Ever hear of the "trivial defects doctrine"?

As Judge Calabresi writes in his opening paragraph, this is a routine trip and fall case. A routine tort case that was filed in federal court, that is, because the plaintiff is suing the Transportation Security Administration, also known as the TSA. The Court of Appeals finds that plaintiff's case is not substantial enough for a lawsuit.

The case is Coyle v. United States of America, issued on March 30. When plaintiff was arriving at Idlewild Airport in New York City after a trip from Fort Lauderdale, she tripped on the rubber matting near the TSA screening machines, breaking her nose. She argues that the mat created a danger for travelers. She sues under the Federal Tort Claims Act, for which the United States can be held liable. The question here is whether the U.S. breached its duty of care to Coyle. If it did, then summary judgment is not proper and Coyle can win at trial.

There will be no trial because summary judgment was properly granted, the Court of Appeals (Calabresi, Lohier and Park) rules. She loses under the "trivial defect doctrine," a relatively obscure rule that exempts the defendant from tort liability for "negligent maintenance by reason of trivial defects on a walkway . . . as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection." Never heard of this doctrine? Neither did I.

Based on Coyle’s testimony as well as the photographs of the mat and its surroundings in the TSA screening area that Coyle presented, we conclude that TSA’s use and placement of the mat over which Coyle tripped constituted a trivial condition, and hence can be held to be non-negligent as a matter of law. . . . This was not a situation where Coyle was “naturally distracted from looking down at [her] feet” and for that reason did not notice that a mat was on the floor. And Coyle has made no claim that the terminal was dimly lit, or crowded, or even that she was in a rush to make her flight. Indeed, even with the delay caused by her fall, there was still nearly an hour between Coyle leaving the TSA screening area and her flight’s departure. In the absence of any such variables, the presence of a floor mat placed on the floor, even a one-inch thick black mat on a black floor, is—under the triviality doctrine—simply not a sufficiently dangerous condition to constitute negligence

High school basketball protest gives rise to free speech claim

This is an unusual case, but not so unusual that the defendants are entitled to qualified immunity as a matter of law. It involves public school parents who did not like how the girl's high school basketball coach was managing the team. It turned into a First Amendment case.

The case is Frierson v. Reinisch, a summary order issued on March 26. Plaintiff was one of the student-athlete's parents. He met with the student-athletes who were contemplating some kind of bold action to protest the coach. Some suggested the girls basketball team walk off the court during a game. No such walk-out took place, but Reinisch,  the athletic director for the Troy City School District, had heard about all of this and investigated the "rumor" of a student protest. A videotape from the school showed plaintiff meeting with some of the players. There was no audio. Reinisch next told plaintiff that he was banned from attending future school district sporting events.

The district court said plaintiff has properly asserted a First Amendment case, and that the law was clearly established that, if plaintiff's allegations are believed by a jury, defendants cannot invoke qualified immunity, which attaches when the case law on the precise issue raised by the case is unclear and the defendant public officials are therefore not on notice that they are violating the Constitution. The Second Circuit (Carney, Wesley, and Menashi) affirms, and the case now proceeds to trial.

The law was clear for a case like this because the Second Circuit held in Johnson v. Perry, 859 F.3d 156 (2d Cir. 2017), had already addressed a case like this. "In the specific context of retaliation by a school official restricting access to athletic events, we have said that where, as here, a public school invites parents and other spectators to attend sporting events held in its gymnasium, the gymnasium operates as 'a limited public forum' and the school may restrict access to a limited public forum only when (1) 'its restrictions are reasonable and viewpoint-neutral,' or (2) 'there is a clear and present danger of disruptions such as disorder, riot, obstruction of the event, or immediate threat to public safety.'”

The facts in Perry are similar to this case. In Perry, the father "was banned after complaining to school administrators that his daughter, a member of the varsity basketball team, wanted to quit the team because the coach was treating her unfairly. When the father learned that school officials were pressuring his daughter to remain on the team, he met with the principal, and the two exchanged heated words. The following day, the principal informed the father that he was banned from attending all future school sporting events, purportedly because the father’s 'verbal altercations, physical intimidation and direct threats to staff ha[d] created an unsafe environment for staff, students and other parents.'” Since the jury could find that the father in Perry posed no threat to anyone and the principal's motive in banning him from future sporting events was retaliatory, the father had a case. That's the situation before the Second Circuit in Frierson.

Court of Appeals will not revisit Trump Twitter First Amendment case

The Second Circuit has declined to revisit its case from last year holding that the president's Twitter account is a public forum and therefore cannot be censored by the president under the First Amendment. The president was blocking his critics who responded to his Twitter tweets. Judge Parker writes a separate opinion in support of the decision not to disturb last year's ruling, but two judges (both of them Trump appointees) write that the Court should take another look at the case and find that the president's Twitter account is not an arm of the government.

The case is Knight First Amendment Institute v. Trump, issued on March 23. The Second Circuit initially decided this case in ... The U.S. government ask the full Court of Appeals to rehear the case en banc, but the Circuit declines to do so. This is not an en banc court. The Second Circuit takes the view that en banc rulings harm collegiality and are presumed correctly decided. That does not stop aggrieved parties from trying.

Here is how Judge Parker opens his ruling.

This case arises from the President’s use of the @realDonaldTrump Twitter account (the “Account”) as a primary vehicle for his official communications. He uses this account to make official statements on a wide variety of subjects, many of great national importance. The public, in turn, is able to respond to and engage with the President and other users on Twitter. In Knight First Amendment Inst. at Columbia Univ. v. Trump, we concluded that this dialogue creates a public forum. 928 F.3d 226 (2d Cir. 2019). We also concluded that when the President creates such a public forum, he violates the First Amendment when he excludes persons from the dialogue because they express views with which he disagrees.

Judge Parker addresses the dissenter's view that the Twitter account is Trump's private account and not subject to First Amendment standards. He reprints some of Trump's tweets announcing policy on Iran and other foreign matters, demonstrating that the president uses Twitter to communicate federal policy. While the dissenters claim the President does not exercise “some right or privilege created by the State” when he blocks accounts on Twitter, in part because Trump began using the account before he became president, Judge Parker notes that 

When the President tweeted about Iran he was speaking in his capacity as the nation’s chief executive and Commander‐in‐Chief. If that is not a “right or privilege created by the State” it is difficult to imagine what might be. By the same token, when he receives responses from the public to the Account, and when he blocks responders whose views he disfavors, he remains the President. The critical question in this case is not the nature of the Account when it was set up a decade ago. The critical question for First Amendment purposes is how the President uses the Account in his capacity as President.

Supreme Court makes it harder to win Section 1981 contract discrimination cases

The Supreme Court has ruled that the federal statute prohibiting racial discrimination in the making of contracts requires the plaintiff to prove that racial discrimination was the "but-for" cause of the contract breach. This ruling rejects the "motivating factor" test in the Second Circuit. This case continues the trend that began more than 10 years ago when the Court began interpreting various employment discrimination statutes to require "but-for" causation. That includes the Age Discrimination in Employment Act and Title VII's anti-retaliation provisions. 

The case is Comcast Corp. v. National Assn. of African American-owned Media, issued on March 23. That's right, in the midst of a global pandemic, the Supreme Court is forging ahead. Section 1981 was enacted in 1866, post-Civil War. It makes it unlawful to discriminate in the making and enforcement of contracts. This statute applies to employment cases, including at-will employment relationships, as the Second Circuit held in Lauture v. International Business Machines, 216 F.3d 258 (2d Cir. 2000), a case that I briefed.

Section 1981 does not provide for a causation standard. That means the Supreme Court will apply the common-law causation test, which is the but-for standard. Writing for a unanimous Court, Justice Gorsuch states that "it is textbook tort law that a plaintiff seeking redress for a defendant's legal wrong typically must prove but-for causation." The Court explains how this works:

Under this standard, a plaintiff must demonstrate that, but for the defendant’s unlawful conduct, its alleged injury would not have occurred. This ancient and simple “but for” common law causation test, we have held, supplies the “default” or “background” rule against which Congress is normally presumed to have legislated when creating its own new causes of action.

While the statute does not expressly allow for private lawsuits to enforce its provisions, the Supreme Court in 1976 said the statute implies such a claim. The Court notes that it interpreted the statute this way when it was routinely implying causes of action in federal statutes (something the Court is no longer included to do). It was a different Court in the 1970s, more hospitable to civil rights. But the current Court is not going to upend those decisions. Instead, it says that even when it was holding that statutes implied that private lawsuits can enforce the statute, the Court "usually insisted on legal elements at least as demanding as those Congress specified for analogous causes of action actually found in the statutory text." Looking to the statutes that Congress enacted at the time it passed Section 1981, the Court says that the criminal enforcement provisions for this kind of racial discrimination (and related statutes prohibiting racial discrimination in the sale of real estate) required the "but-for"causation test. The Court rejects the "motivating factor" test even though Title VII of the Civil Rights Act of 1964 (which also prohibits racial discrimination in employment) applies that test in disparate treatment cases. In the end, the Court says, these are separate statutes with different wording. If we want Section 1981 to impose a more lenient burden of proof on plaintiffs, Congress is going to have to amend the statute.

What this means for plaintiffs is that it is now a little harder to win Section 1981 lawsuits. The motivating factor test under Title VII's disparate treatment provision does not require the plaintiff to show that racial (or gender, religious or national origin discrimination) is the determining or 51% percent reason for the discrimination. But that heightened burden applies under Section 1981. As recently as November 2019, the Second Circuit applied the motivating factor test to Section 1981 cases. See Khanna v. MUFG Union Bank, 785 Fed. Appx. 15 (2d Cir. 2019). So, under this ruling, should the jury decide to thread the needle that way, a racial discrimination plaintiff can win her claim under Title VII but lose under Section 1981.

pplicable to claim

Khanna v. MUFG Union Bank, N.A., 785 F. App'x 15 (2d Cir. 2019)

pplicable to claim

Khanna v. MUFG Union Bank, N.A., 785 F. App'x 15 (2d Cir. 2019)

$15 million verdict on child sexual abuse case is upheld

The Court of Appeals holds that a $21 million judgment against the defendant in a child sexual abuse case was not excessive.

The case is Mirlis v. Greer, issued on March 3. I wrote about other aspects of the case at this link and that link. Now we talk about damages. What you should know about damages is that juries are not given much guidance on what to award victorious plaintiffs. So the jury gives an amount it deems fair, and the trial and appellate courts then figure out over the next year or two whether the amount was too much. The courts rely on similar cases to determine whether the damages fell within the reasonable range.

In federal court, appellate judges determine whether jury verdicts are too high by asking whether the amount "shocks the conscience." That standard of review is deferential to the juries. Under a Supreme Court ruling from the 1990s, Gasperini v. Center for the Humanities, state-law verdicts in federal court in New York are afforded less deferential review under the CPLR. This case applies Connecticut law, so "shocks the conscience" does not apply, though the standard incorporates it somewhat; the standard is whether the award "falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption."

This judgment is not too high. In one case from 2019, a Connecticut court upheld a $15 million verdict where the defendant sexually abused the plaintiff from the time she was six years old until she turned 17. Another case, against the Boy Scouts, upheld a $7 million award where the victim was sexually abused three times. In Mirlis's case, the evidence shows that plaintiff was sexually abused in a variety of ways for several years, and that his pain and suffering is extensive and will have lifelong consequences. The $15 million pain and suffering award was "undoubtedly high," but not excessive in comparison to other awards, particularly on a "per incident basis." (The rest of the award was for punitive damages and interest).

What happens when a witness invokes the Fifth Amendment during a civil case?

The Court of Appeals has sustained a $21 million judgment against a school administrator whom a jury determined had repeatedly sexually abused one of his students. The Court addresses how trial courts should handle witnesses who invoke the Fifth Amendment during civil trials.

The case is Mirlis v. Greer, issued on March 3. I had an administrative hearing before the State Division of Human Rights a few years ago where the employer invoked the Fifth Amendment during the entirety of his cross-examination. It was quite a scene. One question after another, we got the Fifth Amendment. Our client alleged she was fired because of her transgender status. We won the hearing. There is some case law on the meaning of the Fifth Amendment during civil cases. This case provides additional guidance.

During trial, Greer invoked the Fifth Amendment on a series of questions relating to whether he sexually abused plaintiff and other boys. (The Fifth Amendment protects you from the right of self-incrimination, requiring prosecutors to prove their criminal cases through other evidence, unless the criminal defendant waives the privilege. In civil cases, the concern is that the witness will incriminate himself, which may prompt the unpleasant spectacle where the witness will not answer questions that may incriminate him). The trial court instructed the jury that Greer has the right to take the Fifth and that the jury may, but is not required to, infer that the answers would have been adverse to Greer's interests. This instruction was proper, the Court of Appeals (Chin, Carney and Sannes [D.J.]) holds, in light of Brinks v. City of New York, 717 F.2d 700 (2d Cir 1983), which held that the district court may tell the jury that a "witness has a constitutional right to define to answer on the ground that it may tend to incriminate him and you may, but need not, infer by such refusal that the answers would have been adverse to the witness' interest."

We also have the interesting question of how the trial court handles the invocation of this privilege before the jury. Here, plaintiff's lawyer asked Greer a series of questions about sexual abuse. Each question was followed by the Fifth Amendment privilege. The concern is that plaintiff's counsel, aware that the witness will invoke the privilege for all questions, will ask fact-specific questions designed to suggest to the jury that the answers to those questions would have been "yes" but for the privilege. That concern was first raised by Judge Winter's dissent in Brinks. In this case, while invocation of the Fifth Amendment was "damning," it was not unfairly prejudicial (and therefore no reversible error on the trial court's part) because (1) Greer's refusal to answer these questions was "telling" as "silence is often evidence of the most persuasive character," (2) Mirlis did provide evidence of the sexual abuse, so the adverse inference was corroborated; (3) the district court gave a proper limiting instruction, as discussed above; and (4) Greer asserted the privileged inconsistently, actually answering some questions (in the negative) about whether he had sexually abused plaintiff, and he also invoked the Fifth on some questions that had no connection to any criminal conduct. As the trial courts have much leeway in regulating their trials, it did not abuse its discretion in supervising how Greer invoked the Fifth Amendment.

When can a blogger recover a non-party's video testimony?

The Second Circuit has used a child abuse case to clarify the rules guiding when the district courts may release private information about non-party witnesses. The Court of Appeals rules in favor of the non-party witness, who fought to prevent the release of a video deposition in which he described how a former teacher had sexually abused him.

The case is Mirlis v. Greer, issued on March 3. The plaintiff sued his former teacher, Greer, for sexual abuse. The non-party witness, Hack, gave deposition testimony about the sexual abuse to which Greer had subjected him several decades earlier. Hack, now a teacher himself, did not want to testify at trial. He ran away from process servers when he was teaching a class, abandoning his students. Since he did not testify at trial, the jury saw portions of the video deposition. After the jury awarded the plaintiff $21 million in damages, a Connecticut blogger who'd been covering the case asked the district court to release the video deposition in its entirety. The district court granted that motion, but the Court of Appeals (Chin, Carney and Sannes [D.J.]) reverses.

In order to obtain records like this, they must be "judicial documents." The video deposition is such a document, defined as "any item entered into evidence at a public session of trial" except for matters entered under seal. Courts also presume that the public should have access to such documents, as "such access is critical" in "enabl[ing] the public to monitor the actions of the courts and juries." The hard question is how courts should balance the interest between public access and any countervailing interest, such as the privacy of third parties. The last major ruling on this final issue came in 1987, in the pre-Internet CBS case, 828 F.2d 958 (2d Cir 1987). While the district court agreed to release the video deposition on authority of the CBS case, the Court of Appeals says that was wrong.

The CBS case is different from this case. In CBS, the information was public and had already been publicized. In the Mirlis case, the video is personal in nature and, importantly for the Court of Appeals, the ubiquity of the Internet can result in this video remaining available forever. That changes the equation. The Court of Appeals believes the Connecticut blogger who wants this video has "unsavory motives" in seeking the video, and that his blog "demonstrate[s] considerable personality hostility" toward Greer and Hack, the witness, such that he may use the video to "humiliate and harass" Hack. The Court of Appeals clarifies that the motives of the individual seeking the judicial records is relevant to whether the trial court should release the information. As the Court finds the blogger has impure motives, that weighs heavily against releasing the video deposition. Hack's privacy interests were also improperly discounted by the district court.

Plaintiff may sue NYC in alleging that officers are directed to submit false reports against arrestees

The plaintiff in this case was arrested during a Black Lives Matter protest in New York City. The charges against him for disorderly conduct were dropped, and he sued the arresting officer and the City under the Fourth Amendment. The district court dismissed the claims, but the Court of Appeals revives them on the basis that the district court did not properly review the complaint in assessing the claim. This Iqbal plausibility case is good for plaintiffs, and unless something better comes along, this is the case of the year for false arrest plaintiffs.

The case is Lynch v. City of New York, issued on March 4. The case was dismissed under Rule 12, which means the trial court did not think plaintiff alleged a plausible claim under the Supreme Court's seminal Iqbal ruling from 2009, which requires plaintiffs to assert enough factual allegations to give rise to a plausible and non-conclusory claim for relief. Iqbal made it easier for courts to dismiss claims, but the Court of Appeals here says this case is Iqbal-proof.

First, the Court of Appeals (Kearse, Pooler and Winter) reminds us that Iqbal does not impose a probability requirement but a plausibility requirement, which is more favorable to plaintiffs than probability. Also, trial courts cannot choose between two plausible inferences raised by the allegations in the complaint. Instead, the court must "construe all reasonable inferences that can be drawn from the complaint in the light most favorable to the plaintiff." The language in this decision on Iqbal plausibility is useful for plaintiffs trying to repel motions to dismiss.

Under this standard of review, the district court improperly assumed that plaintiff did not have a false arrest claim. The district court said the police had probable cause to arrest plaintiff for obstructing traffic during the protest even though the complaint does not concede that plaintiff was among the crowd that was actually in the road when the police instructed the protesters to disperse. While some marchers were in the road, plaintiff was not among them. Careful review of the complaint shows that plaintiff was one of the marchers who were not given that instruction. This holding reminds us that complaints must be reviewed carefully to determine if the plaintiff has pled himself out of federal court. A detailed complaint may contain sufficient allegations to make out a claim, and the fact that plaintiff was among lawbreakers does not mean he was a lawbreaker and that he ignored a lawful order to get off the street and onto the sidewalk.

The more interesting holding involves plaintiff's claim against the City. You cannot win a Section 1983 case against a municipality unless you can show your unlawful arrest resulted from an unlawful municipal policy and practice. That is difficult to do in false arrest cases, even against small municipalities. Plaintiff said he was arrested pursuant to an unofficial "False Observation" practice in which New York City officers are allegedly instructed to write out fake facts to justify arresting a plaintiff. Plaintiff's allegations in this regard are not conclusory. He details how, in other lawsuits, the False Observation Practice has resulted in the unlawful arrests of mass protesters. This evidence come in the form of deposition testimony from a police officer in another case, and the fact that federal judges said in that case that an officer had complied with the False Observation directive in the contest of 2004 Republican National Convention protests, and that this was not an isolated event. Plaintiff in this case also alleges this practice is ongoing. These allegations are enough to permit plaintiff to develop this theory in discovery. While the district court said these allegations are faulty because other lawsuits cannot be used to prove your case, the appellate court says that doctrine does not apply in Rule 12 motion practice. The Second Circuit concludes:

Accepting as true the Complaint's allegations that the City at least in 2004 and seven or eight years thereafter in fact engaged in the False Observation Practice and that at least two NYPS officers have so testified, the Complaint allows the inference that . . . the City knowingly did not end that practice.

Stolen biscuits give rise to expansive constructive discharge ruling

I would say that constructive discharge claims are among the most difficult claims to win under Title VII. The courts have settled upon this legal standard for plaintiffs to show that their resignations are the legal equivalent of terminations for purposes of making out a prima facie case: "A plaintiff may prove a constructive discharge by establishing that his employer, rather than acting directly, deliberately ma[de his] working conditions so intolerable that [he was] forced into an involuntary resignation." That is very high burden, and few plaintiffs in the Second Circuit meet that standard. This plaintiff does.

The case is Green v. Town of New Haven, issued on March 10. Plaintiff worked in the records division of the police department. One day, she noted that someone's biscuit dough had been sitting in the office refrigerator for a few weeks. The dough did not belong to plaintiff, but she placed it in her bag and took it back to her desk. A lieutenant who had nothing better to do with his time immediately noticed that the biscuit dough was missing and sealed the refrigerator with yellow "crime scene" tape. He also sent employees an email complaining that the biscuits "grew legs and walked away." Plaintiff was given the third-degree over this, and she was written up on disciplinary charges. It may seem like I am making this up, but I can assure you that I am not. When confronted about this high crime and misdemeanor, plaintiff said she was going to bake the biscuits at home and bring them into the office for everyone. Internal affairs even prepared a report on the incident. You would think that plaintiff would prevail at her civil service hearing (or at least escape termination), but on the day of the hearing, plaintiff's union representative advised plaintiff that, based on his conversation with Town representatives, and pursuant to a "disciplinary matrix" that was in place since the department was functioning under a consent decree, plaintiff would going to be terminated. She resigned instead.

Since plaintiff had also proffered evidence of age discrimination, she claims the termination was involuntary. The district court disagreed and said this was not a constructive discharge. The Court of Appeals (Kearse, Chin and Wesley) says a jury may find otherwise. While most plaintiffs fail to convince the Court of Appeals that their resignations were constructive terminations, the Second Circuit notes that, over 30 years ago, it stated that a plaintiff could make out such a claim where his supervisor "told him he would be fired at the end of the 90‐day probationary period no matter what he did to improve his allegedly deficient performance." That case was Lopez v. S.B. Thomas, 831 F.2d 1184 (2d Cir. 1987). The Court notes that "our Lopez opinion indicated that a constructive discharge could properly be found where an employer merely, albeit 'clearly[,] expressed his desire that [an] employee resign because such a statement' could cause a reasonable person to feel compelled to resign." In another case, the plaintiff could not prevail because he was unable to show that 'the employer 'never mentioned retirement to Stetson and never either expressly or impliedly suggested that Stetsonʹs employment would be terminated.ʺ That case was Stetson v. NYNEX Service Co., 995 F.2d 355 (2d Cir. 1993).

Plaintiff can prove constructive discharge because a knowledegable source -- a union representative -- told her she was going to lose the hearing. The Department's Internal Affairs Officer also told plaintiff that the department no longer trusted her and did not want her working there anymore, and that stealing from the department was a terminable offense. The Court of Appeals says, "If any relevant facts are in dispute or subject to competing inferences as to their effects, or if there is admissible evidence from which a rational juror could infer that a reasonable employee would have felt so compelled, rejection of the constructive‐discharge theory as a matter of law is impermissible."

While the district court said in rejecting the case that no one with decisionmaking authority told plaintiff she was going to be terminated, the Court of Appeals states, "While the identity of the person delivering a termination threat or prediction and the level of certainty expressed in such a threat or prediction are considerations for a factfinder to weigh, neither an absolute statement nor a direct communication by an ultimate decisionmaker is a sine qua non for evidence of a constructive discharge."  The Court wraps up its analysis this way:

This outright dismissal as to any value or effect of advice from the union representative seems to indicate the courtʹs belief that, despite having received an I.A. officerʹs informed view that she has committed a fire‐able offense, a reasonable employee, as a matter of law, cannot feel compelled to resign rather than insist on a hearing when her union representative‐‐who is presumably looking after her interests‐‐makes an ʺeducatedʺ prediction that she is almost certain to lose in the hearing. We know of no authority supporting such a principle of law. And to the extent that the court found the union representativeʹs advice ʺunavailingʺ simply as a matter of fact‐‐i.e., as outweighed by other evidence as to what a reasonable employee in Greenʹs shoes ʺwouldʺ have felt compelled to do ‐- the court so found by impermissibly conducting its own weighing of the evidence and by drawing all inferences adversely to Green.

Plaintiff can win retaliation claim in Title VII harassment suit

The Court of Appeals has ruled that a plaintiff makes out a legitimate retaliation claim after he was fired five months after complaining about religious and national origin harassment.

The case is Rasmy v. Marriott International, issued on March 6. I wrote about the hostile work environment portion of the case at this link. I represent the plaintiff and argued this appeal.

Plaintiff was fired after he got into an altercation with a coworker who had subjected him to a hostile work environment. The district court dismissed this claim because the termination took place five months after plaintiff had last complained about the work environment, and because the coworker was also fired as a result of the altercation. The Court of Appeals (Cabranes, Bianco and Reiss [D.J.]) rules that the district court resolved disputed facts in dismissing the case.

The district court first got it wrong in holding plaintiff to the "but-for" causation standard at the prima facie portion of the case. That causation test was adopted by the Supreme Court in recent years for retaliation cases, and it increases the plaintiff's burden in winning these claims. However, "but for" causation does not govern the prima facie case but the pretext portion, when plaintiff has to show the employer's articulated reason for his termination was false and that retaliation was the real reason.

The five-month gap is also sufficient to make out the prima facie case. The Second Circuit has said this in the past, but other cases say that five months is too long. There has not been true consistency in this area. The Second Circuit in this case says that "questions regarding the time gap and causal connection of an alleged retaliatory termination may entail special consideration of the size and complexity of a defendant employer, where termination of employment may involve multiple layers of decision makers, as well as the nature of plaintiff's claims. In some circumstances, a five-month time frame for a decision to fire an employee may not be exceptional." This is important language, as it qualifies the time-frame analysis toward specific cases. The Court of Appeals cites no authority for this proposition, but it is now the law of the Circuit.

We also have a viable retaliation claim for the following reasons: (1) after plaintiff complained about the hostile work environment, a supervisor verbally abused him, threatened to fire him and told him to keep his mouth shut about anything that happened in the hotel or his days would be numbered; (2) a jury must determine if plaintiff was fired over the fight or his discrimination complaints.

While defendants claim plaintiff was really fired over the fight, the jury could find this justification was pretext and the real reason was retaliation under the principle that a prima facie case and evidence of pretext normally suffices to win the case.

The Circuit employs favorable language from Carlton v. Mystic Transportation, 202 F.3d 129 (2d Cir. 2000), for this proposition, seemingly setting aside (for the moment) the pretext-plus formulation that sometimes informs these cases, as per the Court's en banc ruling in Fisher v. Vassar College from 1997. Since plaintiff denies hitting the coworker and management knew that the coworker "had been instigating confrontations with Rasmy repeatedly by making offensive remarks about Rasmy's race, religion, and national origin," the jury can disbelieve management's claim that plaintiff was fired over the altercation. Also, there are disputed facts over whether there were cameras in the hallway where the altercation took place, the existence of which may provide proof that plaintiff did nothing wrong during that incident.

Hostile work environment case is revived in part through neutral acts of abuse

This hostile work environment case collects various doctrines and legal principles over the last two decades in reviving a national origin and religious harassment case. The Second Circuit holds that the district court improperly granted summary judgment for the employer.

The case is Rasmy v. Marriott International, issued on March 6. I represent the plaintiff and argued the appeal. Plaintiff says that various coworkers made repeated vulgar references to his status as a Coptic Christian. These comments were directed toward plaintiff, and the coworkers also made insulting discriminatory comments in plaintiff's presence, though they did not target plaintiff directly He alleges that management ignored his complaints about this harassment. The New York Law Journal summarizes the case at this link. Here, I will set forth what the Court of Appeals (Cabranes, Bianco and Reiss [D.J.] says the trial court got wrong:

1. The district court overlooked precedent holding that "when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim." Case authority for this includes Pucino v. Verizon Communications, 618 F.3d 112 (2d Cir. 2010). Since plaintiff claims coworkers made discriminatory comments and were abusive in ways that were not facially discriminatory, that entire course of behavior may create a hostile work environment, which requires proof that the harassment was severe or pervasive as to alter the working conditions.

2. The district court improperly held that the timing of the harassment after years without incident is that coworkers abused plaintiff not out of hostility toward his national origin and religion but because they were retaliating against him for blowing the whistle on their wage theft. The jury alone draws that inference, not a court on a summary judgment motion. Case authority for this is Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001).

3. The district court held that discriminatory comments that plaintiff overheard but were not directed at him could not support his hostile work environment claim. While the district court said these were "stray remarks," the proper analysis is whether these comments were sufficiently pervasive or chronic to support his claim. "Conduct not directly targeted at or spoken to an individual but purposefully taking place in his presence can nonetheless transform his work environment into a hostile or abusive one." The Second Circuit adopts the EEOC's position in this regard, noting that the amicus brief in this case advances that principle.

4. The trial court also got it wrong in holding that plaintiff did not prove severe harassment because a prior Second Circuit case held that a plaintiff did not have an adverse action after his supervisor assaulted him. But that case was a disparate treatment case, not a hostile work environment case, which applies a different analysis. There is no rigid calculation in determining whether the plaintiff has a viable harassment case, and since plaintiff alleges "numerous incidents of discriminatory treatment over the course of at least three years . . . we consider relevant the total impact on Rasmy on the many alleged episodes of harassment."

5. While the district court recognized that the jury could find that plaintiff alleged "pervasive" harassment, it said plaintiff has no case because he did not allege he had been physically threatened or that the conduct had interfered with his job performance. That piecemeal analysis is not proper under hostile work environment doctrine. Threats and diminished job performance may support such a claim, but it is not required if plaintiff otherwise proves that the overall work environment had severe or pervasive harassment. "By its very nature that determination is bound to raise factual disputes that likely will not be proper for resolution at the summary judgment stage," and besides, "there is a reasonable inference that Rasmy participated in a physical altercation as part of a deteriorating job performance caused by the alleged hostile work environment." And, plaintiff also alleged the harassment caused him significant emotional distress, sending him to a psychiatrist who prescribed him anti-anxiety medication. This suggests the overall work environment had been altered. Authority for this derives in part from Harris v. Forklift Systems, 510 U.S. 17 (1993).

Bergstein & Ullrich prevail in hostile work environment and retaliation appeal

2nd Circuit Revives NYC Hotel Employee's Hostile Work Environment Claims

Discriminatory remarks not specifically directed at an employee can help form the basis for a claim of bias based on religion and national origin.

By Tom McParland | March 06, 2020 at 02:21 PM

New York Law Journal

A Manhattan-based federal appeals court ruled Friday that discriminatory remarks not specifically directed at an employee can help form the basis for a hostile work environment claim in a decision that revived a lawsuit by a hotel worker who said he was targeted for his religion and national origin.
A three-judge panel of the U.S. Court of Appeals for the Second Circuit said that Gebrial Rasmy, an Egyptian Coptic Christian and formerly a longtime former banquet server at JW Marriott Essex House on Central Park South, could proceed with claims that religious and ethnic insults by his coworkers had violated Title VII of the Civil rights Act of 1964.

Rasmy, who worked at Essex House since 1991, was fired in May 2016 after he reported instances of wage stealing by his colleagues.

Rasmy said in his June 2016 complaint that his complaints were largely ignored within the company, and his colleagues responded with a constant barrage of epithets and expletives, often referring to him among themselves as an “Egyptian rat,” “pretentious Christian” and “gypsy.”

The harassment, Rasmy said, became so bad that he would “cry regularly” and started seeing a psychiatrist who prescribed him anti-anxiety medication.
U.S. District Judge Alison Nathan of the Southern District of New York had dismissed the case on summary judgment in 2018, finding that comments made among other employees of the luxury hotel were not expressly discriminatory and that Rasmy’s working conditions had not changed because he had not been threatened with physical violence.

On appeal, Marriott International Inc. defended the decision and argued that Rasmy’s “relentlessly groundless” accusations of wage theft against coworkers had spurred the name-calling, not his religion or national origin.

In a decision that cited more than two decades of Second Circuit case law, the appeals court held that remarks not directly targeted at Rasmy could nonetheless contribute to a claim of hostile work environment.

In assessing cases under Title VII, the court said, judges must look to the “overall severity and pervasiveness of discriminatory conduct,” and Nathan’s ruling had improperly decided issues that are best left to a jury.
“Our case law is clear that when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim,” Judge Jose A. Cabranes of the U.S. Court of Appeals for the Second Circuit wrote on behalf of the panel.

The ruling also revived Rasmy’s claims for retaliation, but declined to revisit the dismissal of his claims under New York City and state’s Humans Rights Laws. The remaining claims were remanded to the district court for trial.
Cabranes was joined in the decision by Judge Joseph F. Bianco of the U.S. Court of Appeals for the Second Circuit and U.S. District Judge Christina Reiss of the District of Vermont, who was sitting by designation.

Stephen Bergstein, of Bergstein & Ullrich, on Friday praised the ruling as a “comprehensive” assessment of Second Circuit case law governing hostile work environment claims.

“It takes together different principles that have been in existence for the past 20 years and applies them to this case,” Bergstein said of the court’s 28-page opinion. “It’s a nice, tidy summary of the current state of the law on hostile work environment,” he said.

Mark Saloman, co-chair of FordHarrison’s noncompete, trade secrets and business litigation practice in Manhattan who represented Marriott, declined to comment on the ruling.

Say goodbye to Bivens claims

You probably know about Section 1983, the federal civil rights statute that allows you to bring lawsuits over constitutional violations against state and local officials. There is no federal counterpart, however. But in 1971, the Supreme Court issued the Bivens decision, holding that the Constitution recognizes an implied civil rights claim against federal officials in certain instances. Not all cases, but certain cases. As it happens, the Court has only recognized three claims under Bivens over the years, and it mostly takes on Bivens cases to repeatedly tell us that these claims are disfavored and that most of them will fail. That is what happened here.

The case is Hernandez v. Mesa, a Supreme Court ruling issued on February 25. The plaintiff's son was shot and killed by a U.S. border patrol agent. Jesus Mesa, Jr., a 15 year-old Mexican national, was shot on the Mexican side of the border after having run back across the border. The Supreme Court holds that mom has no case under Bivens. The Court determines if you can sue under Bivens by applying a two-part test: (1) does the case involve a "new context" or involve a "new category of defendants" and (2) are there "special factors that counsel hesitation" against recognizing a new Bivens claim. Since the Court has only three times recognized Bivens claims (false arrest against federal agents under the Fourth Amendment, sex discrimination under the Fifth Amendment, and failure to provide adequate medical treatment for inmates under the Eighth Amendment), this test is stacked against new claims.

The Court says there is no Bivens claim here because it has never recognized such a claim before involving border shootings by federal agents. That "new context" means the Court will not extend Bivens to this case. And, since the case involves foreign relations, the Court is hesitant to recognize such a claim. The foreign relations part of the analysis draws from the different views the U.S. and Mexican governments have on the propriety of the shooting. Mexico wants the agent expedited, and the U.S. will not do so. The Court reasons:

Both the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled. The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale. Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them.  

This is a 5-4 ruling, with Justice Ginsburg dissenting on behalf of the four Democratic appointees. What makes this case notable is that it is clear that the Court in the future will probably do away with Bivens claims altogether. Justices Thomas and Gorsuch state in their concurrences that Bivens was wrongly decided and "the time has come to consider discarding the Bivens doctrine altogether. The foundation for Bivens—the practice of creating implied causes of action in the statutory context—has already been abandoned. And the Court has consistently refused to extend the Bivens doctrine for nearly 40 years, even going so far as to suggest that Bivens and its progeny were wrongly decided."

A rare decision finding that plaintiffs have alleged a Section 1983 conspiracy with private actors

This is an unusual case arising from a multi-million dollar financial loan that plaintiffs made to one of the defendants to purchase real property in New York City, including a penthouse condominium. These were private actors. But things went awry along the way, and the case became a Section 1983 conspiracy case that the district court dismissed and the Second Circuit has now reinstated. How did this private loan agreement among private actors become a Section 1983 conspiracy, which must necessarily involve a public actor?

The case is Knopf v. Esposito, a summary order issued on February 25. The entities to whom plaintiffs made the loan -- Sanford and his company, Pursuit Holdings, LLP -- did not repay the loan. When plaintiffs sued them in state court, the Appellate Division ultimately ruled in plaintiffs' favor on their summary judgment motion on their breach of contract claim. Plaintiffs then sought a stay preventing defendants from selling the condominium and to secure the proceeds from any such sale. The Appellate Division ordered that any proceeds from the sale be placed in escrow, but the court allowed defendants to sell the unit. Although the Appellate Division next prohibited defendants from selling the other properties, defendants had by then disposed of the bulk of the proceeds from sale of the condominium and the Appellate Division denied plaintiffs' contempt motion.

All of this is complex, I know. What makes the case interesting is what happened next. At some point in the timeline, Sanford hired an attorney knowing that the new attorney was married to a lawyer, Ringel, who worked for the Appellate Division as an assistant deputy chief attorney. On Sanford's behalf, Ringel agreed to advise the attorneys who were adverse to plaintiffs that the effect of the Appellate Division orders in the contract dispute was to eliminate any restraints on Sanford's sale of the condominium or on the proceeds from any such sale. Sanford had his attorneys call the Appellate Division to request "clarification" on the orders' effect, and they attorneys spoke with Ringel by phone. Ringel agreed that any restraints that the Appellate Division had placed on the sale and proceeds had been removed. This allowed Sanford to sell the property. Plaintiffs' attorneys were not aware of this behind-the-scenes activity with Ringel. The Office of Court Administration ultimately investigated this sequence of events and found that Sanford's attorneys (Ackerman and Feldman) "called Ringel’s direct line at the Appellate Division, despite the fact that her phone number was not available on the court’s website. They accepted her opinion as an authoritative clarification, notwithstanding that she was a mediation attorney, not an attorney in the Clerk’s Office, and that the Knopfs and their attorneys were not present." The Appellate Division's report found that Ringel should have terminated the phone call once she realized the attorneys were representing Sanford, and that her explanations for not knowing to whom to forward the call were not credible.

This evidence supports a Section 1983 conspiracy claim. Ringel's ex parte involvement makes this a public conspiracy, not a private one. In reinstating the case, the Court of Appeals (Winter, Carney and Bianco) notes that district courts cannot accept an alternative narrative advanced by defendants on a Rule 12 motion:

the call made by Akerman and Feldman, seeking “clarification,” was transferred to and handled by Ringel—a mediation attorney whose role did not involve giving procedural (or substantive) advice on pending appeals, and who had no apparent connection to the case except for her marriage to one of Sanford’s lawyers—at least made it plausible that Akerman and Feldman had knowingly and specifically sought to speak to her, with the expectation that she would advise as she did, as the complaint alleged. On a motion to dismiss, district courts may not simply disregard allegations in the complaint and credit instead an alternative narrative advanced by defendants. The Knopfs’ allegations were specific enough and, as was later borne out, all too plausible.

At oral argument, the parties seemed to agree that the ex parte advice that Ringel had given was actually correct. This was a potential due process violation, however, because plaintiff's lawyers had no notice of the call and had no opportunity to be heard on this issue.