This 'n That in FLSA appeal

This appeal challenges various rulings from the district court on overtime claims brought under the Fair Labor Standards Act and the New York Labor Law. The jury ruled for the plaintiffs, and the district court took some of thee successful claims away. Everyone appeals. The case was argued n January, and the Court of Appeals issued this summary order on April 26, a long time for a summary order, which usually comes down a few weeks after argument.

The case is Leevson v. Aqualife USA, issued on April 26. This case has been kicking around since 2014. At trial, the jury awarded around $300,000 in damages for overtime and other damages. The parties raise a cornucopia of issues.

While the trial court threw out the jury verdict in plaintiffs' favor on their individual commissions and granted Aqualife judgment as a matter of law on that claim, the Court of Appeals (Sullivan, Carney and Hall) brings that claim back. Why? Because Aqualife did not seek judgment as a matter of law on this claim during trial, and they did not seek that relief following trial. These Rule 50 motions have to be asserted during and after trial if you want to preserve these claims on appeal. Having waived those issues at trial, the Court of Appeals reinstates that portion of the verdict. I can't say I've seen that happen too often, where the Second Circuit reinstates a favorable verdict on waiver grounds even though the trial court set aside that verdict post-trial. But it happened here. The lesson here is that you have to move for judgment as a matter of law during and after trial if you want to challenge any adverse verdict on appeal. The only way around this is by proving on appeal that the verdict is a manifest injustice, which means the jury totally blew it and there was no evidence whatsoever to support the verdict in any way.

Defendants also challenge the trial court's order awarding plaintiffs double damages for their overtime claims. The Court of Appeals notes that double damages are the natural order of things in FLSA claims. This is sort of a punishment for employers who don't pay their people the first time around. The employer can get around double damages if they acted in good faith. But, the Court of Appeals says, the employer "has not come close to demonstrating good faith," and its evidence intended to prove good faith was actually a "concoction" to avoid the labor laws in the first place.

Another issue raised on appeal was management's claim that plaintiffs were estopped from claiming they were employees (and therefore entitled to overtime pay) and not independent contractors (who have few rights) because made contrary statements to the IRS. Normally, if you say one thing in a judicial or administrative proceeding but the opposite in a different proceeding, you are estopped from that switch-a-roo. But statements to the IRS are not part of any "proceeding," so that argument fails. Sounds more like a credibility argument for trial, which the jury must have ignored, as they ruled for the plaintiffs anyway.

Another broad pro-arbitration ruling from the Supreme Court

The employees at Lamps Plus signed an agreement when they commenced employment. The agreement said employer/employees will arbitrate their disputes "in lieu of any and all lawsuits or other civil legal proceedings.” In other words, no lawsuits, just arbitration, without a jury or the procedures normally available in lawsuits. The agreement also said the parties would arbitrate any claims that, "in the absence of this Agreement, would have been available to the parties by law.” The arbitration agreement does not expressly address class actions. So what happens if the employees want to band together for a class action against Lamps Plus?

The case is Lamps Plus v. Varela, issued by the Supreme Court on April 24. The short answer is the employees cannot bring a class action under this agreement, only individual arbitration claims. So the employees cannot even bring a class arbitration. The Court's 5-4 ruling divides along the usual partisan lines, with the conservative justices siding with management and the liberal justices siding with the employees.

It all started when a hacker accessed the employer's computer and disclosed the tax information of 1,300 employees. Then a fake income tax return was filed in Frank Varela's name. Varela was a Lamps Plus employee. He filed suit in federal court, seeking a class action. Management moved to compel arbitration on an individual and not classwide basis and to dismiss the lawsuit. The Supreme Court finds that, although the arbitration agreement says nothing about agreeing to forego class actions or even class arbitrations, that ambiguity is held against the employee. The Court reaches this conclusion for the following reasons:

First, the Federal Arbitration Act requires the courts to enforce arbitration agreements. Employment lawyers and class action attorneys already know this. Over the last decade or so, the Supreme Court has upheld a multitude of arbitration agreements in cases involving employment discrimination and consumer protection. Corporate America will have employees and customers agree to arbitrate their disputes even when the latter do not read the fine print or even realize (or fully comprehend) the consequences of that agreement. If they do know the consequences, the employees and customers may not care, as they are not contemplating bringing a lawsuit anyway. And, I doubt employees and consumers will refuse to sign or "consent" to any arbitration agreement, as that means they cannot work there or avail themselves of some consumer product they need. So we sign away our rights. If you sign the agreement, you consented to it.

Second, the Court has already held that arbitration is a favored method of resolving disputes, since they proceed faster and are supposed to be less expensive than full-blown litigation. You may not get to fully litigate the dispute under arbitration, but that downside is outweighed by the "speed and simplicity and inexpensiveness" of arbitration. Under Supreme Court precedent (and most of these cases are decided by the 5-4 conservative majority), almost anything can be arbitrated and taken away from the courts. Plaintiffs' lawyers will tell anyone who will listen that court is better than arbitration, in part because there are no juries in arbitration.

Third, the Court has held there is "reason to doubt the parties' mutual consent to resolve disputes through classwide arbitration" and that "courts may not infer consent to participate in class arbitration absent an affirmative 'contractual basis for concluding that the parties agreed to do so.'" So even an ambiguous arbitration agreement on the subject of classwide arbitrations does not mean the employer must submit to a classwide arbitration. While the employee in this case came up with a great argument, that ambiguous contracts are usually interpreted against the party drafting it, that does not apply in federal arbitration cases. At least not anymore, it doesn't, the Court says in this case, even if that principle typically applies in most contract cases.

We don't quite know the downside of not allowing the employee in this case to bring a class arbitration. My best guess is the damages in this case are not high enough to justify individual arbitrations, and the best way to seek justice is through a class proceeding, particularly if more than 1,000 employees have the same grievance. The Court majority does not address any such downside, even if this ruling puts the kabosh on a single-employee arbitration.

As always, the dissenting justices attack the majority ruling as unrealistic. Justice Ginsburg write to "emphasize once again how treacherous the Court has strayed from the principle that 'arbitration is a matter of consent, not coercion." And Justice Kagan wonders why the normal rules governing the interpretation of ambiguous contracts do not apply here.

Plaintiff cannot make out disability discrimination claim, 2d Circuit says

As I wrote in this blog post, the Second Circuit has held that cases alleging disability discrimination require the plaintiff to prove "but-for" causation, a more defendant-friendly burden of proof than race/gender/religious discrimination cases under Title VII of the Civil Rights Act of 1964. The Court in this case goes on to hold that the plaintiff cannot meet that burden, and the case is dismissed for good.

The case is Natofsky v. City of New York, issued on April 18. Plaintiff has a hearing disability.  He worked for the Department of Investigation as Director of Human Resources and Budget. While plaintiff receiving praise for his performance in 2013, there were managerial changes this time, but plaintiff's supervisor, Ulon, remained in place. Ulon in 2013 asked plaintiff to follow up on emails more quickly, but plaintiff said he was unable to multitask during meetings because he had to put "extraordinary effort into listening" during meetings. Also that year, Ulon wanted plaintiff to come into work later in the morning and made other demands that she later withdrew after plaintiff raised concerns with other supervisors. Ulon then issued plaintiff a performance memo that criticized his performance, and she issued a negative performance appraisal.

After Ulon left the agency, two other supervisors treated plaintiff poorly: one, Pogoda, kept staring at plaintiff's ears as he spoke and rolled her eyes at plaintiff when he mentioned his hearing disability. Pogoda was also impatient with plaintiff and told him to speak more clearly and quickly. On another occasion, Pogoda said plaintiff was "clueless," and he eventually demoted plaintiff, which lowered his salary. After plaintiff protested his demotion, Pogota and another supervisor, Peters, moved plaintiff from his private office to a cubicle in a high-traffic, high-volume area. After complaining about the salary reduction to a Deputy Commissioner, plaintiff's salary was readjusted. Plaintiff eventually resigned from the agency and got a better job with the City's Department of Transportation.

Relying on the Cat's Paw theory of discrimination, Plaintiff's lawsuit claims that Pogoda influenced Peters to demote him because of Pogota's hostility toward plaintiff's disability. Rather than determine whether Cat's Paw applies to "but-for" discrimination cases (it applies in mixed-motive cases under Title VII), the Court of Appeals (Keenan [D.J.] and Walker, with Chin dissenting) says plaintiff cannot prove that, but for his hearing disability, he would not have been demoted. The Court of Appeals cites evidence that management was unhappy with plaintiff's job performance, which explains the demotion. The Court reasons:

There was ample evidence that Pogoda and Peters had reason to (and did) think that Natofsky’s performance was deficient and demoted him on that basis. First, Pogoda noted in March 2014 her view that Natofsky was ʺclueless.ʺ Second, that same month, Natofsky failed to provide Peters with information regarding staffing and budgeting at the DOI, two areas under Natofskyʹs purview. Third, there was a new administration in office that was restructuring the department in which Natofsky worked. Defendants presented evidence that other employees had been asked to leave or were transferred from their positions, including Natofskyʹs immediate supervisor, Ulon. We conclude that ʺconstruing the evidence in the light most favorableʺ to Natofsky and ʺdrawing all reasonable inferences in his favor,ʺ no reasonable juror could conclude that Natofsky would have retained his position but for his disability.

The other claims are also dismissed. Plaintiff cannot show that Ulon denied his preferred work hours and vacation time and criticized his performance out of discriminatory animus. "Natofsky, however, points to no evidence that Ulonʹs critique of his email responsiveness was based specifically on Natofsky’s failure to respond to emails during meetings, as opposed to a more general critique of his timeliness in responding to emails." And, any workplace changes put in place by Ulon were reversed after plaintiff objected to other managers, so these are not adverse employment actions. The retaliation claim against UIon for the negative performance review also fails because the review was drafted almost a year after plaintiff complained about Ulon's maltreatment to another supervisor; that is too much time to draw a retaliatory inference. As for the retaliation claim against Pogoda and Peters, the Court says appealing a negative performance review is not protected activity under the civil rights laws, and plaintiff was not protesting discrimination "but offering a defense of why he may have been slow in responding to emails."

Judge Chin dissents, viewing the evidence differently than the majority, raising the question: if appellate judges view the evidence differently and one of them thinks the plaintiff can win at trial, is there not a factual dispute for the jury after all? Here is how Judge Chin sees it:

Natofsky has put forth evidence that Pogoda and Ulon were at least motivated in part by Natofskyʹs disability. First, Natofsky presented evidence that Pogoda ‐‐ whose discriminatory intent can be imputed to Peters -- fixated on the physical markers of his hearing disability, shook her head in disgust and rolled her eyes after Natofsky told her about his hearing disability, demanded he speak faster, and otherwise ridiculed him for his speech. Second, as evidence of Ulonʹs discriminatory animus, Natofsky presented evidence of two conversations during which his disability was discussed: his exchange with Ulon about email responsiveness and Hearnʹs conversation with Ulon regarding Natofskyʹs hours and vacation request. There was other evidence as well, including inexplicably harsh treatment: when new management came in, Natofsky quickly fell from a highly compensated, highly evaluated supervisor to a poorly‐evaluated generalist making just over half his prior salary and confined to what had been his former assistantʹs cubicle. 

Supreme Court to hear LGBT discrimination cases, including Zarda

The Supreme Court has agreed to determine whether sexual orientation discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964, the primary federal employment discrimination statute. One of those cases is Zarda v. Altitude Express, which the Second Circuit resolved in February 2018, ruling that Title VII prohibits sexual orientation discrimination. The other case, Bostock v. Clayton County, arises from the Eleventh Circuit. The Court granted certiorari on April 22.

I wrote about Zarda at this link. I assisted in writing the brief in Zarda in the Second Circuit. The issue is this: in 1964, when Congress enacted the Civil Rights Act, it prohibited employment discrimination on the basis of race, gender, national origin, color and religion. In all likelihood, gay rights were not on the radar when the law was enacted, at least not for any congress-member. Over the years, plaintiffs' lawyers tried to convince the federal courts that sexual orientation discrimination was a form of gender discrimination, but the federal courts rejected those efforts. A few years ago, however, the EEOC took a fresh look at this issue and, in the Baldwin case, ruled that sexual orientation discrimination is in fact a form of gender discrimination. The EEOC reasoned that (1) this form of discrimination constitutes sex stereotyping, which violates Title VII; (2) discrimination on the basis of sexual orientation necessarily takes into account the employee's gender, as men who are attracted to women are not punished like men who are attracted to other men; and (3) this form of discrimination is a form of associational discrimination, which violates Title VII, in that you cannot be fired for associating with African-Americans and, presumably, other men or women.

After the EEOC issued Baldwin, the Seventh Circuit in 2017 ruled en banc that its prior rulings on this issue are now bad law. In the Hively case, the Seventh Circuit adopted the EEOC's reasoning, becoming the first federal appeals court to interpret Title VII this way. In 2018, the Second Circuit also took up this issue en banc, ruling in favor of the plaintiff and jettisoning prior precedent that held to the contrary. But the Eleventh Circuit in Bostock sided with management on this issue, narrowly interpreting Title VII and holding to pre-Baldwin standards. This Circuit split prompted the Supreme Court to take the case.  

The Supreme Court on April 22 also granted certiorari in a related case, R.G. & G.R. Harris Funeral Homes v. EEOC, which held that Title VII also prohibits discrimination against transgender employees. In that case, the Court will decide whether this form of discrimination constitutes unlawful sex-stereotyping, prohibited under Title VII thanks to Price Waterhouse v. Hopkins, decided by the Supreme Court in 1989.

These cases will in all likelihood be the blockbuster civil rights cases for the Supreme Court's 2019-2020 term. There is no way to predict what the Court will do in these cases. Most of the gay rights cases decided by the Supreme Court since 1996 have ruled in favor of expanded rights, most famously in the same-sex marriage case. But the principle author in these cases, Justice Kennedy, has since retired. On the other hand, more and more Americans favor gay rights and would probably be surprised that gay employees in many jurisdictions can be fired because of their sexual orientation, so public opinion is probably in the plaintiffs' favor. There was also a slight bi-partisan divide in the Second Circuit when it issued Zarda: one conservative judge, Dennis Jacobs, sided with the plaintiffs in that case. A liberal judge, Gerard Lynch, dissented and ruled that Title VII (as presently drafted) cannot prohibit sexual orientation discrimination because that is not what Congress had in mind in 1964, when it enacted the Civil Rights Act.

"But-for" causation test governs disability discrimination cases

The Second Circuit holds for the first time that plaintiffs who bring disability discrimination cases under the Americans with Disabilities Act and the Rehabilitation Act must show the discrimination was the "but-for" cause of the adverse action. The Court of Appeals therefore rejects the more plaintiff-friendly "motivating factor" calculus that governs cases brought under Title VII.

The case is Natofsky v. City of New York, issued on April 18. Plaintiff brought this case under the Rehabilitation Act and not the ADA. But in order to determine the burden of proof under the Rehabilitation Act, the Court must determine the scope of the ADA, since Congress said in 1992 that employment discrimination cases brought under the Rehabilitation Act apply the ADA causation standard. Since the Second Circuit has not yet determined the causation test under the ADA, it has to make that determination in the course of interpreting the Rehabilitation Act.

The ADA says you cannot discriminate against someone "on the basis of disability." What does that mean? Does the "but-for" test apply, or does Title VII's "motivating factor" test apply? In 1991, when Congress amended Title VII, it explicitly adopted the motivating factor test for cases involving race, gender, religion and national origin discrimination. It did not use that language for age discrimination cases brought under the ADEA, which is why the Supreme Court in the Gross case in 2009 said the "because of" language in the ADEA requires proof of "but-for" discrimination and not the motivating factor test. (Whether or not Congress actually intended for the ADEA to have a heightened causation test than Title VII is another question; my best guess is that Congress probably thought "motivating factor" and "because of" meant the same thing, but that is water under the bridge, as the Supreme Court's statutory analysis said these phrases have different meaning, and Congress has not corrected the inconsistency). The Supreme Court a few years later in the Nasser case said that "the text of an anti-discrimination statute must expressly provide for a 'motivating factor' test before that test can be applied." This means that even retaliation cases under Title VII require "but-for" proof, since the retaliation provision of Title VII does not use "motivating factor" but "because of."

The Second Circuit (Keenan [D.J.] and Walker, with Chin dissenting) says the "because of language" in the ADEA means the analysis in Gross applies, so that disability discrimination plaintiffs have to prove the discrimination was the "but-for" cause of the adverse action. This makes it a little harder to win disability discrimination cases in the Second Circuit, as everyone agrees that "motivating factor" is a lower burden of proof. The real-world consequences of this holding are hard to predict. I am not sure the "motivating factor" and "but-for" distinction will make a difference on a summary judgment motion, as parsing that out is like dancing on the head of a pin, but it could factor into the jury instructions and push the deliberations toward the employer, as the "but-for" test is more defendant-friendly than "motivating factor," which is not a 50% causation test like the "but-for" test. Since we interpret the ADA this way, the Rehabilitation Act is also interpreted this way.

Judge Chin dissents. He notes in part that when Congress enacted the ADA in 1990, it expressly wanted that statute to be interpreted consistently with Title VII. When Congress amended the ADA in 2008 to deal with some misguided Supreme Court rulings that narrowly interpreted the statute, it again said it wanted "a broad scope of protection to be available under the ADA." What we got here is a battle of statutory analysis involving the most commonly-used anti-discrimination statutes on the books.

These different interpretations affect how the Court of Appeals views Natofsky's case. Remember him? It was Natofstky who brought this case that led to the extended discussions about what the Rehabilitation Act and the ADA really mean. In the next blog post, I will talk about his case in particular, though here's a hint: he loses the appeal, though he would have won had Judge Chin had another like-minded judge on the panel.

Inmate lawsuit is dismissed under PLRA three-strikes rule

Under the Prison Litigation Reform Act, inmates who file three frivolous lawsuits cannot file another case "in forma pauperis," which would waive the filing fees for inmate-litigants who cannot afford them. This is the "three-strikes-you're-out" rule. This case involves an exception to the three strikes rule.

The case is Shepard v. Annucci, issued on April 15. Shepard's prior lawsuits were deemed frivolous, but he sued again, claiming that prison staff did not accommodate his back injury by refusing to house him near the clinic, the package room and the visiting area. While Shepard had exhausted his allotment of frivolous cases, he invoked the exception, which allows you in forma pauperis if you are in "imminent danger of serious physical injury." The idea is that being in imminent danger and the need to file a new lawsuit over that outweighs the three-strikes penalty. So if you are in imminent danger, the filing fees are waived just this once.

The government opposed Sherpard's request for waive the filing fees, claiming (1) Shepard had not come clean about all of his prior frivolous lawsuits and (2) he was in imminent physical danger. Of course, the work the government expended in fighting off Shepard's claimed exception to the three-strikes rule far exceeded the amount of the filing fees that Shepard was trying to avoid paying, but my guess is the government thought this effort was worth it to avoid another lawsuit by Shepard. In any event, the district court dismissed the case after agreeing with the government's position.

The Court of Appeals (Cabranes, Droney and Sullivan) affirms, taking up a new issue under the PLRA. The Circuit says the district court can go beyond the complaint to determine if the inmate-plaintiff really is facing imminent danger. This is consistent with the rule that "courts have long permitted evidentiary submissions at the pleading stage in a variety of different circumstances," including inquiries into whether the court has jurisdiction to hear the case. It is not enough for the inmate to assert in his complaint that he is facing imminent danger. Holding otherwise would only encourage inmates to assert the physical injury exception to avoid paying filing fees. We don't want that, do we?

What is means for Shepard is the district court got it right in finding Shepard was not really facing imminent danger when he filed the lawsuit. Prison doctors said that while Shepard does have chronic back pain, he has access to a wheelchair and other ambulatory aids and the doctors did in fact provide him with pain medication. The Court also finds that plaintiff's claim that his muscles atrophied because of his 24-hour confinement "was shown to be 'ridiculous.'" This all means that Shepard cannot proceed with his case without paying the filing fee. No fee, no case.

"Stupid Egyptian" comment gives discrimination plaintiff a jury trial

The Court of Appeals has reinstated an employment discrimination case, concluding the jury may find the plaintiff was terminated from his position because of his national origin, Egyptian. The key evidence in the case is that plaintiff claimed to overhear the decisionmaker tell someone that she "kn[e]w how to terminate this stupid Egyptian guy." Plaintiff was the only Egyptian in the department.

The case is Moza v. Health and Hospitals Corp., a summary order issued on April 15. I represented plaintiff on appeal. Plaintiff was a doctor who worked in the Risk Management Department for a City hospital. The summary order does not set this out, but he mostly received positive performance reviews for quite some time until a new supervisor, Woll, came aboard. It was Woll who uttered the "stupid Egyptian" comment in April 2013. In September, Woll recommended plaintiff's termination. While the Second Circuit (Pooler, Chin and Vitaliano [D.J.]) emphasizes the "stupid Egyptian"comment, it notes in passing that plaintiff claims that Woll said other discriminatory comments to him, including a statement to a coworker that plaintiff has a "different culture from us." Also, while discussing plaintiff's religious practices (plaintiff is a Coptic Christian), Woll said, "This is stupid" and walked away.

What we have in this case, then is a swearing match, where plaintiff testifies that Woll made these discriminatory comments, and Woll denies it. As the Second Circuit notes, "It is for the jury to determine whether to credit Moza's account." The Court cites Owen v. New York City Housing Authority, 934 F.2d 405, 410 (2d Cir. 1991). If Woll said these things, then it taints the negative performance evaluations that she prepared against plaintiff, and the jury can rule in plaintiff's favor. While many discrimination cases involve circumstantial evidence, requiring the plaintiff to argue that the employer's lies about job performance and discipline are false, direct evidence cases like this are quite different. You don't see racial comments like this every day, which is why the courts have devised a formula for sorting through circumstantial evidence. It is much easier for the plaintiff to win through direct evidence.

A side note to this appeal deals with summary judgment in employment cases. The Second Circuit's pro bono panel assigned me this case. While the plaintiff alleged in his summary judgment opposition brief that Woll made the "stupid Egyptian"comment, his attorney did not cite to plaintiff's sworn statement to that effect. The district court noted that omission and said plaintiff did not testify to this at deposition and the allegation was therefore meritless. But while the statement is not in plaintiff's deposition, contrary to the district court's analysis, that was not the end of the story. True, the first place we look for "smoking gun" evidence is the plaintiff's deposition, where it is sure to come out in response to questions by the defendant's lawyer. But for some reason, this issue did not come up at deposition. But the sworn statement was in the record through plaintiff's verified complaint filed with the State Division of Human Rights. As a sworn statement, the SDHR charge has the same effect as an affidavit. You can use it in opposing a summary judgment motion. Since the SDHR charge was in the summary judgment record, the Court of Appeals was able to reverse the grant of summary judgment and remand this case for trial. If you are a plaintiff's lawyer trying to fend off a summary judgment motion, look for these sworn statements filed with the administrative agencies to press those factual disputes.

ADEA retaliation case will go to trial after all

Right now, eight hard-working Americans are sitting around watching television, reading the paper, looking at Facebook or playing with the family dog. They do not know each other, and none have any experience with the American legal system. They do know it yet, but some day, perhaps later this year, they will all convene at the United States Courthouse in lower Manhattan go decide whether Blair Davis-Garett was retaliated against by Urban Outfitters for complaining about age discrimination.

The case is Davis-Garret v. Urban Outfitters, issued on April 8. Plaintiff was an older employee who suffered age-related harassment in defendant's retail stores in White Plains and Long Island. She also worked at the Greenwich store, where she was given lousy job assignments and denied training. The Greenwich maltreatment happened shortly after plaintiff called the company hotline to complain about the age-harassment, which took the form of insulting ageist comments from supervisors.

The trial court dismissed the retaliation claim on summary judgment, ruling that plaintiff could not show her bad treatment at the Greenwich store was a material alteration in the terms and conditions of her job duties. The Second Circuit says this ruling might have made sense in 2005, but not anytime since, because in 2006 the Supreme Court said in the Burlington Northern case (one of the last remaining pro-plaintiff employment discrimination cases from that Court) that retaliation cases involve a different definition of "adverse action," which in this context means any management response to the discrimination complaint that might dissuade a reasonable employee from again speaking out against discrimination. The idea is that if management responds to discrimination complaints in a hostile way that does not amount to demotion, termination, etc., that response might still deter people from complaining, and the discrimination laws will then be violated without any consequence.

The Second Circuit in this case takes the time to remind us of the basic rules governing summary judgment, including the rule that all reasonable inferences must be drawn in the plaintiff's favor in determining if the plaintiff can win at trial. The trial court in this case did not do that, for the following reasons. First, while plaintiff was in fact promoted to the position that she wanted, as the Second Circuit (Katzmann, Chin and Kearse) notes, that only happened after she complained about discrimination, and when she got the promotion, no one trained her, she was unfairly criticized for deficient performance, she was scheduled to perform unsavory job assignments and management made ageist comments toward her. While the district court said a mere job transfer is not enough for a retaliation claim, it overlooked how that job offer was countermanded after the decisionmaker learned about the discrimination complaint, and she was sent to a location where that position was already filled and she was then denied training and given undesirable assignments. As this treatment would prevent a reasonable employee from speaking out against discrimination, plaintiff has a retaliation case. The Second Circuit notes that management can still win this case, and the all the Court is doing is finding that plaintiff may prevail at trial. The final decision on this case will be made by those jurors who are now sitting at home watching television, reading scholarly journals or staring into the night sky. Unless the case settles.

Choosing between reporting discrimination and protecting your health may give rise to retaliation claim

This retaliation case alleges that New York City supervisors punished the plaintiff for speaking out against sexual harassment and racial discrimination. The Court says the plaintiff plausibly alleges that supervisors retaliated against her in part by denying her the proper lunch hour to prevent migraine headaches.

The case is Collymore v. City of New York, a summary order issued on April 11. The Court of Appeals sure likes its summary orders, even when it reverses the grant of summary judgment. The Court probably does this because it does not see the case as precedent-setting, which means the district court blew it in dismissing the case. But this case stands for something interesting that deserves attention.

Using the latest case law in this area, the Second Circuit notes the standard governing retaliation claims under Title VII:

Collymore must plausibly allege (1) that she participated “in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action” was taken against her; and (4) there was “a causal connection between the protected activity and the adverse employment action.” Littlejohn v. City of New York, 795 F.3d at 315-16. [A]n adverse employment action is any action that could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d at 90. “[N]ormally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006). To satisfy the requirement of a causal connection, “the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action.” Vega, 801 F.3d at 90. At the pleadings stage, causation may be satisfied by allegations that “each of the adverse actions” defendants took “occurred against a backdrop of continuing antagonism and frustration of [the plaintiff’s] professional ambitions.” Duplan v. City of New York, 888 F.3d 612, 626 (2d Cir. 2018).

The Court (Pooler, Chin and Eaton [by designation]) says plaintiff's allegations that supervisors were harsh with her and yelled at her are nonactionable "petty slights, minor annoyances and simple lack of good manners" that cannot give rise to a lawsuit. Of course, this kind of office behavior is in the eye of the beholder. There is yelling and bad manners, and then there is yelling and bad manners. But that analysis stems from Supreme Court authority, and I don't think the Second Circuit wants to litigate your run-of-the-mill verbal abuse from supervisors who probably have personality disorders but who are not crossing the line into exceptionally abusive tantrums that might actually drive someone from the workplace.

But Collymore still has a retaliation case because she was forced to work through her lunch hour, causing her to suffer migraines on a regular basis. As the Second Circuit sees it, these supervisors "forced Collymore to choose between reporting discrimination and maintaining her health. It is therefore plausible that a reasonable worker in Collymore’s position would decline to report discrimination in order to conserve their health. Because Collymore has alleged facts indicating that Defendants-Appellees’ retaliation 'occurred against a backdrop of continuing antagonism and frustration of [her] professional ambitions,' Duplan, 888 F.3d at 626, Collymore has also sufficiently alleged a causal connection between her protected activity and the retaliatory acts."

Remember what I said about summary reversals? This case does not have the full precedential authority of a published opinion, but even summary orders can be cited in briefs. The Second Circuit from time to time cites its own summary orders to support its rulings. This case could have been precedential, as I have not seen a case that says forcing an employee to choose between reporting discrimination and protecting her health may give rise to a retaliation case under Title VII. So if you need a case that stands for that proposition, here it is.

Age-harassment case is headed for trial after 2d Circuit reinstates the claim

The Second Circuit only issues a handful of epic employment discrimination cases each year, using the occasion to survey the legal landscape before hammering a district judge who improperly granted management's motion for summary judgment. In this case, the Court of Appeals reinstates an age-harassment and retaliation case.

The case is Davis-Garett v. Urban Outfitters, Inc., issued on April 8. Plaintiff was in her 50's, working for a clothing retainer with younger coworkers and managers. She started working at the Roosevelt Field store before she was shipped to White Plains. She was then denied a transfer to the Edgewater, N.J. location. Plaintiff brings two claims: hostile work environment because of her age, and retaliation for complaining about the work environment. I'll start with the age-harassment and our next installment will cover the retaliation and the related summary judgment observations that the Second Circuit (Kearse, Katzmann and Chin) fleshed out in the ruling.

At the Roosevelt Field store, supervisors stuck plaintiff in the fitting room while the younger workers were trained to handle various other store-related tasks. When the Roosevelt Field store closed down and the employees were sent to work at other locations, plaintiff was sent to White Plains, more than 30 miles away. She was told she was sent to White Plains because of the "demographics" of that store, i.e., "that the people that shopped in the store were older and that I was old and that is why I was transferred there." In White Plains, plaintiff again found herself in the fitting room and received no training, yet she was often called upon to pick up "unsanitary trash or waste." She was also ostracized by younger workers, who repeatedly called plaintiff "mom" or "mommy" and "asked her to take care of their cuts, bruises and other ills" and they "consulted her about their personal problems." Even when plaintiff became a full-time customer associate in the White Plains store, she still worked the fitting room, and when she asked about a promotion to the apparel supervisor position, Store Manager Bentley told plaintiff that she "was too old for the job" and "you don't have the energy" and "the only reason you were sent here is because of the demographics here . . . the people that shop here are older and you're old" and "you would never be able to handle being a manager."

As it happens, in White Plains, plaintiff was ultimately promoted to Apparel Supervisor, Bentley was hostile towards her and lodged unfair criticisms and continued to assign her the fitting room. They also overworked plaintiff, having her work 10 consecutive days and closing the store 10 consecutive nights, an exhausting sequence. Another supervisor criticized plaintiff's "speed" and "pace" nearly every day. The Court concludes:


The district court rejected plaintiff's hostile work environment case on summary judgment. The Court of Appeals reinstates the claim after providing a good tutorial on hostile work environment law in the Second Circuit. Not only did the district court improperly ignore any hostile ageist acts that took place prior to the 300-day statute of limitations (the Supreme Court holds those otherwise time-barred acts are actionable if the hostile environment continued into the 300-day period), but the Circuit concludes that:

the entirety of Garett's ADEA claim that she was subjected to a hostile work environment—being, from the start of her employment at Anthropologie, denied the training given to younger sales associates and relegated to work almost exclusively in the fitting room, and later being assigned the most unpleasant and arduous duties and subjected to age-disparaging criticisms daily—was timely.

Very often, when you read these appellate rulings, you wonder how the case got dismissed on summary judgment. I cannot answer that question for you. The evidence seems clear, except that perhaps the district court judge forgot that prior age-related comments factor into the analysis; once that evidence enters the picture, the case looks very different. What wins the appeal for Garett is the volume of age-related comments combined with the age-neutral acts of hostility that, viewed in the context of the ageist slurs, may be presumed to be age-related as well. The point here is that we look at the totality of the evidence in determining whether someone has a hostile work environment case. 

Francis v. Kings Park Manor: Withdrawn!

A month ago I wrote about a case that expanded liability under the Fair Housing Act, which said landlords can be held liable for failing to deal with racist neighbors who create a racially hostile housing environment. That case is Francis v. Kings Park Manor, decided on March 4.

Today the Second Circuit issued a ruling that withdraws the Francis decision without comment. Why did this happen? Is the Second Circuit contemplating an en banc review? Was there something wrong with the decision? Who knows?

State Court strikes down emergency measles declaration

A State Supreme Court Justice has preliminary enjoined the County of Rockland from imposing an "Emergency Declaration" preventing any unvaccinated children under the age of 18 from entering any "place of public assembly," defined as any place where 10 or more people congregate, including schools.

The case is W.D. v. County of Rockland, issued on April 5. You've probably heard about the measles outbreak in Rockland County, where parents are not vaccinating their children for religious reasons. In late March 2019, the County Executive issued the ban pursuant to Executive Law section 24, which says the County Executive can issue a local state of emergency in the event of a "disaster," defined to include an epidemic. According to the court ruling, Rockland County has roughly 330,000 people. A total of 166 people in Rockland have the measles, or .05% of the population. Is this an epidemic under the law? Acting Supreme Court Justice Rolf M. Thorsen says it is not.

The Court notes that "an 'epidemic' is not defined within Executive Law section 24." So the Court looks to the "ordinary meaning" of the word. Under the dictionary definition, "an 'epidemic' is defined as an 'outbreak of disease that spreads quickly and affects many individuals at the same time." There is no "epidemic" in Rockland, the Court holds, because the .05% infection rate does not "rise to the level of an 'epidemic' as included in the definition of 'disaster' under Executive Law section 24." The proclamation is also enjoined because the County Executive imposed it for 30 days, and the law only allows him to do this for 5 days.

Under the rules governing Article 78 proceedings, the Executive's declaration is therefore "arbitrary and capricious" and struck down as a matter of law. This case is fascinating because few local judges will second-guess elected officials on emergency-related declarations. To give you a sense of how this case is being litigated, I give you the introduction to the County's memorandum of law in opposition to the injunction:

From October 2018 to date, Rockland County has seen 166 cases of measles during an outbreak, the magnitude of which has not been seen for decades. The County, and the United States in general are protected by what is known as ‘herd immunity’ as the result of the generally high rate of vaccinations for measles in the population. Essentially there are so few susceptible persons, that the disease is ‘starved’ of hosts and cannot spread. However, in Rockland County there are geographic areas where the vaccination rates are low, resulting in a lack of herd immunity, providing a rich ground for the disease to spread. The Plaintiffs’ schools are located in that geographic area.

As a result, upon the detection of the outbreak, the County Commissioner of Health, in consultation with the New York State Department of Health, determined to protect the public health by taking steps to prevent the spread of the measles. That course of action included, among other things, issuing an order excluding unvaccinated children from attending schools, where collections of unvaccinated children would provide a breeding ground for rapid spread of the disease.

This has been a stepped process. Initially, the order was applied only to schools where there were known exposures to the measles and vaccination rates were below 70% of the student body. Schools are the primary target of the restrictions because, in Rockland it is demonstrated that young people are the primary victims of the measles.

However, as cases continued to increase and the initial restriction was deemed to be
insufficient to stem the spread of the measles, it was observed that all of the cases were occurring in a limited geographical area within the County, which included the location
occupied by the Plaintiffs’ schools.

At that time, the order was extended to all schools in the geographic area, public and private, and presently affects approximately 60 schools. Due to the failure of less restrictive means to hold back further infections and spread of the measles, the Commissioners have become more restrictive. Presently, all schools in the subject
geographic area, with less than 95% vaccination rates are required to exclude all unvaccinated children until 21 days after the last known case. That time may be increased to 42 days based upon advice of the Center for Disease Control, but that ruling
by the Commissioner has not been made.

Following the Commissioner’s efforts, the number of cases in the County continued to increase. On February 22, 2019, the State declared the County to have an imminent threat to health. Through the middle of March 2019, the infections continued to increase.

On March 26, 2019, the County Executive determined to make further efforts to stem the tide if exposures to the disease and resulting infections. On that date, he declared the County to be in a State of Emergency, pursuant to his powers under Executive Law § 24. As a part of the declaration, he gave a directive that, generally speaking, required parents and guardians to keep all children and infants, unvaccinated for any but a medically determined reason, away from places of public assembly, including schools, houses of worship, shops, restaurants, etc. The Declaration will expire on April 25, 2019.

Now for the Plaintiffs' arguments, in part:

The irreparable harm. being caused by the orders and declaration challenged herein are incalculable. Hundreds of children are being excluded from school and public places. Their school districts are not providing tutoring. Children from Green Meadow and Peace though Play have missed nearly four months of schooling as a consequence of an exclusion order which exceeded the authority of the respondent county. Now, children from other schools and parts of the county, uncovered previously. are being caught in the same net. The annexed Affidavits provided by Green Meadow parents speak to the tremendous harn their-children have experienced and continue to experience.

Nearly six months after the first seven cases of measles were reported in his county and despite the fact that his Com.missioner of Health has failed to quarantine those infected at any time during this period, the County Executive seeks to bully the parents of unvaccinated children and to grandstand against religious exemptions. But, he cannot point to a single case of measles which was contracted by contact with any of these unvaccinated children. Nor have any of these unvaccinated children contracted the disease or have it. Instead, those suffering from measles resides in self-segregated communities and the disease has been so isolated.

The equities here strongly favor striking the respondent's illegal and unprecedented local emergency order. That order punishes unvaccinated children and their families because of an entirely legal status, one recognized by our state. Rather than timely quarantining those who had or have measles, the county has allowed them full mobility. It now seeks to pressure families who have religious exemptions to choose between isolating their healthy children or breaking their religious beliefs. The County Executive has scared the public by claiming that there are 157 cases of measles without advising the public that there are at most four active cases and these are, as prior cases have been, isolated to the religious community. The unprecedented local emergency order violates Executive Law 24 on its face, purporting to extend for a thirty day period which the law itself limits such orders to five days. Moreover, the respondent has misused this law intended for other purposes while not using the authority provided through the state's public health laws to meet the public need.

Supreme Court rejects anti-death penalty appeal

The Supreme Court has ruled in a 5-4 decision that a death-row inmate cannot challenge an execution method that he says will cause him excrutiating pain.

The case is Bucklew v. Precythe, decided on April 1. The Eighth Amendment prohibits executions if they cause unnecessarily cruel pain, but the inmate can only win the case if he can show the state is not using more humane ways of killing him, and that the state is refusing that alternative method without a legitimate reason. In this case, Bucklew has a rare disorder that will cause his blood pressure to spike once the state injects him with the death serum, causing his tumors to rupture and result in serious pain. The dissenting opinion describes the day-to-day reality of Bucklew's physical condition, and it is nothing you want to read over breakfast. (Bucklew leaks blood onto his face and has to wipe his face clean every morning).

Years ago, when I was reading about the late Chief Justice Rehnquist, someone noted that when he took on criminal procedure cases, Rehnquist did not hesitate to describe the inmate's crime in detail. Such a discussion was not really necessary, because criminal procedure does not usually turn on the horrendous crimes these people have committed, but, as someone said in describing Rehnquist's writing style, someone has to pay for this crime. I am reminded of this as I read the Bucklew decision; Justice Gorsuch lays out Bucklew's crimes, and it's positively awful, something out of a b-grade horror movie. This is the kind of case that even death penalty advocates sometimes point to in claiming the death penalty is appropriate in rare circumstances. Gorsuch knows that Bucklew's victims suffered horrible deaths, and that actually factors into the analysis.

And speaking of the anti-death penalty advocates, Gorsuch addresses them in this ruling, noting the many times Bucklew tried to stave off execution with new arguments that extended the case over the course of many years. Bucklew's crime spree -- at least for purposes of this case -- began in 1996, more than 20 years ago. Gorsuch repeatedly notes how the case dragged along with new arguments and legal theories. But that legal strategy is now over. Bucklew will die for his crimes.

Since this is a 5-4 ruling, you can't help but wonder how this case would have turned out had the time-space continuum taken a few detours. What if Mitch McConnell gave Obama's Supreme Court choice, Merrick Garland, an up-and-down vote? (Gorsuch was the beneficiary of that maneuver). What if the Democrats won a few extra Senate seats and rejected Brett Kavanaugh for the Court? What if Hillary Clinton campaigned in Wisconsin? But the horse is out of the barn. We have a rock-solid 5-4 conservative majority on most legal issues for the first time since the New Deal. We will be seeing more decisions like this.

Gorsuch summarizes the history of the death penalty in the U.S. and the Eighth Amendment jurisprudence that the Supreme Court has crafted over the years to ensure that people do not suffer cruel and unusual punishment. What the majority says in this case is that "the Eighth Amendment does not guarantee a prisoner a painless death -- something that, of course, isn't guaranteed to many people, including most victims of capital crimes." In the end, the Eighth Amendment "does not demand the avoidance of all risk of pain in carrying out executions," and the Constitution offers the states some deference in their choice of execution procedures. While Bucklew says the death injection will cause unspeakable pain, the Court concludes, he has not identified any alternative method of execution, and even if he did, he would have to show that any alternative method "would significantly reduce a substantial risk of severe pain."

Pro se Vermont plaintiff wins Fourth Amendment appeal

This pro se plaintiff took on the federal government in the Court of Appeals and won. The Second Circuit finds the plaintiff sufficiently alleged the police violated his rights under the Fourth Amendment when they unnecessarily prolonged a traffic stop to look for drugs and search his vehicle.

The case is McLeod v. Mickle, a summary order issued on March 27. Mickle is a special agent for the United States Forest Service. McLeod was pulled over on a traffic stop because of an expired inspection sticker. But then the police kept plaintiff there and began asking about illegal drugs. They called the K-9 unit and performed a "dog sniff" on the car. Plaintiff was not permitted to leave the scene until after the police dog sniffed out the car. This prolonged the stop by 35 to 40 minutes.

The law in this area was clarified a few years ago, when the Supreme Court said in Rodriguez v. United States, 135 S. Ct. 1609 (2015). "Even when a stop is reasonable at its inception, it can violate the Fourth Amendment if it is 'prolonged beyond the time reasonably required to complete that mission.'" While the district court in dismissing the case said plaintiff did not allege the police were not dilatory in issuing the citation, that is not the right focus, the Second Circuit (Sack, Raggi and Carney) says. The right focus is "whether [the officer's] pursuit of an unrelated investigation 'prolonged' McLeod's roadside detention." Here is the reasoning:

Here, McLeod alleges that, shortly after he was stopped and as soon as he conceded that his state inspection sticker was expired, Stokes repeatedly asked McLeod whether his car contained illegal drugs and requested permission to search McLeod’s vehicle. McLeod further alleges that Stokes told him that, if McLeod refused to consent to a search, Stokes would call a K9 unit. When later during the stop McLeod asked two other officers at the scene whether he could leave, they replied (McLeod avers) that they were “waiting for the K9 unit.” Finally, McLeod asserts that he was not permitted to leave until after the K9 unit arrived on scene and the dog sniffed his vehicle approximately 35 to 40 minutes after he was first stopped. These allegations support a reasonable inference that Stokes prolonged the traffic stop beyond the time needed to issue a citation for McLeod’s expired state inspection sticker and that he did so to pursue an unrelated investigation into whether McLeod was carrying illegal drugs in his vehicle. This inference supports McLeod’s Fourth Amendment claim and defeats Stokes’s motion to dismiss.