Supreme Court takes on Facebook censorship and political speech

One of the anomalies in our constitutional system is that the courts have to solve modern-day problems by applying language that the constitutional framers adopted in 1791. In this case, the Supreme Court had to decide when the First Amendment bars a public official from censoring his private Facebook page. The Court provides an answer by creating a multi-part test drawn from state-action cases that the Court has issued over the decades.

The case is Lindke v. Freed, issued by the Court on March 15. Freed was city manager for the City of Port Huron, Michigan, who created a Facebook page for himself more than 15 years ago. That page includes personal postings about family, friends, his dog, bible verses, etc. But since he was also a public official, he posted stuff about the City, and constituents wrote comments that he sometimes deleted because they were "derogatory" or "stupid." One constituent was Lindke, who criticized how the City dealt with the COVID pandemic. Freed blocked Lindke, who in turn sued Freed, and the case winds up in the Supreme Court because the Supreme Court has to issue guidance on new issue. The framers never could have anticipated an issue like this, but there is a speech component to a case like this so the Court tries to bring this case within its existing standards in comparable speech cases.

What makes this a potential constitutional claim is that Freed is a public official. Normally, public officials cannot silence their critics; that would invite a First Amendment challenge. The problem here is that Freed silenced Lindke on his private Facebook page that also addresses public matters. 

The Supreme Court devises the following test, drawing from prior state action cases. The first thing the censored plaintiff must show is that the public official had actual authority rooted in written law or longstanding custom to speak for the government. "That authority must extend to speech of the sort that caused the alleged rights deprivation." But if the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice" and cannot be sued under the First Amendment. The Court gives a few examples of his this might play out:

Take a mayor who makes the following announcement exclusively on his Facebook page: “Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules.” The post’s express invocation of state authority, its immediate legal effect, and the fact that the order is not available elsewhere make clear that the mayor is purporting to discharge an official duty. 

If, by contrast, the mayor merely repeats or shares otherwise available information—for example, by linking to the parking announcement on the city’s webpage—it is far less likely that he is purporting to exercise the power of his office. Instead, it is much more likely that he is engaging in private speech “relate[d] to his public employment” or “con- cern[ing] information learned during that employment.”

But these are hypotheticals. The Court makes clear that this is a face-specific inquiry that will depend on the case. Cases involving problems that no one anticipated 20 years ago are not easy to resolve, and I am sure this case is just the beginning of social media censorship rulings from the Supreme Court.

 

Trial court granted summary judgment to defendant after 2d Circuit remanded case for trial

In this excessive force case against the Suffolk County Police Department, the Court of Appeals held in 2017 that the plaintiff had enough evidence to prove that one of the officers shot and killed the decedent in violation of constitutional standards. On remand, however, rather than empanel a jury, the trial court gave the case additional thought and granted summary judgment to the officer, dismissing the case. Can the trial court do that?

The case is Callahan v. Suffolk County Police Dept., issued on March 19. This case was originally filed in 2012. It arose after officer Wilson went to the Callahan's home, and their 26 year-old son, who had substance abuse problems, was shot by the officer. The parties sharply dispute what happened prior to the shooting, as the officer maintained that Kevin had a gun and he shot Kevin in self-defense. The family denies that account. The case went to trial and the jury returned a verdict in Wilson's favor, but the Court of Appeals ruled in 2017, 863 F.3d 144, that the jury was improperly charged on the standards guiding excessive force claims. The Second Circuit thus remanded the case to the Eastern District of New York for a new trial.

On remand, the judge placed the case on the trial-ready calendar but the defendants then moved for summary judgment, arguing that Wilson was entitled to qualified immunity on the wrongful death claim. The district court granted that motion, and the case returned to the Second Circuit (Parker, Lee and Merriam), which teaches the trial court a lesson on appellate mandates.

When the Court of Appeals issues a ruling, it issues a "mandate" that requires the trial court to faithfully comply with its order. The trial court does not have any discretionary authority to second-guess the Second Circuit's ruling or its judgment. When the Second Circuit ordered a new trial in this case, the trial court did not have authority to decide on its own that there were no factual issues for trial. While there are some exceptions to this rule, none apply here, as the factual record was not further developed on remand and the record upon which the district court granted summary judgment was essentially the same as the record that was before the Court of Appeals in remanding this case for trial.

Racial harassment claim under the City HRL will proceed to trial

This is an unpleasant racial harassment case against Fashion Institute of Technology, where the plaintiff complained about such harassment arising from a supervisor's allegedly racially-insensitive comment toward a white student aide. Plaintiff says she suffered retaliation from that supervisor, Barton, in the form of a death threat. The Court of Appeals holds that plaintiff has a case against Barton under the New York City Human Rights Law.

The case is Phillips v. FIT, a summary order issued on March 8. After Barton learned about plaintiff's complaint to the Affirmative Action Office, Barton screamed at plaintiff, saying, "I'm tired of your bullshit" and "If you don't shut the fuck up, I'm going to fucking kill you." Plaintiff says Barton was "foaming at the mouth" and put her hands on plaintiff's chest as if to push her. Plaintiff complained to HR, which suspended Barton, sent her to a racial empathy seminar, and began investigating the allegation about three weeks later.

The hostile work environment claim was properly dismissed, the Court of Appeals (Lohier, Calabresi and Cabranes) holds, because there is no evidence that Barton's threats were racially-motivated. It was not enough for plaintiff to assert otherwise on the basis that Barton had never acted that way toward a white employee. Such an argument is speculative, the Court holds. 

But we do have a viable retaliation claim for a retaliatory hostile work environment, because the jury may find that Barton's threats were materially adverse and would have deterred a reasonable employee from complaining about racial discrimination in the future. The Court notes that "[a] single incident may constitute a hostile work environment, and thus a materially adverse action, if it is 'extraordinarily severe.'” Under that test, plaintiff could have reasonably been dissuaded from complaining about discrimination again. The Court of Appeals writes that "Phillips testified that Barton threatened to kill her, cursed repeatedly at her, and physically intimidated her. Indeed, Barton testified at her deposition that she repeatedly threatened 'to kill' Phillips because saying it once 'evidently . . . didn’t scare [Phillips] enough; because she kept talking and so [Barton] said it again.'” 

The Court thus holds that "[a] reasonable juror could find that this type of threatening behavior by a coworker with whom Phillips shared an office might well dissuade a reasonable employee from filing a complaint." In addition, Phillips provided admissible evidence that Barton’s threats were motivated by retaliatory animus. During her interview with Human Resources, Barton acknowledged that Phillips’s disapproval was the 'last straw' after Phillips had 'complained about [Barton], it went up to Affirmative Action and there is still no resolution.'” 

While plaintiff may sue Barton for the retaliatory hostile work environment under the City HRL, there is no racial harassment case against FIT. The Court holds that FIT's delay in initiating the investigation into Barton's racially-motivated threats is not enough to impute liability to the school. The standard for this issue is whether FIT knew about the harassment but "did nothing about" it. Plaintiff's complaint did not suggest that Barton posed a physical threat to her. I am not sure how the record deals with this, as plaintiff asserts that Barton said, "I'll fucking kill you." The district court ruling does not shed light on this, either. Maybe the internal complaint did not affirmatively say that plaintiff feared that Barton would carry out this threat. The Court writes, "Phillips does not point to any evidence in the record to suggest that FIT was warned that Barton might pose a physical threat to Phillips or anyone else." Cases hold that (“[L]ess grave conduct, such as . . . flirtation, sexual innuendo, or crude talk, . . . might . . . not reasonably give notice of a likelihood that the person will represent a danger to co-employees”). Under that standard, the nearly three-week delay was not so long as to hold FIT liable for the retaliatory harassment.

Procedural glitch prevents the 2d Circuit from hearing appeal from jury verdict

This wage and hour case went to trial. The plaintiffs sued under federal and state law, but the trial court asked the parties if they were OK with submitting only the state law claims to the jury, as that tactic would simplify the jury instructions. The jury ruled in favor of the plaintiffs on the state law claims. 

After the district court resolved post-trial motions and the district court certified this case for immediate appeal under Rule 54(b), defendants appealed to the Second Circuit, claiming the trial court should not have exercised supplemental jurisdiction over the state-law claims. The appeal is dismissed and resolution of this case will be delayed.

The case is Zivkovic v. Laura Christy LLC, issued on March 5. The appeal is dismissed because the federal claims were never resolved in this case. The Fair Labor Standards Act claims are still pending. They were neither dismissed nor resolved by the district court. The lack of clarity about the status of the FLSA claims complicates the appeal because "it leads to questions about the validity of the district court's judgment certifying this appeal" for immediate review in the Second Circuit. Second, "the status of the FLSA claims may be relevant to our analysis of Defendants' challenge to the district court's exercise of jurisdiction" under 28 USC 1367, the supplemental jurisdiction statute that allows the trial courts to hear related state law claims. 

The case returns to the district court to clarify the status of the FLSA claims. When that happens, the parties may return to the Court of Appeals (Kearse, Park and Robinson) to resolve these issues on the merits. 

Arbitration agreement does not compel the parties to arbitration

The federal courts maintain strict allegiance to the Federal Arbitration Act, which compels the parties to arbitrate their claims when the parties agree to arbitrate their disputes. Motions to compel arbitration are routinely granted, but that is not always the case. This is one of those exceptions. 

The case is Staley v. Hotel 57 Services, a summary order issued on March 13. Bear in mind that many plaintiffs do not like arbitration, which offers less discovery than litigation, no jury, and the success rate is not comparable to state and federal court. But if the employee signs an arbitration agreement (usually at the start of their employment, when the employee has no real incentive to make things difficult in this regard and may have no bargaining power in any event), the court will uphold that agreement.

 

The district court denied the motion to compel in this case brought under the WARN Act  (which requires the employer to give employees sufficient notice of a plant closing), but the employer wanted arbitration based on the arbitration agreement. 

Issue number 1: while the courts prefer to determine who has authority to refer the case to arbitration, the arbitration agreement can delegate that issue to the arbitrator. The employer said the parties agreed to place this issue before the arbitrator, but the arbitration agreement is vague on this point as it does not clearly state who would make this decision, and it was not enough for the agreement to incorporate rules from the American Arbitration Agreement, which says the arbitrator makes this decision. This issue was therefore best left to the district court, not the arbitrator. 

Issue number 2: while the arbitration agreement says the employees will submit their complaints to an arbitrator, including issues surrounding the termination of employment bu not a permanent layoff, "a claim  regarding a permanent layoff is not subject to arbitration" in this case. Another provision of the agreement says the employee "may not seek . . . arbitration of a permanent lay-off." Since plaintiffs' claims relate to a permanent layoff in that they were placed on an indefinite furlough in March 2020 and the Hotel did not bring them back to work since then, the Court of Appeals (Lohier, Sack and Perez) presumes this is a permanent layoff case. 

Another primer on premature qualified immunity appeals in police misconduct cases

This case alleges that a Vermont police officer beat up a bar-goer, prompting an excessive force lawsuit under Section 1983. The district court rejected the officer's motion for summary judgment, holding that factual disputes prevented the grant of qualified immunity and that the jury would have to decide what really happened before the court could determine whether the officer acted reasonably under the circumstances, a prerequisite to immunity. The officer appealed, and the Court of Appeals sends the case back to trial on this issue.

The issue is Jok v. City of Burlington, issued on March 15, nearly a year after the case was argued. I don't know why it took so long for this decision to issue, as it applies settled rules governing the appealability of qualified immunity denials in cases like this, and the decision does not appear to resolve any difficult legal issues. Still, the ruling provides good guidance for lawyers who handle these cases. If you have a Section 1983 case and someone wants to appeal from the denial of qualified immunity, you need to read this case.

Generally, you cannot appeal the denial of summary judgment right away. The party that sought summary judgment, usually the defendant, has to go through a trial first before the case can reach the Court of Appeals. An exception to that rule is qualified immunity denials, as immunity protects public officials (including police officers) from litigation, and we want immunity to attach as early as possible. Immunity attaches when the defendant acts reasonably under the circumstances. But an appeal from the denial of qualified immunity is only permissible when the defendant adopts the plaintiff's facts and argues that those facts prove he acted reasonably, or the case involves some issue of law that can be resolved right away.

While this case alleges excessive force and we have various factual disputes about what happened and whether the officer acted reasonably, the officer appealed from the denial of qualified immunity without accepting the plaintiff's version of events for purposes of the appeal. Instead, the Court of Appeals (Lee, Perez and Merriam) notes that the officer argues from his own version of events in seeking qualified immunity. That is a rookie (but common) mistake, and counsel tried to modify the appellate argument in the reply brief, but even the reply brief argues the defendant officer's version of events. Let's face it: it is hard to accept the opposing party's version of events for any purpose, even when you are trying to have the case dismissed. What it all means is the appeal is not appropriate, and the Court of Appeals does not determine if the officer deserves qualified immunity. The case returns to the district court for the jury to worry about it. 

Plaintiff may relitigate similar issue on federal court despite unsuccessful Article 78 petition in state court

This case clarifies when you can bring a lawsuit after losing one of your issues in an Article 78 proceeding in the New York State courts. Specifically, the Court of Appeals determines when the Article 78 loss has res judicata effect in subsequent litigation, even in federal court. The Court finds the plaintiff may proceed with his case even through his Article 78 was not successful.

The case is Whitfield v. City of New York, issued on March 15. Judge Carney gives a thorough review of Article 78's in New York. For the uninitiated, Article 78 petitions are a quick way to resolve certain disputes against the government, as they have a short statute of limitations and usually do not require a trial or live testimony and can be resolved on the paperwork, such as documents, affidavits, and statutory or case law. Normally, people don't get damages in Article 78 petitions; they get an injunction or a definitive court ruling on some issue involving public administration.

At the same time, under res judicata principles, you cannot relitigate the same issues over and over in different courts. This case asks when you can litigate an issue in federal court that you lost in the Article 78 petition. What makes this case unique is that the Article 78 court in the state system did not decide whether plaintiff could recover any damages because the Article 78 court ruled against the plaintiff in that proceeding. Plaintiff brings a similar claim in federal court, but this time he seeks damages. Can he proceed in federal court?

Plaintiff is a former inmate in the New York system who claims he was denied a position working with youths for a state agency because of his criminal record and a book he wrote about the unfairness of his criminal conviction. The Article 78 court ruled against Whitfield and said he did not have any case under the First Amendment and that he did not suffer discrimination because of his criminal record. He then sued in federal court, prompting a motion to dismiss on res judicata grounds on the theory that he was improperly trying to relitigate these issues in a different court.

The Court of Appeals (Carney and Liman [D.J.]) holds that plaintiff can bring this lawsuit despite the Article 78 loss. Why? Because the Article 78 judge did not determine if plaintiff could recover any damages from the Article 78, and the Article 78 ruling was not quite the constitutional ruling that plaintiff seeks in the federal case. The Court holds that, for claim preclusion purposes, a "pure" Article 78 proceeding, which did not result in the award of any damages or squarely resolve the issue now raised in federal court, does not prevent the plaintiff from pursuing a similar claim in federal court under constitutional or other federal provisions. 

Bottom line: we presume that an Article 78 proceeding will be a "pure" proceeding, without the availability of damages. In this case, while Whitfield sought damages in his Article 78, his primary purpose in filing that petition was to vacate the state agency's decision not to hire him and to win a court order entitling him to the position. The state court did not treat the Article 78 petition as a "hybrid" proceeding that might have involved other damages or relief. Nor did the state court resolve plaintiff's claim under the First Amendment - it instead ruled against plaintiff in finding that adverse employment was arbitrary and capricious as a matter of law, a much different test than the First Amendment analysis.

For an issue as complex as this one, you can count on a dissent. Judge Sullivan dissents, stating that this was really a hybrid Article 78 proceeding that has res judicata effect on plaintiff's federal lawsuit because plaintiff did seek damages in the Article 78 that were not incidental to the primary relief that he sought. He notes further that, separate and apart from determining the adverse personnel decision was arbitrary and capricious, the Appellate Division in plaintiff's case rejected plaintiff's argument that the state agency violated the First Amendment in denying him the position.

The lengthy nature of the majority and dissent opinions highlights to complexity of this issue: how to balance the expedited Article 78 process with the more drawn-out Section 1983 litigation available to parties in federal courts and the overriding res judicata principles that would normally apply anytime someone tries to re-litigate issues in two different courts. 

Inmate servives PLRA three-strikes-you're-out rule

In the mid-1990's, Congress decided to strike back against what it deemed frivolous prisoner lawsuits. It enacted the Prison Litigation Reform Act, which says among other things that three frivolous lawsuits will bar the inmate from seeking in forma pauperis status in future lawsuits. In plain English, the "three strikes-you're-out rule" means that indigent inmates have to pay the filing fees for any future cases. The PLRA is almost 25 years old and the courts are still figuring out how to apply it.

The case is Cotton v. Noeth, issued on March 14. In this case, the issue is what is a PLRA strike? The issue is not always easy to answer. Plaintiff brought three prior lawsuits. The Court of Appeals finds that none of them are strikes even though he lost each of them. Cotton wins this appeal and can proceed with his case, which alleges he was wrongfully denied a transfer to Sing Sing Correctional Facility, which offered a master's degree program. 

The first lawsuit, referred to as the McCarthy litigation, asserted Section 1983 and state law claims against the City of Buffalo but was dismissed for failure to state a claim under Rule 12(b)(6). That could be a strike, but it is not because it was a "mixed dismissal": the federal claim was dismissed but the district court declined to exercise jurisdiction over the state law claims. Without the entire case being dismissed on the merits, the dismissal is not a real strike. I wonder if Congress even thought about this when it enacted the three-strikes rule.

The second lawsuit, referred to as the Titone litigation, was dismissed because plaintiff did not comply with Rule 8's pleading requirements, and plaintiff was given the opportunity to re-plead the case. Such a dismissal is not a real strike. The kicker here is that plaintiff did not try to re-plead the case and walked away from the case. In that circumstance, there was not "dismissal" under the PLRA. 

The third lawsuit, known as the Lema case, sued the City of New York under Section 1983, was dismissed without prejudice as premature. He was unable to really bring the case until any challenges to his conviction were resolved. We call that a Heck dismissal, based on Heck v. Humphrey, a complex Supreme Court ruling that says you cannot bring a civil lawsuit that would have the effect of challenging your criminal conviction outside the normal process of appealing from a criminal conviction. Some Circuits hold that Heck dismissals are strikes. Other Circuits see this issue differently.

 

The Second Circuit holds that Heck dismissals are not strikes unless the dismissal turns on the merits and not timing. The Lema dismissal is not a strike, says the Second Circuit majority (Chin and Nathan), because that case was dismissed as premature. Judge Walker dissents from that reasoning and writes that a Heck dismissal like this counts as a strike.

Challenge to race-based corporate fellowship program fails for lack of standing

Another potentially impactful lawsuit doomed over the lack of standing. If an organization brings a lawsuit to challenge what it believes is an unlawful policy, it must show it has standing to sue. The organization will say it has standing because its members have an interest in the case, but there are strict rules for that process. In this case, a conservative organization that claims Pfizer's fellowship program has racially-discriminatory cannot proceed with the case because we don't know who the aggrieved members are.

The case is Do No Harm v. Pfizer, Inc., issued on March 6. Pfizer, the pharmaceutical company, has a fellowship program that seeks to advance students and "early career colleagues of Black/American, Latino/Hispanic and Native American descent." The organization claims this program discriminates against white and Asian candidates. But the case does not get off the ground because the organization cannot prove standing. It fails to identify any of its injured members by name. 

Organizations can assert organizational standing to sue as the representative of its members. But at least one member of that organization must have standing to sue in their own right, i.e., that they suffered an actual injury and the lawsuit can redress that injury. In Summers v. Earth Island Institute, 555 U.S. 488 (2009), the Supreme Court has said that, in associational standing cases, the organization must identify members who suffered harm from the challenged policy. 

But the Supreme Court has not exactly stated that the organization must identify these members by name. The Second Circuit (Jacobs, Wesley and Robinson) has to therefore decide if you have to name names. The Court of Appeals determines that you do have to identify the aggrieved members, reasoning that such a requirement aligns with Summers. Under this interpretation, naming the members proves the case is not a hypothetical exercise; we want lawsuits to have real parties with real disputes. The First Circuit has already ruled as such, in a decision written by retired Supreme Court Justice David Souter, making the Second Circuit the second circuit to rule this way.

New York Court of Appeals expands the scope of the City and State antidiscrimination laws

The New York Court of Appeals has issued a definitive ruling on the scope of the New York State and City Human Rights Laws. Answering a certified question from the Second Circuit, the State Court of Appeals holds that a New York City-based company may be held liable under the remedial City and State Human Rights Laws if it denies an out-of-state job applicant a position for discriminatory reasons.

The case is Syeed v. Bloomberg, L.P., issued on March 14. Plaintiff worked in defendant's Washington, D.C. bureau and applied to work for its bureau in New York City. Bloomberg instead hired a less-qualified male applicant. She sued Bloomberg under the State and City laws, but the case was dismissed because she was not a New York resident when defendant denied her the promotions. A prior New York Court of Appeals ruling, Hoffman v. Parade Publications, 15 N.Y.3d 285 (2010), held that the City law only applies when the discriminatory personnel decision "impacts" New York City. The trial court in this case relied on Hoffman in dismissing Syeed's case. As the Court of Appeals in Syeed summarizes the Hoffman holding:

"the impact requirement does not exclude all nonresidents from [the] protection" of the Human Rights Laws. Instead, the impact test "expands" the protections of the Human Rights Laws "to nonresidents who work in the" state or city and to those who "state a claim that the alleged discriminatory conduct had any impact in either of those locations." Hoffman therefore sets forth two ways in which a nonresident may satisfy the impact requirement: (1) working in New York or (2) establishing that the challenged conduct had some impact on the plaintiff within the respective New York geographic boundaries.

How do we apply Hoffman in Syeed's case, where she claims she was denied promotions for New York City-based jobs, but she was not living in New York City when the promotion denials took place? The Second Circuit was presented with this issue in Syeed's case because her case is pending in Southern District of New York, and she appealed to the Second Circuit. The Circuit, in turn, forwarded this issue to the New York Court of Appeals, a common practice when the Circuit has an open issue of state law and wants the State Court of Appeals to issue a definitive ruling on the issue.

The State Court of Appeals unanimously holds that the City and State Human Rights Laws govern Sayeed's case. 

a nonresident who has been discriminatorily denied a job in New York City or State loses the chance to work, and perhaps live, within those geographic areas. The prospective employee personally feels the impact of a discriminatory refusal to promote or hire in New York City or State, because that is where the person wished to work (and perhaps relocate) and where they were denied the chance to do so. When applying the required liberal construction of "inhabitants" and "individual within this state" (Executive Law § 290 [3]; Administrative Code § 8-101), a prospective inhabitant or employee, who was denied a job opportunity because of discriminatory conduct, fits comfortably within the Human Rights Laws' protection.

Policy reasons also support this holding. The State and City have robust antidiscrimination laws. 

the Human Rights Laws contemplate that discrimination harms the state and city as governmental institutions, in addition to the targeted individual. The state and the city are deprived of economic and civic contributions from individuals discriminatorily denied the opportunity to work in New York, along with the more diverse workforces and communities that the individuals would advance. Our resolution of the certified question has the beneficial effect of protecting New York institutions and the general welfare of the state and city—as the legislature and city council intended.

The case now returns to the Second Circuit, which will apply the State Court of Appeals' holding. Since this holding favors plaintiff, I assume this case will be revived and proceed to discovery in the Southern District of New York

There's a new SLAPP law in town

New York has long had a law on the books that makes it illegal to sue someone over their public advocacy. These were called anti-SLAPP suits. SLAPP stands for Strategic Lawsuits Against Public Participation. But the old anti-SLAPP law only applied in the context of advocacy for public permits, usually  land-use disputes. But the SLAPP law changed a few years ago to prohibits retaliatory lawsuits involving other forms of public advocacy. The case law is still developing in this area.

The case is Whittaker v. Markle, issued by Ulster County Supreme Court on March 13. Christopher Watkins and I represent defendant Donnie Markle, a private businessman who testified before the County Legislature that an employee at the Ulster County Resource Recovery Agency (which runs the landfill and takes on other recycling duties), Willie Whittaker, was hoarding the compost that members of the community are able to purchase on their own. Following Markle's testimony, Willie's brother, Charles, who serves as the Director of Operations at OCRRA, sued Markle for negligent infliction of emotional distress, claiming that Markle had lied about the compost and caused Whittaker to suffer emotional distress because County policymakers began to more carefully scrutinize his job performance. (Markle has a separate federal lawsuit against UCRAA under the First Amendment, because the agency barred him from the facility following his public testimony).

Justice Graff finds that Whittaker's lawsuit against Markle is a SLAPP suit because Markle testified about  a matter of public importance in telling the County Legislature about the misuse of public resources. State law prohibits retaliatory lawsuits like this if the lawsuit lacks a substantial basis. This means that a legitimate lawsuit against the public speaker is not a SLAPP suit. Whittaker's lawsuit for negligent infliction of emotional stress lacks a substantial basis, Justice Graff holds, because Markle did not breach any duty toward Charles 9he testified about Willie, not Charles), and Markle's testimony did not unreasonably endanger Charles' physical safety. Without any real basis to sue Markle, Whittaker's lawsuit is a SLAPP suit under New York. That entitles Markle to damages and attorneys' fees, to be determined later.

A unique procedural issue arises in this case. When Markle filed his motion to dismiss the case under the anti-SLAPP law, rather than defend this lawsuit, Whittaker withdrew the lawsuit entirely. Does that make the SLAPP issue go away? In the First and Second Departments, discontinuing the lawsuit prior to filing the Answer does not moot a motion to dismiss. In the Fourth Department, discontinuance does moot the motion to dismiss if the case is discontinued prior to filing the Answer.

Employee speech exposing intoxication at the sewage treatment plant is not protected under the First Amendment

The plaintiff alleged he was fired in retaliation for speaking out under the First Amendment. But there are strict requirements in order to prevail on such a claim, and the Court of Appeals finds that plaintiff cannot meet those requirements. The case is dismissed.

 The case is Reynolds v. City of New York, a summary order issued on March 11. Plaintiff was a sewage treatment worker for the Department of Environmental Protection. In 2020, he told management that coworkers were drinking alcohol and were intoxicated on the job, "thereby impeding their ability to adequately perform their job, which is an essential function to maintain public health." Following this speech, plaintiff suffered a series of retaliatory acts, including a transfer to the day shift after working nights for 17 years, which cost him money in overtime hours. Plaintiff was also assaulted on the job in retaliation for his speech and had false accusations lodged against him.

It may look like plaintiff has a case, but he does not, the Court of Appeals (Newman, Lee and Nathan) says, because plaintiff did not speak on a matter of public concern, a necessary requirement for maintaining a First Amendment retaliation claim. Public concern speech has a particular definition, and the Supreme Court once said that something that might be reported in the newspaper could be a matter of public concern. Municipal corruption, public safety, and across-the-board discrimination are matters of public concern, for example. 

While "Reynolds’s primary argument is that reports about misconduct at the DEP must necessarily be connected to the 'health and safety of the public via the she[e]r nature of the work at the [DEP], namely ensuring clean drinking water for the public,” the Court holds that he must do more than allege that the "sheer nature" of this kind of work was connected to the public's safety and was therefore a matter of public concern. The authority for this proposition is Shara v. Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 81 (2d Cir. 2022), which held that although a school bus driver’s complaints about bus-inspection reporting implicated the safety of bus-riding children, it was not a matter of  public concern because “he never alleged . . . that the School District’s preferred reporting policy resulted in unsafe conditions or that his proposal of daily reporting would have improved safety.”

Plaintiff loses because he does not allege in his complaint that the employee misconduct contributed to unsafe drinking water or that it impacted public health and safety. "While we agree that intoxicated employees at a sewage treatment facility certainly could take actions to harm the public’s safety, the sparse allegations in Reynolds’s Amended Complaint do not allege any facts allowing the Court to draw the inferences Reynolds suggests." Plaintiff's arguments are too speculative and conclusory to allow this case to proceed to discovery.

"Loser pays" provision in arbitration agreement may doom the arbitration entirely

You do not see this very often: an employee sues in court to enjoin mandatory arbitration because the arbitration provision that he signed at the start of his employment was unlawful and unenforceable under state law. The Court of Appeals agrees with the lower court and the case returns to the lower court for more proceedings which may ultimately stop the arbitration from proceeding.

The case is Vidal v. Advanced Care Staffing, a summary order issued on March 7. When Vidal arrived in the United States to work for defendant as a nurse, he signed an arbitration agreement, which contains a "loser pays" provision that says the prevailing party in the arbitration is entitled to arbitral costs and attorneys' fees. When Vidal quit his job, his former employer commenced an arbitration proceeding against him, claiming Vidal had breached the contract. 

As the Court of Appeals (Calabresi, Lohier and Cabranes) sees it, under the "loser pays" provision, if Vidal loses the arbitration, the costs and fees will "effectively preclude him from pursuing his claims and would be prohibitively expensive." At the preliminary injunction stage of the case in the district court, Vidal produced his financial record to prove that his monthly income was far below the potential arbitral costs and attorneys' fees in the event the defendant were to prevail at the arbitration.

Other Circuits have also held that fee-shifting provisions in arbitration clauses may deter certain plaintiffs who want to vindicate their statutory rights in arbitration. "Whether the 'loser pays' provision undermines Vidal's ability to vindicate his rights here as a matter of substantive federal law or state law presents a serious question of law and fact that requires more detailed findings about Vidal's finances, the potential costs of arbitration, and the possibility that Vidal will incur such costs." 

The case is therefore remanded to the district court for defendant to present additional evidence supporting its arguments opposing Vidal's demand for a permanent injunction. So it looks like the case is not yet over. But this ruling is a powerful argument in Vidal's favor that the arbitration should not proceed.

SDNY sustains $1.725 million compensatory damages award in hostile work environment case

This hostile work environment case went to trial in the Southern District of New York before Judge Hellerstein. The jury awarded plaintiff $1.725 million for pain and suffering and another $1 million in punitive damages. These damages were spread among two different defendants. The verdict and damages awards are upheld in their entirety.

The case is Pizarro v. Euros El Tina Restaurant, 20 CIv. 5783 (AKH), 2024 WL 837572, issued on February 27. First, the court finds the evidence supports the liability verdict. In order to have the verdict vacated, defendant must show that no reasonable jury would have ruled in plaintiff's favor, and that the jury in this case ruled in plaintiff's favor based on speculation, sympathy, and without sufficient evidence. These motions are difficult to won, and Judge Hellerstein does not give extended discussion on this, noting that the evidence of sexual harassment was "overwhelming" and "no employee is required to experience such harassments, male or female." Nor was plaintiff required to identify a comparator to support her finding gender discrimination under the New York City Human Rights Law, which sets a "treated less well" standard for plaintiffs, far more lenient than Title VII. Defendants did not challenge the verdict under the Title VII, for some reason.

As for remittitur, I note that courts in the Second Circuit group these damages claims under three categories: (1) garden variety, (2) significant, and (3) egregious. The egregious cases generate the highest damages awards, into the seven figures. But trial judges in the Second Circuit freely reduce high damages awards as a matter of course, almost treating them as advisory verdicts as the judges then review the evidence to ensure the damages are in line with prior, comparable cases. For this reason, we have very few million dollar verdicts upheld in the Second Circuit.

But this is one of the successful million dollar verdicts. Judge Hellerstein writes that "cases in this Circuit involving 'egregious' claims of sexual harassment, including those that take place in the workplace, and over several years, have led to similar amounts in compensatory damages when considering adjustments for inflation." Those cases include Turley v. ISG Lackawana, Inc., 774 F.3d 140 (2d Cir. 2014) ($1.32 million); Olsen v. County of Nassau, 615 F. Supp. 2d 35 (E.D.N.Y. 2009) ($1 million); Osorio v. Source Enterprises, Inc., 2007 WL 683985 (S.D.N.Y. 2007) ($4 million on retaliation claim); and Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655 (2d Cir. 2012) (a case I tried and handled on appeal that yielded $1 million for racial harassment without physical assault).

What entitles plaintiff to the large compensatory damages award is that she testified that she was groped and molested on numerous occasions, she feared rape and sexual assaults, and tried to commit suicide after the defendant tried to rape her. This evidence also supports the punitive damages award, including the fact that plaintiff endured a decade-long and worsening pattern of physical and verbal harassment, groping and pinching, exposure to male private parts and masturbation, and an attempted rape. 

Plaintiff wins Equal Pay Act appeal

The Court of Appeals holds that a jury may find that a former Verizon employee has a claim under the Equal Pay Act. 

The case is Moll v. Telesector, Inc., issued on February 28, two years after oral argument. The sexual harassment and retaliation summaries are at these links. In this portion of the decision, the Court of Appeals (Kearse, Walker and Sullivan) holds that one of plaintiff's coworkers is a legitimate comparator under the EPA's strict comparison guidelines.

To make out a prima facie case on equal pay, the plaintiff must show "[1] the employer pays different wages to employees of the opposite sex; [2] the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and [3] the jobs are performed under similar working conditions." 

As for comparators Winley and Dean, they were hired at $90,000 and $88,000 per year at at time when Verizon was looking for specialists on voice and data, enticing job applicants to leave companies that were more entrenched in these products. Plaintiff did not have this kind of experience when these two men were hired. On these facts, plaintiff cannot claim an EPA violation based on what the fellas were making. Her skills were not comparable to their skills, and their higher salaries were therefore justifiable under the EPA.

Comparator Spencer, however, gives plaintiff a case under the EPA because he was not hired away from another company for his management duties, and he was a longtime Verizon employee who did not have the skills that Winley and Dean had. Spencer got a raise when the company wanted to transfer him to a different division; he got that raise, elevating him over plaintiff's salary. When he left the company, Spencer ultimately earned more than $15,000 than plaintiff. Adding to its analysis, the Court of Appeals writes:

even if Spencer's previous experience could explain the difference between his and Moll's salaries in 1997 when their employment in ESG began, that factor would not explain why the salary gap persisted. Differences in education and experience at the time of hiring are likely to matter less as the employees spend years on the job, leading to less of a disparity between salaries. See generally King v. Acosta Sales & Marketing, Inc., 678 F.3d 470, 473-75 (7th Cir. 2012). That did not occur here. When Spencer left ESG in 2004 he was still an SE II, and Moll had been promoted to SE II. Yet, the difference between their salaries after both had been in ESG for those seven years had not shrunk but in fact had increased. 

That citation to a Seventh Circuit case shows that Moll's case raises a new issue in the Second Circuit. The extended discussion on this issue also shows that EPA cases require careful analysis of the plaintiff's case to ensure her comparators are squarely like her case. The Court of Appeals notes that plaintiff abandoned her Title VII case on the equal pay claim. Since this case was briefed a few years ago, that may be because the Court of Appeals had not yet held that Title VII equal pay claims are easier to win than EPA claims, as Title VII does not require an exact match between the plaintiff and her comparators. Still, plaintiff is able to proceed to trial on her EPA claim because of the Spencer comparison, and one cause of action is better than none.

Retaliation claim against Verizon will head to trial

This retaliation claim against Verizon was dismissed on summary judgment. The Court of Appeals, after first holding the hostile work environment claims deserve a full airing at trial, also holds that the jury may find in plaintiff's favor on her retaliation claim, as well. This is shaping up to be a hell of a trial.

The case is Moll v. Telesector, Inc., issued on February 28. My write-up on the sexual harassment claims is that this link. On the harassment claim, I noticed the case, lengthy as it is, does not appear to clarify or extend the law in that area. The same holds true for the retaliation claim. We have a lengthy opinion because the record on appeal must be huge. And the facts are extensive.

Here are the facts on the retaliation claim: in December 2004, after plaintiff objected to the sexual harassment, management decided to send four Buffalo-based employees to work in its Syracuse office, 160 miles from Buffalo. The employer said if you don't want to work in Syracuse you can find another job at Verizon or take a severance package, the details of which were under wraps until the employees decided to leave the company. Of the four employees who were given this option, plaintiff and a coworker, Chase, wound up in Syracuse, unable to find other work within the company. Working in Syracuse was quite stressful for plaintiff, whose family still lived in the Buffalo area, and the flexible schedule that allowed plaintiff to sometimes work in Buffalo was eventually discarded, making matters worse for plaintiff who began to suffer anxiety and took a disability leave of absence. When another telecommunications provider merged with Verizon, they were "puzzled" by plaintiff's work arrangement and returned her to Buffalo. Plaintiff was eventually terminated in a reduction-in-force.

First, contrary to the district court's holding, the transfer to Syracuse could be deemed an adverse action even though plaintiff was given other options. While plaintiff was told to find other work within Verizon, she was given "an unrealistically short time to get another position within Verizon" or take the severance, which itself was unrealistic since plaintiff did not know its terms in advance and Verizon was free to change the terms. While the company claimed its had a "solid business reason" to make the transfers to Syracuse, one manager testified that "the purpose of developing the plan . . . was to get them to leave," and that supervisors "wanted to make life as difficult as possible for Ms. Moll and Ms. Byrne and stated that they believed this action would force them to leave." Byrne had also filed a Title VII action against Verizon that "to an extent, paralleled the present action."

Of course, what also made the transfer adverse was the distance between Buffalo and Syracuse and the frequency with which plaintiff would have to travel between these two locations, at minimum, a round-trip of 320 miles, up to 1,000 miles per week. This would dissuade a reasonable person from speaking out against discrimination again, the Burlington Northern standard the Supreme Court adopted in 2006.

When plaintiff returned to the Buffalo office in 2006, she was told to work near the harassers whose behavior gave rise to her lawsuit, and in 2007 the company began a RIF, making her one of 156 employees who would lose their positions. One manger said, post-RIF, that he was "proud to be able to terminate Ms. Moll." Plaintiff's termination is ripe for trial on her retaliation claim because (1) she was never given a reason why she was chosen for the RIF, and (2) plaintiff in fact possessed the skills that management later claimed (on the summary judgment motion) she lacked, and management's claim to the contrary was speculative.

Plaintiff may also win the retaliation claim because a similarly-situated male colleague, Shelton, was not fired despite similar qualifications, and one key management witness at deposition was unable to articulate why Shelton was better qualified or differently situate than plaintiff, and they jury could even find that Shelton was not better qualified than plaintiff. 

You get the picture. The Court of Appeals thoroughly reviews the record and prior proceedings in the case to make this one of the most comprehensive factual analyses you will see from this Court on a single-plaintiff harassment and retaliation claim. And I have not even summarized plaintiff's equal pay claim yet. Like I said, this should be a hell of a trial.

Verizon hostile work environment in western New York will go to trial

Lately, we have seen some lengthy Second Circuit rulings that reverse the grant of summary judgment in discrimination cases. This is another one, and I will write about the case in multi-parts. We will start with sexual harassment.

The case is Moll v. Telesector, Inc., issued on February 28. This case was argued in January 2022, which means the parties waited two years for a ruling, which raises a multitude of issues, comprising about 90 pages. Some of the evidence goes back to the 1990s.

The defendant is a subsidiary of Verizon Communications. While the district court said plaintiff proffered evidence revealing a triable fact issue on whether a reasonable person would have subjectively found the work environment abusive on account of sex, in dismissing the case, it held that plaintiff did not show an objective person would have perceived a hostile work environment. That objective/subjective distinction is difficult to resolve on a summary judgment motion.

The trial court identified 17 instances of sexual harassment/comments/gestures from 1998 through 2003. The Court of Appeals identifies a heck of a lot more than that, another 36 examples from that time period, including harassment endured by plaintiff's co-workers. The list of incidents goes on for pages and pages in this ruling and qualifies this as one of the worst workplaces for women that I've seen in any Second Circuit ruling. 

The Court of Appeals summarizes the evidence as follows:

In sum, Moll proffered evidence that overtly sexual or sexist comments, sexual innuendos, and gender-based disparagements were regularly directed at women in Verizon's enterprise solutions group or made about women in general--such statements being made in the woman's own office, or near a woman's desk, or to a woman in a manager's office, or about a woman amid persons in a casual gathering in a common office area, or in conference calls or meetings among co-workers, or in a van heading for a staff outing, or in a buffet line at an office party, or in meetings with clients. She proffered evidence that most managers did nothing to discourage that objectionable conduct--and that some managers participated in such conduct. 

Perhaps most troubling, as discussed above, Moll pointed to evidence that Irving--who as her co-worker had harassed her with sexually connotative comments and requests to come to his hotel room--after becoming her manager, left her a note saying that he "thought about [her] when he was in the shower." And as her manager, he insisted that she communicate with him only in person, demanded that she stay at the office alone with him late at night, and followed her to client lunches against her wishes because he wanted to "develop" her. Irving attended an HR awareness presentation at which he simply laughed throughout. Although Moll complained to HR about Irving's demonstration of contempt for the HR training presentation, Verizon did nothing in response.

For such a lengthy ruling, this case does not purport to clarify or extend the law of sexual harassment. Rather, after citing a few sexual harassment precedents, the Court of Appeals (Kearse, Walker and Sullivan) simply goes on to summarize each and every incident of sexual harassment en route to its holding that a reasonable person may find the work environment sufficient hostile as to violate Title VII.