Football coach wins religious speech claim at Supreme Court

In sustaining a football coach's right to publicly pray at the 50-yard line after the high school football game, the Supreme Court has expanded the reach of the Free Exercise Clause, rejected a longstanding precedent guiding the Establishment Clause, and employed language that might make it easier for public employees to win their free speech cases.

The case is Kennedy v. Bremerton School District, issued on June 27. The facts may appear to be simple, but the majority and dissenters spent much more time on the evidence than your average single-employee wrongful discharge case. As the majority sees it, after previously praying with students and even opposing players following the games, he began praying on the field alone after the school district told him to keep the students out of it, as the district did not want to risk an Establishment Clause violation. He was fired after he prayed alone post-game at the 50-yard line, still on duty. "The District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015." (The dissent says the case law requires the court to consider plaintiff's entire history of praying on the field, including when he prayed with students).

The 6-justice majority notes the tension between the Free Exercise Clause (protecting religious freedom) and the Establishment Clause (ensuring the public does not associate prayer with a governmental institution), but it says the clauses have "complimentary purposes," "not warring ones where one Clause if always sure to prevail over the others." This is new language from the Court, which is trying to ease the tension between the clauses. While the school district worried the public might think the district was endorsing the coach's prayer, drawing from the Supreme Court's 1971 ruling, Lemon v. Kurtzman, the Court now says Lemon (much maligned over the years by the conservative Justices) is no longer the operative test and that the new framework reads like this:

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “reference to historical practices and understandings.”  “[T]he line” that courts and governments “must draw between the permissible and the impermissible” has to “accor[d] with history and faithfully reflec[t ] the understanding of the Founding Fathers.” An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “exception” within the “Court’s Establishment Clause jurisprudence.”

The conservative majority has been framing many constitutional standards these days in the context of original intent and what the constitutional framers had in mind in 1787, when the Constitution was drafted. Under this analysis, since there no evidence that plaintiff coerced students to pray with him, and no students joined in the prayer after the school told plaintiff to leave the students out of it, and the district permitted secular speech at the games, plaintiff wins the case.

We have some free speech language here. Under the Supreme Court's ruling in Garcetti v. Ceballos (2006), a public employee engages in protected speech when he speaks as a citizen, not as a government employee pursuant to his job duties. That language has scaled back many speech claims over the years, as courts have broadly interpreted Garcetti to include much work-related speech as unprotected. The Court this time around emphasizes that plaintiff's prayer did not owe its existence to his responsibilities as a public employee, stating:

It seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech. When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. Simply put: Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee.

We find it unlikely that Mr. Kennedy was fulfilling a responsibility imposed by his employment by praying during a period in which the District has acknowledged that its coaching staff was free to engage in all manner of private speech. That Mr. Kennedy offered his prayers when students were engaged in other activities like singing the school fight song further suggests that those prayers were not delivered as an address to the team, but instead in his capacity as a private citizen. Nor is it dispositive that Mr. Kennedy’s prayers took place “within the office” environment—here, on the field of play.  Instead, what matters is whether Mr. Kennedy offered his prayers while acting within the scope of his duties as a coach. And taken together, both the substance of Mr. Kennedy’s speech and the circumstances surrounding it point to the conclusion that he did not.

I wonder how this reasoning affects cases from the Court of Appeals that have scaled back public employee speech rights. My guess is that it will not based on the unique facts of this case and the religious connection, which rarely applies in the public employee context.

Supreme Court strikes down NY's concealed-carry gun control law

The Supreme Court yesterday struck down a New York law that requires citizens to prove a "special need" in order to carry a handgun in public. The ruling expands the scope of the Second Amendment and devises a new legal standard for resolving constitutional challenges to gun regulations.

The case is New York State Rifle & Piston Assn. v. Bruen, issued on June 23. The law in New York going back decades is that you have to prove that "proper cause exists" to "have and carry" a weapon outside the home. The understanding was that a general need to protect yourself from street crime is not "proper cause," and that you need a more particularized reason to carry a weapon in public.

Prior to 2008, the Second Amendment was not interpreted to confer an individual right; it was understood to only protect militias. In the Heller ruling that year, the Court narrowly ruled for the first time that the Second Amendment does provide an individual right. Since that time, the courts have come up with legal standards to apply Heller in the context of actual cases. In the Second Circuit, where this case originated, the Court created a two-part test, first asking whether the challenged activity  regulates Second Amendment activity, and if so, asking "how close the law comes to the core of the Second Amendment right and the severity of the law's burden on that right." This balancing test weighed competing interests: the rights of gun owners and the social interest in regulating guns. The Second Circuit held in upholding this law that the core Second Amendment right is limited to self-defense in the home. That is the case that reached the Supreme Court.

The Supreme Court, in a 6-3 vote, rejects the Second Circuit's test for a simpler framework:

When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."

So the new equation does not have a balancing test, which often applies in constitutional cases involving other amendments, including free speech, equal protection, due process, and search and seizures. This test is more absolute than other legal standards that the Court has devised in resolving constitutional disputes. 

In justifying this new standard, Justice Thomas writes that the Court has adopted this approach in other constitutional contexts, including the First Amendment, which places the burden on the government justify speech restrictions and, "in some cases  . . . asks whether the expressive conduct falls outside the category of protected speech," usually requiring some historical evidence. I will say that constitutional litigation is more complex than that. Most constitutional tests and frameworks involve multipart factors, including a balancing test that weighs the individual right against the governmental interest, and many speech regulations are actually upheld as constitutional. (The dissenting Justices agree with me on this). What is important here is that the Constitution does not provide legal standards for interpreting it. For me, it is always interesting when the Court comes up with a new framework to assist in deciding cases. Six Justices have settled upon this test for Second Amendment cases.

The Court proceeds to strike down the New York law requiring a limited "probable cause" requirement to carry a gun in public. It determines after extensive historical review that the country has not traditionally held gun owners to such a restricting carry requirement. In other words, the majority says, New York has not met its burden to "identify an American tradition justifying the State's proper-cause requirement." This ruling allows "law-abiding citizens with ordinary self-defense needs [to] exercise[] their right to keep and bear arms." My guess is that, under the new test, many other gun regulations will also be struck down.

The three liberals dissent. If you want the latest statistics about gun violence in America, as well as the many ways that guns have impacted daily life in America, take a look at Justice Breyer's dissent, noting among other things that 227 reported mass shootings have taken place since the start of 2022, more than one per day, and that we have nearly 400 million guns in the U.S., more than one per person. Approaching this issue under a different methodology, he concludes:

In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms. The Second Circuit has done so and has held that New York’s law does not violate the Second Amendment. 

 

No speech retaliation claim for school employee who asked about dangerous student

It's always been the rule that public employees cannot suffer retaliation for speaking out on matters of public concern. But that rule was modified in 2006, when the Supreme Court issued the Garcetti ruling, which said the employee must speak as a citizen to have protection; workers who speak pursuant to their job duties are not protected. Ever since, the volume of such cases has dwindled as plaintiffs and their lawyers know these cases are vulnerable since the best workplace speech usually arises from the employee's job duties, i.e., the comptroller who exposes embezzlement. I have thus noticed that fewer and fewer employee speech cases are being decided by the Court of Appeals. This is such a case, but the plaintiff loses.

The case is Henderson v. Greenville Central School District, a summary order issued on June 22. The plaintiff loses not because she did not speak as a citizen but because her speech was not on a matter of public concern: it addressed her private grievance, something the public would not generally care about.

Plaintiff was an aide/monitor who spoke up about a potentially dangerous student at the high school. On its face, that would constitute public concern speech, as anyone would be concerned about this. But that was not free speech but a private grievance because, in context, plaintiff was concerned about the dangerous student's relationship to her son. She did not want this student near her kids. This may be important speech, but it is not speech on a matter of public concern, as her primary motive in speaking was to protect her children, not to inform the public at large about the dangerous student. 

But there is also a larger problem with her speech, the Court of Appeals (Newman, Cabranes and Bianco) states:

The problem is plaintiff lacked firsthand knowledge about the dangerous kid, including his first name. Rather, plaintiff said, she "sought only to 'gather information'" and "she felt compelled to inquire a second time because 'as a parent, [she] wanted to get some advice from somebody that [she] . . . kn[e]w.' Her search for personal comfort—'to get to the bottom of this . . . situation'—may be 'understandable,' but it does not suggest that her fact-gathering inquiries should be 'elevated . . . to a matter of public concern.'”

This is a summary order, which means it lacks full precedential value, but the holding in this case is actually unique. The reasoning above represents an angle on public concern speech that I have not seen before. But the Court of Appeals believes the facts are not so unique that the case deserves a full opinion, as the facts still fall within the public concern framework.

Without early qualified immunity, religious freedom case against federal prison will proceed

The Court of Appeals holds that two practicing Muslims may proceed with their lawsuit against a federal correctional facility for disallowing them from praying in accordance with the requirements of their religion. The Court throws in some language about how qualified immunity is often inappropriate at the motion to dismiss stage.

The case is Sabir v. Williams, issued on June 17. Plaintiffs argue that they have to pray five times a day. If you review Second Circuit religious freedom cases, you've seen that allegation before. The federal prison system certainly knows about that requirement. But it told plaintiffs they could not pray in the prison auditorium and could only do so in the prison chapel. But plaintiffs argue that the chapel is frequently unavailable. To avoid discipline, plaintiffs refrained from their religious rituals. Hence this lawsuit, brought under the First Amendment and the Religious Freedom Restoration Act.

The state moved to dismiss the case pre-discovery, claiming they are protected by qualified immunity, which says you can't sue government defendants if the law was not clearly-established, as defined by Second Circuit and Supreme Court authority. The Court of Appeals (Sack, Walker and Carney) notes that it said in 1993 that "it is well established that prisoners have a constitutional right to participate in congregate religious services." That language dooms the qualified immunity argument. Moreover, plaintiff satisfied their pleading burden in claiming the prison's rules substantially burden their religious exercise, as they had to choose between honoring their religious beliefs or being sent to solitary confinement. (The Court notes that the minimum-security prison gives inmates much autonomy and they can walk around and partake in fitness classes, card games, a weight room and a music room, so solitary confinement is going to be a real bummer).

For defendants to win this case, they have to show the prayer rules are the least restrictive means of furthering a compelling state interest. That's the Religious Freedom Restoration Act for you, enacted in 1993 after the Supreme Court scaled back religious freedom rights under the First Amendment. Since the complaint does not concede the government can make out that defense, the Court cannot say with any certainty that the prison had to restrict plaintiffs' prayer rights. Maybe discovery will shed light on that issue, but not pre-discovery when all we have is the complaint. 

As for qualified immunity, the Court reminds us that this defense is not really suitable for Rule 12 motion practice. Yes, the government can win this immunity this early if it is clear there is no clearly-established right, but that is the exception. "Such a defense faces a formidable hurdle ... and is usually not successful," the Court says. On the facts as alleged by plaintiffs, immunity cannot attach, and it's off to discovery we go.

Controlled postal delivery results in qualified immunity on false arrest claim arising from drug package.

This case involves a controlled mail delivery that led to the plaintiff's arrest for drug possession. The police knew that a package containing drugs from India was on its way to a White Plains apartment. With drug enforcement and postal agents waiting on the sidelines, law enforcement arrested the guy who accepted the package. The charges against plaintiff were eventually dismissed, and the federal court allowed his false arrest case to proceed to trial. But the Court of Appeals finds the arresting officer has qualified immunity and the case is dismissed.

The case is DuBois v. Cunningham, a summary order issued on June 17. The guy who came to the door, Williams, when the Post Office came to deliver the package had a bad ankle and could not go downstairs to get it. Then DuBois offered to help get the package, and he signed his name "George Andrews." The package was addressed to Onan Andrews. DuBois was arrested once he signed the delivery slip. But Williams accepted responsibility for the package, and the charges against DuBois were dropped.

Can DuBois sue for false arrest? The district court said Yes because there was a factual dispute whether plaintiff had identified himself as Onan Andrews or took possession of the package. That analysis does not satisfy the Court of Appeals (Lohier, Sullivan and Lee), which reminds us about "arguable probable cause," which allows the police to win qualified immunity when a reasonable officer mistakenly thinks the suspect committed a crime. 

Cunningham is immune from suit because the postal inspector told him that DuBois took possession of the drug package. The fact that DuBois denies that he took possession of the package does not matter under the arguable probable cause analysis. What matters is that Cunningham was told that DuBois did so. Since one police officer is allowed to rely on information from a fellow officer, and there is nothing in the record to suggest that Cunningham should not have relied on the postal inspector, Cunningham gets qualified immunity.

Racial discrimination claim is revived on appeal

This case involves an allegation of racial discrimination by two white state workers who claim they were denied a position because the state wanted to promote a Black employee instead. The Court of Appeals finds the plaintiffs have stated a claim that allows them to proceed to discovery.

The case is Florence v. Seggos, a summary order issued on June 7. Plaintiffs were passed over for the position of Director of Law Enforcement (DLE) for the Department of Environmental Conservation. One plaintiff earned the highest civil service test score. The other ranked second. The interim position was given to Rivers, a Black man who had failed the test. 

What happened next gives rise to this case. The department petitioned the state to reclassify the position so that applicants who did not pass the test could be considered for the position also. According to the decision, "One of the Department’s professed reasons for seeking the change was that it could attract a more diverse pool of applicants if a test were no longer required. During this period  of  time,  Rivers  
allegedly  confirmed  that  someone  on  the  staff  of  then-Governor Andrew Cuomo 'was advocating for [him] from an affirmative action standpoint.'” The state agreed to drop the test requirement and Rivers got the position.

The district court disallowed this claim from proceeding, but the Court of Appeals (Chin, Sullivan and Bianco) reverses, and the case returns to the docket. The Court reasons:

Plaintiffs, who were majors, had superior rank to Rivers, who was a captain. They also allege that they were assigned to units with greater responsibilities and that they registered the highest scores on a test designed to measure aptitude – a test that Rivers failed. As for the Department’s purported discriminatory motivation, Plaintiffs allege that the Department openly acknowledged that its request to reclassify the DLE position was designed to bypass the all-white list of test-passing candidates that existed when the DLE position became vacant. When viewed together, these facts easily suffice to “provide ‘at least minimal support for the proposition that the employer was motivated by discriminatory intent.’”

The Court cites Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015), and Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015), for this proposition, still the go-to cases for motions to dismiss under Rule 12. 

How did the state try to defend the district court's ruling? One argument was that plaintiffs were not comparable to Rivers in terms of qualifications for the position because Rivers had been acting DLE. But the Court notes that plaintiffs alleged that Rivers was not properly performing his duties and, besides, his seven months' experience as DLE was not substantial enough to place him in a different category of candidates than plaintiffs. 

 

When do your actions in the district court moot your appeal?

You learn something new every day. What I learned in this case is that an appeal can become moot if you take certain actions in the district court while the appeal is pending Too bad for plaintiff, as he raised an interesting civil rights issue relating to his religious freedom and jailhouse food practices.

The case is Tripathy v. McClowski, a summary order issued on June 9. Plaintiff is a Muslim who is incarcerated at Fishkill Correctional Facility. He originally sought injunctive relief in the district court to prevent the jail from requiring him from coming into close contact with beef products. That would mean plaintiff cannot eat food containing beef products that was cooked in the same kitchen, with the same utensils and cooks, as the religion-compliant food they were preparing for him. While the district court said plaintiff's religious freedom claim was likely to succeed on the merits, he still could not get an injunction because his proposed relief would dramatically restructure how the jail operates, affecting security, finances, and architecture. But the district court did order the state to confer with plaintiff on a viable remedy.

Plaintiff appealed that order, and also told the district court that he was unsatisfied with the outcome of the inmate-management conferences on food preparation, et al. 

That appeal will not be heard on the merits, however. Why? Because plaintiff next amended his complaint in April 2022 to request new injunctive relief. This maneuver moots his prior request for a preliminary injunction. Citing a Second Circuit case from 1977 as well as cases from the Seventh and Ninth Circuits, the Court of Appeals (Pooler, Sack and Park) notes that "an amended complaint ordinarily supersedes the original and renders it of no legal effect." While the new complaint seeks the same injunctive relief that he requests on appeal, since "the district court has not yet considered whether the newly requested injunctive relief is appropriate, . . . there is no decision for [plaintiff] to appeal at this time." Appeal is therefore dismissed.

Supreme Court once again declines to recognize a new Bivens claim

In 1971, the Supreme Court decided that the Constitution provides for certain implied causes of action in the name of enforcing civil rights that were not protected under any statutes enacted by Congress. Justice Scalia called this the "heady days" of Supreme Court jurisprudence. These are Bivens actions, named after the case that said the Constitution permits an implied claim for a Fourth Amendment violation arising from a false arrest. But the Court has only twice identified other such claims over the years before it eventually stopped doing so such that it has rejected Bivens-style claims 11 times in the last 42 years. It does so again in this case.

The case is Egbert v. Boule, issued on June 8. Plaintiff owns a bed-and-breakfast near the U.S.- Canadian border. He helped federal agents identify and apprehend persons engaged in human cross-border smuggling. But he also provided transportation and lodging to these smugglers. When a U.S. border agent refused to leave plaintiff's property one day, plaintiff alleges, the agent got violent and threw plaintiff to the ground. Hence the Fourth Amendment excessive force claim against the federal defendant under Bivens. Plaintiff also brings a First Amendment claim under Bivens.

The Ninth Circuit said plaintiff can proceed with the case but the Supreme Court reverses. Remember that Constitutional claims against state and local defendants may proceed under 42 U.S.C. section 1983. But there is no federal counterpart to Section 1983. In sizing up a potential Bivens claim, the Court says the ultimate inquiry is "where there is any reason to think that Congress might be better equipped to create a damages remedy." Since the Court has refrained from extending Bivens claims over the last 42 years, the answer to that question these days is going to be Yes. That is the answer here.

By a 6-3 vote (with the liberals in dissent), the Court will not recognize plaintiff's excessive force claim under the Constitution because the "risk of undermining border security provides reason to hesitate before extending Bivens into this field." Second, and this is often the case when the Court declines to extend Bivens, Congress has provided alternative remedies for these violations, as Border Control must investigate grievances against its agents. Plaintiff may not like that particular remedy, as it likely provides for no damages, but it is a remedy under Court precedent. As for the First Amendment claim, the Court has never identified such a claim under Bivens and it won't do so here, reasoning that it would pose a "risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties."

Bivens claims may eventually be a thing of the past, but we are not there yet. Justice Gorsuch writes a concurrence suggesting that only Congress can create causes of action, not the Supreme Court. If it were up to him, Bivens claims would be foreclosed forever. That several other conservatives did not join in this concurrence means they are OK with the few available Bivens claims, but that observation elevates form over substance. As Justice Thomas writes, the Court has not recognized a new Bivens claim in over 40 years. 

Flight attendant cannot bring retaliation claim after complaining about pilot's response to passenger's racist comment

This case asks whether a flight attendant can sue Delta Air Lines for retaliation after she claims the pilot mishandled her complaint that a passenger had called her a racial slur. In this Rule 12 posture, the 2-1 majority says plaintiff cannot proceed with her claim because her allegations not plausibly assert that she had a good-faith, reasonable belief that Delta was engaged in an unlawful employment practice when she complained about the episode.

The case is Leroy v. Delta Air Lines, Inc., issued on June 10. After a passenger called plaintiff a "black bitch," she complained to the pilot, who told plaintiff to get out on the jet bridge with the passenger. Plaintiff refused, citing FAA regulations that prohibited her from stepping off the airplane. She also said she did not want to converse with the passenger. The pilot, Carns, then told the Operations Control Center to have plaintiff removed from the airplane for insubordination, stating, "either she goes or I go." After plaintiff reported to management the pilot's response to her complaint, she was subjected to a random drug test and suspended for 30 days even though she had no drugs in her system. Following her suspension, plaintiff was fired.

The majority (Menashi and Walker) says that even under the more plaintiff-friendly New York City Human Rights Law, plaintiff has failed to allege that Delta's "own negligence permitted or facilitated the passenger's alleged discriminatory conduct" because the single comment was not sufficiently egregious or severe to create a hostile work environment, and "the complaint's description of Carns' response to the passenger's comment does not amount to a plausible allegation that Delta permitted or facilitated that comment." For this proposition, the Court cites a district court ruling stating that "generally, an employer is not liable for failing to prevent an act of harassment by a first-time customer." That reasoning resolves the disparate treatment claim.

As for the retaliation claim, the Court holds that "the facts as alleged in Leroy’s complaint do not demonstrate that a reasonable similarly situated person would have a good-faith, reasonable belief that Delta was engaged in an unlawful employment practice." (The Court notes in a footnote that the Supreme Court has "expressly declined to endorse" the Second Circuit's doctrine that a good-faith, reasonable belief that the plaintiff is complaining about a discriminatory practice is protected activity under Title VII). First, "the  passenger’s comment was not an employment practice, so it falls outside the scope of the NYCHRL" In addition, "neither would it have been objectively reasonable to believe  that  Carns’s  conduct  was  a  discriminatory  employment practice. Leroy does  not explain what  Carns  should  have done differently under the circumstances. To the extent she argues Carns should have removed the passenger, such a remedy was not required in Summa—the case on which Leroy relies for her theory that Delta should be liable for the passenger’s conduct at all."

In dissent, Judge Bianco says the majority's holding "is contrary to the language and purpose of Title VII as construed by this Court and the United States Supreme Court.  More importantly, as it relates to the claim in this case, which is solely for retaliation under the New York City Human Rights Law  ('NYCHRL'),  the  holding  is  fundamentally  inconsistent  with  New York  state  court  precedent  interpreting  the  NYCHRL, which  gives  even  more extensive rights to employees than Title VII and explicitly mandates that courts interpret its terms to provide the broadest construction that is reasonably possible to protect employees facing discrimination or retaliation in the workplace." One flaw in the majority's reasoning, Judge Bianco says, is that it will "immunize employers from liability when they  retaliate  against  employees  who  complain  about  workplace racial harassment at its inception, even before such harassment may rise to the legal threshold of a hostile work environment.  By doing so, the majority requires employees  in  such  situations  to  wait  and  endure  some  additional  period  of harassment before they can complain and be shielded from employer retaliation under the NYCHRL"

The dissent states that "the  unlawful discriminatory practice of which Leroy complained here was not focused on the failure to prevent the racial harassment by the passenger, but, rather, focused on the pilot and Delta management’s failure to address the passenger’s harassment after it had already taken place, as well as on the negative  treatment  Leroy  received  after  the  pilot  was  notified  of  the  passenger’s harassment." It is plausible that plaintiff had a good faith, reasonable belief that the pilot was able to remove the passenger from the airplane for the racial comment or take some other appropriate remedial action. It was also plausible to believe that plaintiff had a good faith belief that when the pilot did not take this remedial action and instead removed plaintiff from the flight, that the pilot had engaged in an unlawful employment practice, and that plaintiff's complaint about the pilot protected protected activity under the City law. Judge Bianco observes that, on similar facts, the Fourth Circuit in Boyer-Liberty v. Fountainbleau Corp., 786 F.3d 264 (4th Cir. 2015), found in the plaintiff's favor and rejected the dissenting opinion in that case, whose reasoning, in turn, resembles the majority opinion in Leroy's case.

Judge Bianco concludes:

In  sum,  given  these  broad  standards  of  employer  liability  under  the NYCHRL, it is plausible that, when Leroy complained to Delta management about her removal from the flight by the pilot after alerting him about a passenger’s racist comment to her, she was “oppos[ing] a[] practice forbidden” by the NYCHRL.8 Moreover, if Leroy’s allegations are proven to be true, Delta would be vicariously liable under the NYCHRL for the retaliatory actions of the pilot and other Delta supervisors.   See N.Y.C. Admin. Code § 8-107(13)(b).   Thus, Leroy’s allegations state  a  plausible  claim  for  retaliation  (including  for  vicarious  liability  against Delta)  that  preclude  dismissal  at  this  juncture.

Circuit holds that university employees may sue for discrimination under Title IX

The Second Circuit holds for the first time that Title IX of the Civil Rights Act of 1964 authorizes employment discrimination claims against private universities. This interpretation allows the Court to find that a former Cornell University professor may proceed with his sex discrimination claim arising from a failed sexual abuse investigation that damaged his professional reputation.

The case is Vengalattore v. Cornell University, issued on June 2. Plaintiff was a physics professor who was up for tenure when he hired a graduate student ("Jane Doe") as a lab assistant. The complaint alleges that, as plaintiff sought tenure, Doe tried to scuttle that effort by falsely claiming that she and plaintiff had a consensual sexual relationship and that he had raped her. The University denied plaintiff tenure and concluded following its investigation that he did not rape Doe but that they had had a consensual sexual relationship. This lawsuit does not challenge the tenure denial but, instead, the discriminatory investigation whose findings damaged his reputation.

As summarized by Judge Cabranes in his concurring opinion, "[plaintiff's] allegations, if corroborated, would reveal a grotesque miscarriage of justice at Cornell University. As alleged, Cornell's investigation of Vengalattore denied him access to counsel; failed to provide him with a statement of the nature of the accusations against him; denied him the ability to question witnesses; drew adverse inferences from the absence of evidence; and failed to employ an appropriate burden of proof or standard of evidence. In other cases and other universities the catalogue of offenses can include continuing surveillance and the imposition of double jeopardy for long-ago grievances." The Court of Appeals (Kearse, Cabranes and Pooler) also notes that plaintiff alleges that he was told that "the faculty had considered Roe's accusations to have been false and malicious, but also said that the faculty would take no action, saying, `Can you imagine what would happen if we took action against a blonde, female student? Twitter would explode and the entire department would be labeled bullies. We don't want that.'"

First, the Title IX angle. That statute prohibits gender discrimination in private educational settings. This statute is often invoked in cases involving college sports, discrimination against students, and sexual harassment. Can you also sue for employment discrimination under Title IX (which does not require an EEOC charge and therefore has a longer statute of limitations?) In dismissing this claim, the district court stated that "[a]lthough the Second Circuit has not ruled on whether a private right of action exists under Title IX for claims of employment discrimination, '[a]n overwhelming majority of district courts in this Circuit have found that an implied private right of action does not exist[] under Title IX for employees alleging gender discrimination in the terms and conditions of their employment.'" The Court of Appeals disagrees and interprets Supreme Court authority to allow such claims, noting that the Court said in New Haven Board of Educ. v. Bell, 426 U.S. 512 (1982), that "employment discrimination comes within the prohibition of Title IX." Despite that language from Bell, courts were in disagreement about the scope of Title IX, but the Second Circuit notes that most of the other circuits are in agreement that employees may involve Title IX in employment discrimination cases.

Having cleared that hurdle, the Court finds that plaintiff may pursue his sex discrimination claim in discovery. The Court holds that plaintiff plausibly asserts that the University violated its own procedural rules in finding against plaintiff in the sexual relationship investigation, and the investigation itself was devoid of due process; for example, plaintiff had one days' notice to respond to Doe's allegations, without a written statement of charges of an identification of the complainant, and it was only after the investigators interviewed plaintiff for several hours that they told him about the rape allegation. Plaintiff was also denied counsel at this time. Nor did investigators speak to plaintiff's witnesses. The report issued by the investigators determined that the lack of evidence of a sexual relationship "actually supported Roe's allegations" that such a relationship existed, as "common sense experience is that secretive relationships carried out by faculty members and students can be carried out without others . . . become aware." In addition, plaintiff alleges that Cornell reached the conclusion that it did to "favor the accusing female over the accused male in order to demonstrate its commitment to protecting female students from male sexual assailants."

Transportation workers, including baggage handlers, are exempt from the Federal Arbitration Act

The Federal Arbitration Act says that certain disputes must be arbitrated and cannot proceed in court if the parties sign an arbitration agreement. Many plaintiffs don't like arbitration, as they perceive court (and trial by jury) to be a more favorable forum than a single arbitrator. For this reason, many cases require the courts to first determine whether a claim is arbitrable in the first instance. The plaintiffs usually lose these cases, as courts favor arbitration, and the Supreme Court in particular commands that model of statutory interpretation. The plaintiff wins this dispute, however, because she falls within the transportation exception to the FAA's mandatory arbitration provision.

The case is Southwest Airlines v. Saxon, issued by the Supreme Court on June 6. Plaintiff was a ramp supervisor for Southwest, loading and unloading baggage, airmail, and commercial cargo on and off airplanes from around the country. She claims the company denied her proper overtime wages and therefore wants to bring a class action. Southwest says plaintiff cannot do this because she signed an arbitration agreement. At issue is whether plaintiff can involve Section 1 of the FAA, which exempts from its coverage "contracts of employment of seamen, railroad companies, or any other class of workers engaged in foreign or interstate commerce." We call this the transportation exception. 

The company says the transportation exception to mandatory arbitration does not apply because plaintiff is not engaged in interstate conduct by her day-to-day work. She simply works at the airport. Plaintiff says that because air transportation as an industry is engaged in interstate commerce, she can involve Section 1 and proceed to court. 

The Court unanimously agrees with plaintiff, stating that "any class of workers directly involved in transporting goods across state or international borders falls within Section 1's exception." That includes airplane cargo loaders, holding that "airline employees who physically load and unload cargo on and off planes traveling in interstate commerce are, as a practical matter, part of the interstate transportation of goods." After reviewing settled legal principles in this area, Justice Thomas writes:

These canons showed that §1 exempted only contracts with transportation workers, rather than all employees, from the FAA. And, while we did  not  provide  a  complete  definition  of  “transportation worker,” we indicated that any such worker must at least play a direct and “necessary role in the free flow of goods” across borders. Put another way, transportation workers must be actively “engaged in transportation” of those goods across borders via the channels of foreign or interstate commerce. Cargo loaders exhibit this central feature of a transportation worker."

BLM movement yields Contracts Clause ruling

After the George Floyd murder in May 2020 and the Black Lives Matter protests that followed, municipalities around the country took action in the name of transparency and good government in recognition that some laws (and statues) were not in line with the new racial justice movement. The State Legislature in Connecticut was among the public bodies that took action, resulting in this ruling that probably deserves more attention.

The case is Connecticut State Police Union v. Rovella, issued on June 2. There are glamorous constitutional provisions and principles and there are provisions that no one thinks about. Guess where the Contracts Clause falls within that equation. That provision says the government cannot impair existing contracts through legislative or other action. When the Supreme Court issues a Contracts Clause case, only law professors and the select few who deal with these issues take notice. But this case involves the Contracts Clause and an issue that has reached the front pages: racial justice. So a constitutional provision that normally takes you on a one-way trip to snoozeville instead produces an interesting and timely opinion.

The police union had a collective bargaining agreement with the state. It included a provision stating that certain police records cannot be disclosed under the Freedom of Information Law. The State Legislature agreed to that provision. Following the George Floyd murder, however, the Legislature rescinded that provision without negotiating with the police union. Hence the Contracts Clause claim.

Few constitutional provisions are interpreted literally, even if they are written in absolute terms. Under that Clause, "no state shall ... pass any ... law impairing the obligation of contracts." Wouldn't that language strike down the new FOIL law? No, the Second Circuit (Lohier, Lynch and Bianco) says. The Supreme Court has said the Contracts Clause "is not ... the Draconian provision that its words might seem to imply." The government can breach existing contracts in the public interest, "a legitimate public purpose such as remedying a general social or economic problem." Judges decide what constitutes "a legitimate public purpose."

Fiscal emergencies can represent such a legitimate public purpose. The need to develop a waste management system also counts. As does the regulation of carting companies to deal with criminal-control and bid-rigging. The Second Circuit in this case says another legitimate public purpose is "ensuring the transparency and accountability of law enforcement and promoting FOIA's strong legislative policy in favor of the open conduct of government and free access to government records." 

To win the case, the government also has to show the legislation that impairs the contract was reasonable and necessary. Since the Legislature did not pass this law out of self-interest and wished to respond to the national outcry over police abuses prompted by the Floyd murder, the Court rejects the police union's contrary argument, which includes the claim that unsubstantiated complaints against the police need to be kept under wraps. The Court says the public has an interest in knowing about these complaints, as "unfounded" complaints of misconduct "does not necessarily mean that the allegations were false" but that there was not enough evidence to sustain the charge.   

The district court denied the union's motion for a preliminary injunction, and the Second Circuit ruling agrees with the district court. That means the case is not over, but the Second Circuit has already said the union is likely to lose the case once it winds through the courts more formally, i.e., following discovery and sworn testimony.

Plaintiff wins arbitration dispute, with fascinating twist

The Second Circuit has held that a trial is necessary to determine whether an employee personally signed an arbitration agreement that would take her class action lawsuit out of the federal courts, or whether the employer faked her signature. 

The case is Barrows v. Brinker Restaurant Corp., issued on May 31. After plaintiff's employment with Chili's restaurant ended, she filed a lawsuit alleging wage and hour violations under state and federal law. This was a putative class action, which would involve other employees who suffered the same labor law violations. The employer moved to compel arbitration, claiming that plaintiff signed an arbitration agreement at the outset of her employment. It produced such an agreement with plaintiff's electronic signature. The district court in Albany granted the motion to compel arbitration, ruling that plaintiff did not corroborate her claim that she never signed that document.

The Court of Appeals reverses, finding that a factual dispute exists as to whether plaintiff, or some kind of company shenanigans, signed the arbitration agreement. Her affidavit stated in detail that she never signed it, she did not own a computer that would have enabled her to sign it, and she instead signed all company documents at the outset of her employment by hand. That's enough, say the Court of Appeals (Calabresi, Lohier and Lynch), to create a factual dispute. For the employer's part, it submitted declarations from management and HR that no one at the company had completed the plaintiff's electronic signature. But that is just management's side of the story. Since plaintiff disputes that in detail, the issue is for the factfinder. 

The holding in this case is not that remarkable, as it applies settled law that trial courts must view disputed evidence in the light most favorable to the nonmoving party, in this case, plaintiff. Other cases have resolved when signature-dispute cases like this must go to arbitration. What interests me about the case are two things, and I will save the best for last:

First, the fact that defendant filed a motion to compel arbitration and was willing to defend the trial court's ruling in the Court of Appeals means that management will spend as much money as necessary to both arbitrate this case and keep it away from the courts. Why? Because arbitration is viewed as a more favorable forum for employment disputes, and the arbitration agreement may have a provision that prohibits class actions, requiring plaintiff to only litigate her claim, which on its own may not be that lucrative. Also, arbitration discovery is not as extensive as court discovery, as the cases are usually expedited and the parties have to take fewer depositions, a limitation that favors the employer which controls more witnesses than the plaintiff. 

More interestingly, the Court of Appeals notes that management's affidavits in support of the motion to compel arbitration all said the same thing. As the Court summarized one affidavit: 

Brinker  also  produced the declaration of Joshua  Planty, the restaurant’s general  manager.  Planty  stated  that  “[a]ll  [former]  PDI  employees,” such as himself and Barrows, “went through Brinker’s onboarding process in 2015.” Planty  further  averred  that  he  had  “never  completed  any  onboarding documents for Plaintiff Barrows . . . or any other Team Member,” that he “never instructed  any  other  manager  to  complete  onboarding  paperwork  for  Plaintiff Barrows . . . or any other Team Member,” and that it was his “understanding that if [he] ever created a username and/or password for a Team Member using their personal  information  or  if  [he]  electronically  signed  onboarding  documents  on behalf  of  another  Team  Member  without  their  authorization,  that  would  be  a serious  violation  of  Company  policy,  for  which  [his]  employment  could  be terminated.”

One management witness Shawn Hand, signed a similar declaration on the employer's behalf. But the Court of Appeals says in a footnote that Hand later recanted that declaration. The Court writes, "Notably, after the district court issued its judgment, Hand sought to recant this declaration, which he said he had 'not read . . . closely,' and instead to aver that, in fact, 'while I was working for Chili’s, the managers, including myself, did complete onboarding documents for Team Members and were instructed to do so by upper management.'" 

I hope you are as fascinated by this as I am. I am sure plaintiff's lawyers went beserk when they got this new declaration from Hand. Really, it's the dream of every plaintiff's lawyer to get a declaration like this.

According to Hand, plaintiff is correct: management did sign arbitration agreements on behalf of the employees, without their knowledge. If true, this blows the case out of the water. Hand no longer works for Chili's, which is probably the reason he came forward after-the-fact with a new account that disadvantaged the company. In the new declaration, he wrote that "I agreed to sign the [original] declaration because I felt that if I did not support my employer, and my manager Josh Planty, that my job would be on the line." The new declaration says that in March 2021, more than a year after he signed the first declaration, plaintiff told him that she had lost her case against Chili's. Hand decided to "make things right" and said he wanted to speak with her attorneys. Hence the new declaration, which says that the store manager told him and other assistant store managers to enter information for employees in the computer system, including the so-called onboarding documents that employees "sign" when they begin their employment. Hand also says that management told him to fake employee temperatures at the start of the COVID-19 pandemic rather than send them home if they were sick. That allegation has no bearing on this case, but you have to admit, it is interesting and does not reflect well on Chili's.

When Hand recanted his declaration, plaintiff asked the district court to reopen the case and rule in her favor, but the district court denied that motion, stating, "Hand’s assertions that assistant managers and managers would sometimes complete on-boarding documents for employees, has no connection to Barrows, and does not specifically call into question her electronic signature." The Court of Appeals says "the district court is of course free on remand to take Hand’s new testimony into account."