southern District of New York, Danna v. NY Telephone Co., 752 F. Supp. 594 (SDNY 1991), for this proposition.

Tuesday, April 4, 2017

Seventh Circuit rules that sexual orientation discrimination violates Title VII

A federal appeals court in Chicago has ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation. The Seventh Circuit is the first Circuit court to rule this way, reasoning that Title VII's prohibition against sex discrimination also protects gays and lesbians from hostile employment decisions based on their sexual orientation.

The case is Hively v. Ivy Tech Community College, decided on April 4. Hively is a lesbian who worked for the College. After the College declined to renew Hively's employment, she sued under Title VII. The Seventh Circuit originally ruled against her, but the en banc court overturns Circuit precedent in ruling for Hively, adopting the EEOC's view that sexual orientation discrimination violates Title VII.

The Seventh Circuit opens its analysis by noting it has authority to take up this question. "The question before us is not whether this court can, or should, 'amend' Title VII to add a new protected category to the familiar list of 'race, color, religion, sex, or national origin.' 42 U.S.C. § 2000e-2(a). Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence."

This language about the Court's capacity to take up this issue may not seem a remarkable proposition, but there was a time when courts had outright rejected the position that Title VII prohibits sexual orientation discrimination. But the world has changed, and the landscape governing the rights of gays and lesbians -- including the Supreme Court's ruling on same-sex marriage and intimate sexual endeavors -- makes this analysis of Title VII a logical next step. This dovetails with the Seventh Circuit's tutorial on statutory interpretation, noting that Title VII prohibits today what no one had anticipated in 1964, including sexual harassment, same-sex workplace harassment, as well as discrimination based on sexual stereotypes.

The Court summarizes Hively's position: "Hively offers two approaches in support of her contention that “sex discrimination” includes discrimination on the basis of sexual orientation. The first relies on the tried-and-true comparative method in which we attempt to isolate the significance of the plaintiff’s sex to the employer’s decision: has she described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way? The second relies on the Loving v. Virginia, 388 U.S. 1 (1967), line of cases, which she argues protect her right to associate intimately with a person of the same sex. Although the analysis differs somewhat, both avenues end up in the same place: sex discrimination."

On the pure discrimination angle, the Seventh Circuit reasons it this way:

Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. (We take the facts in the light most favorable to her, because we are here on a Rule 12(b)(6) dismissal; naturally nothing we say will prevent Ivy Tech from contesting these points in later proceedings.) This describes paradigmatic sex discrimination.
The Circuit adds:

Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).
 The Seventh Circuit further holds that sexual orientation discrimination punishes people based on whom they associate with. In 1967, the Supreme Court made it illegal to prevent interracial marriages. Both parties to an interracial marriage suffered discrimination because of their race, the Circuit notes. That case was Loving v. Virginia. The Seventh also notes that the Second Circuit held in 2008 that it was unlawful for an employer to backstab an employee based on the race of his fiance. That's the Holcomb decision. The Seventh Circuit has utilized similar reasoning in the past. It finds now that the associational discrimination theory makes sense. "If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex."

Judge Posner writes an interesting concurrence, taking a potshot at the recent sexual harassment scandal at Fox News. Three judges dissent.

As Second Circuit watchers know, the NY-based Circuit court recently decided against adopting the EEOC's position on sexual orientation discrimination and stood firm on a 1990 Second Circuit precedent that said discrimination against gays and lesbians does not violate Title VII. Two judges on that panel suggested the Court might someday consider adopting the EEOC's position. The plaintiff in that case won the appeal in any event because he did not conform to gender stereotypes, still the traditional way to win a Title VII case. Several cases are now pending in the Second Circuit that raise this issue, including the Zarda case, argued on January 5, 2017.

Friday, March 31, 2017

Close but no cigar

Not every bad arrest gives you a lawsuit against the police. Sometimes, the charges are dismissed, and there is no recourse against the police. That's what happened here.

The case is Arroyo v. City of New York, a summary order decided on March 21. The summary order does not tell us everything about the case, but the district court ruling describes a place of residence in New York City where a mother lived with her daughter. The plaintiff-daughter is paraplegic. The mother was sitting in a room by herself. Someone called the police to complain about possible elder abuse at the home, and according to defendants, the caller who made the report was an employee from a visiting nurse service, who stated that the daughter in the household was bipolar and kept a sword under her mattress.

The police showed up and found a gun in the apartment. They also removed plaintiff from the home because they thought she was a danger to herself and others. The Mental Health Law authorizes these seizures. The criminal court suppressed the gun as the fruit of an unlawful search, and from what I can see, the hospital said the was not a danger to anyone.

The police are off the hook under qualified immunity, which shields them from suit if they had arguable probable cause. This is not a difficult standard for the police to satisfy. On the mental health claim, the Court (Cabranes, Wesley and Sessions [D.J.]) says:

the Officers had arguable probable cause to remove Arroyo from her home pursuant to MHL § 9.41. Under MHL § 9.41, a police officer “may take into custody any person who appears to be mentally ill and is conducting . . . herself in a manner which is likely to result in serious harm to the person or others.” As the District Court noted, the Officers (1) received a 911 call from an identified caller reporting possible elder abuse and stating that Arroyo was bipolar; (2) spoke with an identified source (the supervisor of Arroyo’s mother’s home attendant) with knowledge of Arroyo’s conduct who indicated that Arroyo was threatening to her mother and kept a gun at home;1 (3) observed Arroyo acting in an erratic and unresponsive manner; and (4) spoke to Arroyo’s mother, who expressed that she was not permitted to leave her bedroom. With these facts taken together, a reasonable officer could have found that probable cause existed to remove Arroyo to a hospital under MHL § 9.41.
On the gun claim, we have a similar analysis."At the time she was arrested, the Officers had heard from the supervisor of Arroyo’s mother’s home attendant that Arroyo kept a gun at home, and Officer Vega had discovered a gun in Arroyo’s purse. The fact that the gun was later suppressed does not preclude a determination that there was arguable probable cause for the arrest." For this proposition, the Court cites, Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 1999): “Victims of unreasonable searches or seizures . . . cannot be compensated [under § 1983] for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution.”

So while the plaintiff was innocent, the police were close enough in thinking she was guilty that they cannot be sued for false arrest. The "close but no cigar" rule may work in some areas of life, but not false arrest. Close enough means no lawsuit.

Thursday, March 30, 2017

Plaintiffs: don't forget to plead those City law claims.

For years, courts did not accept that Title VII and other federal civil rights statutes had to be interpreted differently from the more expansive New York City Human Rights Law. It got so bad that the City Council in 2005 and again in 2016 had to reaffirm that courts must analyze claims differently under the city law. The courts are getting the hang of it, as shown by this discrimination case that the Second Circuit resolved this week.

The case is Alvarado v. Nordstrom, a summary order decided on March 29. Plaintiff worked as a salesman specializing in high-end fashion. His deteriorating relationship with co-workers led to this lawsuit. He sued management for racial and sexual orientation discrimination, and retaliation. Here is what the Court of Appeals (Katzmann, Pooler and Lynch) did:

1. There is no hostile work environment claim because plaintiff only cites three comments by three co-workers over the course of about one year. In once instance, co-workers Daniel and Dalrymple said Alvarado would cook arroz con polio, a reference to his heritage. Another employee called plaintiff a "little bitch." Dalrymple also told another co-worker that he needed to "choose sides between the real girls and the queens." Other statements in the record show that Daniel called plaintiff a "miserable motherfucker." None of these statements, by themselves, are enough to create a hostile work environment, and in their totality, they are not enough because some of the offenders did not engage in further abusive treatment and, unlike other cases where courts have found a hostile environment, the offensive comments were not made by the same person. The court reaches the same result on the city law harassment claim.

2. Plaintiff also raises retaliation claims under federal and city law. Here is where the analysis diverges. After plaintiff complained about discrimination, he received a written reprimand. Even if the reprimand is an adverse action, it was not a pretext for retaliation under federal and state law, which are interpreted identically. The Second Circuit rejects plaintiff's argument that a comparable co-worker, Daniel, did not receive a reprimand for various acts of workplace misconduct. This is because the co-worker did not engage in comparable bad acts. The Court reasons:

Alvarado points to numerous instances of small acts of insubordination by Daniel, but he does not point to any evidence that would suggest any of these instances involved shouting or aggression towards a manager on the salesfloor comparable to Alvarado’s incident with Gonzales. The most similar instance, which is Daniel’s interaction with Cara Smyth, Jeffrey’s customer service manager, involved Daniel muttering something under her breath about Smyth while on the salesfloor and then denying that she had said anything. While there is little doubt that Daniel engaged in insubordinate conduct numerous times in the past, Gonzales described Alvarado as being “aggressive, assertive, dismissive[,] and insubordinate” towards Gonzales during their altercation on the Jeffrey salesfloor, and alleged that Alvarado put his thumb in Gonzales’s face. We conclude that Alvarado cannot rely on allegations of disparate treatment to support his retaliation claim because he has failed to show that he and Daniel are sufficient comparators when it comes to their actions of insubordination under the causation standard applicable to Section 1981 and NYSHRL claims.
3. The city law retaliation claim is a different story. Here is the standard for city law retaliation claims:

In order to succeed on a NYCHRL retaliation claim, a plaintiff “must show that []he took
an action opposing h[is] employer’s discrimination and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.” “[N]o challenged conduct may be deemed nonretaliatory unless a jury could not reasonably conclude from the evidence that such conduct was reasonably likely to deter a person from engaging in protected activity.” “This assessment should be made with a keen sense of workplace realities, of the fact that the chilling effect of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct.” Under this standard, “summary judgment is [only] appropriate if the record establishes as a matter of law that . . . retaliation played no role in the defendant’s actions.”
Under the more lenient city law test that allows retaliation claims to proceed to trial if retaliation plays some role in the adverse action, plaintiff has a claim, and the district court ruling on this issue is reversed. To be clear, there is a retaliation case if retaliation plays "some" role. Under federal law, including Section 1981, you have to prove that retaliation was the "but for" cause of the adverse action, which is why plaintiff's retaliation claims under Section 1981 and state law were dismissed. There's a big difference between "some" motivation and "but for" motivation." The reasoning follows:

we hold that the question of whether Daniel was a sufficiently close comparator to Alvarado such that their disparate treatment would show Alvarado’s 2012 written reprimand was pretextual is more appropriately one for a fact finder. In reviewing the realities of the Jeffrey’s workplace as shown by the evidence presented at summary judgment, written reprimands seem to have been infrequently given even for bad behavior in public. ... Even though written reprimands were rarely given, and Daniel had engaged in numerous instances of minor insubordinations and other combative behavior vis-à-vis her co-workers for which she had received few written reprimands, Alvarado immediately received a written reprimand for his single act of insubordination towards
Gonzales. Viewing the facts pled in the light most favorable to Alvarado and under the
NYCHRL standard that summary judgment is only appropriate when retaliation plays no role in an adverse employment action as a matter of law, we hold that there exists a question of fact for a jury to determine as to whether retaliation played some role in Alvarado’s written reprimand.