COVID regulation challenge is mooted because the state rescinded the rule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case might be interesting, but it is dismissed as moot because the executive order that plaintiff challenges has been rescinded.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But the Second Circuit (Chin, Carney and Robinson) says appeal is moot because the state directive has been rescinded.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.

Anonymous plaintiff loses appeal

This fellow brought a lawsuit pro se, claiming that local officials in upstate New York violated his rights under Section 1983 arising from their alleged failure to seal records pertaining to criminal records from his youth. The problem is that plaintiff wants to proceed anonymously and will not use his real name in the lawsuit. What does the court do in a case like this?

The case is Publius Publicola v. Lomenzo, issued on November 29. The answer to that question is the case was dismissed, not because plaintiff has no case on the merits but because he will not use his real name in pursuing the lawsuit. Since his mother did not name him Publius Publicola, and he will not comply with court rules that allow him to proceed anonymously, the case is over.

Plaintiffs can proceed anonymously in certain circumstances, but they must follow certain rules. One of those rules is that the trial court must grant permission to do so or disclose their identity to the court. This plaintiff ignored the trial court's order to comply with these rules, and the case was dismissed. The Court of Appeals (Sack, Sullivan and Lee) agrees that plaintiff cannot proceed with the case. In fact, he cannot even proceed with the appeal. The Court dismisses the appeal because plaintiff would not comply with the Court of Appeals' order that he not sign his appellate briefs under a pseudonym.

The Federal Rules of Appellate Procedure require litigants to disclose their identity to the court. The Federal Rules of Civil Procedure say the same thing. Why? Because it facilitates public scrutiny of judicial proceedings and the public's right to know who is using their courts. The rule also ensures that parties take responsibility for their court filings so that courts can sanction lawyers and parties for abusing the court system. This rule also protects against potential conflicts of interest. You can get permission from the court to waive this rule, but this plaintiff did not comply with that procedure. 

In the end, plaintiff's failure to comply with Rule 32(d) means the case is dismissed.

State orders upstate school district to drop Native American mascot and imagery

A culture war is brewing in the State of New York, as an upstate school district is challenging the Department of Educations' order that the district get rid of Native American imagery as the school mascot.

The case is Cambridge Central School District v. New York State Education Dept. The trial court ruling issued on June 22, 2022. It all started when the district was petitioned in October 2020 to consider abandoning the mascot name "Indians" and related imagery of a Native American wearing a Plains Indians-style headdress. This happened because in 2001, the State encouraged, but did not mandate, school districts to consider these mascots. 

In December 2020, the district voted to embark on an eight-month review of this issue, which involved soliciting public comment at school board meetings, reviewing hundreds of pages of academic studies on the use of Native American imagery by other school districts and professional and collegiate sports teams, and reviewing its own diversity policy. 

Following the eight-month review, on June 17, 2021, the school board voted to end the use of the "Indians" name and imagery. But on July 8, 2021, probably because of public pressure, the board voted to reverse itself and renewed its commitment to the "Indians" name and logo as a mascot for the time being. In changing its mind, the board did not undertake "formal efforts to reach out again to the community or to consult anew with other stakeholders, resources or educational professionals in connection with the July resolution" to retain the mascot. The State Education Commissioner determined that the school board's "unexplained reversal" of the June 2021 resolution was arbitrary and capricious in violation of state law. Moreover, the Commissioner said, even if the three-week change of mind had no basis in reason, "the retention of the 'Indians' mascot, name and imagery was itself an abuse of discretion on the part of the [School] Board." the Commissioner said.

That is how this dispute wound up in state court in Albany County: the school district wants to overturn the Education Commissioner's determination. The school district loses the case because, under state law, an administrative decision is only illegal if it is arbitrary and capricious and an abuse of discretion. That is not the case here, State Supreme Court said. An administrative decision is not arbitrary and capricious even if there are good arguments against that decision. Courts will not second-guess the judgment of an administrative agency if that judgment is not arbitrary and capricious. 

The court defers to the Education Commissioner because a school board cannot adopt a nickname, mascot or logo that interferes with the creation of a "safe and supportive environment that promotes the achievement of learning standards for all student." In addition, "a board will be determined to have abused its discretion if it changes its position from a prior approved course of action without explanation." While the school board first undertook an extensive review in deciding to get rid of the "Indian" name and mascot, the Commissioner found "the July resolution was entirely lacking in the evidence-based findings which impelled its June resolution." The school board did not change its mind on the basis of compelling evidence; it gave this issue "short shrift" only three weeks later, without reviewing objective evidence. It was also unclear, the Commissioner said, why the district deviated from its diversity policy.

This is a divisive issue. The discussion on my hometown Facebook page has been debating this issue ever since the state told the school district to dispense with the Chiefs logo or risk losing state education funding. Most of the commentators are in favor of keeping the Chiefs as the nickname and mascot. The trial court's on this issue is not the final word, as the Cambridge district is appealing to the Appellate Division. Since it filed the notice of appeal on July 19, 2022, their paperwork in the appellate court is due in January 2023.. A decision will most likely come down in 2023.

Racial discrimination and free speech claim dismissed

The Court of Appeals thought this case was so routine that it did not advance any analysis in affirming the grant of summary judgment on the plaintiff's discrimination and constitutional claims against the New York City Board of Education. The Court (Raggi, Wesley and Lohier) simply said the district court got it right and summarily affirmed the case. Of course, no case is routine for the plaintiff. 

The case is Johnson v. Board of Education Retirement System of City of New York, a summary order issued on November 18. Plaintiff served as the Manager of Infrastructure and Technical Services for the Information Technology (“IT”) Department at the Board of Education Retirement System of the City of New York. He raised concerns that an outside vendor, GJTZ, responsible for implementing an IT project called the Comprehensive Pension Management System, was not doing a good job in this role, i.e., they were not providing him plans or updates on CPMS. He also raised concerns about Vitech, a third-party software vendor engaged by GJTZ, whom Johnson believed was misrepresenting its products to the CPMS team. Plaintiff was eventually terminated. He claims First Amendment retaliation and racial discrimination.

The First Amendment claim is dismissed because plaintiff did not speak as a citizen in blowing the whistle; he did so as an employee. The Supreme Court in 2006 created that distinction, and since plaintiff was speaking pursuant to his official job duties, there is no First Amendment claim. It was basically plaintiff's job to speak out like this. That's the Garcetti case.

While plaintiff also brought a state law whistleblower claim, that claim was also dismissed because he did not bring his concerns "to a governmental body," as the statute requires. Instead, he communicated his internal dissent within the ambit of his employment. The district court noted that "Recent caselaw and legislative history confirm that not every issue raised internally by a public employee qualifies as a disclosure protected" under the state whistleblower law. As the district court reasoned, applying the New York Court of Appeals precedent in Tiplado v. Lynn, 26 N.Y.3d 204 (2015), 

If communication with internal supervisors qualified as a disclosure to a governmental body, then the requirement that a complainant report internally “[p]rior to reporting” a protected complaint would have been superfluous. Any disclosure would have been protected by the Civil Service Law as soon as the complainant raised the issue of wrongdoing to his or her supervisor. The most sensible reading of the text and caselaw is that the crucial inquiry is whether the speaker intended to blow the whistle on wrongdoing or, rather, whether the speech was simply raising issues about matters relating to the complainant's job.

What about the racial discrimination claim? The district court said plaintiff had "only one piece of evidence that could be construed as directly evincing discriminatory intent," a comment from his supervisor that he could grow marijuana in the office. But on the whole record, that is not enough to win the case. The district court held:

Johnson claims that Rich would not have made that statement had he not been in a meeting with two African Americans, Johnson and Miller, one of whom had his hair in dreadlocks. Even if Johnson is correct, however, Rich's comment—though awkward and inappropriate—is not enough to sustain Johnson's discrimination claim over the specific professional criticisms upon which Rich claims to have based his decision to terminate him. Defendant Orlando's objections to Johnson's starting salary also cannot sustain any inference of discrimination, as the record provides ample evidence that his concern was specifically that Johnson's salary was nearly double what he had been earning in the private sector.

A good primer on federal abstention

Federal abstention doctrine is not the most exciting part of federal litigation, but it is important, as it recognizes that federal courts cannot always stick their hands in the state court cookie jars. There may be an assumption that federal law trumps state law, and that is usually true, but in some cases, we have to wait for the state courts to resolve their cases before the federal courts can take on similar issues in the same case. Got that? 

The case is Gentes v. Town of Sprague, a summary order issued on November 17. The town sued plaintiff in state court for a variety of infractions, including his alleged mishandling of public money. Plaintiff was the Business/Facilities Manager for this town in eastern Connecticut. That lawsuit was brought in state court in 2019. Plaintiff then sued the town under the First Amendment, claiming that the town went after him for speaking out on matters of public concern. So we then had two lawsuits going on at once, one in state court, one in federal court, each dealing with some overlapping issues. The federal court stayed the federal lawsuit until resolution of the state lawsuit, invoking what we call Colorado River abstention, one of the many abstention rules created by the Supreme Court in the 1970s to allow state courts to do their thing before a federal judge can take on a related issue in the same case.

The Court of Appeals (Bianco, Sack and Wesley) reverses the federal district court, and plaintiff thus does not have to wait for the state court proceeding against him to wind down before he can proceed with his constitutional claims against the town. The federal lawsuit may proceed right now because, while the federal trial court determined that staying the federal case would avoid the risk of piecemeal litigation and it did not want conflicting judgments in state and federal court, the trial court did not consider other relevant factors in the Colorado River analysis. 

Under Colorado River, we also have to consider whether (1) federal law provides the rule of decision and (2) state procedures are adequate to protect plaintiff's federal rights. Plaintiff asserts multiple constitutional claims, none of which will be litigated in state court. So that reality favors plaintiff under Colorado River. Also, even if the town proves in state court that plaintiff mismanaged public money, that would not necessarily kill of plaintiff's federal claims under the Due Process Clause and the First Amendment.  The case returns to federal court in Connecticut where plaintiff can pursue his federal claims right now.

Rockland County measles requirement might violate Free Exercise (of religion) Clause

The Court of Appeals has ruled that a jury must determine whether the County of Rockland eliminated a religious exception for a mandatory measles vaccine because of the religious bias of the County Executive.

The case is M.A. v. County of Rockland, issued on November 9. Following a measles outbreak in Rockland County in 2018, the County Department of Health ordered that a Waldorf School exclude all non-vaccinated students for 21 days because the school was in the outbreak zone. Prior to this, many of the students got religious exemptions from the measles vaccine. But this and subsequent exclusion orders eliminated all religious and medical exemptions. In March 2019, the County Executive, Day, issued an emergency declaration that barred unvaccinated children from places of public assembly, including schools, unless they had a medical exemption. Day said he did this because he was concerned about a possible rise in measles during the upcoming holiday season of Easter and Passover, and in April 2019, he lobbied the State Legislature to repeal New York's statutory religious exemption to the measles vaccine requirement for schoolchildren. During this lobbying effort, Day said the "anti-vaxxers" were "loud, very vocal, also very ignorant." He also said "There's no such thing as a religious exemption." 

While the district court granted the County's motion for summary judgment, the Court of Appeals (Lee, Park and Pooler) reverses,  holding that a jury might find that Day repealed the religious exemption out of anti-religious bias. The Free Exercise claim is thus reinstated. 

1. The Court holds that "a reasonable juror could find that Defendants acted with religious animus. Notably, Day testified that he issued the Declaration after Ruppert expressed concern over a rise in measles cases during the Easter and Passover holidays. Moreover, in connection with his lobbying for the repeal of a religious exemption to vaccination, Day commented that “[t]here’s no such thing as a religious exception” and characterized 'anti-vaxxers' as 'very ignorant.' Based on these facts, a reasonable juror could find the Declaration was designed 'to target religious objectors to the vaccine requirement because of their religious beliefs.' As the Supreme Court has recognized, the government 'cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.'” The Court adds that a jury could also find there was no religious animus and that Day's statements were merely insensitive and not hostile toward religion. Since there are two ways of assessing Day's comments, this issue is for the jury.

2. The jury may also find the Declaration was not generally applicable and therefore noncompliant with the Free Exercise Clause. Plaintiffs argued that the medical exemption permits unvaccinated children for non-religious reasons to assemble in public places, but that the religious objectors cannot publicly assemble. The Court cannot tell on the summary judgment record whether the Declaration only affects children with medical exemptions and children with religious exemptions, or whether it affects other kids, such as those who are home-schooled or those who object to the vaccine on philosophical grounds. If it only affects children with medical and religious objections, then the Declaration is not generally applicable and would violate the Free Exercise Clause. The jury is going to have to sort this out.

Court rejects hostile work environment claim

There was a time when sexual harassment, while commonplace, was not a well-known phrase, and it was not until 1986 that the Supreme Court determined that such harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. In that case, Meritor, the Court said sexual harassment is actionable if it is severe or pervasive such that it alters the work environment for the worse. That is a steep standard, and many cases fail because the court decide that the harassment does not rise to that level. This is one of those cases.

The case is Estevez v. Berkeley College, a summary order issued on November 10. I argued the appeal and will try to be neutral here. 

The three plaintiffs claimed that (1) a female co-worker had an unusual obsession with their physical appearance and frequently made comments about the same, sometimes with an ominous tone; (2) a male co-worker often said there was "too much estrogen" in the office and he found an isolated location for perform his work, away from the women; and (3) a supervisor made comments suggesting his bias against working mothers. The district court said this is not enough for a Title VII case, and the Court of Appeals (Walker, Sullivan and Vyskocil [D.J.]) affirms. The case is over. Here is how the Court sees it:

Even if we assumed for the sake of argument that the conduct a reasonable person might consider severe or pervasive can evolve over time, as amicus curiae suggests, the conduct alleged here — primarily consisting of a female co-worker staring and frequently making backhanded compliments about the Employees’ clothes, bodies, and appearances, a male co-worker frequently commenting that there was too much estrogen in the room, and a male supervisor making  a  single  comment  arguably  evidencing  a  bias  against  working mothers — is not sufficiently severe or pervasive to support a hostile-work-environment claim.

An amicus brief, as noted, argued that the definition of sexual harassment can change over time to make additional offensive conduct actionable. Certainly the MeToo movement has reconceptualized our understanding of sexual harassment. The Court accepted that proposition as true for purpose of this appeal but still found the plaintiffs cannot proceed under Title VII. I argued that the Court of Appeals in 1998 said that close cases involving sexual harassment are for the jury as they represent the community and they are in a better position than judges to know when sexist behavior crosses the line and becomes actionable sex discrimination, compelling the Court to reverse summary judgment. That case is Gallagher v. Delaney. The Court in this case did not mention that argument in sustaining summary judgment.

In granting summary judgment, the district court said that this kind of workplace misconduct may have been "distasteful" but that the "estrogen" comment "is the sort of conduct ordinarily greeted with eyerolls or snappy comebacks." Plaintiffs argued on appeal that this observation improperly excused the bad behavior and put the onus on the plaintiffs to deal with it. But the Court of Appeals "find[s] nothing improper in the district court's remark."

 

State court strikes down COVID-19 mandate for public workers

A State Supreme Court Justice a few weeks ago struck down New York City's requirement that all City and private employees must be vaccinated for COVID-19. The directive was deemed arbitrary and capricious because the Mayor exempted certain private employees from the mandate.

The case is Garvey v. City of New York, issued by Justice Ralph J. Porzio of Staten Island Supreme Court on October 25. In October 2021, the City's Health Commissioner ordered that all City employees get at least one dose of the vaccine by October 29, 2021. The petitioners who brought this lawsuit work for the Sanitation Department. They were fired in February 2022 for failure to comply with the vaccine requirement. Meanwhile, the Commissioner extended this mandate to employees in the private sector. But the private sector mandate had exemptions for athletes, performers, and other artists. 

When you want to challenge a government mandate, one way to do so is through an Article 78 petition, which will succeed if the court finds the mandate is arbitrary and capricious. These petitions are difficult to win, as the government often gets the benefit of the doubt. Not this case. The petitioners win because the private employee exemption is not rational. The Court writes, "There is nothing in the record to support the rationality of keeping a vaccination mandate for public employees, while vacating the mandate for private sector employees or creating a carveout for certain professions, like athletes, artists, and performers. This is clearly an arbitrary and capricious action because we are dealing with identical unvaccinated people being treated differently by the same administrative agency."This mandate also violates the Equal Protection Clause of the New York Constitution.

The Court further notes that most of the plaintiffs here sough exemptions but received generalized or vague denials. "There was no reason that they could not continue to submit to testing and continue to fulfill their duties as public employees." Also, as of November 1, 2022, the private employee mandate was lifted. The Court writes:

Though  vaccination should be encouraged, public employees should not have been terminated for their noncompliance. Over 79% of the population in New York City are vaccinated. These unvaccinated employees were kept at full duty while their exemptions were pending. Based upon the Petitioners' vague denial of their exemption, the fact they were kept at full duty for several months while their exemptions were pending, the Mayor's Executive Order granting exemptions to certain classes of people  and the lifting of the private sector mandate, this Court find the Commissioner Orders of October 20, 2021 and December 13 2021 as well as the Mayor's Executive Order No. 62 to be arbitrary and capricious.

The mandate is stricken for other reasons, as well. The Court finds that the Health Commissioner acted outside his authority as only the Legislature can issue a mandate like this.I have seen other cases like this, mostly in federal court, where the government imposes a vaccine mandate on some but not all residents. This often arises in the religious discrimination context, but in this case the rationale for striking down the mandate is broader: the government permitted arbitrary exemptions not based on religion but instead to favor athletes and performers.

The result is the terminated employees got their jobs back with lost wages. The City has filed a notice of appeal to the Appellate Division, Second Department. It originally asked the Second Department for a discretionary stay of Supreme Court's ruling, but a few days later it withdrew that application, noting that Supreme Court made clear that its ruling was stayed in any event pending appeal.

 

Federal court strikes down parts of 2022 NY gun law

A federal  judge has enjoined the State of New York from enforcing parts of the 2022 gun safety law that the State Legislature enacted after the U.S. Supreme Court held that New York's prior gun laws were unconstitutional.

The case is Antonyuk v. Hochul, issued by Judge Suddaby of the Northern District of New York on November 7. The Concealed Carry Improvement Act of 2022 requires gun owners who want to carry a concealed weapon in public to (1) satisfy a "good moral character" clause, (2) provide a list of current and past social-media accounts, the names and contact information of family members, cohabitants, and at least four character references, (3) attend an in-person interview; and (4) complete 18 hours of in-person and "live-fire" firearm training. The law also provides a list of "sensitive locations" and "restricted locations" were firearms are prohibited, including churches and other houses of worship, libraries, bars, and public parks.

When the Supreme Court issued its New York Second Amendment case in June 2022, it created a new legal standard to review laws like this, holding that the government must identify a well-established and representative historical analogue to demonstrate that the constitutional framers in 1791 would have honored today's gun restrictions. In short, in order to defend a gun law, the government must show the firearm “regulation is consistent with this Nation's historical tradition of firearm regulation.” Moreover, "Regarding what and how many historical analogues constitute part of this Nation’s historical
tradition of firearm regulation, such an inquiry must begin by observing the principle that, 'where
a governmental practice has been open, widespread, and unchallenged since the early days of the
Republic, the practice should guide our interpretation of an ambiguous constitutional provision.'” This is a difficult legal standard to satisfy, and New York cannot do so, Judge Suddaby holds in issuing the injunction.

The good moral character clause violates the Second Amendment because it's too burdensome in that it turns on open-ended discretionary findings of "temperament," "judgment" and "trust." There is some evidence that a test like this was in place two centuries ago but the test was imposed on certain groups of people and could be avoided by taking an oath. As for the four character references, that requirement is not unconstitutional, as early America imposed a similar requirement on gun owners. But the requirement that you provide the names of family members does violate the Second Amendment, as the government can obtain this information on its own, making the requirement "exorbitant." What about the social media accounts? The concern is that a gun applicant may have posted something online that would show them to be a danger to themselves or others. Since there is no historical analogy for this requirement, and the state had not provided the court with examples of people who abused their gun privileges after making troublesome comments on social media, this provision violates the Second Amendment and even has some troublesome First Amendment implications.

As for the other provisions, the requirement that gun applicants provide “Such Other Information Required by the Licensing Officer that is Reasonably Necessary and Related to the Review of the
Licensing Application” is also unconstitutional, as it gives the government too much discretion in making its determination. The firearm training requirement is upheld however, despite any financial burden on gun-owners, as the U.S. has a historical tradition of imposing similar requirements. The in-person meeting requirement is also legal in the absence of any evidence that it poses a significant burden on gun owners. 

Finally, the restrictions on guns in certain public places, including places of worship. There is no historical analogy for some but not all of these restrictions. The church restriction is unconstitutional in particular may also infringe on the First Amendment right to participate in congregate religious services. The schools restriction is constitutional, as American history has traditionally banned firearms in schools. The public parks restriction is struck down as unconstitutional. While the New York law also prohibits guns at zoos, that restriction violates the Second Amendment, as there is no historical tradition in support of such laws. The prohibition against guns at bars and taverns, theaters, conference centers and banquet halls is also unconstitutional.

You get the picture. Second Amendment cases require the parties and the courts to engage in historical research to ensure that any gun laws are not inconsistent with American gun traditions. Judge Suddaby himself conducted research into this issue to the extent the parties did not provide enough information. Under the Supreme Court's recent Second Amendment cases, the legal standard adopted by the Court in reviewing these laws is quite difficult for the government to satisfy. Gun laws like the one passed in New York in 2022 will continue to be largely struck down.

Court of Appeals frowns upon sua sponte dismissals without notice to the party

Plaintiff filed this lawsuit pro se, alleging that a security guard at Trinity Church in Manhattan attacked him with chemical spray. He sued under Title VII, which makes it unlawful to retaliate against employees in certain contexts. The district court dismissed the case sua sponte, even before the Church made an appearance in the case, claiming plaintiff has no case and that he does not even allege an employer-employee relationship sufficient to proceed under Title VII. The Court of Appeals reinstates the case.

The case is Moroshkin v. Rev. Dietsche, a summary order issued on November 1. Here is how the district court summarizes the complaint:

The events giving rise to this complaint occurred on January 10, 2021, while Plaintiff was standing by the gate of Trinity Church waiting to receive a sandwich. The complaint sets forth the following facts. A security guard named Louis attacked Plaintiff “from the back by chemical spray used by military forces against active civilians in occupied territories to trace their movement and place of residence.” The chemical “bioweapon” caused Plaintiff to lose teeth and experience cardiac distress and chronic pain to his back and left leg. Later that evening, a black car came to Plaintiff’s temporary residence, and a person from the car shouted to Plaintiff’s landlord, “is Sergei living here?”

The district court held that even if these allegations were true, plaintiff did not allege he was an employee of Trinity Church. Hence, no Title VII claim. The Court of Appeals reverses, noting that "dismissing a case without an opportunity to be heard is, at a minimum, bad practice in numerous contexts and is reversible error in others." Since plaintiff did  not simply pay a filing fee to pursue "fantastic or delusional claims," the Circuit Court (Carney, Lohier and Nathan) says, the case is reinstated. The Court of Appeals does not address how plaintiff did not plead an employer-employee relationship, but I guess plaintiff will have a chance to replead his complaint on remand to the district court.

Circuit takes up political-campaign employment discrimination case

This case raises two issues of interest: constructive discharge, and an obscure New York law that makes it illegal to fire someone because of their outside political activities. The plaintiff's case was dismissed in the district court, but the Court of Appeals rules in his favor, reviving the lawsuit.

The case is Truitt v. Salisbury Bank and Trust Company, issued on October 27. Plaintiff worked as a full-time mortgage officer. He wanted to run for the New York State Assembly as a Republican. When plaintiff told management that he wanted to run for office, management calculated that plaintiff could not perform his duties as a loan officer and serve in the State Legislature at the same time, as holding public office would require 65 days a year in Albany. Plaintiff was given a choice: continue employment with the bank or run for office. Plaintiff opted to run for office, telling management that he wanted to serve his community tie Teddy Roosevelt as the youngest Republican member of the State Assembly. Management ultimately told plaintiff that his employment with the bank "would not be continued" if he ran for office. (Plaintiff did run for office but lost the election).

State Labor Law 201-d makes it illegal to fail to hire, discharge or discriminate against anyone for engaging in political or legal recreational activities that take place outside of working hours. That includes running for political office. In resolving this case, the Court of Appeals uses the McDonnell-Douglas burden shifting model: plaintiff must make out a prima facie case and, if so, management must articulate a neutral reason for the adverse action. If that happens, plaintiff has to show that reason is false and that discrimination is the real reason. This is the first time the Second Circuit has used that familiar evidentiary model (normally used in Title VII and other discrimination cases) in a Labor Law discrimination case. 

First, plaintiff has demonstrated an adverse action because he was impermissibly forced to choose between his job and his run for political office. This kind of choice can constitute an adverse employment action. The Court of Appeals cites cases from around the country for this proposition, and it is now the law in the Second Circuit, which concludes, "a reasonable jury could find that the Bank subjected Truitt to an adverse employment action when it forced an ultimatum upon him "because of" his political activities. A reasonable jury could also find that, in requiring Truitt to abandon his campaign as a condition of retaining his employment, the Bank "'discriminate[d]' against him in the
conditions of his employment, in violation of the terms of the statute."

Nor did the bank advance a legitimate reason for this choice between working at the bank and running for office. While it's true that the Bank determined that holding public office in Albany would interfere with plaintiff's duties, the Court says that, regardless of whether plaintiff could hold both positions at the same time, "the record does not include evidence that the Bank had any reason to believe that Truitt's campaign would cause such interference" with his bank duties. In other words, the question is not whether holding office would interfere with the bank's operations, but whether his campaign would cause such interference.

Walmart wins workplace injury appeal

When this employee worked for Walmart, merchandise fell about 40 feet from shelving above her, causing serious physical injuries. OSHA fined Wal-Mart $10,864, claiming the store violated the Secured Storage Standard under the federal regulations, which require big-box stores to store materials in a way that does not create a hazard. For Walmart, this is not much money, but Walmart challenged the fine anyway. The Court of Appeals vacates the fine.

The case is Walsh v. Walmart, Inc., issued on October 4. It all happened when someone was retrieving a pallet from the highest level of racking with a forklift, causing containers of crescent rolls. Something went wrong, and the merchandise struck another employee, Saltzman, on the head. While the Occupational Safety and Health Commission (a federal office) said Walmart had breached the Secured Storage Standard, the Court of Appeals disagrees, based on its interpretation of the regulation.

The Commission ruled against Walmart. Under the rules, “Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.” The Commission interpreted "tier" to mean "a row, rank or layer of articles" and "one of two or more rows arranged one above another," focusing on the word "layer" even though the word "layer" does not suggest whether objects must be placed directly on top of each other. In fact, dictionaries published at the time the regulation was adopted in 1969 suggest that  "tier" has a broader definition than what the Commission found. "Nowhere does the definition of 'tier' include the notion that the materials must be stacked immediately on top of each other," the Court writes. 

The Secretary of Labor challenges the Commission's interpretation The Second Circuit (Pooler, Lohier and Nardini) credits the Secretary's interpretation of the regulation, stating

As a general matter, the Secretary argues that the purpose of the standard was to prevent stored materials from falling and striking those below. The Secretary reasonably interprets the plain language of the standard to apply to material arranged one above another vertically, including on shelves, not just materials stacked directly on top of another. As the Secretary points out, if we followed the Commission’s interpretation, “even the storage of items on patently unstable shelving unit that was subject to toppling over would be exempt from the standard’s coverage simply because the items on the shelves were not ‘stacked directly upon one another with nothing in between.’” Such an interpretation is not consistent with the text or the purpose of the standard.