Supreme Court strikes down "happy talk' trademark statute under the First Amendment

The Supreme Court continues its forward march into First Amendment absolutism. Over the last decade or so, the Court has held that the First Amendment protects (1) unlimited corporate money into elections; (2) offensive anti-gay protests at military funerals; (3) videos depicting cruelty to animals; and (4) stolen military valor. This time around, the Court holds that the First Amendment prohibits the Patent and Trademark Office from denying patents that may disparage or bring into contempt or disrepute any persons, living or dead.

The case is Matal v. Tam, decided on June 19. The plaintiff is lead singer for a rock group, The Slants. Thar word is regarded as an insult to Asians, but the band uses that name to "reclaim" the term and dilute its denigrating force as a derogatory term. Writing for the Court, Justice Alito notes that government-sponsored speech is not subject to constitutional restrictions, citing as an example the government's pro-war posters and other materials during World War II which did not require equal time from war opponents. But the patents are not government speech, the Court says, and any contrary argument would bring too much speech into that category. "If the registration of trademarks constituted government speech, other systems of government registration could easily be characterized in the same way." Nor is this a commercial speech case, where the government has more leeway in regulating content

Getting to the heart of the matter, the Court summarizes the pro-government position in this case as follows: "The Government has an interest in preventing speech expressing ideas that offend." That will not cut it, Justice Alito says. "As we have explained, that idea strikes at the heart of the First Amendment.  Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.' United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting). That language really sums it up. The government cannot take sides when it comes to offensive speech. You can say whatever you want.

The parties that don't like trademark protection for bands like The Slants also argue that denying the patent will protect the orderly flow of commerce, which is disrupted by trademarks that disparage on the basis of race, ethnicity, religion, etc. The Court rejects that argument also, further offering language that is bound to turn up in future speech cases:

A simple answer to this argument is that the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.

The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution. Is it conceivable that commerce would be disrupted by a trademark saying: “James Buchanan was a disastrous president” or “Slavery is an evil institution”?

There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered.

 

Military service retaliation case survives summary judgment

You cannot retaliate against employees because of their military commitments. The governing law is the Uniformed Services Employment & Reemployment Rights Act, or USERRA. We treat these cases like employment discrimination claims, in that plaintiff must make out a prima facie case and show the employer's articulated reason for the negative decision was a pretext for retaliation. This plaintiff has a trial-worthy case.

The case is Dilfanian v. New York City Dept. of Education, a summary order issued on June 13. The district court dismissed the case, but the Court of Appeals (Jacobs, Parker and Livingston) brings it back, though it deems this a "close call."

On the prima facie case, it looks like management (in the form of a supervisor named Goldfarb) was simply frustrated that plaintiff was deployed to Afghanistan. When she saw the deployment letter, Goldfarb threw it on her desk and asked, "You're going to leave a broken department behind. How can you do that to me? I am stuck with cleaning up ... the mess." As a jury may think Goldfarb had personalized the deployment as something plaintiff was doing to her, that's evidence of retaliatory intent. As well, when plaintiff missed work for a pre-deployment obligation, Goldfarb filed a disciplinary letter (threatening termination) over plaintiff's inadvertent absence from a meeting seven weeks earlier. This unusual timing is further evidence of bad intent. Similarly, while plaintiff got good reviews for three years as an assistant principal, in the eight months after he notified defendant of the deployment, you would have thought plaintiff had thrown in the towel as defendant issued him an unsatisfactory rating and issued three disciplinary letters and was fired.

Additional evidence of discriminatory intent: Plaintiff was the only assistant principal who got a negative performance review during Goldfarb's six year tenure. What is more, after plaintiff got the deployment letter, Goldfarb "stopped being friendly and ceased informal communications with him." And, at a high school cabinet meeting, Goldfarb said she was "cleaning house" and stared and pointed a wand at plaintiff and said, "poof, be gone." You read that right: "poof, be gone." Finally, Goldfarb did not get around to signing a form that would have allowed plaintiff to receive training to become a principal.

This does not look like a "close call" to me, but it's enough for the Second Circuit to hold plaintiff satisfied his minimal prima facie burden. So what is the defense here? Defendant says that, in the end, plaintiff did not deploy to Afghanistan after all. But that does not negate the evidence that Goldfarb was upset that she thought that plaintiff was going to deploy. Defendants also claim plaintiff was not a good worker no matter what his deployment plans were, and it cites three incidents to back up this claim in an effort to refute any inference of discrimination. This includes plaintiff's failure to attend a meeting in Goldfarb's office and plaintiff's failure to notice that the state had sent the wrong examination booklets for a test while preparing for an an Advanced Placement English test.

Defendant further says plaintiff did not provide adequate guidance to teachers on a number of occasions (an allegation that plaintiff refuted "in a detailed and thoughtful response" and that plaintiff had missed school, when he was to play a key role in a professional development session) because he received military orders to report to Fort Dix. For that incident, plaintiff made arrangements with his military superior to get together on a Friday so plaintiff would not miss work on a Thursday. But plaintiff did not notify the school of his Friday absence until that Friday morning because a one-star general told him to give a briefing on Friday morning, too late to reschedule the professional development session at the school, "which had to be reorganized in Dilfanian's absence."

The school regarded these derelictions as misconduct, justifying plaintiff's termination. But the Court of Appeals sees it differently, concluding "these alleged performance problems were not so egregious that a rational juror must conclude that his termination would have occurred regardless of his military service." This holding is buried at the last page of the opinion, but it is actually remarkable. Defendants will often claim the plaintiff cannot win a wrongful discharge claim because of some performance deficiency or other. Rarely do I see the Court of Appeals say that, even if the deficiencies are true, they are not serious enough to force a jury to hold the termination was justified.. The Court says so in this case, however. While that is good news for plaintiffs, since this ruling is a summary order, its precedential value is limited. Still, you are allowed to cite summary orders, so if you need it, use it.

Oral argument does make a difference!

Many appellate courts do not bother with oral argument these days, preferring to take the case on submission. But the Second Circuit still hears argument in most cases, and one listen to the oral argument audio confirms that these proceedings are quite lively. But does oral argument really make a difference? By the time the lawyers step to the podium, the court has already reviewed the briefs and the record, and it probably has a sense of where it wants to go in the case. But sometimes the lawyers say something at argument that makes a difference.

The case is Allen v. City of New York, a summary order decided on June 13. Plaintiff alleges he was denied a promotion and suffered retaliation because of his race and national origin. The district court dismissed the case on summary judgment, reasoning that plaintiff was not qualified for his position and there was no evidence of discriminatory intent.

Plaintiff wanted the Supervisor Watershed Maintenance I position. Whatever the district court had concluded to the contrary, the Chief of Eastern Operations for the Department of Environmental Protection said he was in fact qualified for the position. Plaintiff's affidavit on the summary judgment motion refuted management's claim that plaintiff had withdrawn his application for the position. So we have a fact issue for trial on the retaliation claim.

Here is where the oral argument admissions kick in. A coworker testified at deposition that the Acting Chief of Operations told this coworker that plaintiff had been discriminated against. While the district court said this testimony was hearsay, at oral argument on appeal, defendant's lawyer conceded that the Chief's statement to the coworker was not hearsay but was instead an admission. That is because a high-ranking supervisor made the statement. Moreover, the Court of Appeals (Raggi, Lohier Droney) says, "a reasonable jury could find that such a statement from one DEP supervisor to another was not speculation but a communication about an important employment matters within the scope of his agency." The Court cites Walsh v. NYC Housing Auth., 828 F.3d 70 (2d Cir. 2016), for this proposition. Oral argument also got another admission from the City's lawyer: that no admissible evidence shows that the person chosen for the position over plaintiff was more qualified than plaintiff.

I rarely see this in Second Circuit opinions. Most decisions make no reference to oral argument at all. Maybe this is one reason the Court still hears argument. A few years ago, the Court announced that it would decide sua sponte that certain cases would be taken on submission even if the parties wanted argument. But in practice, most cases get argued, including pro se cases where the plaintiff does not know the law and makes an emotional plea to the judge who listen silently.

Are there other reasons why the Second Circuit likes oral argument? Maybe it's the beautiful courtroom at the United States courthouse. The 17th floor courtroom was recently refurbished and looks like an appellate courtroom right out of central casting. On some days, the Court assigns two different 3-judge panels to hear cases. The second panel sits in the 19th floor courtroom, which is an almost exact replicate of the 17th floor courtroom, except that the wood is a little darker. Maybe the Court wants us to experience these beautiful rooms. What's the point of having a beautiful courtroom if no one sees it?

Another reason for oral arguments in most cases is that the Court may want continued human interaction. Appellate judges spend most of their time reading briefs, pouring through the record on appeal, writing decisions and sharing them with their colleagues on the bench. All of this work is done in private chambers. Judges are not allowed to engage in political activity and probably watch what they do in the outside world, always endeavoring to maintain the appearance of neutrality. While district court judges interact with lawyers on a regular basis -- at pretrial conferences and at trial -- appellate judges only get to interact with lawyers at oral argument.  

Pretext and sexist comment entitles City law plaintiff to a trial

Federal court is not the only option for filing civil rights cases. Nor must plaintiffs file their claims under federal law. The New York City Human Rights Law also provides remedies for civil rights remedies, and the City law is not toothless. It directs courts to analyze City law claims separately from federal claims. The City law also directs courts to liberally apply the City law, which means plaintiffs sometimes win under the City law but lose under federal law.

The case is Barone v. Emmis Communications Corp., an Appellate Division First Department case decided on June 13. This City law claim alleges that plaintiff was fired because of her gender. The decision is brief and does not tell us much, but here is what we know:

While defendant said it fired plaintiff over her management deficiencies and insubordination, plaintiff put forward evidence of pretext in the form of evidence that her termination "represented a drastic shift from the favorable performance review which she received only three weeks earlier." What is more, she was on vacation for nearly a week of that three-week time period. So how badly could her performance have been right before her termination? The First Department states, "Nothing in the record explains why any defects in plaintiff's management style, identified in her otherwise favorable performance review, suddenly warranted her termination."

Although the appellate ruling does not mention this, the lower court decision found that plaintiff cannot win because a female supervisor was angry over plaintiff's romantic choices. The lower court also applied the same-actor inference in finding it is less likely that the person who hired a woman would fire that employee because of her gender. 

I don't how a claim like this would fare under federal law before a federal judge. Some judges will not assume that an unfair termination represents evidence of discriminatory intent. Particularly in federal courts, the plaintiffs cannot win without "pretext plus" evidence, which means a false reason and some other evidence suggesting the termination was racially motivated or caused by the plaintiff's gender.

The evidence of pretext may have been enough for plaintiff to repel the summary judgment motion under the City law. But the decision closes out with a paragraph suggesting that a female supervisor made a sexist comment that sheds light on defendant's motives in firing plaintiff. The supervisor told plaintiff that she lacked "emotional intelligence and empathy toward others." This purportedly highlighted shortcomings in plaintiff's ability to manage her subordinates. A comment like this may or may not entitle the plaintiff to a trial under federal law. While the lower court said these were merely stray remarks that shed no light on anything, that's now how the First Department sees it, and the case is remanded.

Supreme Court further narrows the remedies under Bivens in 9/11 detention case

If you want to sue state officials or state employees for constitutional violations, you can do so under 42 U.S.C. section 1983. But there is no Section 1983 when you want to sue federal officials. Instead, you have a Bivens action, named after a 1971 Supreme Court case that said you can sue federal officials under the Constitution, which recognizes an implied cause of action for those claims. Yet, Bivens actions are rare, as the courts are reluctant to expand Bivens liability in various contexts. That trend continues in this case in which 9/11 detainees want to sue federal officials, including former Attorney General Ashcroft.

The case is Ziglar v. Abbasi, a Supreme Court case issued on June 19. This case reverses a decision of the Second Circuit. There is no majority opinion here. Justices Sotomayor and Kagan recused themselves, and Justice Gorsuch did not participate because he was not on the Court when the case was argued. Justice Breyer dissents.

The plaintiffs -- foreign nationals -- were rounded up in the aftermath of 9/11 and claims they were placed in inhumane conditions of confinement. The Court summarizes the allegations:

The complaint includes these allegations: Conditions in the Unit were harsh. Pursuant to official Bureau of Prisons policy, detainees were held in “‘tiny cells for over 23 hours a day.’” Lights in the cells were left on 24 hours. Detainees had little opportunity for exercise or recreation. They were forbidden to keep anything in their cells, even basic hygiene products such as soap or a toothbrush. When removed from the cells for any reason, they were shackled and escorted by four guards. They were denied access to most forms of communication with the outside world. And they were strip searched often—anytime they were moved, as well as at random in their cells.

Some of the harsh conditions in the Unit were not imposed pursuant to official policy. According to the complaint, prison guards engaged in a pattern of “physical and verbal abuse.” Guards allegedly slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.

Had plaintiffs sued state officials for these civil rights violations, the case would be allowed to proceed unless the defendants could somehow invoke qualified immunity. Section 1983 claims do not have built-in prohibitions against cases like this. But Bivens does have those prohibitions, as the Supreme Court reminds us each time it takes up another Bivens action, noting that the Court has only twice since 1971 allowed anyone to sue a federal official for such a claim: once in 1979 when someone was able to sue a congressman for sex discrimination and once in 1980 when a prisoner's estate was able to sue federal jailers for failing to treat his asthma. 1979 and 1980 were a long time ago, with different Supreme Court justices who -- let's face it -- were less hostile to the expansion of civil rights. Since that time, the Supreme Court has closed the door even further on Bivens claims, noting that it is a "disfavored" judicial remedy.

One rationale for narrowing the possibilities under Bivens, the Court says, is respect for the separation of powers. Congress is in the best position to decide who can sue federal officials. Moreover, the Court has long held that "a Bivens remedy will not be available if there are 'special factors counselling hesitation in the absence of affirmative action by Congress."

In this case, the Court will not touch the plaintiffs' claims under Bivens. Not only is a Bivens action not "a proper vehicle for altering an entity's policy," but this case would intrude on Executive Branch decisionmaking in the realm of national security, normally a matter left to Congress, not the courts. In the end, the plaintiffs have no remedy. In theory Congress can do something about their ill-treatment, but it's been 16 years since the plaintiffs were rounded up and Congress has been silent on the matter, the Court notes.

Commentary about this case says the Court has further clamped down on Bivens remedies. I agree with that assessment. Justice Kennedy's majority opinion repeatedly notes how rare Bivens actions are, and how courts remain reluctant to expand remedies under that cause of action. This case emphasizes separation of powers principles, further allowing the Court to distance itself from expanding remedies under Bivens. If you want to bring a civil rights action against a government official, first make sure that your life is in the hands of a state or local employee, and not the federal government.

2d Circuit provides guidance on Iqbal in Title IX retaliation case

The Court of Appeals has reinstated a Title IX case against the University of Rochester, which allegedly retaliated against a music student who rebuffed his professor's sexual advances. The decision provides some much-needed guidance on how to apply the Supreme Court's Iqbal test, which governs motions to dismiss under Rule 12.

The case is Irrera v. Humphreys, decided on June 15. Irrea was the music student at the prestigious Eastman School of Music at the University of Rochester. Humphreys made various unwanted sexual advances toward Irrea. When Irrea rejected those advances, Humphreys gave him a failing grade for an important piano recital. This failing grade was unusual for plaintiff, who had never previously failed a solo recital in his 27 years playing piano. Humphreys told Irrea that he would never get a university professor job and threatened to "make his life a living hell" if he reported the sexual harassment. As it happened, Irrea was unable to find work or even get an interview at any of the 28 colleges and universities to which he applied, which is "extraordinarily rare [and unheard of] for an Eastman graduate." Plaintiff says this was because Humphreys gave him negative references in retaliation for rejecting his sexual advances.The district court dismissed the case under Rule 12. The Second Circuit (Newman, Lynch and Cabranes) brings it back.

In 2009, the Supreme Court discovered for the first time that the Federal Rules of Civil Procedure contain a plausibility requirement for resolving motions to dismiss under Rule 12. It was there the whole time (the rules were drafted in 1937), but no one had ever noticed it before. Under Iqbal, it is not enough to plead facts that give rise to a possible case. The facts must give rise to a plausible case, a higher burden. Determining what is plausible is still something of a roll of the dice. You know plausibility when you see it. But since each judge has his or her own background and personal experience, what may be plausible to Judge McCartney may not be plausible to Judge Lennon. Ultimately, it's all about the context of the case and "common sense," as the Supreme Court said in Iqbal. Writing for the majority in the Irrera case, Judge Newman notes that Iqbal arose in the context of a 9/11 case. But, Judge Newman notes, "even in that context, four justices of the Supreme Court deemed the allegations sufficient to meet the plausibility standard, but five justices did not." This a judicious way of saying that plausibility is in the eye of the beholder. Because, let's face it, if four Supreme Court Justices think a claim is plausible, then it probably is, even if their five colleagues don't think so.

In this case, the context of plaintiff's allegations give rise to a plausible case. The Second Circuit notes that we are talking about the plaintiff's quest for a teaching position after graduating from one of the most prestigious music schools in the country. "Although it is not impossible that all twenty-eight schools to which he applied for open teaching positions deemed his credentials insufficient to warrant an interview, it is plausible that these schools received negative references from the chairman of Eastman's piano department, who had been Irrera's teacher," particularly since this teacher threatened to make plaintiff's life a "living hell" if he complained about the sexual harassment. It is also plausible that schools to which plaintiff had applied would have called Humphreys (the department chair) for a reference.

This is not to say that plaintiff has a slam-dunk. But the Court of Appeals relies on "common experience" in determining that the case can proceed to discovery. The Court states:

Although Irrera’s complaint makes no allegation that he is aware of a negative reference sent to any particular school, common experience indicates that schools and colleges rarely, if ever, disclose the content of the references they receive, in the absence of court-ordered discovery. Although some of these circumstances occurred outside the applicable limitations period, as we concluded in our summary order, they are nonetheless relevant to Irrera’s timely claim of retaliation, and they persuade us that that claim is plausible and that dismissal at the pleading stage was error

Recording devices OK at Whole Paycheck

Did you know that some people call Whole Foods "Whole Paycheck"? I'm just throwing that out there. Putting that aside, Whole Foods has failed in its efforts to prevent employees from using recording devices at work. The Court of Appeals finds that the National Labor Relations Board was correct in holding that the no-recording rule may chill union rights.

The case is Whole Foods Market Group v. NLRB, a summary order decided on June 1. The Second Circuit ruling is not clear on this, but Whole Foods apparently told its workers they cannot record anything at work. Under the National Labor Relations Act, it is an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of their rights under the Act. The ultimate question is whether the rules "would reasonably tend to chill employees in the exercise of" their rights. It is even illegal if employees would reasonably construe the employer's rule to prohibit protected activity.

The Court of Appeals (Hall, Chin and Hall [D.J.]) says the NLRB was right to find that, in some instances, recording may be protected union activity. The NLRB also reasonably found that, "because Whole Foods' no-recording policies prohibited all recording without management approval, 'employees would reasonably construe the language to prohibit' recording" under the Act. While Whole Foods argued that the rule was intended to promote employee communication in the workplace, "the Board reasonably concluded that the policies' overbroad language could 'chill' an employee's rights" under the Act "because the policies as written are not limited to controlling those activities in which employees are not acting in concert."

In a footnote, the Court of Appeals notes that some no-recording policies may be legal. The footnote reads in part:

It should be possible to craft a policy that places some limits on recording audio and video in the work place that does not violate the Act. Whole Foods’ interests in maintaining such policies can be accommodated simply by their narrowing the policies’ scope. See Flagstaff Med. Ctr., Inc., 357 N.L.R.B. 659, 659–60, 683 (2011) (holding that no-photography policy was lawful where hospital demonstrated patient privacy interest); Target Corp., 359 N.L.R.B. No. 103, slip op. at 2–3 (Apr. 26, 2013) (holding that reporting policy of unknown visitors in parking lot was lawful where rule was an employee safety policy).

Here is the correct procedure for amending the complaint in the face of a Rule 12 motion

When the plaintiff files a federal lawsuit and the defendant moves to dismiss the complaint, what is the plaintiff's obligation in filing a motion to amend the complaint to avoid outright dismissal? There is an answer to that question, but the district court in this case overlooked it.

The case is Cresci v. Mohawk Valley Community College, a summary order decided on June 2. Plaintiff is a lawyer who claims the college denied him employment in violation of the First Amendment and USSERA, which prohibits discrimination on the basis of military service. The district court dismissed those claims, but plaintiff argues among other things on appeal that he was denied the right to move to amend the complaint to save the claim. In reversing that decision on the motion to amend, the Court of Appeals (Leval, Calabresi and Carney) invokes a procedure that you may not have been aware of.

In Loreley Financing v. Wells Fargo, 797 F.3d 160 (2d Cir. 2015), the Second Circuit said that "The proper time for a plaintiff to move to amend the complaint is when the plaintiff learns from the District Court in what respect the complaint is deficient. Before learning from the court what are its deficiencies, the plaintiff cannot know whether he is capable of amending the complaint efficaciously." This means that the time to move to amend is not when the defendant argues that the complaint is deficient. Rather, the time to amend is when the district court identifies those deficiencies in a court ruling. "Before learning from the court what are its deficiencies, the plaintiff cannot know whether he is capable of amending the complaint efficaciously."

The district court misapplied the Loreley procedure, ruling in a single order that the complaint failed to state a claim and denying plaintiff leave to amend the complaint, "faulting him for having failed to submit a proposed amended complaint in the time between the defendant's motion to dismiss and the court's ruling on it." As the Court of Appeals says, "It is the District Court’s ruling, not the defendant’s arguments in support of a motion to dismiss, that puts a plaintiff on notice of the complaint’s deficiencies. A plaintiff has no obligation to replead merely because the defendant has argued that the complaint is deficient, without knowing whether the court will agree."

No relief under the ADA for retaliation, HWE and other claims

There are many ways for a plaintiff to lose a disability discrimination case in federal court. This case highlights many of those pitfalls.

The case is Flieger v. Eastern Suffok BOCES, a summary order decided on June 1. To win a case under the Americans with Disabilities Act, you have to be disabled. But plaintiff is not disabled under the Act. While she suffered a back injury -- and we all know that back pain hurts like hell -- on the day of the injury, she did not leave work early but instead took some Aleve and kept working. She came back to work the next day and took no time off over the injury. This all means she was not substantially impaired in any major life activity.

Plaintiff also suffered no adverse employment actions because of her disability. Bad things did happen to her, but they were not material changes in her everyday work experience. While plaintiff was denied a summer school teaching position, she admitted at deposition that she understood that employment for positions like this were discretionary and not guaranteed. She also took too many sick days, which somehow rendered her ineligible for the summer position. While she was transferred to other classrooms, these are not enough. One transfer was not a demotion or setback to her career; the only problem with one transfer was that the the other teacher she had to work with was a "low talker," a phrase the Second Circuit (Newman, Pooler and Hall) uses without quotations or any footnote reference to Seinfeld. The other classroom transfer was, in the Second Circuit's view, not done for pretextual reasons, as management said it wanted plaintiff to have extra supervision, and the evidence shows that the decisionmaker did not discriminate against plaintiff and that, instead, plaintiff was quite thankful for this supervisor's assistance in sending her to the Mayo clinic, and she also thanked her for the transfer in glowing terms.

Plaintiff's retaliation claim under the ADA also fails. Plaintiff says the classroom transfers were retaliatory for complaining about discrimination. But the Second Circuit says that the first transfer was not retaliatory because her visit to the Mayo Clinic was not a complaint of discrimination nor a request for an accommodation. The second classroom transfer was not retaliatory for the same reason it was not discriminatory under the ADA.

We also have a hostile work environment claim under the ADA. That claim fails also. Plaintiff had a hearing disability. A supervisor said after learning of plaintiff's disability that she "didn't ask for a deaf assistant." While this was inappropriate language, this comment did not rise to the level of severity required for a single incident to create a hostile work environment. Plaintiff also told another supervisor at the time that she was being treated fairly.

Finally, plaintiff claims she was denied a reasonable accommodation because of her disability. This claim is also dismissed. Plaintiff is unable to physically hold or escort a student in danger of causing injury to himself or others, and she cannot administer any crisis intervention or prevention techniques because she cannot engage in any kind of restricting. In other words, there are certain tasks that plaintiff cannot perform, with or without an accommodation. That means she cannot perform essential job functions and is therefore not qualified for an accommodation under the ADA.

Father-principal public assembly dispute goes to trial

This case is a horse of a different color, clarifying what it takes to win a freedom of assembly case against a public school district that kicked a father off the property and away from other school events in retaliation for speaking out against his daughter's bullying by the school principal.

The case is Johnson v. Perry, decided on June 8. Johnson is the father. His daughter was a school athlete. The principal, Perry, bullied the daughter into remaining on the girls varsity basketball team. Plaintiff objected to the bullying, and in retaliation the principal barred him from non-sporting events on school property. Believing the father a danger to the school and the staff (the principal and dad got into some heated arguments over the bullying), the principal also banned the father from sports events on school property and from all school events away from school property. As the Second Circuit (Kearse, Lohier and Jacobs) notes, "each aspect warrants particularized analysis." In other words, each expulsion order requires a separate constitutional analysis. The case drives home a point that I love to make: constitutional law is more complicated than you think.

First, we look at the expulsion from school property in general. The Court notes that "precedents as to whether a parent has a First Amendment right of access to school property are scarce. If such a right exists ... it is not limitless." The Court of Appeals notes that plaintiff has not cited any cases holding that parents have an unlimited right of access to school property. In addition, school officials do have a duty to prevent boisterous and threatening conduct on campus. What it all means is that the principal gets qualified immunity on this issue because First Amendment case law is not clearly established on the unlimited right of access.

As for the order expelling the parent from the school for athletic competitions, dad has a case. While the school is a limited public forum in the context of sporting events (meaning you can kick people out for any rational basis and without discriminating on the basis of viewpoint), people are actually encouraged to be boisterous and rowdy during sporting events, so the father's alleged boisterous behavior is no justification. If the jury believes the father, he was expelled from the on-campus sporting events because of the father's viewpoint and that the expulsion was not reasonable. The Court writes:

The jury could permissibly find that Perry had repeatedly bullied JD, that Perry had falsely denied bullying her and maligned her, and that Johnson had vehemently complained of the bullying and the falsehoods. The jury could further infer that Johnson presented no threat of disruption or of harm to anyone--nor even any specter of intimidation, his daughter having already withdrawn from the varsity team before imposition of the ban--and that Perry's motive in banning Johnson from the Capital Prep limited public forum was to punish him for having expressed his views that Perry had engaged in bullying and falsification.

The principal also banned the father from attending any sporting events beyond school property. This is an easier call for the Court of Appeals. "First, the distinction between school regulations applicable on school property and those targeting events beyond school property is one that other Circuits, in assessing whether school authorities' restrictions violated First Amendment rights, had found important, and indeed dispositive." The principal cannot get qualified immunity on this issue. Interestingly, Judge Kearse cites cases from around the country in denying qualified immunity (judges usually only look to cases from the Supreme Court and their own Circuit on determining if the law was clearly established). In addition, the principal had actually banned pop from attending a high school sporting event held at Mohegan Sun, a private entity. If the jury finds that the father was not a threat to community and that the expulsion order was in retaliation for his speech, then the principal has no right to do that. This issue -- along with the on-campus athletic expulsion -- goes to the jury. 

Who is liable in criminal conviction discrimination cases?

Did you know it is illegal under New York law to fire someone -- or fail to hire them -- because of their criminal conviction? There are some exceptions to this rule (i.e., an embezzler probably can be fired if he has to handle money) but the presumption is that you get a second chance in this world. The issue raised in this case is how do you assign liability when the employer is told by a third party to fire the plaintiff?

The case is Griffin v. Sirva, Inc., decided on May 31. Plaintiffs worked for Astro Moving and Storage, which fired them after discovering their prior criminal convictions. Astro had signed a contract with Allied Van Lines that prohibited certain ex-convicts from working on Allied jobs. Can Allied be held liable for firing plaintiffs? The state law that gives rise to these claims was not clear on the answer, so the Second Circuit last year sent the case to the New York Court of Appeals for an answer.

The State Court of Appeals held the state law only limits liability in these cases to the plaintiff's employer. It also held that, in determining whether an entity is someone's employer, we consider four factors: "“(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant’s conduct." This ultimately boils down the "the alleged employer's power to order and control the employee in his or her performance of work."

Finally, the State Court of Appeals said that the state law "extends liability to persons and entities beyond joint employers" and that it applies to out of state defendants. In the end, the provision should be construed liberally. Indeed, the state's highest court has applied this law to aiders and abettors who did not have any employment relationship with the plaintiff.

After two separate appeals, one to the Second Circuit which then sent the case to the New York Court of Appeals, the case is therefore sent back to the Southern District of New York.

Yes and no on various employment discrimination claims

The second Rule 12 employment discrimination reversal in a week reinstates a lawsuit against the Roman Catholic Archdiocese, which allegedly fired a 67 year old employee because of his age. But the other discrimination claims in this case are dismissed.

The case is Franchino v. Terence Cardinal Cook Health Care Center, issued on June 2. The lawsuit claims defendant's relatively youthful management replaced plaintiff with a "much younger" employee after he was subjected to derogatory age-based cartoons, comments, emails and jokes in the workplace. Plaintiff says that management joined in these ageist insults. And, when plaintiff was falsely accused of misconduct, he was denied his procedural rights that were routinely granted to younger employees.

Under recent Second Circuit cases that clarify the minimal pleading burden for plaintiffs, including Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), these allegations are enough to open the door for discovery on plaintiff's age discrimination case. But plaintiff's national origin and sex discrimination claims do not fare as well. So this case is useful not only to see what gets the plaintiff past a Rule 12 motion but how a complaint fails to satisfy the Littlejohn test.

On the national origin and sex discrimination claims, plaintiff says that a supervisor wanted a co-worker, Mercado, disciplined or terminated, but human resources officials supported Mercado. Plaintiff also alleges that, in an effort to save her job, Mercado falsely accused plaintiff of sexually harassing a female employee. According to plaintiff, "superiors treated Mercado more favorably because she was a 'much younger Hispanic woman.'” With respect to the sex discrimination claim in particular, plaintiff alleges that he was replaced by a female employee. Despite the lenient standards under Littlejohn, these allegations are not enough to avoid a Rule 12 dismissal on the national origin and sex discrimination claims. Rather, "on the facts alleged, Mercado was concerned that she may lose her job, so she acted vindictively toward Franchino—not because of his membership in any protected classes, but because she perceived him as threatening her continued employment." 

"The other guy did it also" provides no basis for Title VII relief

Yet another Second Circuit ruling reminds us how difficult is is to show that you suffered discrimination because other guys at work who also broke the rules were not punished.

The case is Diggs v. Niagara Mohawk, a summary order decided on May 31. I was in court when this case was being argued, waiting to argue my own case. The plaintiff's lawyer told the Court of Appeals (Kearse, Livingston and Lohier) that he was an experienced lawyer and believed it was getting harder and harder to win racial discrimination cases without explicit evidence of racial bias, i.e., racist statements. The judges listened quietly before asking questions about the plaintiff's honesty.

Under the rules, if management singles you out for discipline but lets others get away with misconduct, you can bring a Title VII case if you and the others were "similarly situated in all material respects." I cannot tell you how much I loathe the phrase "similarly situated," a clunky choice of words that cannot be understood by non-lawyers. The better word is 'comparable." Anyway, plaintiff -- disciplined for using a company backhoe for personal reasons without permission and then lying about -- is not comparable to the others at work who broke the rules. The case is dismissed.

Not only did plaintiff lose an arbitration hearing arising from these shenanigans (which gives the employer an advantage in federal court), it is not quite true that he did not mislead management about what he had done. We also cannot say the other wrongdoers were comparable to plaintiff.

It is true that Diggs never explicitly stated that he did not use the backhoe to try and remove a tree stump. However, it is undisputed that, despite a series of questions about what he did with the backhoe, Diggs contended that he had used the backhoe for transportation only and did not tell the company representatives that he used the backhoe to try and remove the stump until they presented the photographs to him. Second, Diggs points to the fact that the company convened two meetings about Contento’s misconduct as evidence that Contento was similarly dishonest during those proceedings. But this fact, standing alone, does not constitute strong evidence that Contento or any of Diggs’s alleged comparators were dishonest during their investigations. Indeed, Diggs points to no record evidence that Bain, Walker, and Contento lied about their conduct during the
investigatory meetings and further concedes that there is no evidence that Bailey was dishonest. Diggs’s speculation is insufficient to raise a genuine issue of material fact. We agree with the district court that in these circumstances, Diggs’s showing falls short of the “strong evidence” required to determine that the arbitrator’s decision was wrong as a matter of fact. Based on this record, a reasonable jury could not conclude that Diggs was similarly situated to his comparators.

Private school instructors not entitled to overtime

The Fair Labor Standards Act is celebrating its 80th birthday. It still produces lengthy court rulings determining what it all means. In this case, the U.S. Court of Appeals says that ESL instructors for a private educational entity are not entitled to overtime.

The case is Fernandez v. Zoni Language Centers, decided on May 26. In this potential class action, the plaintiffs claim they are not receiving the legally-mandated minimum wage or overtime pay. Under the FLSA, bona fide professionals are exempt from the statute's protections. Plaintiffs claim defendants -- who operate private educational facilities -- are not entitled to the exemption from the FLSA’s minimum wage and overtime requirements applicable to teachers working as bona fide professionals, because defendants are not “educational establishment[s],” as required for that exemption to apply. The Court of Appeals (Raggi, Calabresi and Lynch) disagrees, and the claims are dismissed.

Department of Labor regulations define "educational establishment" as "an elementary or secondary school system, an institution of higher education or other educational institution." Since the Zoni Centers are not associated with any public schools, for the defendants to win this case, they must show they fall within the exemption for "other educational institution."

Under a plain language analysis, Zoni Language Centers qualifies under this exemption because its "primary purpose is to provide English-language instruction to students using prescribed books in a traditional classroom environment,' such that "plaintiffs were engaged in the transmittal of knowledge to students in much the same way as primary and secondary school teachers, except that plaintiffs' students were adults, not children, and the knowledge conveyed to them focused on a single subject, the English language." These educational centers also have national certifications and state licensure.

The Court of Appeals finds the purpose of DOL regulations compel this conclusion, as the bona fide professional exemption was intended to exempt workers who "typically earned salaries well above the minimum wage, and ... were presumed to enjoy other compensatory privileges .. setting them apart from the nonexempt workers entitled to overtime pay." Plaintiffs earned more money per hour than the minimum wage worker, and the Court says it "must limit the application of FLSA exemptions 'to those establishments plainly and unmistakably within their terms and spirit.'"

Even the bad guys have constitutional rights

The facts in this decision are sketchy, but it appears the plaintiff is an accused domestic violence offender who is suing the police for an unlawful search into his home, an unlawful arrest and the use of excessive force. The police are trying to get out of the case on qualified immunity grounds, but the Court of Appeals will not go there.

The case is Penree v. City of Utica, a summary order decided on May 30. Police officers are immune from any lawsuits that raise legal issues that are not clearly established, i.e., the case law is not clear on whether the police acted illegally. After he was accused of domestic violence, the police evidently entered plaintiff's house without a warrant. The police argue that the law was not clearly established on whether they needed a warrant to enter the home because, in 2009, the Second Circuit held in Okin v. Village of Cornwall, 577 F.3d 415 (2d Cir. 2009), that in certain instances, the police have an affirmative duty to intervene when faced with alleged domestic violence. That means, the police argue, that the law was not clear on whether the police needed a warrant to enter the man's home.

This is a creative argument, but the Court of Appeals (Kearse, Hall and Chin) does not see it. The accused domestic violence defendant still has rights under the Constitution, the Court says.

An affirmative duty on the part of officers to intervene when faced with alleged domestic violence does not conflict with the duty not to enter the attacker's home without a warrant. It is possible -- indeed, an officer is, absent exigent circumstances, required -- to secure the substantive due process rights of domestic violence victims through legal means such as obtaining consent or a warrant to enter a home. The law prohibiting warrantless entry into a home without exigent circumstances was and continues to be clearly established, and is not undercut by our decision in Okin. 

The police also say they had exigent circumstances in going after the plaintiff because when they entered the house without a warrant, he ran up the stairs, away from the police. That's not exigent circumstances. Plaintiff was not running down the street, after all. Unless plaintiff was able to grow wings and fly out the second-floor window, he would eventually be cornered upstairs and the police could place him under arrest.

It looks like the police tased plaintiff inside his own house. While "it is not excessive force to deploy tasers, after a warning, against arrestees who are dangerous or resisting arrest," the officers don't seem to have a defense here. The Court says: "There was no countervailing government interest at all. The officers were in Penree's home unlawfully, he was not fleeing or resisting, the officers purportedly arrested him for a noncriminal offense, they saw he was holding his small child, and they gave no warning"

FMLA retaliation case is revived on appeal

Two carpenters who worked for Yeshiva University prevailed in the Court of Appeals this week, which ruled that the employer's inconsistent justifications for the termination, along with the timing of their dismissal, raises a plausible claim for retaliation under the Family and Medical Leave Act and the New York City Human Rights Law. I briefed and argued the appeal.

The case is Padilla v. Yeshiva University, a summary order filed on May 31, 2017. Each plaintiff has a disability. They sought and were granted leave under the FMLA. While they were out on leave, they were let go. Plaintiffs also alleged that their boss had expressed anger/impatience with prior medical leaves. Management argued that they were terminated under a reduction-in-force and that they had granted prior FMLA leaves to the plaintiffs, so there is no inference of FMLA retaliation. The same argument applied to the claim under the disability discrimination under the New York City Human Rights Law.

The district court dismissed the case under Rule 12. If you are new to this, the Second Circuit clarified the rules governing Rule 12 dismissals in employment discrimination cases in 2015, in two cases: Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), and Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015), which are must-read opinions if you handle cases like this in the Second Circuit. Those decisions say that the plaintiff's burden in pleading a discrimination claim is quite low, even under the Iqbal plausibility rules that judges have repeatedly cited in throwing out lawsuits left and right.

The Court of Appeals (Cabranes, Chin and Kearse) reverses, barely one week after oral argument, which can be heard at this link. The Court tells us:

We hold that at the pleading stage the inconsistent explanations for their termination, together with the other allegations in the complaint, including as to the timing and sequence of events and purported hostility with respect to Plaintiffs’ prior exercise of FMLA rights, are enough to support an inference of retaliation. Since “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,” a plaintiff need only allege enough facts “to raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir. 2010). While it is noteworthy, as the district court noted, that the Plaintiffs previously applied for FMLA leave without any adverse consequences, that fact does not defeat the plausibility of Plaintiffs’ claim.

This reasoning also applies to the City law claim, which provides for greater rights than its federal counterpart.