Discrimination case knocked out by stray remarks doctrine

Sometimes, offensive comments in the workplace are not enough to support a discrimination lawsuit. In this case, the plaintiff tries to connect her termination with stupid comments that were made prior to that event, but the Court of Appeals says the comments were too far removed from her termination to allow the case to proceed to trial. This case acquaints us with a few judge-made rules governing employment discrimination cases.

The case is Bentley-Ammonds v. Northwell Health, Inc., a summary order issued on March 28. Plaintiff was a Senior Director for Northwell Health Home. She says the Medical Director of Home Health at Northwell, Wolff, made two comments in particular. The first comment took place in April 2017, when Wolff said, “it would be helpful if you had a bong at your desk and took a couple of hits off of that bong, that would help with your knee pain.” Plaintiff says this comment was racially-motivated "because Wolff knew that she was African-American, that her father was from the Caribbean, and there are stereotypes about people from the Caribbean smoking marijuana." The second comment was made in June 2016, when Wolff said she had hired a “Caucasian nurse, not a black nurse like Erika, and she doesn’t have a black name. I think her name is . . . Valerie.” More than three months later, plaintiff was fired.

Even if these were racist comments, the Second Circuit says these comments cannot give rise to an inference of discriminatory intent because they were too remote from plaintiff's termination, and they do not relate to plaintiff's job performance, retention, or eventual termination. In other words, these are what we call "stray remarks." Plaintiffs' lawyers hate the "stray remarks" doctrine, and I am sure that some jurors would hold comments like this against the employer, but the courts long ago decided to draw the line on comments like this to prevent a finding of liability for comments that are too remote in time and do not relate directly to the plaintiff's termination.

Even if plaintiff survived the stray remarks hurdle, the Court says, she cannot win the case because she is unable to show the employer's reason for her termination was false or discriminatory. Management said it fired plaintiff because she shared details about the impending discipline of one of her subordinates with other employees. Plaintiff says that justification is false because a nurse, Alfaro, had already revealed that information to the entire department, but the nurse suffered no consequences for this.

At first glance, this is a great argument. But that overlooks another principle guiding these cases: similarly-situated comparators. The courts want your comparator to be similar to the plaintiff in job title and workplace standards. The Court (Cabranes, Raggi and Carney) says, "Bentley-Ammonds and Alfaro were obviously differently situated, because Bentley-Ammonds was a supervisor—Alfaro’s supervisor, in fact—and because Alfaro immediately attempted to remediate the effects of her inadvertent disclosure, whereas Bentley-Ammonds did not."

Defendant also says plaintiff was fired because she took "time back," that is clocking in for work when she was not actually there. That will get you fired, but not if others are also doing it without consequence. That defense works in this case because plaintiff's evidence on other time abusers is either hearsay or conclusory. Nor does plaintiff assert that the other time abusers were outside her protected class.

Board's verbal reprimand of one of its members does not give rise to First Amendment claim

The Supreme Court has provided important guidance on what constitutes an "adverse employment" in First Amendment retaliation suits. Except that the holding is limited to the facts of this case. The Court  holds that a member of the community college Board of Trustees who was verbally reprimanded by the rest of the Board following his disagreements about college policy cannot bring a retaliation claim.

The case is Houston Community College System v. Wilson, issued on March 24. The acrimony between the parties is set forth in the opinion. Wilson went to war against the Board, publicly accusing it of violating its bylaws, he hired people to surveil other Board members, and he sued the Board, accusing it of having prohibited from performing his core duties as a trustee. When it had enough of this, the Board censured Wilson, who claims in turn the censure was in retaliation for his free speech. The Supreme Court votes 9-0 in holding that Wilson cannot sue the Board because the censure is not enough for a lawsuit. In legalese, the censure is not an adverse employment action.

The Court does not approach this like the usual employment dispute, in which it would only ask whether this alleged adverse action was enough to chill Wilson's speech. Instead, the Court considers the history of elected bodies in the United States to censure their members. This has been the practice since at least 1811, when the U.S. Senate censured one of its members. The history lesson in this decision outlines other examples of public bodies censuring its members over bad behavior. While the Court notes that adverse actions usually exist when the governmental body takes action that might chill someone's speech in the future, the holding in this case really rests on two factors.

First, elected representatives like Wilson are expected to shoulder public criticism; it's part of the job. People like Wilson are also expected to publicly respond to this criticism. That's necessary to ensure the free discussion of governmental affairs. Second, the censure itself was a form of free speech by the Board of Trustees. They have rights, too. Since the censure did not prevent Wilson from performing his job, it did not actually silence his speech (as he continued to attack the Board over one of its reprimands) and it was not defamatory, "we do not see how the Board's censure could have materially deterred an elected official like Mr. Wilson from exercising his own right to speak."

The Court is careful to note that some reprimands may in fact constitute adverse actions, depending on the plaintiff. This language will be useful for lawyers who handle these cases on behalf of rank-and-file employees, was well as lawyers who defend such cases. Citing Circuit court cases, Justice Gorsuch writes:

In rejecting Mr. Wilson’s claim, we do not mean to suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim.  It may be, for example, that government officials who reprimand or censure students, employees, or  licensees  may  in  some  circumstances materially impair First Amendment freedoms. Likewise, we do not address today questions concerning  legislative censures accompanied by punishments, or those aimed at private individuals. Nor do we pass on the First Amendment implications of censures or reprimands issued by government bodies against  government  officials who do not serve as members of these bodies.

Moreover, the Court says, "when the government interacts with private individuals as sovereign, employer, educator, or licensor, its threat of a censure could raise First Amendment questions. But those cases are not this one." Ultimately, "Our case is a narrow one" dealing only with "a censure of one member of an elected body by other members of the same body."

False arrest and excessive force claim by Connecticut doctor will go to trial

The Court of Appeals holds that a jury trial is necessary to resolve a doctor's claim that a police department in Connecticut entered her home without a warrant, subjected her to malicious prosecution, and used excessive force during the arrest.

The case is Pal v. Cipolla, a summary order issued on March 14. It all began when Pal called the police to report that her child's preschool teacher was driving back and forth in front of her house after having threatened her. The police told Pal that she cannot call 911 for non-emergencies and directed her to call on the other line; Pal insisted this was an emergency. Generally, Pal says the police were dismissive of her concerns and did nothing to stop the back-and-forth driver. When the police finally arrived at Pal's house, after a brief exchange of words, she went inside her house but the officers pulled her out of the house, slamming her head against the door frame in the process. One of the officers called Pal a "Muslim bitch." Eventually, the officers sent her to a psychiatric evaluation. In the ambulance, Pal says, she was attacked and sexually assaulted. She was arrested for misusing the 911 system, assault on a public officer, and related offenses. This is just a summary. The district court opinion provides a frame-by-frame detail of this encounter.

Summary judgment was denied on some of Pal's claims, and the officers appeal, claiming entitlement to qualified immunity. Such an early appeal is allowed, but only if the undisputed facts (or the facts as alleged by the plaintiff) allow this immunity to be resolved prior to trial. (Generally, you can't appeal in federal court until the entire case is over).

On the home search claim, the district court denied the officers' motion for summary judgment, and the Court of Appeals affirms. The trial court wrote, "the parties dispute whether the defendants entered Pal's home, and the video footage submitted does not show a clear picture of what occurred at the front door. [Officer] Cipolla maintains he was at the doorway of Pal's home when he grasped Pal's shoulders and pulled her to the front stoop. He denies that the officers entered the house. Pal, however, testified that as she started to close the door, Cipolla 'stepped inside' and that all three officers entered" The Second Circuit agrees this issue must be tried before a jury, as the jury may find the officers entered her home without a warrant or any exigent circumstances that would have justified immediate entry to prevent a health or safety problem. And there was no risk that she would escape if not immediately apprehended or that she was armed and dangerous.

Disputed facts also preclude qualified immunity for the officers on the malicious prosecution claim, as the jury may credit Pal's account that she never assaulted any EMT employees or tried to bite an officer. If the jury believes Pal on these issues, then it may find there was no probable cause to arrest on these charges. The facts in this case are convoluted, and the jury will have to sort it all out.

Finally, excessive force. Same result. The trial court reasoned, "when the evidence is viewed in the light most favorable to Pal, the record shows that the three officers rushed into her home, and dragged her out while she clutched the bannister of the staircase, causing her head and the right side of her upper body to be “slammed” against the door frame. Under that set of facts, a reasonable jury could find that the defendants violated Pal's clearly established constitutional rights." The Court of Appeals agrees.

Pal v. Cipolla, No. 3:18CV616 (MPS), 2020 WL 6881455, at *15 (D. Conn. Nov. 23, 2020), aff'd, No. 20-4222-CV, 2022 WL 766417 (2d Cir. Mar. 14, 2022)

Pal has proffered sufficient evidence in support of her claim to show a genuine issue of material fact exists. ECF No. 179-2. Specifically, the affidavit of her daughter states that she “saw policeman [Cipolla] going into the bedroom and my mom's office and opening closets and drawers” and, later, “standing in the guest room,” where “[h]e was taking my mom's gold necklace” and “money” and putting those items in his pocket.

Pal v. Cipolla, No. 3:18CV616 (MPS), 2020 WL 6881455, at *15 (D. Conn. Nov. 23, 2020), aff'd, No. 20-4222-CV, 2022 WL 766417 (2d Cir. Mar. 14, 2022)

Pal has proffered sufficient evidence in support of her claim to show a genuine issue of material fact exists. ECF No. 179-2. Specifically, the affidavit of her daughter states that she “saw policeman [Cipolla] going into the bedroom and my mom's office and opening closets and drawers” and, later, “standing in the guest room,” where “[h]e was taking my mom's gold necklace” and “money” and putting those items in his pocket.

Pal v. Cipolla, No. 3:18CV616 (MPS), 2020 WL 6881455, at *15 (D. Conn. Nov. 23, 2020), aff'd, No. 20-4222-CV, 2022 WL 766417 (2d Cir. Mar. 14, 2022)

A rare win for Rule 60 motions in the Second Circuit

The procedural history of this gun-rights case is strange, so strange that it resulted in the case being dismissed. The Court of Appeals reopens the case, making this the rare case where the district court abused its discretion and someone can open up a judgment under Rule 60. 

The case is Passalacqua v. County of Suffolk, a summary order issued on March 1. A companion case, Lin v. County of Suffolk, was also issued on March 1 and has the same reasoning. All plaintiffs in this case handled the appeal pro se. 

In February 2020, following a status conference, the trial court entered an order that closed the case, stating that the parties could move to reopen the case no later than August 20, 2020. While the case was administratively closed, the trial court accepted a motion from defendants to dismiss the case on the merits. In February 2021, the trial court sua sponte terminated all motions because plaintiffs had not timely moved to reopen the case. Plaintiff's motion under Rule 60(b)(6) to reopen the case was denied.

The Court of Appeals (Kearse, Walker and Livingston) reverses and finds for the plaintiffs. Rule 60 is the last resort when something goes wrong with your case. It allows the trial court to vacate the judgment and reopen the case for good cause and to avoid extreme hardship. But the trial court has discretion to grant or deny these motions. For most cases, the "abuse of discretion" is the kiss of death, as the standard for determining whether such abuse existed is broad and deferential to the trial court.

Rule 60 helps plaintiffs here because administrative closure (like the one entered in February 2020) is reserved for that rare case when other alternatives are impossible or would significantly interfere with the district court's operations. As it is not clear why the district court closed out the case in February 2020, plaintiffs' confusion about that maneuver constituted "extraordinary circumstances" requiring the trial court to reopen the case. You never see people winning their Rule 60 appeals in the Second Circuit, so savor this one and enjoy it for all it is worth. 

Court once again holds that prosecutors cannot be sued even in egreguious cases of prosecutorial misconduct

This case provides a vehicle for the Court of Appeals to clarify when prosecutors are immune from any lawsuits arising from their official duties. The Court holds that district attorneys in Suffolk County cannot be sued under Section 1983 for prosecuting the plaintiffs for child endangerment and other allegations after plaintiffs left their positions as nurses working in nursing home facilities in Long Island.

The case is Anilao v. Spota, issued on March 9. On the advice of their attorney, plaintiffs quit their jobs claiming the nursing facility had breached its contracts with them, allowing them to resign without any legal repercussions once their shifts ended. Plaintiffs and their lawyer were prosecuted for child endangerment and other professional misconduct, and the jury indicted them for these crimes, but after State Supreme Court said the prosecutor was able to proceed with the case, Appellate Division dismissed all the charges, holding plaintiffs did not commit any crime in leaving their jobs and that their lawyer did not do anything wrong in providing them legal advice.

Prosecutors have absolute immunity for actions taken during the judicial phase of the criminal process. they can be sued (and invoke qualified immunity) if they act without any colorable claim of authority, or if the prosecution's decision had a jurisdictional defect. No matter how you slice it, it's quite hard to sue the prosecutor; otherwise, every criminal defendant would do so, particularity following their acquittals.The Court of Appeals reviews a few cases of pretty bad prosecutorial misconduct that did not allow the victims to sue them under Section 1983, including one case where prosecutors maliciously went after someone despite knowledge that the charges were false. 

There is no dispute on appeal that the District Attorney was authorized by statute to prosecute the plaintiffs for endangering children and physically disabled persons, for conspiring to do the same, and for soliciting others to do so.8 Neither the dissent nor the plaintiffs propose that the state Supreme Court of Suffolk County lacked jurisdiction over the offense. Instead, the plaintiffs submit only that the prosecutors in this case had no power to act as they did — not because they lacked the statutory authority to do so, but because their conduct violated the nurses’ rights[.] [U]nder our precedent absolute immunity shields Spota and Lato for their prosecutorial and advocative conduct even in the absence of probable cause and even if their conduct was entirely politically motivated.

Judge Chin dissents, stating that this is the rare case where prosecutors can be sued  under Section 1983. He writes:

In this case, the Suffolk County District Attorney's Office (the "DA's Office") brought criminal charges against ten nurses and their lawyer for "patient abandonment" because the nurses resigned their positions at a nursing home to protest their work conditions and the lawyer advised them of their rights and filed a discrimination claim on their behalf with the Department of Justice. The Appellate Division, Second Department, took the extraordinary step of issuing a writ of prohibition to bar the DA's Office from pursuing the charges, recognizing that the nurses and their attorney were "threatened with prosecution for crimes for which they [could not] constitutionally be tried." Vinluan v. Doyle, 873 N.Y.S.2d 72, 83 (2d Dep't 2009) (Eng, J.). Indeed, as the Second Department held, "these criminal prosecutions constitute[d] an impermissible infringement upon the constitutional rights of these nurses and their attorney." Id. at 75. . . . In the extraordinary circumstances presented here, where the prosecutors were "proceeding . . . 'without or in excess of jurisdiction,'" Vinluan, 873 N.Y.S.2d at 77 (quoting N.Y. C.P.L.R. § 7803(2)), they were not protected by absolute or qualified immunity

ADA reasonable accommodation claim will go to trial

Here is a reasonable accommodation case under the Americans with Disabilities Act for the modern age: the plaintiff wanted to be able to work from home to accommodate her disability, but management denied that request. The Court of Appeals says she has a case.

The case is Laguerre v. National Grid USA, a summary order issued on March 11. Plaintiff was a customer service representative who also has lupus. Her job involved handling phone calls for the company. While her first claim alleging that she wanted to be transferred to a new position failed because plaintiff was unable to identify identify the existence of a vacant position to which she could have been reassigned, her other claim may proceed to trial. That's the telecommuting claim.

The telecommuting claim may proceed to trial because the record shows it was plausible for customer service representatives to work from home, and the employer was able to acquire the technology to make that happen. "The evidence demonstrates that CSR's at National Grid who perform functions other than receiving inbound customer calls have worked remotely, National Grid has piloted remote work positions in the past, and inbound calls can be routed to other call centers. The president of the union, who worked as a CSR in the call center for 25 years, also stated her belief that it was possible to route calls to other locations, and based on her experience, she did not see why calls could not be routed to a CSR’s home." On this record, plaintiff has satisfied her modest burden in showing that a plausible accommodation was available.

The employer therefore must show that the accommodation was not reasonable or that it would be unduly burdensome for the company. The company cannot satisfy that burden. The best that National Grid can do is provide conclusory testimony that plaintiff cannot work from home because the company lacked the technology to make it happen. But the ADA says that a reasonable accommodation "may include acquisition or modification of equipment or devices and other similar accommodations." The company did not say on the summary judgment motion that the technology was unavailable or was too expensive, and it did not claim to have investigated the feasibility of procuring such technology in response to plaintiff's request for an accommodation.Nor did the company show what it would cost to acquire the technology, much less an analysis to show that the cost would have exceeded its benefits.

Bottom line: this case will go to trial on whether National Grid violated the ADA in denying plaintiff's request for a reasonable accommodation. Now that we've all seen how telecommuting can work in the COVID-19 era, the jury ( most of which will be working men and women) may understand plaintiff's claims better than it might have five or ten years ago.

 

PBA can intervene in lawsuit over police tactics at 2020 racial justice demonstrations

The racial justice demonstrations in Summer 2020 have given rise to lawsuits that are now making their way through the courts. This one alleges the NYPD subjected demonstrators to excessive force, unreasonable searches and seizures, and free speech violations. This appeal, however, covers a far less exciting issue: can the police union intervene in the case to ensure its interests are protected?

The case is In re New York City Policing During Summer 2020 Demonstrations v. City of New York, issued on March 4. This appeal involves multiple lawsuits making similar allegations. The Court of Appeals summarizes the plaintiffs' claims:

Individual plaintiffs allege that such tactics were deployed unlawfully against them when, for example, a “group of at least 100 NYPD officers form[ed] a line” and “began to move towards the protesters with their helmets on and batons out.” An officer then allegedly “pointed his drawn baton at” one plaintiff, “lunged at” her, “forcefully knocked the phone” out of her hands, “struck” her “across her chest,” and “began beating [her] on the arms and upper body,” at which point “[a]dditional NYPD members descended” to “beat her with their batons and kick[ ] her.” The plaintiffs allege that such interactions reflect the NYPD's “long history of violence towards Black and Latinx people,” and “historical brutality against protesters.”

The state Attorney General's office got involved with these cases and asked the district court to enter injunctive relief against the NYPD to ensure they are complying with constitutional standards. Some of the plaintiffs seek the same relief. The PBA then tried to intervene in these lawsuits, arguing that this injunctive relief will affect New York City police officers in such a manner as to require their input into that relief, and the only way for that to happen is allowing the PBA to join the case as an interested party, even if the PBA was not actually sued. Motions like this will be granted in the circumstances warrant it. The trial court rejected that motion, but the Court of Appeals (Menashi, Livingston and Jacobs) disagrees and allows the PBA to join the case.

Since the PBA asserts an interest in the safety of its officers, which may be impaired by a court determination that NYPD policies governing protests are unlawful and must be altered, it can join the case. This is not some outside interest group that wants the court to consider its views on the case. Rather, the PBA has a cognizable interest in these cases. While the district court said the PBA was simply interested in preserving any allegedly unconstitutional policies that the NYPD may be employing, the real issue is that the case has not yet determined that these policies are illegal, and in resolving motions to intervene under FRCP 24, we don't consider the ultimate merits of the case.

Circuit clarifies "joint employer" test in Title VII, ruling against plaintiff prevented from working the U.S. Open

The Court of Appeals has issued its most definitive ruling on joint employers under Title VII. It holds the plaintiff in this case cannot sue the United States Tennis Association because the USTA was not a joint employer with the security company that hired him and assigned him to work tennis matches in New York.

The case is Felder v. United States Tennis Association, issued on March 7. After AJ Squared Security hired plaintiff as a security guard, it sent him to work the 2016 U.S. Open in Queens. But the USTA, which manages the U.S. Open, denied plaintiff his credentials for that event, making it impossible to work the U.S. Open. Plaintiff was told the credentials were denied in retaliation for plaintiff's having sued a different security firm years earlier for racial discrimination (that case settled). Plaintiff does not sue AJ Security in this case. Instead, he sues the USTA for discrimination and retaliation under Title VII. The court ruling does not tell us why plaintiff only sued the USTA; maybe that entity is the "deep pockets" and plaintiff did not see the point in suing a smaller entity, the security firm.

To proceed with the case, plaintiff has to show the USTA and AJ Security were joint employers. While the Second Circuit has addressed joint employment in Fair Labor Standards Act cases, it starts from scratch under Title VII, though the Court largely applies the test under FLSA cases: asking whether the proposed joint employer has enough control over the plaintiff's employment. Drawing from rulings from other Circuits, the Court of Appeals (Livingston, Cabranes, and Lynch in dissent) says "[w]e  will . . . find a joint employer relationship when two or more entities, according to common law principles, share significant control of the same employee." The Court adds, "This means that an entity other than the employee’s  formal employer has power to pay an employee’s salary, hire, fire, or otherwise control the employee’s daily employment activities, such that we may properly conclude that a constructive employer-employee relationship exists." 

What complicates the analysis is that plaintiff never actually worked for the USTA, which turned him away allegedly because plaintiff has previously filed a lawsuit against a different contractor. On the other hand, USTA is the reason plaintiff could not work the U.S. Open, so plaintiff argued that USTA had sufficient control over plaintiff's employment and is therefore a joint employer with the deep pockets to pay out a handsome judgment. The Second Circuit writes, "'[A]  plaintiff who has never  been employed by the defendant'  must therefore 'prove that he or she was an ‘applicant[] for employment,’' and not an applicant for an independent contractor position." To do so, the plaintiff must allege that "if she had been hired, her relationship with that entity would have been more like a traditional employee than like a traditional independent contractor." Again, since there is little Title VII guidance from the Second Circuit on this, the Court draws from a nonbinding source for this proposition, a 2016 district court ruling from Connecticut. "To determine whether she would be 'more like a traditional employee' than an independent contractor, she must plead, under common law agency principles, that her alleged employer would have exerted control over the terms and conditions of her anticipated employment by, for example, training, supervising, and disciplining her." In other words, "Would the USTA have been Felder's joint employer had Felder worked the U.S. Open? If not, the USTA cannot be held liable under Title VII."

The Complaint does not state a joint employment claim because plaintiff does not allege that USTA instructed the security firm to fire him upon refusing his credentials, and he did not allege that AJ Security hired him for the sole purpose of working at the USTA and that USTA knew it was effectively terminating plaintiff's employment in denying him the credentials. And he does not allege that USTA had any control over the AJ Security's hiring process, or that USTA would have been involved in training plaintiff, issuing his paychecks, covering his insurance or other benefits, or controlling other aspects of his employment, such as providing his uniform or any tools. USTA's refusal to issue credentials is not enough to create a joint employer relationship with AJ Security.

The Court does remand this case so plaintiff (now represented by counsel for the first time) can amend his complaint to plausibly assert that USTA retaliated against him for that prior lawsuit. New counsel can also amend the complaint to further allege that USTA was a joint employer, based on the standards set forth in this opinion. The Court thinks plaintiff may succeed in this amendment based on what his lawyers wrote in the reply brief on appeal.

Judge Lynch dissents, writing that the majority decision "makes little sense in the context of a failure-to-hire claim such as Felder's" because "The very nature of a refusal-to-hire claim implies that the  plaintiff  does not have an 'employer-employee relationship' with the defendant. Such a plaintiff is not complaining that his employer has mistreated him; he is complaining, rather, that he has been denied any chance at employment, because the company controlling the workplace discriminates against applicants for work on a prohibited ground."

Can you sue someone over their testimony at a university sexual misconduct hearing?

This case arose from a sexual assault allegation at Yale University. A woman accused plaintiff Khan of this misconduct, but a criminal court jury acquitted Kahn. At the same time, a university panel found Khan guilty under a lesser burden of proof, and Khan was expelled. Now Kahn sues Yale and the victim. The question is whether he can sue the victim.

The case is Khan v. Yale University, issued on March 4. Khan says the victim's allegations against him during the university disciplinary proceeding are defamatory and tortiously interfered with his contractual relations (with the university, I presume). Normally, you cannot sue someone for something they said in court. That's the quasi-judicial immunity doctrine, which allows you to testify under oath without fear of a lawsuit arising from that very testimony. This ensures that people will testify freely without worrying about any legal consequences flowing from that testimony.

Does the quasi-judicial immunity rule apply to university sexual assault hearings? The administrative proceedings are not court, that's for sure; they are private and have a different standard of proof than criminal court. But the proceedings do have court-like qualities, such as testimony and the presentation of evidence. 

It is not clear whether the quasi-judicial immunity rule blocks Khan's lawsuit against the victim. Courts in Connecticut have not clearly addressed this issue. While this immunity applies in government proceedings, such as license revocation hearings and police internal affairs investigations, the Yale sexual assault committee is a private entity. In non-legal terms, the law in Connecticut is too fuzzy for the Court of Appeals to squarely resolve this state-law issue.

 

When a state law issue is unclear and the Court of Appeals thinks the highest court of that state should resolve the issue before the Court of Appeals can decide the case, the Circuit will certify the case to the state's highest court, in this instance the Connecticut Supreme Court. And so that's where this case is headed. Once the Connecticut Supreme Court resolves this issue, the Second Circuit can return to this case and decide whether Kahn can sue the victim.

New criminal trial ordered because DA's investigator entered the jury room during deliberations

This criminal case would otherwise be unremarkable, as the Appellate Division finds there was enough evidence to convict the defendant of robbery in the second degree when he held up two municipal water workers working the late shift for three one dollar bills. Defendant had his side of the story (he said he flashed a BB gun while asking the victims for money to buy cigars) but the jury rejected that account. The news here is not the robbery but what happened in the jury room when the jurors began deliberating. The jury room mishap gets defendant a new trial.

The case is People v. Jones, issued by the Appellate Division Third Department on February 17. The jury could not figure out how to work the digital recorder that was in the jury room. When they asked the Court for assistance, an investigator who worked for the District Attorney's office entered the room and showed the jury how to operate the recorder. When this happened, defendant's lawyer did not object to the investigator entering the jury room alone. But that was not a waiver, the Court says, because some trial errors are so fundamental to the right to a fair trial that the lawyer can even be fast asleep when the irregularity happens and the defendant can still challenge it on appeal. Not that the lawyer in this case was fast asleep, but you get the point. If you want to deprive someone of his liberty, the trial must be fundamentally fair.

Under the Criminal Procedure Law, a deliberating jury must be "under the supervision of a court officer" or "an appropriate public servant." The court order or "appropriate public servant" cannot talk to the jurors unless authorized by the court. The Third Department says, "Certainly, the People's investigator cannot be said to be an appropriate public servant to interact with the jury in the deliberation room." The Court is also troubled that we have no word of what occurred while the investigator was in the jury room. Did the investigator speak with the jurors? Were the jurors deliberating while the investigator was in the room? What the hell was going on in that room? We don't know. Hence a new trial.

No private lawsuits for NY kickback retaliation law

State law prohibits employers from retaliating against employees who resist demands for financial kickbacks. That's Labor Law section 198-b(5). The plaintiff was a teacher at a private school who claims he was fired because he would not turn over part of his salary to finance a Turkish religious leader who was closely affiliated with the school. Does the statute allow plaintiff to sue for damages?

The case is Konkur v. Utica Academy of Science Charter School, a decision by the New York Court of Appeals on February 10. The vote is 4-2. This may come as a shock to clients, but some laws provide you with certain rights but otherwise cannot form the basis for a lawsuit. Instead, only the government can enforce these protections. If there is a violation, the government may in fact enforce it and even win you some damages along with civil penalties against the offender. While that is not as fun as bringing your own lawsuit, it is up the Legislature whether you can file a private suit.

This statute does not expressly provide for a right of action, the Court of Appeals notes, but plaintiffs can get around that if legislative intent nonetheless authorizes a lawsuit. The three-part test that the Courts have created in determining whether such a statute permits a private lawsuit is as follows: "(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme." For a private lawsuit to happen, all three conditions must be met. 

These conditions are not met here. The first factor factors plaintiff, as the law was intended to help people like him. He also satisfies the second factor, as a private lawsuit would promote the legislative purpose. So plaintiff is now 2 for 2. But he does not make it 3 for 3 because the legislative scheme is not consistent with a lawsuit. The statute provides for the government to win restitution, back pay, liquidated damages, and reinstatement for the victim. The Court of Appeals infers from this statutory scheme that the Legislature considered how best to effectuate the statute, through the Department of Labor, not a private lawsuit. While plaintiff argues that the Legislature did intend for private lawsuits because it made attorneys' fees available to the victims, that relates to wage claims under a different provision of the Labor Law, Article 6, which expressly allows for private lawsuits. Two justices, Rivera and Wilson, dissent. After reviewing the statute's legislative history, Justice Rivera writes:

employees have a private right of action to recover unlawfully withheld wages, as provided in article 6, and employees like plaintiff have a private right of action against an employer or third party for money earned but taken as a kickback in violation of section 198-b(2). The purpose and language of the Labor Law and article 6 establish the legislature's unwavering commitment to the broadest enforcement of an employee's rights to fairly earned wages under the law by providing for a private right of action, the remedies allowed under section 198, and continued criminalization of kickbacks.

And we got ourselves a triable pregnancy discrimination claim

This discrimination case was filed in state court. Plaintiff alleges her former employer eliminated her position when it found out she was pregnant. The trial court granted defendants' motion for summary judgment, but the Appellate Division says the case will go to trial because plaintiff has enough evidence to win.

The case is Lefort v. Kingsbrook Jewish Medical Center, issued on March 2. Plaintiff was a Community Access Coordinator (CAC) for the medical center. After plaintiff got pregnant, her new supervisor, Segree, began making disparaging comments about plaintiff's pregnancy and approved maternity leave. The trial court summarizes those comments:

According to Plaintiff, Segree made “frequent discriminatory comments ... regarding her pregnancy and upcoming leave.” As examples thereof, Plaintiff states that Segree repeatedly suggested that she should stop working due to her pregnancy, despite Plaintiff's assurances that she was “more than capable of fulfilling her job responsibilities while pregnant.” Also, on one occasion, while alone in an elevator, Segree stated that it was “unfortunate” that Plaintiff was pregnant because of the projects that the department would be undertaking. On several occasions, Segree questioned whether Plaintiff would be physically capable of handling certain projects during the latter stages of her pregnancy, and on at least two occasions Segree offered “unsolicited assistance with [Plaintiff's] resume.” Plaintiff maintains that such unsolicited offers evidenced Segree's desire that she resign. Plaintiff reported Secree's forgoing comments to Kingsbrook's Human Resources Department which apparently deemed no remedial action appropriate.

When plaintiff returned from medical leave, the CAC position was eliminated, and new position, Community Relations Manager (CRM) was created. Plaintiff was denied the CRM position, defendant said, because she lacked business education or sales or marketing experience.

Defendant says plaintiff cannot makes out a prima facie case of discrimination because shortly after they eliminated her position, defendant offered her another position with the same salary; no harm, no foul. But a jury must decide if plaintiff suffered an adverse employment action as a result of this offer, which plaintiff deemed unacceptable. The Court writes, "the defendant failed to eliminate triable issues of fact as to whether the position offered to the plaintiff involved a materially adverse change in the terms of her employment, since the social worker position did not involve any of the management responsibilities that the plaintiff had performed as a CAC." We also have a prima facie case of discrimination because a jury might regard Segree's comments about plaintiff's pregnancy as evidence of a discriminatory motive  to terminate plaintiff's employment.

With the prima facie case out of the way, plaintiff now has to show the employer's reasons for eliminating the position and denying her the CRM job were a pretext for discrimination. The jury can find as such. While management said plaintiff was fired because she had no business education or marketing experience, it turns out that the CRM position did not require a business education. While defendant said the CRM job was different from the CAC position that defendant had eliminated after plaintiff got pregnant, the record shows otherwise. After plaintiff filed this lawsuit, defendant actually offered her the CRM position, stating in writing that the CRM job was "virtually identical" to the CAC position. While defendant claims this letter is not admissible as a settlement offer, the Second Department disagrees, noting that defendant's former vice president of human resources averred in his affidavit in support of the defendant's motion, "that the October 2014 job offer was not conditioned on the dismissal of the plaintiff's pending claims against the defendant."

Most of the Court's analysis involves the New York State Human Rights Law, which at the time had used federal standards in determining when the plaintiff has a case. The City law has more favorable standards. (The NYSHRL has since been amended to confirm to City law standards). On the basis of its analysis under State law, the Second Department says plaintiff also has a case under the City law.