Black councilmember cannot sue fellow councilmen for racial discrimination

The plaintiff in this case is a Black councilmember in upstate New York who brought a racial discrimination case against two other councilmembers after the Town reneged in its commitment to create ICARE, a racial diversity and equity initiative that the plaintiff chaired, and a program to help minority residents become first-time homebuyers. The district court held plaintiff cannot make out an equal protection claim for a hostile work environment, and the Court of Appeals affirms.

The case is Freeman v. Town of Irondequoit, a summary order issued on October 25. Plaintiff's relationship with the Town Board appears to have gotten worse after the lawsuit was filed. The Court does not focus on that and instead examines the allegations in the lawsuit. The individual defendants are Perticone and Romeo. The Court (Jacobs, Wesley and Robinson) holds there can be no hostile work environment claim against them. "Most of Freeman’s allegations concern acts done by people other than Perticone and Romeo. And most of Perticone’s and Romeo’s alleged misconduct is protected by legislative immunity and cannot be considered.  The acts by Perticone and Romeo that are not protected by immunity do not plausibly establish a hostile work environment claim against either defendant."

First, much of the hostility that plaintiff endured from these defendants -- who either alone or separately became hostile toward the ICARE initiative, defended what plaintiff deemed a hostile police presence at Town Board meetings, filed a police report against and falsely accused her of threatening his life, and screamed at her -- are nonactionable because of legislative immunity. 

The remaining acts of hostility are not enough to support a hostile work environment claim, the Court says, because "neither Perticone’s shouting, interference with Freeman’s recording, and statements regarding Freeman’s agenda nor Romeo’s false police report and her comment that it is “a free country,” created sufficiently severe and pervasive hostility in Freeman’s work environment so as to alter her conditions of employment." Nor can plaintiff sue the Town under Section 1983 for racial discrimination. Her allegations in support of this claim are as follows:

she alleges the Town implicitly condoned the intimidating actions of off-duty police officers during Town Council meetings because the Council failed to take ameliorative action.  We understand this first claim as an allegation that the Town violated Freeman’s personal rights to be free from a hostile work environment based on racial animus.  Second, she alleges that after Perticone began serving as the Acting Town Supervisor, he took actions “designed to frustrate and impede” ICARE’s homeownership program and “undercut its contract with the Urban League.”

It is not enough to argue that the Town created a hostile work environment by insisting that hostile police officers are allowed to attend Town meetings. While plaintiff also argued that ICARE itself has a hostile work environment claim against the Town, not only did she disavow such a claim in the district court, but "she has not explained how ICARE, which Freeman alleges was formed as a government entity but is now an independent unincorporated association, has standing to assert claims based on wrongs allegedly inflicted against the prior incarnation of ICARE which was a Town Commission."

Former Yale student may sue accusor for defamation

A former student at Yale University sued a woman who had accused him of rape. The claim was that the woman had defamed and tortiously interfered with his educational contract. In particular, plaintiff claimed that the woman's rape allegation at the in-house university hearing was defamatory. The question then became complicated: was the woman immune from suit because she made the allegation during a hearing? 

The case is Khan v. Yale University, issued on October 25. Usually, statements made during evidentiary hearings and trials cannot predicate a defamation claim, as the legal system wants people to testify freely without fear of any lawsuit. But this was not the usual evidentiary hearing or trial. It was a University hearing that did not have all the attributes of a hearing, i.e., no one was testifying under oath, etc. Under that circumstance, could plaintiff sue Jane Doe? 

The Court of Appeals (Raggi, Kearse and Livingston) referred the case to the Connecticut Supreme Court to issue a definitive ruling under state law whether this was truly a quasi-judicial hearing. The Connecticut Supreme Court answered that question in the negative, and the Second Circuit uses that ruling to allow plaintiff to proceed with his case against Jane Doe.

The University hearing is not your typical quasi-judicial hearing, the courts have said in this case, because (1) there are no sufficient procedural safeguards to ensure the evidence is reliable and that the hearing is fundamentally fair, (2) no one testifies under oath, (3) there is no meaningful cross-examination, as the accused's lawyer cannot question the victim and can only submit questions for the hearing officers to then direct toward the victim, (4) the parties to the hearing do not have a meaningful opportunity to call witnesses, (5) the accused is denied full assistance of counsel, (6) and an adequate record of the hearings are not maintained that would allow for a meaningful appeal.

As the University hearings are far from the hearings we associate with the fact-finding process, the Second Circuit holds, the victim's rape allegation is actionable in a defamation claim brought by plaintiff. The case returns to the district court for further proceedings.

First Department sustains sex and race discrimination claim, noting relaxed state-court pleading standard

The First Department has sustained a sex and race discrimination claim, restating that pleading standards in state court are quite different from federal law and that the plaintiff in this case has a legitimate claim against the Metropolitan Transportation Authority.

The case is Walker v. Triborough Bridge and Tunnel Authority, issued on October 19. The MTA runs the Triborough Bridge and Tunnel Authority. Plaintiff had also filed in federal court, asserting a racial discrimination claim. The federal court dismissed that claim under Rule 12 under the stringent Iqbal pleading test, created by the Supreme Court in 2009 to required plaintiffs to assert plausible and nonconclusory claims. But in state court, the Iqbal pleading rule does not apply. State courts still employ "notice pleading," a more plaintiff-friendly test that the federal courts were using prior to 2009.

The federal court dismissed plaintiff's federal discrimination claims but did not rule on the State and City Human Rights Law claims. Here is how the federal judge opened the decision; the first paragraph starts off strong but that was only a prelude to dismissal:  

Discrimination has no place in the workplace. Anti-discrimination laws protect employees when they are subjected to disparate treatment, a hostile environment or retaliation at work on the basis of their protected characteristics. But to avail herself of the protection of federal anti-discrimination laws, a plaintiff must plausibly allege that she suffered discrimination because of her protected characteristic(s). Mere recitations of a plaintiff's membership in a protected class and a litany of incidents of poor treatment, without factual connections between the two, do not pass muster.

As plaintiff's federal discrimination claims did not "pass muster," they were dismissed. Plaintiff then filed her claims in state court under the State and City Human Rights Laws. Defendants tried to dismiss those claims on the basis that the federal court had rejected their federal counterparts. But the First Department said the claims in state court are analyzed differently than the claims that were dismissed in federal court. That's because "notice pleading" is still the rule in state court practice. The First Department has said this in the past and it says it again.

On the merits, plaintiff has a claim, the Court says, based on the following facts: 

The complaint alleges that she received more intense scrutiny and was excluded from meetings that her male, non-Black peer was invited to join. Defendant Victor Muallem allegedly subjected her to verbal abuse, in the presence of co-workers, clients, opposing counsel and arbitrators on several occasions, and even struck her during an arbitration hearing while she was cross-examining a witness. Plaintiff alleges that this behavior stemmed from discriminatory animus, as Muallem directed it towards only plaintiff and other Black female employees.

We also have a retaliation claim based on plaintiff's assertion that "defendants[] forc[ed] plaintiff to move to an office in extremely close proximity to her alleged abuser Muallem while ignoring plaintiff's reasonable plea not to do so." In addition, the Court finds plaintiff has a claim under the Gender-Motivated Violence Act, another City law that you don't see in federal practice. She alleged that a male co-worker physically struck her and had directed animus against another Black female employee in the past.

 

Discrimination has no place in the workplace. Anti-discrimination laws protect employees when they are subjected to disparate treatment, a hostile environment or retaliation at work on the basis of their protected characteristics. But to avail herself of the protection of federal anti-discrimination laws, a plaintiff must plausibly allege that she suffered discrimination because of her protected characteristic(s). Mere recitations of a plaintiff's membership in a protected class and a litany of incidents of poor treatment, without factual connections between the two, do not pass muster.

Walker v. Triborough Bridge & Tunnel Auth., No. 21-CV-474 (VEC), 2021 WL 5401483, at *1 (S.D.N.Y. Nov. 18, 2021)

Discrimination has no place in the workplace. Anti-discrimination laws protect employees when they are subjected to disparate treatment, a hostile environment or retaliation at work on the basis of their protected characteristics. But to avail herself of the protection of federal anti-discrimination laws, a plaintiff must plausibly allege that she suffered discrimination because of her protected characteristic(s). Mere recitations of a plaintiff's membership in a protected class and a litany of incidents of poor treatment, without factual connections between the two, do not pass muster.

Walker v. Triborough Bridge & Tunnel Auth., No. 21-CV-474 (VEC), 2021 WL 5401483, at *1 (S.D.N.Y. Nov. 18, 2021)

Court of Appeals provides guidance on FLSA pleading

The Court of Appeals has provided guidance on how to plead overtime claims under the Fair Labor Standards Act. This ruling makes it easier for plaintiffs to avoid dismissal under Rule 12(b)(6).

The case is Abbott v. Comme Des Garcons, Ltd., issued on October 16. In 2013, the Second Circuit issued three rulings on this issue in Lundy v. Cath. Health Sys., 711 F.3d 106 (2d Cir. 20013), Nakahata v. New York-Presbyterian, 723 F.3d 192 (2d Cir. 2013), and Dejesus v. HF Mgt. Servs., 726 F.3d 85 (2d 2013), which in a nutshell held that while plaintiffs must plead their overtime claims with "specificity," the pleading standard is not stringent. Rather, they "must sufficiently allege '40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.'" While plaintiffs do not have to make an approximation of overtime hours, the Court has also suggested that "an approximation 'may help draw a plaintiff's claim closer to plausibility'" under the Iqbal plausibility pleading test. So plead it if you got it, but not pleading it is not fatal.

In this case, plaintiffs alleged that they worked five shifts each week, and that each shift lasted between eight and three-quarter hours and nine hours, so that they worked between 43.75 and 45 hours of work per week. That brings us to more than 40 hours per week. Anything more than 40 hours and plaintiffs are entitled to overtime. Plaintiffs also alleged in the complaint that the usually devoted five hours a week to post-work duties, and three more hours each week to receiving shipments of merchandise. They also alleged early arrivals and late departures amounting to an additional five hours per week, in addition to their 40 hour workweeks. Taken together, these allegations show plaintiffs are entitled to overtime pay. They further allege, however, that management did not pay them overtime. Hence the lawsuit.

Defendants argued that complaint is deficient because, under Lundy, plaintiffs have to show the specific weeks they worked more than 40 hours, i.e., they must identify each week they worked their regular schedule. For one plaintiff, that's a more than 100-week task. That argument misreads Lundy and would, contrary to Lundy, require plaintiffs in FLSA cases "to keep careful records and plead their hours with mathematical precision." While Lundy holds that the FLSA complaint will be dismissed if the plaintiffs only allege that at some undefined period in their employment they worked more than 40 hours in a single week, the plaintiffs in this case did not fall below the Lundy standard. The district court's ruling dismissing the complaint is reversed and this case will now proceed to discovery.

The Second Circuit (Lohier, Lynch and Parker) notes how some of the plaintiffs pled their cases, and you can take the following as the Court's legal advice on how to avoid dismissal:

The allegations relating to the individual Plaintiffs in this case easily satisfy this standard. Hennager, for example, alleges that, “[f]rom December 2015 to August 2018, [he] was employed first as a Sales Manager and then as an Assistant Floor Manager, and was not paid overtime.” The Complaint further alleges that all of the Plaintiffs – including Hennager – worked more than forty hours per week as part of their regularly scheduled workweeks. Accepting these allegations as pleaded, Hennager has adequately alleged that he regularly worked more than forty hours per week from December 2015 to August 2018, and that DSMNY’s failure to pay him overtime violated the FLSA.

2d Circuit clarifies equal pay claims under federal and state law

The Second Circuit has clarified the scope of the federal Equal Pay Act and its New York State counterpart, noting that the two laws are applied differently. This ruling revives the plaintiff's state law claim even as it brings her federal equal pay claim to an end.

The case is Eisenhauer v. Culinary Institute of America, issued on October 17. The Culinary Institute is one of the premier cooking schools in the United States, located in Hyde Park, New York. Plaintiff sued CIA because a male professor was earning more money than she was. CIA argued that the pay discrepancy was the product of its sex-neutral compensation plan, which "requires fixed pay increases triggered by time, promotion, and degree completion. It does not provide for “equity” adjustments. Each year, in accordance with the compensation plan, all faculty members receive the same percentage increase in their salaries." As a consequence, the Court of Appeals (Cabranes, Leval and Livingston) notes, "the pay disparity between Eisenhauer and Perillo continues to grow."

The federal EPA claim is dismissed on summary judgment because the statute says a pay disparity is legal if the differential is based on "any factor other than sex." What does that language mean? Plaintiff argues that this language means the pay differential must be job-related. If that is the case, then plaintiff could win the case, as she and the male comparator had similar positions and duties. Some federal courts around the country interpret that language to mean the pay difference must be job-related, but the Second Circuit provides an extended discussion on statutory interpretation and rejects the "job-related" angle, noting the EPA articulates no such interpretation and that "any factor other than sex" means that, "To establish the EPA's 'factor other than sex' defense, a defendant must prove that the pay disparity in question results from a differential based on any factor other than sex." This interpretation makes it easier for employers to win these cases. This interpretation also highlights a Circuit-split that might land this issue in the Supreme Court some day.

Under this interpretation, CIA wins the case. The record shows that the pay differential in this case stems from the sex-neutral compensation plan that gave the male professor the pay advantage because, for various sex-neutral reasons, he was earning more when he began teaching there and the compensation plan applies to everyone.

As for the state law claim, the state law counterpart to the EPA was amended in 2016 to include the "job-related" language that is absent in the EPA. Under state law, any pay differential must be job-related or the differential violates the New York Labor Law. Since the district court did not interpret the state statute that way, the case is remanded to properly apply the law to plaintiff's equal pay claim.

Inmate Spam incident highlights qualified immunity condundrum

The plaintiff in this case is a prisoner in the New York criminal justice system who claims the state violated due process when it revoked certain privileges that might have allowed him discretionary release from prison. The Court of Appeals finds that plaintiff may have suffered a due process violation. But he cannot recover any damages because the defendants have qualified immunity.

The case is Bangs v. Smith, issued on October 12. Under the rules, inmates who are locked up for certain non-violent offenses can earn "merit time allowances" to reduce their sentences by one-sixth. Once you get merit time allowance, you can appear before the Parole Board, which has authority to give you a discretionary release. Bangs was given a sentence of three to six years, and the minimum term of sentence would expire in September 2019. A year earlier, prison officials gave Bangs a merit time allowance because he successfully participated in vocational programming, and because of his positive inmate record. The Parole Board decided to grant a date for Bangs' release: March 13, 2019. I am sure this became the magic day for Bangs. 

But then prison officials issued Bangs a misconduct report alleging he gave another inmate a can of Spam. Yes, that Spam. Bangs then demanded that the prison guard return the Spam to him after it was confiscated. Bangs lost the internal disciplinary hearing over the Spam incident and the prison told the Parole Board that Bangs should not receive early release through parole after all. His merit time allowance was revoked. The Parole Board then rescinded the early release.

On appeal from the district court's order denying Bangs' due process case, the Court of Appeals holds first that Bangs may have a liberty interest under the Due Process Clause to take parole. But we have a qualified immunity problem. This immunity lets government defendants off the hook for damages claims if the law was not clearly-established at the time of the constitutional violation. The Courts need to find a case is quite similar to your case if you want to pierce the immunity. Otherwise, the case against that defendant is dismissed on the theory that she could not have anticipated how courts might decide future legal issues.

Qualified immunity knocks out Bangs' case because prior case law (which might on its face appear to help Bangs win his case) did not contemplate whether you have a due process claim when the prison denies you a hearing to revoke the merit time allowance because of an intervening  disciplinary infraction that takes place prior to the actual release date.

 

 

Age harassment case is dismissed as Court finds allegations too conclusory

This hostile work environment claim alleges a series of hostile acts in the workplace. But that is not enough to sue for workplace harassment on the basis of age, gender, or race. You have to link the harassment to membership in these protected classes. The Court of Appeals says plaintiff failed to do so, and the case is dismissed.

The case is Antrobus v. New York City Health and Hospitals Corp., a summary order issued on October 13. Plaintiff alleges age discrimination. The case was dismissed under Rule 12, which means the trial court said that all the allegations in the complaint, if true, were not enough. You know, there was a time many years ago when fewer cases were dismissed under Rule 12, as "notice pleading" was the name of the game. But in 2009, the Supreme Court instituted "Iqbal pleading," which prohibits conclusory factual allegations. Now we see numerous Rule 12 dismissals.

The Court of Appeals (Robinson, Kahn and Robinson) holds that plaintiff has no hostile work environment case. Here are the plaintiff's allegations: "(1) Appellant received fewer assignments, had assignments taken away from her, was denied access to  critical information, and was isolated by her managers after filing her 2015 and 2016 complaints;  and (2) Appellant was subjected to unsolicited inquiries about her retirement after filing the 2019 complaint." These events may look like harassment to the average employee, but the court finds these allegations are not even enough to start discovery, which means the case is dismissed and the jury, which might also think this constitutes illegal harassment, will never hear the case.

As for the fewer assignments, "Appellant has failed to allege, for example, which or how many assignments were kept or taken away from her, what type of information was withheld from her, how
frequent those occurrences were, and whether her resulting workload was within the scope of
her job duties." Without that kind of detail, the complaint is conclusory under Iqbal pleading. As for the unsolicited inquiries about plaintiff's retirement, that does not support the claim either, as the Court holds that "these inquiries about Appellant’s retirement, which is a normal topic of conversation between an employer and an employee and are not sufficiently alleged to have 'discriminatory overtones' in this case."

Dooring accident case will return to trial for a new causation analysis

This personal injury case reaches the Second Circuit following a trial in which the judge said the plaintiff-bicyclist was 40% liable for his injuries after he slammed into the open door of a parked vehicle owned by the federal government. That comparative negligence finding reduced the plaintiff's damages from $175,000 to $105,000. The Court of Appeals returns the case to the district court to reconsider the damages and plaintiff's own degree of fault.

The case is Dooley v. United States, issued on October 5. Plaintiff was a restaurant delivery guy in the Bronx who suffered injuries when the car door opened just as he was approaching the car. They call this "dooming," a common problem in New York City. The trial court said the driver, a federal employee, was negligent because he did not, as required, check to see if it was safe to open the car door. The court also said plaintiff was negligent in part because he had enough space on the road to avoid the parked car. But the trial court did not determine what speed would have been reasonable for plaintiff to be peddling his bicycle or what distance from the parked cars would have been appropriate.

There is more to tort liability than just duty, breach, causation, harm. Causation issues can be complex, as demonstrated by this case. Writing for the majority, Judge Calabresi, an expert in tort liability, holds that while the trial court may have had a basis to find plaintiff was negligent, it failed to link that negligence with the proximate cause of any of plaintiff's injuries. Without making any findings as to how plaintiffs conduct -- had he not acted negligently -- would have avoided his injuries, the causation analysis was faulty, and careful examination of these issues may yield a better damages result for plaintiff. For example, the district court said plaintiff was speeding on his bike, but it did not explain why speeding was a cause of the accident. When did the car door open up? Was there enough time for plaintiff to swerve out of the way? The trial court has to consider this on remand.

Also on remand, the trial court must reconsider what effect plaintiff's marijuana use might have had on the causation analysis. There was testimony that plaintiff used marijuana daily. Plaintiff testified he did not do so on work days. The district court held the pot use against plaintiff and said plaintiff had an interest in the outcome of the case and thus his testimony on this issue is not credible. But the district court did not properly consider the driver's interest in the case. True, had the driver acted negligently, the Court of Appeals (Calabresi, Lee and Park [dissenting] says, the federal government would be financially liable. But the driver could also be held responsible and suffered punishment or some penalty. Bear in mind that a trial court ruling from 1994 says that under New York law, habitual marijuana use alone may not be enough to show the plaintiff-victim was impaired at the time of an accident. 

Another problem with the district court's analysis is its holding that plaintiff could have driven further away from the parked car to avoid injury. Plaintiff was riding his bike in a bike shoulder. Also, New York law does not require the bicyclist to remain at a particular distance from parked cars. The trial court on remand must reconsider its findings based on the majority's interpretation of New York's Vehicle and Traffic Law. In the end, the majority says, "there is simply no evidence sufficient to say that had Dooley been riding where it was reasonable for him to ride, the accident would have been avoided."

Sex abuse case is revived and will head to trial

The Court of Appeals has reinstated a claim alleging that a private school in Connecticut failed to protect a female student from physical abuse.

The case is Miranda v. Westover School, Inc., a summary order issued on September 28. Plaintiff had the burden of showing that the school had reasonable cause to suspect abuse or that she faced an imminent risk of such harm. The trial court dismissed the case on summary judgment, holding plaintiff did not adduce enough evidence to support her claim. The Court of Appeals (Raggi, Lohier and Carney) disagrees and returns the case to the district court for trial.

Plaintiff's evidence includes testimony from a faculty member, Lytle, who said that plaintiff's best friend gave him the impression that "something inappropriate was happening" between plaintiff and a teacher, Fitzsimmons. The best friend was "really worried" about "some sort of inappropriate relationship." Lytle then saw plaintiff and Fitzsimmons sitting with their legs touching or intertwined, which made him "uncomfortable." Lytle next took plaintiff to the headmaster's house and directed her to report Fitzsimmons. Plaintiff did not make the report, and Lytle took no action. In the world of child sex abuse, taking no action gives rise to liability.

So why did the district court dismiss the case? It held that Lytle's testimony should be discounted because his testimony contained irreconcilable points: first Lytle testified that “even today, it would be tricky” to decide whether to report his suspicions of Fitzsimmons’s abuse if he “were given the same information by a student.” But Lytle also testified that “[i]f a student came to [him] today and told [him] exactly what
Alana told [him] about [Miranda] and [Fitzsimmons],” he would “[r]eport it.” The Court of Appeals finds that these conflicting statements are not enough to discount Lytle's testimony and that the school's lawyer is free to attack the conflicting statements at trial, and let the jury determine if Lytle's admission is enough to hold the school liable.