Muslim informant/no-fly retaliation case is rejected on appeal

In this religious discrimination case, Muslim plaintiffs allege that federal agents retaliated against them after they refused to serve as informants against other American Muslims. The retaliation involved their placement on the no-fly list. This case has taken a long journey since it was originally filed a decade ago, involving events that transpired in 2007-2012. The Court of Appeals has put this case to rest for good, finding that the defendants are immune from suit because plaintiffs have not adequately alleged they knew the plaintiffs had religious objections to the informant request.

The case is Tanvir v. Tanzin, issued on October 29. This case is brought under the Religious Freedom Restoration Act, which makes it unlawful for the government to discriminate on the basis of religion. This is a complex case. The Court of Appeals has already passed judgment on this case, see 894 F.3d 449 (2d Cir. 2018), and the Supreme Court took the case for the purpose of holding that RFRA cases may give rise to a damages claim. See 592 U.S. 43 (2020). The case returns to the Second Circuit on a different issue: qualified immunity.

Qualified immunity allows governmental defendants to avoid litigation if they did not violate clearly-established law or had otherwise acted reasonably at an objective level. In this case, the Court of Appeals lays out the facts set forth in the complaint, demonstrating the sequence of events from the plaintiffs' standpoint. But the complaint has a problem, the Court of Appeals (Lynch, Park and Carney) says, and it dooms the case and entitles the defendants to qualified immunity. 

The complaint does not assert that the plaintiffs told the federal agents that they had religious objections to working as informants against other Muslims. What this means is that the federal agents could not have intentionally retaliated against plaintiffs based on their religion but did so on the basis that they objected to the informant request because they thought such a role would have been too dangerous. Retaliating against someone because the informant demand was too dangerous may be unfair and immoral, but it does not violate the RFRA.

That ends the case. As I mentioned, this case was brought a decade ago. No depositions were ever taken in this case, and no documents were exchanged that would have shed light on how the federal agents had asked plaintiffs to serve as informants and how they carried out the retaliation. To put things in lawyer-speak, after all these years, this case reaches the Court of Appeals this time around in a Rule 12 motion to dismiss posture. While plaintiffs won a few victories along the way, especially in the Supreme Court, they lose the final battle on a central issue: have plaintiffs plausibly asserted that the defendants retaliated against them on the basis religion.

Court of Appeals sustains $50,000 in pain and suffering for civil battery

This case went to trial, and the jury found for the plaintiff on her claim that a doctor-supervisor subjected her to sexual touching. The jury rejected her other claims, including that her employer, Sloan-Kettering Cancer Center, discriminated against her on the basis of sex and retaliated against her for objecting to such treatment. The jury awarded her $50,000 in compensatory damages and $200,000 in punitive damages. Her appeal seeks a new trial because the damages were not high enough. The Court of Appeals rejects the appeal.

The case is Singh v. Memorial Sloan-Kettering Cancer Center, a summary order issued on October 28. The supervisor who subjected plaintiff to battery was Dr. Pillarsetty. Plaintiff, a doctor, testified that Pillarsetty would hug her tightly, place his hand on her back, grab her buttock, placed his hands on her thighs, and touched her hand and shoulder. She also testified that the defendant placed his hand on her stomach area and slid his hand toward her breast. The jury agreed that plaintiff suffered a civil battery and awarded her $250,000 in damages. The jury did not find that plaintiff was sexually harassed, however, or that she suffered sexual assault. So the jury threaded the needle: it found unwanted touching but not sexual touching.

Plaintiff's appeal seeks a new trial on damages. Such relief on appeal is very difficult to win. We trust juries to set damages awards, and if the jury awards too much money and the amount "shocks the conscience," the trial court (and the Court of Appeals, if necessary) will reduce that amount. But if the jury awards too little, the trial court is usually powerless to increase the amount. Hence this appeal.

The Court of Appeals (Jacobs, Merriam and Cronan, D.J.) defers to the jury's damages assessment. It finds that the jury had various ways to award plaintiff this amount. trial. "The District Court carefully evaluated the evidence, identifying several plausible explanations for the jury’s decision to award $50,000 in compensatory damages. For example, the District Court noted that the jury might have credited Singh’s testimony about the unwanted touching, but not her uncorroborated claims about its sexual nature or extent." In other words, the jury did a credibility assessment and rejected the strongest allegations involving sexual touching. The trial court also stated in its post-trial ruling on this issue that the jury could have awarded only $50,000 for pain and suffering because it determined that other stressors in her life also caused her pain and suffering.

The Court of Appeals also holds that the damages award is comparable to similar cases. That also works against plaintiff's appeal. "The District Court also considered precedent, finding that the award in this case was 'comparable to the size of awards granted in cases involving very similar claims,' and that cases cited by Singh in which juries had awarded higher damages had generally involved “more harm than emotional distress alone.”

Supreme Court takes up Title VII discrimination case

The Supreme Court has agreed to hear case that determines how courts will resolve employment discrimination cases filed by "majority" members of the community, i.e., whites, men, etc., as opposed to the traditional victims of employment discrimination, i.e., Black employees, and women.

The case is Ames v. Ohio Dept. of Youth Services. The Court agreed to hear the case a few weeks ago. The issue before the Court is this: Whether, in addition to pleading the other elements of Title VII, a majority-group plaintiff must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Some appellate courts impose upon the plaintiffs in such cases to prove their employer is that rare entity that discriminates against majority members of society. Other courts, like the Second Circuit, treat all discrimination cases the same no matter who the plaintiff is. Title VII, the primary employment discrimination statute, does not speak to this issue at all. But courts have imposed the "unusual employer" requirement in certain cases. That added requirement affected the plaintiff's case, as she is a heterosexual woman who claims her employer denied her a promotion in favor of a lesbian and later discriminated against her in favor of a gay man. The certiorari petition says this:

the Sixth Circuit is not alone in imposing this additional element. The D.C., Seventh, Eighth, and Tenth Circuits also require majority-group  plaintiffs  to  show  background circumstances. Two circuits—the Third and Eleventh—“have expressly rejected this rule.” And five circuits “simply do not apply it.” Within this third group, the First and Fifth Circuits  have employed  language  that  conveys disapproval of the rule without explicitly rejecting it. The Second, Fourth, and Ninth Circuits, meanwhile, have each acknowledged the existence of the split but declined to take a side. That tack has left district courts in these circuits in disarray, with some judges in the same courthouse requiring background circumstances and others declining to do so.

As federal courts around the country cannot agree on how to resolve cases like this, Ames' case is a good candidate for Supreme Court review, which is why the Justices agreed to hear the case. Since Title VII does not speak to this issue, and the Supreme Court has been applying Title VII lately based on what the statute says and not how judges wish to amplify it (including Bostock v. Clayton County (2020) and Muldrow v. City of St. Louis (2024)), my guess is the Court will hold that all Title VII plaintiffs are held to the same evidentiary test and that it will not matter if the plaintiff is Black, a man, or heterosexual.

Where does the Second Circuit stand on this? The certiorari petition says:

In Aulicino v. N.Y.C. Department of Homeless Services, 580 F.3d 73 (2d Cir. 2009), the Second Circuit recognized that some courts, like the D.C. Circuit, require majority-group plaintiffs to “proffer evidence of background circumstances” while others, like the Third Circuit, have rejected the requirement. Id. at 80 n.5 But the court “d[id] not decide” whether parties in the Second Circuit must do so.

Inmate loses speech retaliation case

In this case, the plaintiff-inmate's First Amendment retaliation case was dismissed in the district court. The Court of Appeals agrees that he cannot win the case, so the free speech case is over..

The case is Baltas v. Maiga, a summary order issued on October 11. Plaintiff was locked up in a Connecticut prison. He was transferred to a prison in Virginia. He claims the transfer was in retaliation for filing internal grievances about the conditions of his confinement.

I know that many people do not want to hear this, but inmates have rights under the First Amendment to grieve their conditions of confinement without worrying about retaliation for the exercise of those rights. As it happens, these speech rights are not extensive, and there are many limitations for prisoners and inmates. But the fundamental right to file a grievance or complain about jail conditions is protected under the First Amendment. 

Here, plaintiff was transferred shortly after he filed the grievance. Normally, that would be enough to have a First Amendment claim, as we can assume the transfer was retaliatory since it took place soon after the speech act. But not for plaintiff. The Court of Appeals (Parker, Lohier and Nathan) finds that the prison was working on plaintiff's transfer months before he filed the grievance. That knocks out the causation element of his claim.

The causation problem in plaintiff's case is a common one. Many non-prisoner cases also allege retaliation, where the plaintiff engaged in protected activity (i.e., complaining about employment discrimination) and the defendant then subjected the plaintiff to an adverse action (i.e., demotion, termination, etc.). The employer in these cases will always try to show that the protected activity had nothing to do with the negative personnel action, and one way to show that is through evidence that the adverse decision would have taken place even without the protected activity. And the best way to do that is by showing that the termination, demotion, transfer, etc., was already in the planning stages prior to the protected activity.

Inmate wins one claim, loses another, on appeal

This case involves an inmate who was placed in administrative segregation after he was brutally attacked by other inmates. He remained in the special housing unit for quite some time, and he claims jail officials did not properly review the appropriateness of this assignment in violation of the due process clause. What complicates matters was that plaintiff was originally incarcerated in Connecticut but was transferred to Virginia. Plaintiff says that Connecticut failed to conduct this review while he was in Virginia's custody.

The case is Baltas v. Maiga, issued on October 11. As the Court of Appeals (Parker, Lohier and Nathan) notes, "Baltas was never confined in a Connecticut prison during the time that he alleges that [Connecticut prison officials] failed to review his Connecticut [Administrative Segregation] classification. In a due process case like this, the court determines whether the state afforded plaintiff a fair procedure, bearing in mind that prison officials have some flexibility in how they run their affairs.

The record shows that Connecticut conducted four regular classification reviews of plaintiff's status when he was in Virginia, analyzing such relevant factors as plaintiff's history as an inmate, severity or violence of his offense, etc. Connecticut's classification reviews satisfy minimal due process standards, the Court holds, as the reviews considered his potential for violence, etc., and accounted for any new information about plaintiff in determining whether to adjust his "risk scores." The due process claim fails.

But plaintiff's other claim succeeds on appeal. He argues that he endured bad jail conditions by Virginia prison officials. While plaintiff did not fully comply with the grievance process, a necessary step prior to any lawsuit, he claims that jail officials threatened him out of exhausting all his administrative remedies. If the trial court believes plaintiff's sworn testimony, it may find that he was dissuaded from fully complying with the grievance process because of these threats. In finding otherwise, the district court granted summary judgment in violation of the principle that trial courts "should not engage in searching, skeptical analyses of parties' testimony in opposition to summary judgment." The cite for that is Rivera v. Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014). As plaintiff's sworn account of these threats is enough to identify a disputed factual issue about possible dissuasion, summary judgment was improper on the issue of whether the Virginia grievance process was available to plaintiff.

State may sue upstate NY school district over widespread gender-based harassment and violence

The Court of Appeals holds that the State of New York may sue an upstate New York school district over its alleged failure to protect students from sexual harassment and assault. This ruling clarifies the state's authority to bring a case like this, holding that the state is not required to prove a "policy or practice" of discriminating against student victims of gender-based violence and harassment.

The case is State of New York v. Niagara Wheatfield Central School District, issued on October 15. The state has authority to sue municipalities over civil rights violations if it can show the lawsuit promotes the state's interest in the health and well-being, both physical and economic, of its residents in general. Otherwise, in a case like this, the students or their parents must bring suit, not the state.

The decision summarizes the school district's failure to properly respond to four individual students' complaints of sexual assault, harassment and gender-based violence. The allegations are jarring, though the Court of Appeals (Sack, Cabranes and Merriam) notes that, at the pleading stage, these allegations have not yet been proven. Still, we assume the allegations are true for purposes of deciding whether the state has the legal authority to bring this case.

The main event here is that the trial court dismissed the case, holding that the state merely alleges four distinct incidents that did not reveal a generalized policy or practice by the district not to protect students from this kind of gender-based abuse. But, the Court of Appeals notes, there is no legal authority for such a narrow holding. What matters instead is that the state show sufficient injury to an identifiable group of individuals and indirect effects of that injury beyond that group. This is a much more lenient test than the one applied by the district court.

The state is able to litigate this case because the four victims of violence and harassment constitute an identifiable group of individuals harmed by the school district's inaction, and the state alleges that dozens of other students also had their similar complaints ignored by the district. The indirect effects of the district's inaction extends to the community at large and the student's parents, who believed the district would not protect their children. And, this inaction allowed the harassing behavior to spread from a handful of perpetrators to a significant number. We have ourselves a lawsuit, and discovery will take years to complete.

SDNY: online retailers are not covered under the Americans with Disabilities Act

An issue is brewing in the lower federal courts that will have to be resolved in the Second Circuit and then, eventually, in the Supreme Court. It has to do with the scope of the Americans with Disabilities Act and whether online retailers are covered under the statute, enacted in 1990 to prohibit discrimination in public accommodations.

The case is Mejia v. High Brew Coffee, Inc., 2024 WL 4350912, a Southern District ruling issued by Judge Swain on September 30. Plaintiff tried to buy coffee from defendant's website, but due to plaintiff's visual disability, she was unable to complete the transaction because the website's screen-reader was not working. Is this an ADA violation? 

The ADA does not define "place of public accommodation." But, as Judge Swain notes, "It provides that private entities are to be considered public accommodations if their operations affect commerce, and they fall within one of twelve enumerated categories, expressed in the statute as non-exclusive lists of different types of enterprises," including inns, hotels, restaurants, bars, movie theaters, bakeries, etc. But nothing about online retailers, which did not exist when the ADA was enacted 34 years ago. The court notes further that other Circuit Courts, including the Third, Sixth, Seventh, Ninth and Eleventh Circuits, have held that the ADA only covers brick-and-mortar stores and establishments, not virtual establishments. 

The Second Circuit has not yet resolved this issue, but some district courts in the Second Circuit have interpreted the statute to include standalone online retailers, consistent with cases from the First and Seventh Circuits. Judge Swain does not adopt the reasoning in these courts. Under Judge Swain's statutory analysis, the ADA does not cover a case like this. The analysis is complex. For now the plaintiff loses, but this case will be appealed, and due to the Circuit split, there is no doubt the Supreme Court will have to resolve this issue.

JOSE MEJIA, Plaintiff, v. HIGH BREW COFFEE INC., Defendant., No. 1:22-CV-03667-LTS, 2024 WL 4350912, at *2 (S.D.N.Y. Sept. 30, 2024)

it provides that private entities are to be considered public accommodations if their operations affect commerce, and they fall within one of twelve enumerated categories, expressed in the statute as non-exclusive lists of different types of enterprises.

JOSE MEJIA, Plaintiff, v. HIGH BREW COFFEE INC., Defendant., No. 1:22-CV-03667-LTS, 2024 WL 4350912, at *2 (S.D.N.Y. Sept. 30, 2024)

2d Circuit expands the scope of Title VI of the Civil Rights Act

In this case, the Second Circuit takes a close look at Title VI of the Civil Rights Act of 1964 and clarifies its scope and, in particular, when an employee can sue for retaliation under this statute, which prohibits racial discrimination by public schools.

The case is Bloomberg v. New York City Dept. of Educ., issued on Oct. 3. Plaintiff was a school principal in the New York City school system and complained about racially-segregated sports teams at her school. Shortly thereafter, the DOE investigated plaintiff for alleged misconduct: someone had accused her of trying to recruit students for a communist organization. The charges could not substantiated and were ultimately dropped. Plaintiff alleges the investigation was retaliatory.

Here are the issues:

1. Does Title VI allow for a private right of action? You would think this issue would have been squared away years ago, as Title VI discrimination lawsuits are commonplace. But the Second Circuit notes it has never conclusively held as such and that it has only assumed you can sue for discrimination under Title VI. The Court finally holds that Title VI authorizes such lawsuits. Other Circuit Courts have held the same. This means plaintiff can proceed with her lawsuit provided she survives the second issue.

2. Issue number two: can you sue under Title VI for retaliation? The statute prohibits discrimination but does not say you can sue for retaliation. But the Supreme Court and Second Circuit have held that retaliation is in fact discrimination, and that statutes that prohibit discrimination without referencing retaliation allow for such claims. The Fourth Circuit agrees with this analysis, though other Circuits have agreed in non-precedential summary rulings. 

3. The third issue is whether plaintiff's complaint about discrimination on the sports teams is actionable under Title VI. This statute, which conditions federal educational money on nondiscrimination in public education, says you cannot sue over racially-discriminatory employment practices unless "a primary objective of the federal financial assistance is to provide employment." No one in this case argues that a primary objective of the DOE's federal funds is to provide employment. The Court of Appeals holds that "a Title VI retaliation claim is an action 'with respect to an employment practice' only if the underlying protected activity concerns opposing unlawful employment discrimination." 

Plaintiff prevails on appeal with respect to the third issue. While the district court held that Bloomberg’s retaliation claim challenged an “employment practice” under Title VI because it arose from her employer’s investigation of her as an employee, the Second Circuit sees it differently:

We disagree that Bloomberg’s retaliation claim is an action “with respect to any employment practice” under Section 604. Bloomberg alleges retaliation for opposing race discrimination in the allocation of sports teams, not for opposing any employment practice. We therefore conclude that Bloomberg’s Title VI retaliation claim is not barred by Section 604.

Civil rights claim alleging discrimination against Asian-American high school students may proceed

 The Court of Appeals has reinstated a racial discrimination lawsuit filed by an Asian-American organization that challenges the admission policies of the specialized high schools in New York City. The plaintiff claims the policies discriminate against Asian-Americans. The Court of Appeals holds the plaintiff asserts enough allegations to allow this case to proceed to discovery.

The case is Chinese American Citizens Alliance of Greater New York v. Adams, issued on September 24. The specialized high schools in New York City are well-known, and admission to them can be the start of a productive academic and professional career. Plaintiff argues the admission policy for the Discovery Program at these high schools violates equal protection because they are intended to discriminate against Asian-Americans. As the Court of Appeals summarizes the case:

In June 2018, the New York City Department of Education (“DOE”) revised the admission policy at eight of its highly selective Specialized High Schools (“SHSs”), with the stated goal of creating a wider and more diverse pool of applicants for the SHSs.  In particular, the new policy made changes to the “Discovery Program”—a pre-existing path for admission to SHSs for high- performing, economically disadvantaged students who would not otherwise be admitted based solely on their scores on the standardized test for admission. The changes included:  (1) expanding of the number of SHS seats reserved for the Discovery Program from less than 5 percent to 20 percent of the overall SHS seats; and (2) adding a new admissions criterion for the Discovery Program, known as the “Economic Need Index” or “ENI,” that focused on the economic status of the student applicant’s community as a whole, rather than on an individual basis.

The Court of Appeals (Cabranes, Bianco and Reiss [D.J.]) states that there is no dispute that economically disadvantaged Asian-American students from certain middle schools would have been eligible for admission to the specialized high schools under the prior admissions program, but that they were ineligible under the new policy because their "Economic Needs Index" scores were too low. While the new policy is facially neutral, the parties dispute whether the City intended to discriminate against Asian-American student-candidates.While the district court held the disparate impact claim fails because plaintiffs have not alleged that the new policy negatively affects Asian-American students in the aggregate, that analysis was incorrect because the law actually holds that:

if the government enacts a law or policy with a proven discriminatory motive against a certain race (as we must assume here for purposes of this appeal given the bifurcation of discovery), a valid equal protection claim can be based on a showing that any individual has been negatively affected or harmed by that discriminatory law or policy based on race, even if there is no disparate impact to members of that racial class in the aggregate.

The Court of Appeals holds that the plaintiff-organization needs discovery to prove its claims. The case returns to the district court for that purpose.

Tight handcuff case will proceed to discovery

The first thing a civil defense lawyer does when their client is served with a lawsuit is to find a way to have the case dismissed prior to discovery. We call that a Rule 12 motion to dismiss. If that motion fails, since the federal system disallows appeals prior to final judgment, the parties proceed to depositions, document review, interrogatories, electronically-stored information, etc. Except that in Section 1983 cases, an unsuccessful motion to dismiss on qualified immunity grounds may be appealed immediately.

The case is Pal v. Canepari, a summary order issued on September 30. This is a police misconduct case in which plaintiff alleges the officer applied the handcuffs too tightly, causing physical pain. Such a tactic can constitute excessive force under the Fourth Amendment. The officer sought qualified immunity on the basis that he did not violate any clearly-established rights, as determined by prior Second Circuit or Supreme Court case law.

Defendant claims the law was not clearly-established in 2018, when the incident happened, and that the district court in denying qualified immunity relied on a Second Circuit case from 2019, Cugini v. City of New York, 941 F.3d 604 (2d Cir. 2019). Nice try, says the Court of Appeals  (Parker, Robinson and Oliver [D.J.]), but this argument will not cut it because Cugini recognized that, prior to 2019, it violated the Fourth Amendment to apply the cuffs too tightly when the plaintiff makes an explicit verbal complaint about the tightness. 

In Cugini, the events took place in 2014. The Second Circuit said in that case that "the consensus . . . among our sister circuits that unduly tight handcuffing can constitute excessive force in violation of the Fourth Amendment.” While Cugini said it was not clearly established in 2014 whether this general rule applies when the arrestee "exhibited only non-verbal aural and physical manifestations of her discomfort," the Court "expressly distinguished that scenario from the then-established caselaw that recognized an excessive force claim based on overly tight handcuffs in circumstances in which the individual made “an explicit verbal complaint.” In other words, Cugini clearly established for future cases that when the cuffs are too tight and the arrestee verbally complains about the pain, the officer has violated the Constitution. This is how the Court of Appeals wraps things up:

Accordingly, the law was clearly established at the time of the events at issue in this case that failing to loosen excessively tight handcuffs when an individual complains of pain can give rise to a Fourth Amendment excessive force claim. And for purposes of this appeal, in which we are required to accept the plaintiff’s version of the facts as true, we accept Pal’s assertions that the handcuffs were too tight and do not credit Officer Harris’s claim that he double-locked the handcuffs such that they could not tighten.

The case will now proceed to discovery and, unless the case settles or is dismissed on a later motion for summary judgment, the case will go to trial.