No defamation claim where employer disparaged plaintiff to an outside entity about his discharge

In this state court defamation case, the plaintiff alleges his former employer attacked his reputation by telling its retail construction client, Target, about the reasons for plaintiff's discharge. The employer actually made the defamatory statement one month prior to plaintiff's termination. Does plaintiff have a defamation claim against his former employer?

The case is Winiarski v. John E. Butler, Jr., a First Department ruling issued on December 28. Defamation law in New York is complex. There are numerous moving parts to a defamation claim, with a smorgasbord of defenses that a defamation defendant can assert to make the case go away. It is simply not enough to claim that someone falsely denigrated your reputation. This is partly because defamation is a common-law and not a statutory concept, so that judges have made the rules over the years and also created exceptions to all the rules. This is why the defamation practice treatises are so large and bulky.

The general rule is that you have no defamation case if the statements are "based upon the statements defendants made concerning the reasons for plaintiff’s discharge.” In this case, the statements predated plaintiff's discharge by one month, and they were made to someone outside the corporate structure. Plaintiff argued on appeal that, in speaking with Target, management blamed plaintiff for someone else's misconduct, stating that plaintiff was a "rogue project manager." In fact, plaintiff asserted on appeal, he was a good employee who had done nothing wrong.

My instincts tell me that plaintiff has a legitimate claim. But my instincts are incorrect. The First Department says plaintiff has no claim. Noting that New York generally does not recognize a claim for wrongful discharge (absent evidence of discrimination or an unlawful retaliatory motive), the Court states, "That the statements were allegedly made externally to defendants’ retail construction client, one month before plaintiff was fired, does not undercut the conclusion that they are 'too closely related' to plaintiff’s termination 'to stand as a distinct cause of action.'”

Qualified immunity denied in warrantless search case

The warrant requirement is embedded in the Fourth Amendment to the Constitution. The police cannot enter your home without a warrant unless they can prove exigent circumstances, such as to prevent the escape of a felon or to prevent the destruction of evidence. In this case, the police entered the plaintiff's home without a warrant, commencing a years-long legal dispute that culminates in the Court of Appeals ruling this case must stand trial.

The case is Calhoun v. Borona, a summary order issued on December 20. It all started when eyewitnesses saw a confrontation between plaintiff and someone else at a CVS drug store parking lot. The police arrived and went to Calhoun's house nearby, where they saw a few drops of fresh blood on the property and in the driver's seat of his car. The lights were on in plaintiff's house, but no loud noises. After the police pounded on the door, announcing their presence, Calhoun would not let them in. So the police entered on their own volition, without a warrant. Inside, they found a gun and drugs. Then they decided to put everything away and get a warrant, which they used to re-enter the house and arrest Calhoun.

The federal district court granted Calhoun's motion to suppress the evidence on Fourth Amendment grounds, so the criminal charges against him were dismissed. Calhoun then sued the police under the Fourth Amendment. The officers defended the case, arguing they had to enter the house under the exigent circumstances doctrine. That defense can work for some officers, but not this case. The trial court, in dismissing summary judgment and rejecting the officers' qualified immunity argument, said the jury could find the officers violated clearly-established law in marching into the house without a warrant.

The trial court noted that the officers testified that they received multiple reports of shots being fired in the CVS parking lot and that Calhoun had threatened a woman and broke the window of her car with a gun. But there is no evidence that he had fired a gun that day. Nor is there evidence about the nature of the threat against the woman. The only evidence was that Calhoun had used a gun in his hand to break the car window and made an unspecified threat. The trial court said these are not exigent circumstances, which creates a high threshold for the police in proving they had no choice but to enter without a warrant to deal with an imminent emergency. For these reasons, the trial court, the police cannot satisfy the emergency aid exception, as the mere possibility that someone was in danger in Calhoun's house is not enough to meet that narrow exception to the Fourth Amendment..

The officers appealed the denial of qualified immunity to the Second Circuit. As the jury could find the officers violated clearly-established constitutional law in this case, the Court of Appeals (Lohier, Cabranes and Lee) affirms the denial of that immunity without much comment, and the case goes to trial on plaintiff's Fourth Amendment claim.

City law disability discrimination verdict is upheld on appeal

This disability discrimination lawsuit went to trial but the jury ruled against the plaintiffs and in favor of the hospital, rejecting the claim that the hospital failed to accommodate the plaintiffs over their hearing deficiency. This case reminds us how difficult it is to override the jury's findings on appeal.

The case is Van Vorst v. Lutheran Healthcare, a summary order issued on December 22. We have four plaintiffs. The district court's post-trial ruling summarizes the plaintiffs' claim:

Each of the plaintiffs is deaf, and each received medical care at Lutheran on multiple occasions between 2012 and 2016. During that period, Lutheran generally relied on Video Remote Interpreting (“VRI”), a videoconferencing system, to allow off–site interpreters to interpret deaf patients’ American Sign Language (“ASL”) into English for Lutheran personnel and the personnel's English into ASL for the deaf patients.

The overall reliability of the VRI technology was disputed at trial, but the technology occasionally failed due to technical difficulties. When that occurred, plaintiffs communicated with their doctors and other Lutheran personnel in English through lipreading and by reading and writing notes. The principal focus of plaintiffs’ motion turns on the process used to obtain their consent to medical procedures and whether they were capable of understanding information that was conveyed to them prior to signing consent forms.

Since the case went to trial, there was a factual dispute for the jury about whether the defendants were liable under the New York City Human Rights Law, which provides a more liberal liability standard than the federal disability law, the Americans with Disabilities Act. Plaintiffs lose the appeal on several grounds.

First, the jury charge was fine, the Court of Appeals says, in telling the jury that "the Hospital had an obligation under the NYCHRL to ensure effective communication with patients on an individual basis and to consider each patient's preferred or requested communication method." The jury accepted the Hospital's argument that it had effectively accommodated the plaintiffs' disabilities.

The interesting part of this decision for me is the Court's finding that defendants' lawyer was able to attack the credibility of the plaintiffs at trial, undercutting their claims and supporting the verdict on appeal. While plaintiffs' expert said the plaintiffs' reading levels were at the first- to four-grade level, a factual argument that would make it easier for plaintiffs to win the case in challenging how the Hospital tried to accommodate their disabilities, cross examination seriously challenged that assertion. The Court of Appeals writes in a footnote that one plaintiff testified that "he used to spend every morning reading newspapers on politics and sports; he reads the magazine Model Aviation; he used to work at a printer, where he was required to read backwards; and he provided detailed errata and substantive comments on his deposition transcript in this case, which the jury specifically requested during its deliberation. Another plaintiff testified that she communicated exclusively through English lipreading and writing in grade school, with her immediate family members, in her job as an encoder at a bank, and with a home health aide in 2016; and that she watches TV with closed captions. You get the point. Evidence like this makes it quite difficult to overturn the jury's verdict, as everyone knows that credbility issues are for the jury and cannot be challenged on appeal.

 

Not every violation of the law gives you a lawsuit

If you work in a field that requires that you review medical records, you know that medical providers (like hospitals and doctors) will charge 75 cents per page. That may seem like a lot of money, but if you need the records, you'll pay the bill and wonder where all your money is going. This case asks whether you can sue the medical provider for charging more than 75 cents.

The case is Ortiz v. Ciox Health LLC, issued on December 16. The Public Health Law says the medical providers cannot charge more than 75 cents per page. So what if the provider charges you $1.50 per page? Can you sue the provider under the Public Health Law? Bear in mind that Ortiz brought this case as a class action, which is the only way a case like this would be worthwhile.  

When this case first reached the Second Circuit in June 2020, it decided to send this issue to the New York Court of Appeals since this was a matter of first impression under state law and it's best to let the state courts resolve this issue in the first instance. We call that certification. The New York Court of Appeals decided in November 2021 that the Public Health Law does not provide a private right action when medical providers charge more than 75 cents for medical records. 

If you care about things like this, the New York Court of Appeals provides some background into this law, noting that, prior to this law's enactment in 1986, patients had no right to review their medical records, which were considered the property of the doctors and hospitals. But the law also allowed medical providers to charge a copying fee, set at 75 cents per page in 1991. That amount has not changed. While the Public Health Law contains no provision allowing people to sue the medical provider for price gauging, the state can impose a civil penalty for these violations, up to $2,000 for each violation. The State Attorney General can also bring an action for an injunction against the greedy photocopy people. But no provision for a private lawsuit.

Public Health Law § 18 was enacted in 1986 and governs “[a]ccess to patient information” (L 1986, ch 497). Before 1986, “most physicians, hospitals and other health care facilities [did] not permit a patient to inspect or obtain copies of records” because these records were “treated as the exclusive property of the provider” (Assembly Introducer's Mem in Support, Bill Jacket, L 1986, ch 497 at 12). The 1986 bill was intended to end this practice, giving “qualified persons” broad, but not unlimited, access to their medical records.² Section 18 accordingly gave patients the legal right to examine and obtain copies of their medical records, tempered by the medical provider's right to refuse access if it would cause substantial harm or if the requested material consisted of the provider's personal notes (id.; see Public Health Law § 18 [2]-[3]). Section 18 (2) (e) required medical providers to impose only a reasonable charge for paper copies of medical records but did not dictate a statutory maximum.

Ortiz v. Ciox Health LLC, No. 26, 2021 WL 5407394, at *1 (N.Y. Nov. 18, 2021)

Public Health Law § 18 was enacted in 1986 and governs “[a]ccess to patient information” (L 1986, ch 497). Before 1986, “most physicians, hospitals and other health care facilities [did] not permit a patient to inspect or obtain copies of records” because these records were “treated as the exclusive property of the provider” (Assembly Introducer's Mem in Support, Bill Jacket, L 1986, ch 497 at 12). The 1986 bill was intended to end this practice, giving “qualified persons” broad, but not unlimited, access to their medical records.² Section 18 accordingly gave patients the legal right to examine and obtain copies of their medical records, tempered by the medical provider's right to refuse access if it would cause substantial harm or if the requested material consisted of the provider's personal notes (id.; see Public Health Law § 18 [2]-[3]). Section 18 (2) (e) required medical providers to impose only a reasonable charge for paper copies of medical records but did not dictate a statutory maximum.

Ortiz v. Ciox Health LLC, No. 26, 2021 WL 5407394, at *1 (N.Y. Nov. 18, 2021)

The case now returns to the Second Circuit to apply the New York Court of Appeals' ruling to this case. Now that the state court has issued a ruling, this is an easy call for the Second Circuit, which says that Ortiz cannot bring a private lawsuit, and the case is over.

Can you sue the movie theater when its manager threatens you with a pellet gun?

This case is something out of a law school textbook: the perfect torts issue that provides no easy answer. The Appellate Division holds that a movie theater can be held liable where its manager threatened a patron with a pellet gun.

The case is Norwood v. Simon Property Group, issued on December 16. I was co-counsel to plaintiff in this appeal, which reinstates the lawsuit after State Supreme Court granted the theater's motion for summary judgment on employer liability.

In state tort law, the employer can be liable for its employee's improper acts. That's good for plaintiffs' lawyers, who need to sue someone with "deep pockets" who can pay out a liability judgment. There is little use in suing an employee who may have no assets. But there are complex rules guiding when the employer can be sued under respondeat superior.

In this case, plaintiff and his friends went to the movies on Long Island, where they got into a dispute with the theater manager, Adams. After everyone exchanged words, Adams went to his car and returned to the theater with a pellet gun, pointing it at plaintiff, who sues the theater for assault. Can a jury hold the theater liable for Adams' actions? Yes, says the Appellate Division, Second Department.

If the employee does something wrong in the scope of his employment, the employer is liable. But what does "scope of employment" mean? If the employee "was doing his master's work, no matter how irregularly, or with . . . disregard of instructions" or without authorization from management, the employer can still be sued. The employer cannot be sued, however, if the employee is acting solely for personal motives unrelated to the furtherance of the employer's business. While the company handbook says that managers cannot brandish a weapon on the job, it also says that disruptive customers may have to be escorted off the property in order to protect other customers. Since Adams was responsible for maintaining order at the theater and ensuring the safety of other customers, his display of the weapon may be the basis for plaintiff's lawsuit against the theater because a jury may find that Adams acted this way in the scope of his employment. In other words, while it is not required to do so, the jury could find that management could have foreseen Adams' menacing behavior, even if that behavior was frowned upon as a matter of company policy.

Police misconduct case in Syracuse yields $1.5 million in damages

The Court of Appeals holds that a jury was able to award a husband-wife plaintiffs' team more than $1.5 million in damages for the use of excessive force against the husband and the wife's loss of consortium. 

The case is Grant v. Lockett, a summary order issued on December 8. I was among the lawyers representing the plaintiffs on appeal, which we argued in May 2020 I talk about the evidentiary rulings that the Court of Appeals resolved on this appeal at this link. In brief, the trial court made several improper evidentiary decisions that did not warrant a new trial because they were either harmless error or the defendants were not prejudiced by in light of the overall strength of the plaintiffs' case and other factors. 

Jury awards may be struck down if they are too high, that is, if the Court of Appeals determines they shock the conscience under federal law or deviate materially from the reasonable range of awards under state law. For Alonzo Grant, the $1.130 million in damages for pain and suffering are not too high because "he suffered serious and long-lasting physical injuries and emotional distress due to the incident and his arrest." The Second Circuit (Sack, Kearse and Livingston) does not detail Alonzo's injuries, but the district court did so on the post-trial motion, stating:

Mr. Grant and his health care providers testified regarding the medical conditions Mr. Grant suffered as a result of the beating. Dr. Hassan Shukuri, a neurologist, testified that Mr. Grant complained of headaches, insomnia and nightmares, anxiety and memory issues and experienced dizziness and sun and noise sensitivity and was taking medication for depression. Further, Dr. Shukuri found that Mr. Grant experienced compression of his cervical spine and weakness in his left arm. Dr. John, Mr. Grant's primary physician, observed and referred Mr. Grant based on his facial and head injuries, including a nasal fracture and a laceration by his left eye, diagnosed him with a concussion and his left arm injury. Additionally, Dr. Theresa Covington, a neuropsychologist, testified that Mr. Grant complained of problems with his cognitive memory, concentration, depression, anxiety and post-traumatic stress and that he had significant symptoms of depression, anxiety and acute traumatic stress.

Further, the actions of Officers Lockett and Montalto were egregious as Mr. Grant endured at least twelve to fifteen punches to his head and torso. The excessive force and false arrest occurred on the front lawn of his home in front of his family and neighbors. In addition to his physical injuries, Mr. Grant suffered significant mental and emotional damages. Mr. Grant testified with regards to the difficulties he experienced at work, including dizziness and problems with lifting, sun sensitivity and memory. He also testified about the humiliation of being assaulted by two police officers on the front lawn of his home in front of his family and neighbors. Mr. Grant testified that prior to being beaten by Officers Lockett and Montalto, he was in excellent health and did not suffer from headaches, arm, back, face or neck pain, insomnia, anxiety or depression.

Alonzo's wife prevailed at trial on her loss of consortium claim, which permits damages when the wrongdoer's misconduct damages the marital relationship. This incident, the Court of Appeals says, "has caused tremendous hardship in Stephanie's and Alonzo's relationship that will continue well into the future." The jury gave her $450,000 for these damages. While this jury award is certainly on the high side, it "falls within a reasonable range of awards New York courts have upheld in similar cases." 

Court of Appeals upholds $1.5 million police misconduct verdict

The Second Circuit holds that a jury properly awarded more than $1.5 million in damages against two Syracuse police officers who threw a man to the ground in the course of his arrest, causing significant physical injuries.

The case is Grant v. Lockett, a summary order issued on December 8. I was co-counsel to the plaintiffs on appeal, which we argued in May 2020, making this the longest wait for a summary order that I've seen in the Second Circuit. I will cover this ruling in two parts. This installment looks at the evidentiary rulings that the officers challenged on appeal. As it happens, the Court of Appeals (Livingston, Kearse and Sack) ruled the trial court made significant errors in admitting certain evidence against the police officers, but that these errors do not warrant a new trial because the errors were harmless in light of the strength of the case and other factors.

As this is a summary order, we don't have a full statement of facts. For that, you have to read the district court ruling that affirmed the verdict post-trial. Here is how the Northern District of New York summarized the trial evidence:

On June 28, 2014, plaintiffs resided at 105 Hudson Street in the City of Syracuse with their youngest son, Alonzo Grant, Jr. In the early evening while a family barbeque was occurring, Mr. Grant got in an argument with his daughter Alyssa and requested she leave the home. After she left, she proceeded to get in an argument with a neighbor prompting Mr. Grant to call 911 and request police assistance. Officers Lockett and Montalto arrived at the Grant home soon thereafter and were advised by plaintiffs that their assistance was not needed as Alyssa had left. 

However, Officers Lockett and Montalto testified that Mr. Grant was yelling at an person in the residence and they were concerned about a domestic situation. Officer Lockett entered the residence and testified that Mr. Grant was flailing his arms violently and was still upset with the female occupant of the home. Officer Lockett then asked Mr. Grant to exit his house and speak with Officer Montalto. While exiting the home, Mr. Grant shoved the front door, causing it to hit against an iron rail on the front porch. Officer Lockett testified that he decided to place handcuffs on Mr. Grant to permit him to calm down and for the safety of Mr. Grant and those around him. He testified that he attempted to do this while on the front stairs to the home and that Mr. Grant turned around and bear hugged him, necessitating Officer Lockett to grab Mr. Grant and strike him at least ten times in the head and torso.
In contrast, plaintiffs testified that their argument had ceased by the time Officers Lockett and Montalto arrived. Plaintiffs testified that Mr. Grant spoke loudly while inside the home but did not act violently. Mr. Grant testified that after exiting the home, Officer Lockett grabbed him from behind, throwing him over the railing on the front porch. Plaintiffs testified that while on the ground, both Officers Lockett and Montalto repeatedly kicked and punched Mr. Grant. Eventually, the officers handcuffed Mr. Grant. Following the incident, Mr. Grant received medical attention from paramedics and was transported to the hospital.

Alonzo Grant was charged with harassment in the second degree, domestic disorderly conduct, and resisting arrest. These charges were later dropped. Grant's lawsuit alleges excessive force and false arrest, and his wife sought damages for loss of consortium.

At trial, Judge Hurd allowed plaintiffs' lawyers to introduce records from the Citizen Review Board, a city entity that investigated the incident separate and apart from the lawsuit. These records credited plaintiffs' version of events. The Court of Appeals notes these hearsay records might be admissible under the business records exception, but they do not qualify because the records were not made contemporaneous with the incident and they do not concern the kind of regularly-conducted activity contemplated by this exception. But this evidentiary error was harmless, the Court of Appeals says, because plaintiffs had a particularly strong case against the defendant officers in that, apart from plaintiff, five other eyewitnesses corroborated his story (the incident took place in front of the neighbors) and the officers had no such corroborators and, in addition, their testimony had significant inconsistencies. Also, the officers admitted to punching plaintiff  dozen times. Video evidence also supports Alonzo's account. Further informing the harmless error analysis is that plaintiffs' lawyer barely mentioned the CRB records in summation,  and the city's own investigation into the incident found the excessive force allegations were unsubstantiated (balancing out the CRB records).

The Court of Appeals identified another evidentiary error: Judge Hurd allowed the Onondaga County District Attorney to testify that he had dropped the charges against Alonzo, and it admitted the DA's letter to that effect into evidence. The DA said the charges against Alonzo were not legally viable, suggesting he was vouching for Alonzo's credibility. The DA should not have testified, the Court of Appeals says, because jurors may be unduly swayed by testimony from such a high-ranking and neutral public official, and some of his testimony "opined on an issue closely related to the central questions left for the jury," that is, the viability of the criminal charges against Alonzo. But this evidence, too, was harmless, the Court of Appeals says, not only because plaintiffs had a strong case with independent corroborating witnesses, but because the DA also testified that he was not expressing an opinion on the officers' credibility and had not determined whether they had probable cause to arrest Alonzo.

The next trial issue is whether the district court properly had the jury determine whether the officers had qualified immunity. That immunity allows public officials, including police officers, to avoid liability if they acted reasonably under the circumstances. Courts regard qualified immunity as a quasi-legal/factual inquiry. The jury tells the judge what happened by answering special interrogatories, and the judge then decides if those facts violated clearly-established law. For this reason, allowing the jury to determine the qualified immunity issue on its own was an abuse of discretion, the Second Circuit says. But that does not warrant a new trial because "even if the district court had properly reserved the ultimate legal decision for itself, the facts the jury necessarily found in rendering its decision foreclosed any argument that it was objectively reasonable for Defendants to believe that their actions did not violate Alonzo's rights."

That's a lot of evidentiary and trial-related rulings that the Court of Appeals held were an abuse of discretion. But this ruling tells us that even challengeable evidentiary rulings at trial do not necessarily warrant a new trial, as the harmless error standard allows the appellate court to determine if the errors really made a difference in the outcome. 

 

The realities of habeas corpus

This habeas corpus decision reminds us that it's quite hard to get a new criminal trial on the basis that your attorney did a bad job, resulting in your conviction.

The case is Waiters v. Lee, a summary order issued on November 9. Waiters was convicted of murder in the second degree, or intentional murder. He claims that his trial lawyer failed him in not asking the judge to allow the jury to enter a manslaughter verdict. Not requesting that jury charge, Waiters says, constituted ineffective assistance of counsel. He says the jury could have convicted him on the lesser charge and found he acted recklessly because he was intoxicated at the time of the homicide.

This argument could work. But it doesn't work because of the way habeas corpus law works in the federal system. First, to win an ineffective assistance argument, you have to prove that "every fairminded jurist would agree that every reasonable lawyer would have made a different decision." I know of no more deferential standard of review than that one. Also, under the 1996 federal habeas law, you have to show that the constitutional violation contradicted clearly-established Supreme Court authority. That's also tough to prove, since the Court has not addressed every conceivable criminal issue. You need a slam-dunk case to win a habeas case.

There are no Supreme Court cases that hold that a criminal attorney must request a manslaughter charge in a case like this. Moreover, lower courts find that it is a matter of attorney strategy to request such a charge; strategy decisions like this are within the lawyer's discretion, and they can "go for broke" in deciding on what charges to request at trial. That's what Waiter's lawyer did at trial, and he specifically told the jury that the issue was not whether Waiters was reckless. Strategy decisions like this are almost unreviewable in a habeas corpus proceeding.

First Amendment sign challenge fails against Village of Scarsdale

You can challenge a village or town ordinance under the First Amendment if it unduly restricts political signage or vests too much discretion in local officials in determining which signage to allow or disallow. This case fails because the sign law was clear and did not allow the locals to censor political signage.

The case is Berg v. Village of Scarsdale, issued on December 3. In the district court, plaintiff actually prevailed on one of his claims, but lost the rest. In the Court of Appeals, that victory is taken away and plaintiff loses the entire case. 

The decision first considers whether the sign law was too vague under the First Amendment. If that were the case, plaintiff would win, as vagueness dissuades people from posting political or other noncommercial signs and also allows the local yokels to pull down signs based on an unclear statute. But this law is actually quite clear, the Court of Appeals (Pooler, Bianco and Komitee [D.J.]) says, in prohibiting signage in public rights-of-way, including sidewalks, telephone poles, or other objects along the street. The Supreme Court allows municipalities to regulate speech this way to eliminate distracting clutter along the road. Anyone reading this ordinance would know it prohibits signage along the right-of-way, the Court says, and if you want to do so, you have to get permit. Nor is the word "obstruct" vague under the First Amendment. Applying the dictionary definition, the Court says obstruct means blocking or impeding public space.

Plaintiff also says the village selectively enforced its sign law by bringing down the hammer on political signs but not commercial signs in the rights-of-way. But the statistics show otherwise, the Court says, and the village has actually favored political signs over commercial signs. The village actually kept records on all of this. Plaintiff tries to get around this by presenting photos of commercial signs that were allowed to tarnish rights-of-way. But the Court says this is not enough to win the case because we don't know if such lawbreaking was brought to the attention of municipal authorities who then ignored the complaints. In light of this evidence favoring the village, plaintiff's victory in the district court on the commercial-sign favoritism is vacated, as the evidence simply does not support that claim. And, the Court of Appeals says for good measure, while the village favored political over commercial signs, plaintiff would not have any standing to challenge that kind selective enforcement because he did not post any commercial signs.

The cases addressing political signage in the Second Circuit often result in a victory for the plaintiff, as town and village officials forget that the First Amendment governs such signage, and it is often not difficult to prove that political signage (which many people dislike since they overpopulate the community during election season) get the short end of the stick while commercial signage (which everyone loves because they promote local businesses) often has free reign. I have brought and won many of these cases, which municipal lawyers should read to avoid getting their communities sued. These cases include Knoeffler v. Town of Mamakating, 87 F. Supp. 2d 322 (SDNY 1998), Sugarman v. Village of Chester, 192 F. Supp. 3d 282 (SDNY 2002), and Lusk v. Village of Cold Spring, 418 F. Supp. 2d 314 (SDNY 2004), aff'd/rev'd 475 F.3d 480 (2d Cir. 2007).

Fair Housing Act claim against male fraternity houses at Yale is dismissed

This case alleges that nine fraternities at Yale University are liable under the Fair Housing Act in connection with the same-sex membership practices of the fraternities. The district court dismissed the case on constitutional standing grounds, and the Court of Appeals affirms.

The case is McNeil v. Yale Chapter of Alpha Delta Phi International, a summary order issued on November 15. Plaintiffs alleged they were sexually assaulted and harassed at these fraternity houses, which only admit members on the basis of gender, that is, men. They are suing the fraternities and the landlords who own the fraternity houses. Since the fraternities are discriminatory organizations, plaintiffs claim, the landlords are violating the Fair Housing Act. In dismissing the case, the district court identified this deficiency in the case under Rule 12:

Plaintiffs' Fair Housing Act claim revolves around the denial of membership by fraternities. Under Plaintiffs' construction, a landlord would be responsible for addressing housing discrimination based on a rental agreement with tenants, tenants who belong to an organization with allegedly discriminatory membership practices. The predicate act for discrimination, therefore, is denial of membership; the separate act of denial of housing does not necessarily follow, because other factors could create the same circumstances.

As they admit, "Plaintiffs repeatedly sought membership in the Fraternities, which would have entitled them to housing benefits ... [b]y denying Plaintiffs membership, Defendant fraternities effectively denied them housing rights that would have been available to them but for their gender." At no point do Plaintiffs allege they sought to rent the same properties as the fraternities and were denied based on their gender.

The alleged injury here, the denial of housing, thus is not fairly traceable to the conduct of the landlords, but instead to the failure of the Fraternity Defendants to admit women. Here, the converse also is true. That is, the alleged denial of housing by the Fraternity Defendants is not linked to a policy regarding housing, which the landlords—not the Fraternity Defendants —control, but rather to the Fraternity Defendants' decision not to admit women. In other words, there is no direct effort to make housing unavailable to women.

The "fairly traceable" language derives from Supreme Court caselaw on standing. The Court of Appeals agrees with the district court, noting that plaintiffs did not allege they sought housing with a fraternity or expressed any interest in such housing. But the Court does allow plaintiffs an opportunity to amend the complaint to correct this pleading deficiency.