COVID regulation challenge is mooted because the state rescinded the rule

Here is another COVID-19 case involving a challenge to a government health directive. The case might be interesting, but it is dismissed as moot because the executive order that plaintiff challenges has been rescinded. 

The case is Weisshaus v. Hochul, a summary order issued on November 29. Plaintiff claims the executive order mandating that certain travelers compete a health form for COVID-19 violates the Supremacy Clause of the U.S. Constitution. That clause says that federal law reins supreme and state laws cannot contradict federal law. 

As the trial court summarized plaintiff's claims, "In September 2020, the Governor of New York issued Executive Order 205.1 in response to the ongoing COVID-19 pandemic. The Order requires, among other things, that certain travelers complete the 'New York State Traveler Health Form.' Travelers must disclose whether they have arrived from a country with a moderate or high rate of COVID-19, whether they have recently tested positive for the disease, and whether they have recently experienced any symptoms." When Plaintiff arrived at Idlewild Airport in Queens from an international flight in November 2020, the customs people gave him a COVID-19 safety pamphlet and told him to complete a Traveler Health Form. After completing the form, plaintiff went home to New Jersey. 

The trial court denied plaintiff's motion for a preliminary injunction, prompting this appeal. The trial court noted in its January 2021 ruling that COVID-19 was running rampant, there was no cure at the moment, people were dying and losing their businesses, and all plaintiff was claiming was that he had to complete a form. Thus, no preliminary injunction. However, many COVID-19 cases ended up winning because the courts sometimes found a way to show that the challenged rule was unconstitutional. Hence, this appeal.

But the Second Circuit (Chin, Carney and Robinson) says appeal is moot because the state directive has been rescinded. There are ways around a finding of mootness, i.e., if the plaintiff can show the government might reinstate the regulation at a later date. Plaintiffs often fail to overcome a mootness finding, as courts presume that governmental decisions to rescind a regulation or law will not be reversed at a later date. It is too speculative to assume that the bad regulation will come back. Plaintiff cannot show that the regulation will return. That means the case is over. 

A portion of this appeal is not moot, however. Plaintiff says the government will use certain information against him arising from the now-expired Executive Order. But plaintiff suffers the consequences of another procedural barrier to relief: he cannot show there will be any imminent injury from the old rule because plaintiff was actually exempt from the rule. This means plaintiff has no standing to challenge how the rule's possible abusive consequences will affect him.

8+ month gap is not enough for retaliation claim

The Court of Appeals finds that a plaintiff may pursue a retaliation claim under the New York labor laws where he was denied overtime opportunities after he had asked his hospital employer about why he was exempt from receiving overtime pay. But his other claims fail, prompting the Court to make a few noteworthy comments and observations, including the time-gap that permits a finding of retaliatory intent.

The case is Wilson v. New York Presbyterian Hospital, a summary order issued on December 13. After plaintiff asked about his entitlement to overtime pay, the hospital reclassified him as non-exempt, a maneuver that would allow him to recover OT in the future. A series of bad things happened to plaintiff following his overtime inquiry, but most of them are not enough for a lawsuit. But one bad thing -- he was not offered OT opportunities -- qualifies as an adverse employment action, and that portion of his claim will go to trial (unless the case settles).

The Court finds that plaintiff has a legitimate retaliation claim because he stated in his summary judgment affidavit that management manipulated his schedule to ensure that he did not work more than 40 hours, thus denying him OT pay. The denial of these opportunities happened right after plaintiff had originally asked about his OT exemption, and in fact he had worked substantial OT hours prior to that protected activity. So something funny was going on after plaintiff spoke out about his OT exemption. This evidence permits a verdict in plaintiff's favor.

Other bad things do not support the retaliation claim, including plaintiff's termination, which took place more than eight months from his protected activity. First, management said that plaintiff had engaged in unprofessional behavior, warranting his termination. Plaintiff counters this by pointing to an email he sent to HR that rebutted the criticism that he was "argumentative" in response to negative feedback. The Court notes that plaintiff wrote this email "without a trace of self-awareness." A rare example of sly humor in a Second Circuit ruling. The general rule is that your subjective disagreement with management's discipline is not enough to create a fact issue for trial. 

What about the eight-month gap between protected activity and his termination? Some cases say that eight-months permits an inference of retaliation. The leading case on this point is Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2d Cir. 1980), which I cite regularly. Grant is an old case, though. Cases like Grant do not always permit a trial. The Court of Appeals from time to time says that only a few months will permit such an inference,  including Hollander v. Am. Cyanamid, 895 F.2d 80 (2d Cir. 1990) which said three months was too long. The Court in this case says that "more than a few months is generally too long without some other evidence of retaliation." I have not seen the Court frame the issue that way before. Under this framework, plaintiff cannot claim his termination was retaliatory. That's a huge loss for plaintiff, as the termination is most likely his money claim, and had greater value than the lost OT claim.

Win some (breach of contract), lose some (FLSA)

The Court of Appeals holds that an FLSA plaintiff cannot win his wage-and-hour claim because he falls within one of the many exemptions to the rule that entitles you to certain accumulated compensatory time and annual leave. But the court also holds that plaintiff may pursue a breach of contract claim. Win some, lose some.

The case is Schwartz v. City of New York, a summary order issued on December 5. A complicated analysis guides FLSA cases, as the statute and regulations employ various exceptions that make certain employees exempt from the statute's protections. One exception is for employees who work in "bona fide executive, administrative, or professional capacities." We consider in part whether the plaintiff's "primary dut[ies] include the exercise of discretion and independent judgment with respect to matters of significance." Under the regulations, the “phrase ‘discretion and independent judgment’" is analyzed "in the light of all the facts involved in the particular employment situation. Relevant factors include “whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices”; “whether the employee has authority to waive or deviate from established policies and procedures without prior approval”; “whether the employee provides consultation of expert advice to management”; “whether the employee is involved in planning long- or short-term business objectives”; and “whether the employee investigates and resolves matters of significance on behalf of management.”

Plaintiff cannot get around the exception, and he thus loses on summary judgment. The Court of Appeals (Park, Menashi and Kearse) says that in his role at the Department of Design and Construction for New York City, he built a sophisticated data tracking system from the ground up, had authority to formulate or implement policies, helped planning long or short term business objectives at the agency, raised red flags when projects were not progressing, his responsibilities related to adjusting budget projections, and gave advice almost daily to the Assistant Commissioner and met with public officials. For purposes of the FLSA, plaintiff is a professional and exercises considerable judgment.

However, plaintiff may proceed on his City law claim, which permits overtime pay for certain classes of employees. On the breach of contract claim, plaintiff survives the motion to dismiss, however, and discovery will proceed on that claim. The trial court said plaintiff can only pursue this claim in an Article 78 proceeding, which is an expedited state-court action against administrative agencies that must be filed within a four-month statute of limitations instead of the more generous SOL for contract claims. The Court of Appeals holds that plaintiff may bring this case in federal court without bothering with the Article 78 process because breach of contract claims are not covered under Article 78. The authority for that holding is Finley v. Giacobbe, 78 F.3d 1285 (2d Cir. 1996). 

"Not a good fit" comment may support racial discrimination claim

This pro se plaintiff wins his appeal at the Second Circuit, which finds that he asserts a plausible racial discrimination claim against the City of New York arising from his termination as a public school teacher. The Court emphasizes that motions to dismiss under Rule 12 cannot impose an unrealistic burden on the plaintiff.

The case is Mauro v. Department of Education, a summary order issued on December 22. As the Court of Appeals summarizes the case, "Mauro alleges that, after telling him he was not a 'good fit,' Defendants created a hostile work environment, retaliated against him, and eventually fired him. The district court dismissed his complaint for failure to state a claim because Mauro had failed to allege facts giving rise to a plausible inference of discrimination." Is this enough to assert a discriminatory motivation? The Court of Appeals (Livingston, Calabresi and Lynch) says it is. 

The Court opens its analysis with this: "We have often vacated improper dismissals in discrimination cases where courts apply overly stringent pleading standards, cautioning against imposing 'too high a burden on plaintiffs alleging discrimination at the 12(b)(6) stage.'" The Court cites Doe v. Columbia Univ., 831 F.3d 46, 55 n.8 (2d Cir. 2016), for this proposition. Hey plaintiffs: use this language on your motions to dismiss! Hey defendants: read this language before you file a motion to dismiss!

The heart of the analysis stems in part from plaintiff's claim that other, non-white probationary teachers were not fired but had performed similarly, that other non-white teachers who committed the same safety violations were not disciplined, and a second white probationary teacher was disciplined and fired for the same allegedly pretextual violations as plaintiff. The Court says:

Mauro’s complaint can be plausibly read to allege that non-white teachers and administrators at his school felt he was a poor “fit” because he was white. They then created justifications, through letters to his file and poor evaluations, to fire him. Furthermore, they treated him worse than his fellow non-white teachers who were similarly situated. Those allegations are sufficient to survive a motion to dismiss.

What about the "good fit" allegation? The Court notes that "we have previously held that comments similar to the 'not a good fit' comments supported the presence of a material issue of fact on summary judgment because such comments 'just might have been about race.'" Case support for that proposition is found in Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 249, 253 (2d Cir. 2014).
 

Challenge to transgender athletic policy fails because no damages are available under Title IX

The female plaintiffs in this case are challenging the legality of the State of Connecticut's decision to allow transgender girls to compete in high school sports with other girls. They claim this policy violates Title IX's prohibition against sex discrimination in education. This is an interesting legal issue and I am sure it will reach the Supreme Court some day, but the Court of Appeals decides it cannot reach these issues on the merits because there are no damages available for such a violation.

The case is Soule v. Connecticut Association of Schools, Inc., issued on December 16. In this blog post, I discuss the Court of Appeals' holding that no injunctive relief is available. But the case may still proceed if the four plaintiffs can recover compensatory damages, including those for pain and suffering. They cannot.

Title IX is similar in many ways to Title VII, the employment discrimination statute that allows for pain and suffering damages. But Title IX is a federal funding statute that requires funding recipients to treat all genders fairly or they lose their funding. Title VII does not impose any such conditions on employers. Under Title IX, therefore, "private damages . . . are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue." The Supreme Court said that in Davis v. Monroe County Bd. of Educ. (1999). The exception to this rule is when the funding recipient engages in intentional conduct that violates the clear terms of the statute. The Supreme Court said that in Davis as well. The issue is whether the Connecticut defendant here was on notice that allowing transgender girls to compete with other girls might be illegal, or whether its intentional conduct violated the clear terms of Title IX. The answer is no.

The Office of Civil Rights, a federal agency that enforces Title IX, has never clearly said that allowing transgender students to participate on athletic teams consistent with gender identity violates Title IX. Moreover, the Supreme Court's 2020 ruling in Bostock v. Clayton County said that employers violate Title VII when they discriminate against transgender employees. That analysis "strongly support[s] the conclusion that CIAC and its member schools lacked notice that a policy such as that at issue here violates Title IX." CIAC is the acronym for the defendant in this case. Other federal appellate rulings from around the country have already held that policies that treat transgender students consistent with their gender identity do not violate Title IX.

Challenge to transgender athletic policy in Connecticut fails

Four female plaintiffs have sued the State of Connecticut for gender discrimination under Title IX, claiming that the state has violated their rights in allowing transgender women to compete with them in high school sports. They want the state to rewrite the record books to only include athletes with the same gender as that listed on their birth certificates. Interesting case, but the case is dismissed for lack of standing. The Court of Appeals never reaches the merits.

The case is Soule v. Connecticut Association of Schools, issued on December 16. Connecticut has a policy that allows high school students to complete on gender-specific athletic teams consistent with their gender identity. So that if an athlete is identified as a male on his birth certificate but identifies as a female, then that athlete can complete as a female in sports competitions. Plaintiffs' theory is that this policy is unfair and prevents them and other girls from certain athletic victories, athletic scholarships and even future employment. 

Plaintiffs seek injunctive relief that would require the Association to rewrite the record books to discount the victories attained by the transgender females. Plaintiffs claim that, without this injunction, they would be deprived of their "chance to be champions." We have a problem, though. Plaintiffs regularly competed in high school athletic events and were in fact champions, finishing first in various events, even when competing against transgender athletes. In addition, there is no proper legal framework to invalidate or alter the record books like this when the students competed under the applicable rules. All that plaintiffs would get from this case is the "physic satisfaction" of having a retroactive victory. The federal courts don't provide that kind of relief. While plaintiffs further claim that the purported Title IX violations impeded their future employment prospects because they are more likely to find a good job with a stellar athletic record, "the records that Plaintiffs want re-written already show their participation and impressive achievements in high school athletics." And the Court notes that we can only speculate how employers would evaluate plaintiffs' job applications were the Court to rewrite their athletic accomplishments. 

The decision goes on to discuss whether plaintiffs can recover damages instead of injunctive relief from this case. The short answer from the Court of Appeals (Chin, Carney and Robinson) is no, and I will discuss that in a future blog post. 

In a lengthy footnote, Judge Chin notes that "controversies over athletics records are not uncommon." He then summarizes the recent controversy over whether Aaron Judge's 62 home runs in 2022 for the Yankees makes him the true home run champion since all the others who have exceeded that number were accused of using steroids. This footnote is not really necessary, but I notice that judges like to drop footnotes and make reference to other things of interest when they are writing their opinions.  

The inmate-exception to First Amendment retaliation law

At first glance, this prisoner might have a claim against prison officials, as he was disciplined following an administrative hearing after guards found a weapon under his bed as a result of an unlawful search of his private space. He claims this was in violation of the First Amendment, which prohibits retaliation against prisoners for making unrelated complaints about their prison conditions. Plaintiff loses the case, demonstrating how hard it is for them to win such retaliation cases.

The case is Morrow v. Bauersfield, a summary order issued on November 22. Inmates do have the First Amendment right to file grievances, and the law prohibits retaliation for making these complaints. The disciplinary sanction against plaintiff was overturned during an administrative appeal over the illegal cell search. (Plaintiff said the sharpened metal was planted). By then, however, plaintiff had served a significant amount of time in restricted custody over the bad disciplinary sanction. So why can't he claim the charges against him were in retaliation for filing prior grievances?

While plaintiff says the close timing of the hearing officer's ruling against supports a First Amendment claim, that argument cannot work, the Court of Appeals (Jacobs, Wesley and Bianco) says, because the hearing officer had no control over the timing of the hearing, and he also played no role in the unlawful cell search. In this case, the temporal proximity argument doesn't work. In any event, temporal proximity is not enough to win a prisoners' retaliation claim, even if might work for non-prisoner plaintiffs. Let's call this the prisoner exception under the First Amendment. This is to ensure that inmates do not win their cases on the basis of coincidental timing. Or that we don't have trials on the basis of such attenuated inferences. 

What also hurts plaintiff's case is the fact that he never filed the prior grievances against the hearing officer, who is a civilian employee (a lawyer, actually) who had little to no contact with the correction officers who searched his cell. In addition, plaintiff did not win his administrative appeal from the disciplinary sanction on the basis of any credibility assessments by the hearing officer but because of procedural errors associated with the hearing. We know nothing about the hearing officer's conduct at the hearing. In the end, no jury can rule in plaintiff's favor on this record, and the case is over. 

Supervisor's comments are not enough to presume plaintiff was fired because of his age

This age discrimination plaintiff alleges that his termination was illegal because his supervisor said he was not "fitting in" or "catching on" like his younger coworker. Is this enough to prove age discrimination? The Court of Appeals holds that it is not enough.

The case is Rinaldi v. Mills, a summary order issued on December 7. The public does not realize how difficult it is to win a discrimination claim. While the courts recognize that direct evidence of discriminatory intent is rare these days, and most plaintiffs win their cases on the basis of circumstantial evidence, even certain comments that in some esoteric way might touch upon age discrimination will not be enough. 

You can see how a plaintiff might use these comments in support of his age discrimination claim. Not fitting in might be a euphemism for being "too old," and not "catching on" might be another way of saying the plaintiff was too slow to understand work-related concepts and thus a stereotype. But the comments in this case are deemed "stray comments" under settled Second Circuit precedent, such as Carlton v. Mystic Transportation, 202 F.3d 129 (2d Cir. 2000). My guess is the Court does not think these comments directly implicate any age-related stereotypes. What also hurts plaintiff's case is the fact that the same supervisor who hired him also fired him. The case support for the "same-actor" inference is Grady v. Affiliated Cent., Inc., 130 F.3d 553 (2d Cir. 1997). The Age Discrimination in Employment Act claim is dismissed. 

Plaintiff also sues under the New York City Human Rights Law, which the City Council enacted to get around restrictive Supreme Court and Second Circuit cases under federal law to make it easier to win under the City law. But not everybody wins under the City law. The Court of Appeals (Raggi, Perez and Leval) holds that these comments are also stray remarks under the City law. 

Plaintiff loses federal discrimination claim but might win city law claim

If you handle discrimination cases in New York City, you know there is a big difference between the federal and city laws addressing these claims. Federal law applies certain legal principles that make it harder to win. The city law was enacted in response to federal law, as the City Council doesn't like the numerous hurdles in place for discrimination plaintiffs. In some cases, the plaintiff might win under the city law but lose under federal law. This has potential to be one of those cases.

The case is Harge v. City of New York, a summary order issued on December 7. Plaintiff was a New York City police officer who says the white officers conspired to end his employment because of his race by tarnishing his reputation and undermining his professional successes. As a result, plaintiff says, he was denied a promotion, received command disciplines (CD's) and was removed from the DWI conditions post. 

Plaintiff loses the federal claim because he acknowledges that some of the allegations in the CD's were true, i.e., he was unprepared for traffic court on one occasion, and did not sign out of court on another occasion). There was also evidence that plaintiff was off-post on a regular basis. The Court of Appeals (Calabresi, Lynch and Livinston) finds plaintiff cannot show these justifications for the discipline and adverse actions were a pretext for discrimination. Nor can plaintiff sue for a hostile work environment, as the Court says the bad treatment in the form of undesirable work assignments, poor evaluation scores and certain disciplinary action, was not motivated by racial animus. While there were some racial comments, they were too isolated to support such a claim. We see that kind of analysis under federal law all the time.

Here is where things get interesting. The district court did not separately analyze plaintiff's discrimination claims under the New York City Human Rights Law, which as noted carries a better evidentiary framework for plaintiffs. Instead, the trial court lumped all claims together. That is improper. The city law claims get a separate analysis. The Court of Appeals does not resolve those claims but remands the case to state court to decide them, as there is no longer any federal jurisdiction now that the federal claims are gone. The city law claims will be dismissed without prejudice for plaintiff to litigate them in State Supreme Court. 

A funny thing happened during oral argument in this appeal. One of the appellate judges asked plaintiff's counsel why lawyers continue to bring discrimination claims in federal court even though federal judges often dismiss these claims and the city law is more plaintiff-friendly. The truth is that many plaintiffs' lawyers are simply more comfortable in federal court, and the cases move faster in federal court than state court. Plaintiff's counsel acknowledged those reasons, but he added that, as one of his law professors told him years ago, "federal court has cleaner bathrooms." The judges on the Court of Appeals laughed at this rare moment of levity in that courtroom. 

When does the word "bitch" not support a sex discrimination case?

Plaintiff was fired from her job and claims it was sex discrimination. Her best evidence is that the person who fired her spelled out the word "bitch" in conversation with her. This case thus raises the issue of when that word cannot support such a claim. As it does not support a sex discrimination claim in this case, plaintiff's discharge claim will never reach a jury.

The case is Braunstein v. Sahara Plaza, LLC, a summary order issued on December 7. Defendant said plaintiff was fired because she was too difficult to work with. She responds by noting that her supervisor, Mariano, spelled out "b-i-t-c-h" in speaking with her in January 2015. It is not clear when plaintiff was fired but perhaps she argued that her termination was close in time to this conversation. If so, that is not enough to win the case

Years ago, I argued Pucino v. Verizon Communications, 618 F.3d 112 (2d Cir. 2010), which reversed summary judgment in a sex discrimination case where plaintiff's supervisors used the word "bitch" in a derogatory way that permitted the inference that she was treated badly because of her gender. But the court in that case said that "bitch" does not always permit such an inference. We have to consider the context of how the word was used. The Braunstein case is among the few cases that performs that contextual examination. The Court writes:

Here, the word was used as part of a larger conversation, held at Braunstein’s request, about the importance of teamwork, Braunstein’s communications issues with staff members, and methods to ameliorate ill feelings that had developed. It is clear on this evidence that Mariano was not expressing disdain or animus against women. He was merely telling one woman how aspects of her behavior affected her job performance. In this context, the word did not give rise to an inference of gender hostility.

The district court ruling in the case gives a better context to this evidence:

On January 9, 2015, Plaintiff received her 60-day performance evaluation, which was poor. She e-mailed Mariano, Widnesseron, and a Human Resources staff member, stating her disagreement with the evaluation. She subsequently met with Mariano on January 15, 2015, at his suggestion, to discuss her review. At that meeting, which Plaintiff recorded, the parties agree that Mariano made the following statement:

We're a team, we need to work together.... Maybe we need to have a department meeting where we workshop with each other and really get to know each other. There's going to be days where you're going to be a B-I-T-C-H and there's going to be days where [the female servers] [are] going to be anxious and flip out and you need to be able to calm them down and get them what they need and not taking things personally so that they don't reflect of an image of you that may not be fully accurate.

Plaintiff replied, “Yeah and my only thing is, and this may sound a little obnoxious, but I'm just going to own it, this image has worked my whole career for 20 years.” Plaintiff also admitted during her deposition that she told Mariano during one of their conversations that she was “someone with an edge,” and that she was referring to her “personality.” 

It looks like the supervisor did not call plaintiff a "bitch" to her face, but he said that supervisors sometimes have to be a "bitch" to keep the other workers in line. Maybe the Court of Appeals (Raggi, Leval and Perez) thought this was a close case, but careful review of the evidence supports summary judgment for the employer.

Catholic school teacher cannot sue union for discrimination

The plaintiff was a theology teacher at the Notre Dame Academy in Staten Island, a Catholic school with a unionized workforce and a union contract that prohibited employment discrimination. Plaintiff was fired after he gave a lecture on "Racism as Sin." He sues the union because it would not, in the course of his grievance proceeding, claim that this discipline violated Title VII. That makes this a duty of fair representation claim under the National Labor Relations Act and the Labor-Management Relations Act. The question is whether plaintiff can litigate such a claim against the union as a parochial school teacher.

The case is Justino v. Federation of Catholic Teachers, Inc., issued on November 23. In NLRB v. Catholic Bishop (1979), the Supreme Court held that the NLRA does not allow teachers in church-operated schools to sue for unfair labor practices. The idea was that resolving such claims on the merits would require the courts to interfere with the First Amendment's religion clauses, as judges might have to second-guess religious principles in determining whether the plaintiff has a legitimate labor relations case. The question in this case is whether Catholic Bishop must be interpreted to prevent teachers in Catholic schools from also suing their labor unions in a DFR claim. 

Catholic Bishop bars plaintiff from proceeding with this claim. The reasoning in Catholic Bishop applies equally to DFR claims against labor unions representing parochial school teachers, holds the Court of Appeals (Sullivan, Lynch and Calabresi [who dissents because the case is time-barred and there was no need to decide this case on the merits]). Here is the reasoning:

since NLRA claims brought on behalf of parochial-school teachers would “in many instances” prompt their parochial-school employers to “respond[] that their challenged actions were mandated by their religious creeds,” the ALJs’ “resolution” of such claims would “necessarily involve [their] inquiry into the good faith of the position asserted by the clergy- administrators and its relationship to the school’s religious mission.” That reasoning applies with no less force where – as here – an Article III court (rather than an ALJ) is “called upon” to “resolve” an NLRA claim brought directly by a parochial-school teacher (rather than by the NLRB on behalf of such teachers).

Put another way, even a discrimination claim against a labor union in the Catholic school context would require a judge to scrutinize the employer's justification in a manner that would delve into religious doctrine. The First Amendment prohibits such an inquiry, and the Supreme Court has reinforced this principle in the ministerial exception cases, which hold that the First Amendment prohibits most wrongful discharge suits against religious schools if the plaintiff took on certain certain religious duties in the workplace. While plaintiff insists that Catholic Bishop is no longer good law, the majority disagrees. And I can assure you that if this case ever reaches the Supreme Court, plaintiff will lose, as the Court is receptive to the analysis that Judge Sullivan advances here.

Court sustains $190,000 damages award in prisoner excessive force case

Juries don't know that, after they enter a verdict and go home, the courts continue to analyze the case to determine if the jury made the right decision. In this case involving excessive force against a prisoner at Bare Hill Correctional Facility, the jury found that a correction officer was liable for $190,000 in damages for beating up the plaintiff and breaking his rib. The Court of Appeals sustains the verdict. 

The case is Tranchina v. McGrath, a summary order issued on December 8. Do you know how hard it is to overturn a jury verdict? The losing side has to show there is no evidence to support the verdict. The court, in reviewing the verdict, has to assume that the jury credited every piece of evidence that might have favored the winning side. The Court of Appeals is highly deferential to jury verdicts and does not overturn them cavalierly, even if the judges might have ruled for the losing party had they been the triers of fact. What makes cases like this more remarkable is that the jury believed the inmate over the correction officer. That is rare. 

Plaintiff deserved his verdict, the Court of Appeals (Calabresi, Livingston and Lynch) says, because Tranchina testified that McGrath “repeatedly punched [him] in the side of [the] head and [the] ribs” on his right side during an assault that lasted between one-and-a-half and three minutes. Tranchina also testified that McGrath alone struck the right side of Tranchina’s head and body. Another defendant “kicked [him] on the left cheekbone,” and Tranchina sustained further injuries when thrown into the back of a van. At trial, McGrath acknowledged that Tranchina’s rib injury resulted from the incident between Tranchina and McGrath. Tranchina also provided photographic evidence of his injuries, including photos depicting the right side of his face and his “right ear, . . . pretty badly cut, swollen and bruised,” as well as photographic evidence of McGrath’s bruised and bloodied knuckles. Medical records documented Tranchina’s broken right distal rib. The bottom line is that the verdict was not based on conjecture or speculation; the verdict had an evidentiary basis.

What about the damages award? Courts often reduce damages award under the "shocks the conscience" theory of judicial review. Again, the jury does not know that their judgment will be second-guessed post-trial. The officer claims $190,000 is too much money for these injuries. While the officer says plaintiff should only get one dollar, the Court of Appeals agrees that plaintiff did not suffer minimal injuries and that this amount is legitimate.

Bergstein & Ullrich defend $2.6 million sexual harassment verdict

Hygienist Pushes To Preserve $2.6M Award In Harassment Suit

By Irene Spezzamonte

Law360 (December 5, 2022, 1:58 PM EST) -- A New York federal jury correctly awarded nearly $2.6 million to a former dental hygienist in her lawsuit alleging yearslong sexual assault at a Manhattan dental office, the woman said, arguing that the hostile work environment she faced destroyed her life.

Fortesa Qorrolli said in a memorandum on Friday that her life was turned upside down after facing the sexual assault Metropolitan Dental Associates allowed a supervisor to carry out for years, and she urged the court to deny the business's bid for a new trial in her Title VII suit.

"While defendants challenge the damages as excessive, the record supports the pain and suffering and punitive damages, as plaintiff testified extensively about the long-term emotional harm caused by the hostile work environment, and her mother corroborated this testimony," Qorrolli said.

Metropolitan Dental; Mario Orantes, the supervisor Qorrolli accused of sexually assaulting her; and Paul I. Cohen, the owner of the practice, whom Qorrolli said failed to take her complaints seriously, asked the court in November for a new trial.

The business, Orantes and Cohen said the $2 million in punitive damages and $575,000 for emotional distress the jury determined in October that Qorrolli was entitled to receive was excessive. Qorrolli's "repeated emotional outbursts infused the jury with emotion and sympathy," Metropolitan Dental, Orantes and Cohen argued.

But Qorrolli said Friday that that argument is rootless, arguing that the verdict was not unjust because "at least every other day for six years" she experienced "persistent, unwanted sexual advances" that caused anxiety and depression that she is still dealing with.

Qorrolli said that Metropolitan Dental, Orantes and Cohen belittled the evidence she presented about the abuse she experienced, including Orantes' statements that she did not perform her job well after turning down his sexual advances.

"This 'vicious cycle' made the work environment more unbearable for plaintiff, as her refusal to have sex with Orantes caused constant worry that she would lose her job and be unable to support her family," Qorrolli said.

The $575,000 the jury said Qorrolli was entitled to for emotional distress was also reasonable, she said, because "the record shows extensive pain and suffering caused by the sexual harassment, particularly since the work environment darkened plaintiff's sunny personality."

Qorrolli filed her Civil Rights Act suit against the business, Orantes and Cohen in July 2018. She said the company's management failed to address Qorrolli's concerns that Orantes was preying on young female workers by pressuring them for sex and then retaliating against them if they refused.

She said she began working for the company in 2009 and was known as a productive and reliable employee, but her career was derailed by Orantes' behavior.

Due to the harassment and hostile work environment she faced, Qorrolli said, she was forced to resign in May 2016.

Zack Holzberg of the Derek Smith Law Group PLLC, who is representing Qorrolli, said Monday: "We are confident in the jury's findings. The factual record supports their determination, and we believe that the verdict should be undisturbed."

Representatives of Metropolitan Dental, Orantes and Cohen did not immediately respond to requests for comment Monday.

Qorrolli is represented by Zack Holzberg and Derek Smith of the Derek Smith Law Group PLLC and by Stephen Bergstein of Bergstein & Ullrich.

UConn soccer player can win Title IX discrimination following punishment for giving the middle finger on national TV

The Court of Appeals has ruled that a female soccer player can sue the University of Connecticut for gender discrimination after the college revoked her soccer scholarship for giving the finger on national TV during a post-game celebration.

The case is Radwan v. Manuel, issued on November 30. This is my third installment on this case. The first two blog posts addressed plaintiff's unsuccessful free speech and due process claims, both of which lost on qualified immunity grounds. This post covers the statutory gender discrimination claim, for which there is no qualified immunity defense. 

Defendants said they had to revoke the scholarship because giving the finger to the world at large was serious misconduct. But, plaintiff says, male athletes at UConn faced lesser or no discipline at all for comparable acts of misconduct. The question is whether these male athletes were "similarly-situated" under Title IX (the federal law prohibiting discrimination in schools) so that plaintiff can compare herself to them. Title VII, which addresses employment discrimination, also uses the similarly-situated analysis in disparate treatment claims, making this case a useful guide for employment cases. Courts in Title IX cases borrow from Title VII cases in resolving these issues. The Court of Appeals (Bianco, Carney and Komitee [D.J.]) says a jury can find in plaintiff's favor. Summary judgment is reversed and the case will proceed to trial.

One male comparator was a football player who kicked the football into the stands during a game on purpose. That male player's name is in the opinion, and I am sure he appreciates having this incident memorialized in a court ruling for all eternity. He was not disciplined or denied his scholarship for this stunt, which was not only unsportsmanlike but potentially dangerous, as someone could have been hurt by the football. In contrast, plaintiff's fleeting middle-finger posed no risk of hurting anyone. The Court of Appeals says the football-kicker is a legitimate comparator under Title IX.

Another male comparator was a soccer player who was arrested for theft and only got a warning. This student had no scholarship. More comparators: four male UConn basketball players, two of whom had scholarships, missed curfew during a tournament in Puerto Rico and were sent home to Connecticut. Nothing happened to these male athletes.

The Court of Appeals often does not find that the plaintiff in a disparate treatment case can identify comparators. The University in this case had all sorts of arguments why these male athletes were not comparable to plaintiff, but the Court says the jury could find otherwise. The Court emphasizes that a plaintiff does not have to show the comparators were supervised by the same people. Instead, the plaintiff has to show they were subject to similar standards of behavior. The Court notes that it has never endorsed the "same decisionmaker" requirements in disparate treatment cases, not even in Title VII cases. It rejected such a defense in 2001, and it rejects that defense again in this case. Such a defense is too rigid and does not account for the fact that many workplaces and other areas of our world are too large to have the same supervisor/decisionmaker for everybody. In athletic cases like this one, the defendant would be insulated from liability because we have numerous sports teams with different coaches and decision makers. 

To win the case, plaintiff also has to show the University's reason for revoking the scholarship was a pretext for discrimination. But the jury can reject those excuses at trial. This analysis would apply in Title VII cases as well. The Court of Appeals does not often find that the plaintiff in an employment discrimination case can prove pretext; the Court only says so once or twice a year. Plaintiff can show pretext here because the University has given inconsistent reasons for the scholarship revocation. While the coach said plaintiff had no prior discipline, the Athletic Director said it was not just the vulgar gesture that got her in trouble but other (unidentified) actions as well. This kind of inconsistency can prove pretext. Also, while the coach said the middle-finger was an unprecedented and "devastating" occurrence, he told plaintiff it was just a "silly mistake" and that plaintiff was a "good kid" who made "one mistake." And while defendants were just going to issue plaintiff a written reprimand and that a more severe punishment would be "excessive," somehow she wound up losing her scholarship, which drove her from UConn and into the arms of Hofstra University. Finally, the Court says, the jury may infer pretext because the defendants arguably did not follow its own procedures while imposing discipline. That procedural deviation can prove pretext under Stern v. Columbia University, 131 F.3d 305 (2d Cir. 1997).

No due process claim for middle-fingered student athlete

In this civil rights case, a college student sued the University of Connecticut over a due process violation. I know that sounds boring. Let's spruce it up: she was a soccer star who lost her scholarship after flashing her middle finger on national TV in a post-game celebration. 

The case is Radwan v Manuel, issued on November 30. I wrote about the First Amendment angle at this link. In that portion of the case, the Court of Appeals (Bianco, Carney and Komittee [D.J.]) said that even there were a First Amendment violation (the speech being the middle finger), the defendants have qualified immunity because the law was not clear at the time whether university officials can discipline students for actions like this. So the Court of Appeals sidestepped deciding whether there was an underlying free speech violation; the Court was able to avoid deciding that issue because the immunity holding would have made such a holding unnecessary.

Not so with the due process claim. Again, the college defendants get qualified immunity because the law was not clearly-established whether plaintiff was denied a real chance to defend herself before the college revoked the scholarship. But the court does take the time to determine if there was an underlying due process violation, as this issue may arise again in some other case and judges and litigants deserve to know what the law is. Good news for college students: the next time this happens to someone, that student will have a due process case.

We have two elements for any due process case: (1) plaintiff needs to show the deprivation of a property interest under the Fourteenth Amendment; and (2) if so, whether she was denied a fair chance to protect that property interest.

First, since the college gave plaintiff a rock-solid, one-year scholarship, terminable only for cause, we can compare it to a contract for which plaintiff had a legitimate entitlement. She also relied on that scholarship, which took care of her tuition, books, and housing. I don't see too many cases holding that a due process plaintiff has an actual property interest in anything, so savor this holding. Second, plaintiff was denied the fair chance to defend herself against allegation that giving the finger on national TV violated university standards. 

The problem for plaintiff is that this due process holding was not foreseeable from prior court rulings. That entitles the defendants to qualified immunity; they cannot be sued for constitutional violations if the prior case law was not sufficiently clear to place the defendants on notice that they were violating the Constitution. So while plaintiff loses the case, the Due Process Clause wins the case, and some other overly-enthusiastic middle-finger-raising college athlete in the Second Circuit can use this case if they are ever disciplined for such a heinous act. 

But all is not lost for plaintiff. While she cannot proceed with her free speech and due process claims, as I will discuss in the next blog post on this case, she does have a claim for gender discrimination under Title IX of the Civil Rights Act of 1964. The next blog post will cover that issue.

Victorious college soccer player who gave the finger on TV cannot sue under the First Amendment

This comprehensive ruling from the Court of Appeals outlines a college student's rights under the First Amendment, the Due Process Clause, and Title IX. The student-plaintiff wins the appeal under Title IX but loses on the constitutional claims. We are dealing with a college soccer player who gave the finger on national television after winning a soccer match, for which she suffered discipline. Does she have a case?

The case is Radwan v. Manuel, issued on November 30. Plaintiff was a women's soccer player on the University of Connecticut team and the recipient of a one-year scholarship. She raised her middle finger to a TV camera during a post-game celebration after winning a tournament championship. First was suspended. Then UConn revoked her athletic scholarship. She wound up transferring to Hofstra. This case raises some important legal issues, which explains why the Court of Appeals (Bianco, Carney and Komitee [D.J.]) took over a year to issue the opinion, which is 96 pages long. This blog post will cover the First Amendment issues. Subsequent posts will cover the other issues.

My guess is that the public would be OK with a celebratory college soccer player extending her middle finger to a TV camera after winning a big game. People are giving the finger all the time these days, and we elected a President in 2016 who routinely expressed vulgarities during the campaign and even during his presidency. But constitutional law does not care about public opinion. Judges care about case law.  

Under the qualified immunity analysis, the court has to determine if the law was clearly-established for plaintiff to recover any damages. That requires the court to survey the case law in the Second Circuit and the Supreme Court. The Supreme Court has issued a series of rulings on the speech rights of public school students, but these cases involve grade-schoolers who sued their school districts, not public college students. The Court has also said on a few occasions that the First Amendment protects certain vulgarities. But that does not mean plaintiff has a case. The problem here is that the case law is not clearly-established that a public college student can give the finger to the world at large. That creates a qualified immunity problem. What makes it worse for plaintiff is that the Supreme Court in the grade school cases left open the possibility that its analysis might extend to the university setting. But it might not.

Plaintiff tries to get around the qualified immunity problem by noting the Supreme Court in Papish v. Board of Curators, 410 U.S. 667 (1973), said a public college could not punish a student for publishing an underground newspaper. But the plaintiff in Papish won because the newspaper was not part of a school-sponsored activity; that's the whole point of an underground newspaper. The Second Circuit holds:

Expelling a university student because of a disagreement with the content of an article in an independent student newspaper, as in Papish, is not the constitutional equivalent of disciplining a university student for displaying a vulgar or offensive gesture while playing for a university’s sports team. In fact, in Papish, the Supreme Court emphasized that it had “repeatedly approved” of the legitimate authority of universities “to enforce reasonable regulations as to the time, place, and manner of [student] speech and its dissemination.”

Bottom line: the case law in this area is too ambiguous to place UConn officials on notice that they were violating the First Amendment in punishing plaintiff for giving the finger on TV during the post-game celebration. That is how qualified immunity works. No damages are available in this circumstance. While qualified immunity cannot attach when the plaintiff seeks injunctive relief, no such relief (such as reinstatement) is available because plaintiff has long since graduated college.

A few words about qualified immunity. Some time ago, the Supreme Court suggested that federal courts squarely determine whether the Constitution was violated even if the court ultimately finds that qualified immunity must attach. Under that approach, the law can be clearly-established from that point forward, and more plaintiffs can proceed with their cases in the future without the immunity cycle repeating itself because the courts never got around to identifying any constitutional violation. In a subsequent case, the Supreme Court stepped back from that approach and said federal courts can avoid identifying the constitutional rights at their discretion and jump straight to the qualified immunity analysis. Courts now mostly follow the latter approach. That means the next free speech case that rolls around in this context will probably be dismissed on immunity grounds because there is still no case that squarely identifies the constitutional right. But curiously, the Court of Appeals -- while granting qualified immunity on plaintiff's due process claim -- does take the time to note that the Constitution prohibited University officials from depriving plaintiff of her scholarship with a fair chance to be heard prior to the deprivation. So that holding may not help plaintiff in this case but it will help future student athletes. A discussion of this dilemma is at this link.