Madison Square Garden may bar certain lawyers from sporting events

The Appellate Division has ruled that Madison Square Garden is legally permitted to prevent people from entering the building for sporting events. This case arises from MSG's determination that basketball and hockey fans employed by law firms that are suing MSG cannot be trusted to enter MSG (and other facilities owned by this entity, including Radio City Music Hall, Beacon Theater or Hulu Theater), even if they purchased tickets to these sporting events. This policy has made the news.

The case is Hutcher v. Madison Square Garden, issued by the First Department on March 28. MSG's appellate brief notes that MSG's policy bars certain attorneys from entering the building:

In July 2022, MSG and its affiliates formalized an internal policy, in place since late June 2022, prohibiting attorneys involved in ongoing litigation against MSG from attending events at the MSG Venues and using the MSG companies’ resources (including its Season Ticket Membership group) to purchase tickets.

MSG says this policy is necessary because of "the adversarial nature inherent in litigation; the potential for improper communication with MSG employees; and the potential for adverse counsel to obtain information outside of proper discovery channels or otherwise undermine MSG’s interests in ongoing litigation." They add, "MSG’s right to implement such a policy is based on long-standing New York law, which provides that tickets to attend events at venues are merely licenses revocable at will, and that venue operators have the discretion to exclude individuals from their premises for any reason or no reason at all." That is legalese for "we can kick people out for most any reason under the at-will doctrine." Law firms in litigation with MSG cannot access these events until the litigation is resolved.

State Supreme Court said that state law prohibits MSG from barring ticket holders for music halls and certain theatrical events. This case involves sporting events. In this case, the lower court still enjoined MSG from enforcing the policy for sporting events. I have never seen a case where the judge sides with the defendant on the merits but still issues an injunction for the plaintiff, but that's why the case went to the First Department, which reverses and rules for MSG. If the policy is legal, then no injunction may issue.

The statute, Civil Rights Law 40-b says nothing about sporting events. That means MSG's persona non grata rule is legal for sporting events. If you want to watch the Knicks or the Rangers, you'll have to watch it on TV. Why sporting events are excluded from the statute's protections probably one of those quirks we have in New York law that no one can explain. But quirks like these are legal. Here is the First Department's reasoning:

The motion court properly excluded sporting events from its holding because Civil Rights Law § 40-b is specifically limited in application to “legitimate theatres, burlesque theatres, music halls, opera houses, concert halls and circuses” Although Madison Square Garden is a multi-purpose venue that sometimes functions as a concert hall or theatre and other times as a sporting arena, we find that it only falls within the ambit of Civil Rights Law § 40-b when it is being used for an enumerated purpose.

 

 

 

Back porch search does not violate Fourth Amendment warrant requirement

This Fourth Amendment search and seizure case asks whether the police had the right to search a common-area porch at the defendant's place of residence while looking for drugs and other contraband. The warrant only said the police could search his apartment and basement. The Second Circuit says the search was legal.

The case is United States v. Lewis, issued on March 21. Bottom line: defendant cannot show that his Fourth Amendment rights extended to the porch. It all started when an informant told the police that defendant had large quantities of heroin and marijuana in defendant's bedroom in New Haven. The informant also said there was a gun in defendant's basement. The warrant therefore limited the police search to defendant's residence and the basement.

The police found drugs in the second-story apartment but they found the gun and more drugs in a sock in a laundry basket on the back porch off the ground-floor rear door which opened into a common stairwell. So the porch was not solely defendant's residence. While defendant sought to suppress the guns and the extra drugs, he had no reasonable expectation of privacy in the back porch. He did not take any steps to maintain his privacy while using the porch, either. Rather, he conceded the porch was a shared area. What it means is that defendant has no standing to object to that portion of the search. 

The Court of Appeals (Lohier, Carney and Nathan) is careful to note that it is not adopting a categorical rule that shard spaces in muti-unit buildings may be searched by the police without a warrant. The Court recognizes that in some factual circumstances, a warrant may be necessary to search these common areas. This is always a case-by-case analysis under Supreme Court precedent, including O'Connor v. Ortega, 480 U.S. 709 (1987). The Second Circuit cites a few extra-Circuit rulings in this regard. One case from the Sixth Circuit said a basement in a  two-unit building occupied solely by family members means the police cannot search the basement without a warrant. So while there is an exception to the rule that the police can search common areas like this, defendant cannot invoke that exception because he did not introduce evidence at the suppression hearing that would implicate that exception. 

NYU may have to reimburse students for remote COVID instruction

This is a case for the COVID-19 era: a parent sues New York University to recover a partial refund of her daughter's college tuition after NYU transitioned to remote learning instead of in-person classes. An NYU student also sues for breach of implied contract and unjust enrichment over these remote classes. The parent loses, but the student may proceed with the claim.

The case is Rynasko v. New York University, issued on March 23. It is not clear why plaintiff's daughter did not bring this lawsuit, but plaintiff argues that NYU marketed its educational program as a wonderful in-person experience through classes, sporting events, networking opportunities, and other programs that are not available over Zoom. When the world stopped in Spring 2020 due to COVID, these benefits of an in-person NYU education stopped as well. Yet, NYU continued charging its full tuition and fees. The student plaintiff's proposed claim makes the same allegation that NYU was unjustly enriched by charging its usual tuition without providing the same in-person services when COVID hit NYC.

As for the parent plaintiff, she lacks standing to bring this lawsuit. This plaintiff did not have a contract with NYU; her daughter did. Nor did her daughter assign her contractual rights to her mother, which means mom is not a third-party beneficiary of the contractual breach. Some lower courts in the last few years have similarly held, and now the Court of Appeals (Robinson, Park (dissenting in part) and Parker (dissenting in part)), makes this principle the law of the Second Circuit. For these reasons, the parent cannot bring an unjust enrichment claim against NYU, either. Yes, mom paid the tuition and fees, but no, "an injury to [mom's] expectation as to the services Emily would receive in exchange for the tuition payments paid to NYU on Emily's behalf pursuant to its contract with Emily is not an injury to her legally protected interest." It occurs to me that this holding could encourage more people to sue their colleges and universities to recover partial tuition reimbursements. That could be quite costly for these institutions. 

What about the student's claim against NYU? This student, Hall-Landers, is not plaintiff's daughter. The student asserts a plausible claim for breach of contract, unjust enrichment, and money "had and received." A fact-finder may find there was a breach of implied contract because the student was not able to attend NYU in-person and enjoy all the services and advantages that in-person learning and student life has to offer. We're talking implied contract here, between NYU and the students, from the NYU promotional materials which promote the benefits of the in-person college experience in New York City, the greatest city in the world. The NYU catalogue's disclaimer that the university can alter its course offerings at any time does not get NYU off the hook, as that disclaimer only deals with course offerings and not the other benefits of the NYU experience. And the law frowns upon disclaimers that give one party an unfair advantage over the other. 

Note that Judges Park and Parker dissent in part. This will not make this case a suitable vehicle for the Supreme Court, as the case appears to only raise state law issues, and the Supreme Court only addresses federal claims. But this splintered ruling may entice the full Court of Appeals to hear this case en banc. 

Can the plaintiff get damages for an unlawful incarceration lasting more than 600 days?

This guy was re-incarcerated after he violated the terms and conditions of his post-release supervision. In 2005, the Department of Corrections imposed that PRS re-incarceration. The sentencing judge did not impose that re-incarceration. The problem was that in 2006, the Court of Appeals said that only the judge can impose this PRS re-incarceration, not DOCS. In total, plaintiff spent 686 days in jail for violating the terms of his PRS after the Court of Appeals said in Early v. Murray, 451 F.3d 71 (2d Cir. 2006), that DOCS had no authority to impose the sentence. For this reason, plaintiff wants financial compensation for this unlawful incarceration. The Court of Appeals says plaintiff may be entitled to these damages. But he may not.

The case is Vincent v. Annucci, issued on March 23, more than a year after the appeal was argued. By August 31, 2006, when the Court of Appeals definitively ruled on this issue in Early, it was clearly established that plaintiff's continued PRS incarceration violated the Constitution because it was not judicially-imposed. The question, is plaintiff entitled to compensation for this?

First, qualified immunity. That immunity is available to public defendants in constitutional claims when the law was not clearly established at the time of the violation, as determined by Supreme Court and Second Circuit authority. This is an easy call for the Court of Appeals (Walker, Sullivan and Kearse in partial dissent), as the Court already said in 2013 in this very case that the defendant cannot invoke qualified immunity based on the Court's 2006 ruling in Early. The state tries to re-argue qualified immunity again, but these arguments are not going to cut it. When something is clearly established, it's clearly established until the Supreme Court says otherwise. 

What about compensatory damages? While the trial court in this case awarded plaintiff $175,000 for the unlawful confinement, its analysis was incorrect because the trial court's damages calculation was too cursory. The trial court said it was a mystery what might have happened had the DOCS commissioner referred plaintiff to re-sentencing post-Early in 2006. That reasoning was incorrect. The trial court did not consider what steps were actually available to the Commissioner in determining whether to keep plaintiff in jail for another two years after the Early ruling came down. The Commissioner might have needed court approval to eliminate the PRS term that it had imposed, which led to the post-PRS incarceration. At a minimum, the commissioner was required to at least try to stop DOCS's administrative and custodial operations that had been held to violate the law in 2006. This is all very complicated, but the moral of the story is that plaintiff's extended incarceration, which lasted more than 600 days, may not even be compensable if the state can show that there were other ways to keep him in jail post-Early. Nor did the trial court discuss plaintiff's burden of proving damages. You have to prove damages in our court system and they are not presumed just because your rights were violated. 

Facebook argument with ALJ raises tricky free speech concerns

This case highlights the complexities of the First Amendment as it governs public employees. It also highlights the danger of getting into political arguments with people on Facebook when you hold a public position that requires some degree of public trust.

The case is Davi v. Hein, a summary order issued on March 24. Plaintiff was an administrative law judge for the State of New York, resolving disputes when state issues an adverse determination on the amount of public benefits from the state's Office of Temporary and Disability Assistance (OTDA).  Plaintiff got into an argument on Facebook with a former law school classmate about the effectiveness of some public assistance programs. Plaintiff was critical of some of these programs. The former classmate told the Commissioner of OTDA what plaintiff had said. The classmate also told the Commissioner that she had sent the Facebook exchange to a legal aid group, Project FAIR, which represents individuals in these administrative hearings. Plaintiff was reassigned over his Facebook comments.

The district court ruling reprints the exchange. 

On October 28, 2015, Davi responded to an article that had been posted on the personal Facebook page of someone he knew. The article was from the website Daily Kos and entitled “Anti-poverty programs like food stamps are working. Let's expand them, not make more cuts.”¹ Davi and a law school classmate, Erin Lloyd, then had an argument in the comments of the Facebook post. Both the Facebook post and the argument appear not to have been accessible to the general public. ECF No. 83-8 at 105–07. Because the context is significant, I reproduce the relevant portion of their conversation verbatim (without correcting spelling or grammar):

*303 DAVI: This article and the underlying study use the wrong metric. These programs should be judge by how many people or families they get back on their feet and off government assistance, not how well these programs enable their recipients to be poor and collect government assistance for the rest of their lies.

LLOYD: “enable their recipients to be poor” – RIGHT! of course! people who need $150/mo to get their basic food needs met are just being ENABLED! The goal of any public assistance program should be to AID the poor. It's the job of politicians and employers to ... [See more]²

DAVI: Says who? Where does it say ANY of that in the Constitution? It is not the government's job to subsidize laziness and failure. I agree that there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency. But I have zero sympathy for anyone who refuses to work and/or get the education or training to earn a living wage.

This country has turned welfare into a generational career path!

At this point, the conversation turned personal and nasty. Lloyd told the plaintiff “I remember your bullshit from law school, so I've got no patience for you. Who brought up the constitution? Not me. I didn't say a word about the law. I'm talking MORALS, my friend.” Davi responded: “If you are going to be that nasty then fuck you, too. Your ‘morals’ suck because they create an underclass dependent on government handouts that translates into generational poverty, while at the same time taxing productive members of our society to the breaking point.” ECF No. 83-1 at 4.

Davi v. Roberts, No. 16-CV-5060 (ERK), 2021 WL 810282 (E.D.N.Y. Mar. 3, 2021), order clarified on reconsideration, No. 16-CV-5060 (ERK), 2021 WL 2184873 (E.D.N.Y. May 28, 2021)

On October 28, 2015, Davi responded to an article that had been posted on the personal Facebook page of someone he knew. The article was from the website Daily Kos and entitled “Anti-poverty programs like food stamps are working. Let's expand them, not make more cuts.” Davi and a law school classmate, Erin Lloyd, then had an argument in the comments of the Facebook post. Both the Facebook post and the argument appear not to have been accessible to the general public. 

DAVI: This article and the underlying study use the wrong metric. These programs should be judge by how many people or families they get back on their feet and off government assistance, not how well these programs enable their recipients to be poor and collect government assistance for the rest of their lies.

LLOYD: “enable their recipients to be poor” – RIGHT! of course! people who need $150/mo to get their basic food needs met are just being ENABLED! The goal of any public assistance program should be to AID the poor. It's the job of politicians and employers to. . .

DAVI: Says who? Where does it say ANY of that in the Constitution? It is not the government's job to subsidize laziness and failure. I agree that there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency. But I have zero sympathy for anyone who refuses to work and/or get the education or training to earn a living wage.

This country has turned welfare into a generational career path!

The district court then noted that, "At this point, the conversation turned personal and nasty." Here is what happened:

Lloyd told the plaintiff “I remember your bullshit from law school, so I've got no patience for you. Who brought up the constitution? Not me. I didn't say a word about the law. I'm talking MORALS, my friend.” Davi responded: “If you are going to be that nasty then fuck you, too. Your ‘morals’ suck because they create an underclass dependent on government handouts that translates into generational poverty, while at the same time taxing productive members of our society to the breaking point.”

DAVI: This article and the underlying study use the wrong metric. These programs should be judge by how many people or families they get back on their feet and off government assistance, not how well these programs enable their recipients to be poor and collect government assistance for the rest of their lies.

LLOYD: “enable their recipients to be poor” – RIGHT! of course! people who need $150/mo to get their basic food needs met are just being ENABLED! The goal of any public assistance program should be to AID the poor. It's the job of politicians and employers to ... [See more]²

DAVI: Says who? Where does it say ANY of that in the Constitution? It is not the government's job to subsidize laziness and failure. I agree that there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency. But I have zero sympathy for anyone who refuses to work and/or get the education or training to earn a living wage.

This country has turned welfare into a generational career path!

At this point, the conversation turned personal and nasty. Lloyd told the plaintiff “I remember your bullshit from law school, so I've got no patience for you. Who brought up the constitution? Not me. I didn't say a word about the law. I'm talking MORALS, my friend.” Davi responded: “If you are going to be that nasty then fuck you, too. Your ‘morals’ suck because they create an underclass dependent on government handouts that translates into generational poverty, while at the same time taxing productive members of our society to the breaking point.” ECF No. 83-1 at 4.

Davi v. Roberts, No. 16-CV-5060 (ERK), 2021 WL 810282 (E.D.N.Y. Mar. 3, 2021), order clarified on reconsideration, No. 16-CV-5060 (ERK), 2021 WL 2184873 (E.D.N.Y. May 28, 2021)

*303 DAVI: This article and the underlying study use the wrong metric. These programs should be judge by how many people or families they get back on their feet and off government assistance, not how well these programs enable their recipients to be poor and collect government assistance for the rest of their lies.

LLOYD: “enable their recipients to be poor” – RIGHT! of course! people who need $150/mo to get their basic food needs met are just being ENABLED! The goal of any public assistance program should be to AID the poor. It's the job of politicians and employers to ... [See more]²

DAVI: Says who? Where does it say ANY of that in the Constitution? It is not the government's job to subsidize laziness and failure. I agree that there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency. But I have zero sympathy for anyone who refuses to work and/or get the education or training to earn a living wage.

This country has turned welfare into a generational career path!

At this point, the conversation turned personal and nasty. Lloyd told the plaintiff “I remember your bullshit from law school, so I've got no patience for you. Who brought up the constitution? Not me. I didn't say a word about the law. I'm talking MORALS, my friend.” Davi responded: “If you are going to be that nasty then fuck you, too. Your ‘morals’ suck because they create an underclass dependent on government handouts that translates into generational poverty, while at the same time taxing productive members of our society to the breaking point.” ECF No. 83-1 at 4.

Davi v. Roberts, No. 16-CV-5060 (ERK), 2021 WL 810282 (E.D.N.Y. Mar. 3, 2021), order clarified on reconsideration, No. 16-CV-5060 (ERK), 2021 WL 2184873 (E.D.N.Y. May 28, 2021)

Public employees have the right to free speech on matters of public concern. But a series of Supreme Court rulings over the years allows public employers to discipline and even fire public employees if their public speech "would potentially interfere with or disrupt the government's activities" and that potential disruptiveness "was sufficient to outweigh the First Amendment value of that speech." This is known as Pickering balancing, named after a Supreme Court ruling from 1968.

While the district court ruled in plaintiff's favor and ordered plaintiff's reinstatement to his position as an administrative law judge, the Court of Appeals (Sack, Perez and Lohier) remands the case for the trial court to reconsider that result, as the appellate judges do not believe the trial court sufficiently considered the state's interest in dealing with the potential impact of Plaintiff's Facebook comments. It is possible, then, that plaintiff can lose the case if the district court finds that Plaintiff's speech, if discovered by the public, "would undermine OTDA's reputation by suggesting that its hearing officers were biased or unprofessional."

Supreme Court rules for disabled student who wants damages under Americans with Disabilities Act

The Supreme Court has ruled that a federal student disability statute does not require aggrieved students to administratively exhaust their claims before filing suit in federal court, but only in certain circumstances unique to this case.

The case is Perez v. Sturgis Public Schools, issued on March 21. The Individuals with Disabilities Education Act (IDEA) is a comprehensive statute that allows disabled public school students to enjoy an appropriate education. It requires the school districts to devise an individualized education plan for the disabled student, and if the parents and school district disagree about the plan, they can litigate this dispute at an evidentiary hearing. Normally, the losing party has to appeal to a state education official to change the result before they can litigate the case in federal court. 

My experience in this area is that federal courts are loathe to find exceptions to the administrative exhaustion rule. This frustrates the parents of disabled students who want to bring suit in court rather than wait for the state education official to rule on any objections. But this case is different. 

The student in this case is hearing-impaired. His parents allege that the district's efforts to help their son were ineffective. The parties settled that dispute after the parents filed a complaint with the Michigan Department of Education. After that dispute settled, the family brought suit in federal court under the Americans with Disabilities Act, seeking damages for the civil rights violation that their son experienced. The district moved to dismiss that lawsuit, claiming the parents did not first file an administrative complaint with the state. This is the administrative exhaustion argument. The district court and Court of Appeals agreed with the district and the case was dismissed. The Supreme Court unanimously reverses and the case returns to the docket.

The plaintiffs in this case can sue directly in court for damages under the ADA, the Court says, because the IDEA does not provide for these damages for pain and suffering. If the IDEA does not provide for that remedy, then exhausting administrative remedies through the state educational system is pointless. The Supreme Court provides some statutory analysis to arrive at this result, demonstrating once again that statutes need to be carefully analyzed with an eye toward context before we can know what Congress intended when the statute was enacted. Not to bore you, but this analysis has to do with interpreting the words "remedies" and "relief" under the IDEA.

Federal whistleblower claim is dismissed because plaintiff did not file administrative complaint

The Court of Appeals holds that a plaintiff who wants to sue the Federal Energy Regulatory Commission for retaliation over his whistleblowing cannot do so because he did not initially file an administrative complaint under the Whistleblower Protection Act.

The case is Chinniah v. Federal Energy Regulatory Commission, issued on March 15. Plaintiff says he was fired shortly after he told management that a coworker was signing in for work but not actually working. Under the Whistleblower Protection Act, federal civil servants cannot suffer retaliation for reporting certain forms of rulebreaking or mismanagement, wasted money, or substantial and specific dangers to public health. Time theft might not be as serious as threats to public health, but it looks like plaintiff is arguing that that kind of rule-breaking falls within the WPA's protections. 

If plaintiff has a legitimate case, we will never know, because other Circuits have held that the Civil Service Reform Act of 1978 requires that whistleblower file an administrative complaint with the Office of Special Counsel and then to the Merit Systems Protection Board before they can proceed in court. The WPA is part of the Civil Service Reform Act and the Ninth Circuit held in 2016 that both statures "are integrated into a single statutory scheme." Other Circuits have already held that cases like this must first be litigated administratively before you can file in court.  The Second Circuit adopts the reasoning in those cases and holds the district court lacked subject matter jurisdiction to hear the case.

Multi-claim discrimination case is dismissed under Rule 12

The joy of filing a new lawsuit with a variety of claims is often met with dismay when the defendant immediately files a Rule 12 motion to dismiss the case on the basis that the complaint does not assert an actionable claim. I have noticed an uptick in the number of cases that are dismissed at this stage, before the parties can even start discovery. The solution is to submit more detailed allegations in the complaint to survive these motions. This case is a good example.

 

The case is Pattanayak v. Mastercard, Inc., a summary order issued on March 6. In this employment discrimination case, Plaintiff sues for disparate treatment, disability discrimination, retaliation, and hostile work environment. But remember that the Supreme Court in 2009 said complaints will be dismissed unless they assert “plausible” claims. That was the Iqbal case. Prior to 2009, under the more lenient “notice pleading” standards that guided Rule 12 motions, more cases proceeded to discovery. Iqbal pleading is now the name of the game.

 

On the Title VII racial and national origin discrimination claim, the Court says, plaintiff has not provided “minimal support” for his claim, even under the lenient Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), which provides a plaintiff-friendly an interpretation of Iqbal. Plaintiff cites (unidentified) workplace comments, his transfer, his compensation reduction, and his termination in support of his claim, but the Court says his discrimination allegations are conclusory and provide insufficient detail. 

 

As for the disability discrimination claims, plaintiff again does not provide enough information to support the claims under Littlejohn or Iqbal. While plaintiff says he was denied extended medial leave, the complaint does not suggest that he met the requirements for such leave, or that someone else’s medical leave was comparable to his. The Title VII retaliation claims meet a similar fate: while plaintiff says Mastercard punished him for certain workplace complaints, the lawsuit does not show that the company understood that he was speaking out against discrimination as opposed to something else. 

 

We also have a hostile work environment claim. That, too, is dismissed. Plaintiff cites “a handful of incidents that do not amount to ‘severe’ or ‘pervasive’ conduct sufficient to violate Title VII. The Court notes that this case is not as serious as another case that the Court recently dismissed, Boyar v. Yelle, 2022 WL 120356 (2d Cir. 2022), where the plaintiff no case even though his supervisor threatned to “wring [plaintiff’s] neck,” “ignored him at a meeting,” “yelled at him,” and gave him unrealistic deadlines. 

 

 

City Council expulsion did not violate the First Amendment

Here's an interesting First Amendment case involving an elected official who was expelled from the New York City Council. He says he was kicked off the Council because of his political views, but the Court of Appeals says the real reason was his misconduct, which means he has no case.

 

The case is King v. City of New York, a summary order issued on March 8. Plaintiff says he ruffled feathers when he spoke out against gay marriage, gender-neutral public bathrooms, and allowing children to change their gender status on birth certificates. He expressed such opposition because of his – and his constituents’ – views on “the Bible’s teachings on homosexuality.” He also refused to honor the victims of the Pulse nightclub shooting. 

 

Since this case was dismissed under Rule 12, you might expect that the trial court would find that a factual dispute over the Council’s motive in expelling him from the Council would require some discovery to determine what really motivated the expulsion. Motive is usually for the factfinder. That might have been the result had the Supreme Court not issued new pleading standards in 2007 and 2009, what we now call Iqbal/Twombly plausibility-pleading requirements. Under these more recent standards, the trial court dismissed the case, and the Court of Appeals (Livingston, Menashi and Nardini) affirms, holding that the complaint does not assert a plausible claim.

 

The Court of Appeals notes that the Council’s investigation into plaintiff began when someone filed a sexual harassment charge against him. The Court identifies a pleading deficiency here. While plaintiff says this charge was politically-motivated, the Court says plaintiff has not detailed how City officials instigated this sexual harassment charge and urged the victim to file it against plaintiff. There were other sexual harassment charges against plaintiff, but the Complaint says nothing about how defendants instigated those charges. While plaintiff says he was singled out and that other wrongdoers were not expelled from the Council, the Court of Appeals says they did not engage in comparable conduct and had only engaged in “the harassment of staff members, the improper use of government funds, and the solicitation of a kickback.” That conduct looks comparable or at least quite serious to me, but the Court of Appeals says otherwise. 

 

These pleading deficiencies allow the Court to reach and “obvious alternative explanation” for plaintiff’s expulsion from the Council, which made serious allegations against plaintiff, including his alleged retaliation against his staff, allowing workplace harassment to persist in his office, allowing his spouse to use government resources for personal use, and his failure to reimburse staff for expenses. Under the pleading standards that the Supreme Court adopted 15 years ago, the Court may weigh the allegations to determine whether plaintiff’s claims are plausible or whether another obvious reason explains the adverse action. The Court finds it implausible that defendants’ actions “were motivated by political disagreements from years earlier.”

Here’s one way to lose a Title VII retaliation case

This case highlights a loophole in the civil rights laws which prohibit retaliation in the workplace. You cannot suffer retaliation for complaining about discrimination against yourself or any coworkers. But the law does not protect you when you are complaining about retaliation against other people.

 

The case is Gerzhgorin v Selfhelp Community Services, Inc., a summary order issued on March 13. Plaintiff sued his former employer, and one of its programs, the Russian Holocaust Survivors Program, for religious discrimination and retaliation in violation of Title VII. 

 

In order to win a retaliation case, you have to prove you spoke out against discrimination in good faith. One way for management to challenge that requirement is through proof that plaintiff literally spoke out in bad faith, that he did not really intend to protest discrimination and only did so for other reasons, such as to fight off what he perceived as his pending termination for other reasons. Another way for management to disprove any protected activity is by showing that plaintiff was never really protesting Title VII discrimination in the first place. That’s how defendant wins this case.

 

Plaintiff spoke out against discrimination against his employer’s clients, not employees. He said that food provided for clients was not strictly kosher and that music selections for client events was not appropriate. But, the Court of Appeals (Walker, Lynch and Robinson) says, “[c]onduct directed entirely toward non-employees generally cannot be characterized as an unlawful practice by an employer.” That quote derives from Wimmer v. Suffolk County Police Dept., 176 F.3d 125 (2d Cir. 1999). While “such conduct may contribute to a hostile work environment under some circumstances,” plaintiff in this case is not pursuing a hostile work environment case. 

Rockland County public employees lose First Amendment retaliation appeal

These public employees complained to the County legislature over a proposal to relocate the Probation Department. The Director of Probation told the plaintiffs in a memo (and in a series of meetings) that their protests were out of line, had disregarded the chain of command and that "further communications of this nature may result in disciplinary action against you." The plaintiffs sued under the First Amendment, claiming this memo was retaliatory.

The case is Bennett v. County of Rockland, issued on March 7. The case went to trial, and the jury said this memo was not an "adverse action." In order to sue for retaliation, the plaintiffs must prove an adverse action which would make the lawsuit worth fighting. An adverse action in retaliation cases requires proof that the employer's response to the free speech would dissuade an objective employee from speaking out again. The Supreme Court bestowed that generous test upon us in the Burlington Northern case in 2006. 

Although the jury said the memo would not dissuade anyone from speaking out again, post-trial, the trial judge entered judgment for the plaintiffs anyway, finding that this memo was an adverse action as a matter of law as it contained a threat of discipline in the event plaintiffs again objected to relocating the Department's office. The trial court then issued an injunction preventing the County from enforcing the memo-threat. Were these rulings correct? No, says the Court of Appeals (Jacobs, Nathan and Gonzalez [D.J.]), which vacates the trial court's order and reinstates the jury verdict in favor of the County.

The Second Circuit opens its discussion by stating, "Often, the question of 'whether an undesirable employment action qualifies as being ‘adverse’ is a heavily fact-specific, contextual determination' that is left for the jury." Here, the trial record supports the jury's finding that the memo was a "petty slight, minor annoyance, or trivial punishment" and not a real adverse action. Only one employee from the Department of Probation in 26 years had ever been suspended, and no one had been fired in ten years. "The infrequency of actual disciplinary action at the Probation Department could lead a reasonable jury to infer that the one-page Memorandum and the fifteen-minute meeting would not have deterred a similarly situated employee of ordinary firmness from exercising her First Amendment rights." Essentially, the jury found that plaintiffs did not have to take the disciplinary threat seriously.

The Court does say that if the jury found in the plaintiffs' favor, that verdict would have been upheld as well. The point is that this issue was for the jury, not the trial judge following a defense verdict. "The question of whether a particular criticism or reprimand qualifies as an adverse employment action will often be a fact-intensive inquiry for the jury."

Federal court holds that all claims in a sexual harassment lawsuit must proceed in court, not arbitration

A Southern District judge has ruled that an employment discrimination case can be litigated in federal court even though (1) the plaintiff signed an arbitration agreement and (2) the plaintiff raises non sexual harassment claims. The reason for this is the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.

The case is Johnson v., Everyrealm, Inc., 22 Civ. 6669, 2022 WL 2216173 (S.D.N.Y. Feb. 24, 2023). Plaintiff sues for a variety of civil rights violations: race discrimination, pay discrimination, state-law infliction of emotional distress, and sexual harassment. Prior to the Act, the case would be sent to arbitration immediately. The courts have interpreted the Federal Arbitration Act to broadly protect employers from courthouse litigation when the employee signs an arbitration agreement. But the 2021 Act amends the Federal Arbitration Act, as Congress does not want sexual harassment disputes litigated behind closed doors, which is what arbitration is all about.

Under the 2021 Act, which applies only to claims that accrued on or after March 3, 2022, a sexual harassment dispute is defined as "a dispute relating to conduct that is alleged to sexual harassment under applicable Federal, Tribal, or State law." The Act also says that even if the employee signed an arbitration agreement, that agreement is unenforceable "with respect to a case which is filed under Federal, Tribal, or State law and relates to . . . the sexual harassment dispute." A court determines arbitrability, not the arbitrator. Take a close look at the statutory language and note that the statute relates to a "case" and not a "claim." That distinction is key to the court's ruling in this case.

The dilemma here is that plaintiff is not just claiming sexual harassment but race discrimination and other violations that do not relate directly to a sexually-hostile work environment. Can a judge split the case and keep the sexual harassment case in federal court and send the rest to arbitration? The statute does not specifically address this issue, though the Federal Arbitration Act authorizes this kind of piecemeal litigation. So Judge Englemayer engages in statutory construction. 

The 2021 Act, which says that the arbitration agreement is not enforceable "with respect to a case which is filed" under various laws "and relates to the . . . sexual harassment dispute," means that "a 'case' or 'action' refers to an overall legal proceeding filed in a court, whereas a 'claim' or a 'cause of action' refers to a specific assertable or asserted right within such a proceeding." The court uses dictionary definitions in reaching this finding, a process authorized by the Supreme Court. Under this analysis, Congress did not want piecemeal litigation, with some claims going to arbitration and the sexual harassment claim in federal court. The court sums it up this way:

With the ordinary meaning of "case" in mind, the text of § 402(a) makes clear that its invalidation of an arbitration agreement extends to the entirety of the case relating to the sexual harassment dispute, not merely the discrete claims in that case that themselves either allege such harassment or relate to a sexual harassment dispute (for example, a claim of unlawful retaliation for a report of sexual harassment).

A few other noteworthy points. First, the court holds that it must first determine whether the plaintiff has a plausible sexual harassment claim under Rule 12 before it applies the 2021 Act. It is not enough to simply assert the plaintiff has a sexual harassment claim in order to get around the FAA's pro-arbitration mandate. Also, the court notes that there is no definitive ruling that holds that the 2019 amendments to the New York State Human Rights Law, which liberalized the sexual harassment laws in New York, makes the State HRL identical to the New York City HRL, which was amended years ago to make it easier for plaintiffs to win these cases. 

 

Anti-abortion group is able to challenge law that makes it illegal to discriminate against pro-choice employees

In 2019, the State of New York enacted a statute that makes it illegal for an employer to discriminate or retaliate against any employee "because of or on the basis of the employee's or dependent's reproductive health decisionmaking." This is known as the "Boss bill." An anti-abortion organization that counsels women against the procedure sued the state, claiming the law improperly requires them to hire pro-choice employees. The Court of Appeals finds that the law cannot force this organization to hire pro-choice employees.

The case is Slattery v. Hochel, issued on February 27. The organization, Evergreen, only hires employees who oppose abortion and extramarital sexual relationships. If you want to work there, the hiring official will ask if you are pro-choice or pro-life. If you are pro-choice, you are shown the door. The reason for this: they need personnel who can credibly communicate to patients the organization's opposition to abortion and extra-marital sexual relationships. 

More than a year after oral argument, the Second Circuit (Menashi, Nardini and Park) finds that, as to Evergreen, the law may violate the First Amendment right to expressive association. "The statute forces Evergreen to employ individuals who act or have acted against the very mission of its organization." While the Constitution does not expressly protect the freedom of association, that freedom is implied under the First Amendment. The Court adds,

The right to expressive association allows Evergreen to determine that its message will be effectively conveyed only by employees who sincerely share its views. To decide whether  someone holds certain views—and therefore would be a reliable advocate—Evergreen asks whether that person has engaged or will engage in conduct antithetical to those views.  Evergreen  has  plausibly alleged  that, by foreclosing Evergreen’s ability to reject employees whose actions suggest that they believe the opposite of the message it is trying to convey, § 203-e severely burdens Evergreen’s First Amendment right to freedom of expressive association.

Since plaintiff's associational rights are significantly burdened, the "strict scrutiny" standard applies, which means the government loses the case unless a compelling reason supports the restriction. At this stage of the litigation, New York cannot show that the Boss bill satisfies strict scrutiny. The Court notes that this analysis is not usually appropriate on a Rule 12 motion and that the right time for this is a summary judgment motion, after discovery is completed. But it looks like the State may lose the case in the end. The Court writes that, at a minimum, the lawsuit states a plausible claim under the First Amendment, entitling plaintiff to proceed with discovery:

drawing all inferences in Evergreen’s favor, the state’s interest cannot overcome the expressive association right of an organization such as Evergreen. On one side of the scale is the individual’s right not to be discriminated against for certain reproductive choices, such as having an abortion. On the other side is the First Amendment right of a particular association—in this case, Evergreen—to advocate against that conduct. 

If Evergreen had the right to exclude employees who have had an abortion, the right to be free of discrimination for having an abortion will be impaired only to the limited extent that a person cannot join the specific group or groups that oppose abortion. But if the state could require an association that expressly opposes abortion to accept members who engage in the conduct the organization opposes, it would severely burden the organization’s right of expressive association. “It would be difficult,” to say the least, for an organization “to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct.”

Finally, plaintiff challenges the law under the Free Exercise Clause, arguing that it burdens its religious practice. This might sound like a winning argument, but it fails because the law is neutral on its face and does not single out any religious practices. Under Supreme Court authority, i.e., Employment Division v. Smith (1990), laws like this do not violate the Free Exercise Clause. While the Boss bill's sponsors made public statements that may have expressed hostility toward religion, that does not mean the Legislature as a whole felt that way. The Courts do not want to invalidate a law on the basis of a few comments from individual legislators.

Police cannot arrest a man who warned motorists of an upcoming police-highway operation

This interesting case holds that a man who protested police activity by warning other motorists that the police were conducting a distracted-driving enforcement operation could not be arrested for interfering with police operations. He wins on First Amendment grounds.

The case is Friend v. Gasparino, issued on February 27. Friend stood on the road with a sign for other motorists. The sign said, "Cops Ahead." This sign warned other drivers that the police were ticketing distracted drivers, i.e., people who were using their cell phones while driving. The police arrested him for posting these signs. They charged him with violating Connecticut law against interference with an officer. The arresting officer set plaintiff's bail at $25,000, claiming he set that amount because of plaintiff's "actions on the scene" and "his personality," whatever that means. Plaintiff did not post bail but was released in the middle of the night.

The trial court said plaintiff cannot prevail on his false arrest or free speech claims, but the Court of Appeals reverses and finds that plaintiff can win the case, which reiterates a few solid First Amendment principles and allows people like Friend to protest police actions without fear of arrest. The Court of Appeals notes that the Connecticut law under which plaintiff was arrested only prohibits physical obstruction of a police officer or any speech that would be unprotected under the First Amendment, like incitement to riot, fighting words or something else that would cause breach of the peace. Plaintiff did none of those things. He should not have been arrested for holding up these signs. So that takes care of the false arrest claim.

The First Amendment claim has a similar analysis. Remember, holding up a sign in a public forum is pure speech. While the district court said plaintiff's speech had no real value, the Second Circuit notes this is not a judgment for a district court to make. Even crude or unconventional speech is protected under the First Amendment. And while this is not critical to the analysis, plaintiff did speak on a matter of public concern, as he was commenting on police practices. What is more, while the government may have a compelling interest in ensuring that drivers are not playing with their cell phones behind the wheel, plaintiff's arrest was not narrowly tailored toward that end, which is the standard under the First Amendment when protected speech is restricted. The reason for this is that nothing in Connecticut law allowed the police to arrest him in the first place, and there were not exigent circumstances that allowed the police to interfere with plaintiff's speech. 

This case may seem simple but it was not. The appeal was argued in December 2021, and the decision came down on February 27, 2023. That's a long time for the Second Circuit. But First Amendment law is actually complex, and it takes time for federal judges in New York City to gain a full understanding of how the Connecticut statutes operate.