Worker's objection to supervisor's behavior is not "protected activity" for purposes of Title VII retaliation claim

The plaintiff in this case was a dental assistant who claimed her supervisor was having sex with her female colleagues. Plaintiff told her supervisor to knock it off, and she endured a series of adverse actions afterward. This portion of the case was dismissed on summary judgment. Did plaintiff engage in protected activity? The Court of Appeals says she did not.

The case is Qorrolli v. Metropolitan Dental Assocs., issued on December 23. I briefed and argued the appeal. I will summarize the other significant holding in this case in a future blog post.

As the Court of Appeals notes, Qorrolli asserted that supervisor Orantes "gave preferential treatment to the women who acceded to Orantes’ advances and unfairly punished those women who rebuffed him, including Qorrolli." In other words, women who had sex with Orantes were treated more favorably at work than plaintiff, who had rebuffed him. At deposition, Qorrolli testified that she would “make it pretty obvious that . . . [she was] not interested” through nonverbal cues. For instance, Qorrolli tried to rebuff Orantes by ignoring his advances, “st[anding] there frozen,” and walking away from him. Qorrolli also testified to making general objections to Orantes’ behavior, saying she “really need[s] [Orantes] to get off [her] back. [She] need[s] this to stop. [She is] starting to feel very  uncomfortable.” She also testified that sometime in 2016 she told Orantes to “back off and leave [her] alone because [she couldn’t] take this anymore." 

Plaintiff's objections to Orantes are not protected activity, the Court holds. "Qorrolli’s verbal complaints to Orantes were too generalized to constitute protected activity under the laws prohibiting employment discrimination. As Qorrolli herself admitted, she 'never directly told [Orantes to] stop sexually harassing [her],' and her broad requests that Orantes 'back off' could not reasonably have been understood as remonstrations regarding Orantes’ sexual advances as opposed  to  his  abrasive  but  non-sexual workplace  behavior, particularly given that Qorrolli does not allege that any such statements were made immediately after Orantes attempted to sexually harass her." In addition, the Court holds, "the silence, inaction, and avoidance described by Qorrolli when Orantes made sexual advances did not rise to a level of outwardly expressing opposition to her supervisor’s alleged discrimination or sexual harassment."

Plaintiff also complained to the business owner, Dr. Cohen. As the Second Circuit summarizes this evidence:

Specifically, Qorrolli testified that during her conversation with Cohen about Orantes’ perceived sexual advances, she said “[l]isten, this is what’s going on. . . . I’m not gonna be put in a position where I have to be sexually involved in order to keep my job here. . . . [A] lot of these women get away with everything, murder here, the things that go on. . . . [A]ll the blame that I’m getting is theirs. . . . I said I’m not going to allow myself to become sexually involved with [Orantes] to get away with the things that other women get away with here.”

The Court of Appeals holds that no jury can find that Plaintiff had engaged in protected activity, i.e., that she had protested sexual harassment to Dr. Cohen. The Court holds, "Although Qorrolli responded 'correct' when asked in her deposition if 'at some point' she went to 'Cohen about these perceived sexual advances from [Orantes],' her own description of that conversation reveals that her verbal complaint to Cohen focused on her objection to being treated poorly in  comparison  to other  female  employees  who  were romantically or sexually involved with Orantes. The Court holds this was not a complaint about sexual harassment or sex discrimination, but instead a complaint about "paramour preference," in which employees are treated disparately not because of gender "but rather on a romantic relationship between an employer [or supervisor] and a person preferentially treated." Because of this distinction, plaintiff was not actually complaining about conduct that violated the employment discrimination laws.

Is the paramour preference still a legitimate exception to discrimination under Title VII? Under the more textual approach the Supreme Court has taken in interpreting Title VII claims, such as in Bostock v. Clayton County, where the Supreme Court held that sexual orientation and transgender discrimination is a form of gender discrimination, is the paramour preference in fact discrimination based on sex?

Massive sexual assault verdict yields a new trial on liability

This case is a good example of how we trust juries, but we don't always trust juries, and some verdicts are going to be thrown out and we need a do-over because the jury did something wrong. The judge decided that the jury in this sexual assault case, which awarded $150 million to the plaintiff, overstepped the rules. The case will have to be re-tried.

The case is Doe v. Waltzer, 2024 WL 4216514, a ruling from Judge Block of the Eastern District of New York, issued on September 17. Plaintiff Jane Doe brought this case under New York's Child Victims Act, which revived civil claims predicated on Penal Code violations. Plaintiff claimed that her high school social studies teacher forcibly raped her in summer 2000, when she was 15 years old. She also claimed that, following the rape, the defendant continued to rape her for more than a year. Hence the large damages award.

Jurors are told that they have the final say on the case. But they do not know about post-trial motion practice and appeals, and the possibility that everyone, including the lawyers and the judge, will parse through the verdict for the next several years to see if the jury did anything wrong. I bet the jury has no idea that their verdict has been thrown out and there will be a retrial, unless the case settles. For now the plaintiff has filed a notice of appeal, though a round of motion practice has erupted in the Second Circuit as the defendant has moved to dismiss the appeal as premature.

Judge Block orders a new trial, not just on damages but on liability. This does not happen often. Usually, when the damages are too high, the trial court reduces the damages award but leaves the liability verdict in place. But the court can order a new trial on liability if it thinks the damages award is inherently indicative of the jury's passion or prejudice. This is a dramatic remedy, but I've seen it happen, and it even happened in a sexual harassment case that I am associated with.

Why did the judge do this? First, Judge Block held that $100 million in pain and suffering is far higher than other sexual misconduct cases, including when the plaintiff was significantly younger than the plaintiff in this case. The judge cites cases where the jury awarded $45 million and $15 million. Non-CVA sexual assault cases typically yield verdicts in the amount of several million dollars, including Carroll. v. Trump, which awarded $2 million against the next President of the United States. 

Remittitur, where the judge simply reduces the damages award, "is not possible under the circumstances." The judge finds that (1) the size of the damages award proves passion or prejudice by the jury, and (2) the jury most likely credited unsubstantiated allegations about the plaintiff's age (some of the evidence suggests she may have been 17 and not 15 based on the car that defendant was driving and the release date of a prominent movie that factored into the testimony).

Outspoken lawyers may challenge Connecticut's disciplinary rules under the First Amendment

The Court of Appeals holds that two lawyers have standing to challenge the professional licensing rules guiding the legal profession. The Court finds that the rules that make it professional misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination" on the basis of 15 protected activities "in the practice of law." The plaintiffs are conservative lawyers who speak out on political and religious issues "on forceful terms" and fear that the Connecticut disciplinary rules might be broad enough to result in their discipline.

The case is Cerame v. Slack, issued on December 9. The trial court rejected plaintiff's First Amendment claims, holding that they lacked standing to challenge the disciplinary rules because the adverse enforcement against them is speculative. The Court of Appeals (Livingston, Walker and Sullivan) finds that plaintiff's concerns are not speculative and that they have pled a real and substantial risk that the rules may be held against them because of their provocative and public speech.

First Amendment cases offer relaxed standing rules. The idea is that people will refrain from speaking to avoid government discipline or punishment. You can bring these cases even before you articulate the speech if you can plausibly assert that you speech has been chilled by the disciplinary or other rules.

Plaintiffs have standing to bring this case because they assert in the Complaint that they speak out at CLE's, legal seminars, press releases and public speech on social and political matters "and that others expressing opposing points of view may, on occasion, construe their remarks 'as personally derogatory or demeaning.'" The Court of Appeals notes that one plaintiff, Moynahan, has spoken at public forums, including law schools, in opposition to curricula based on critical race theory, "teaching students that systemic racism is endemic, that American culture is based on white privilege and supremacy, and that 'diversity' and 'equity' are cultural imperatives." While plaintiffs assert they do not intend to harass or discriminate against anyone, they fear that the Connecticut disciplinary rules will be used against them for speech like this. Since their speech may be arguably prohibited under the Connecticut disciplinary rules, they may bring this case.

Punitives are available against municipalities under the City Human Rights Law

Lawyers who sue and defend municipalities know that you cannot recover punitive damages against towns, villages, counties and cities. That's the rule under federal law. What about the New York City Human Rights Law? A federal judge a few weeks ago said these damages may be recoverable.

The case is Jordan v. City of New York, 23 cv 4962 (DLC), 2024 WL 4872186 (S.D.N.Y. Nov. 22, 2024," a case alleging disability discrimination under federal, state, and city law. In pre-trial motion practice, the City argued that punitives are not available under of these statutes, including the City law. 

Judge Cote noted that "There is a common-law presumption against the availability of punitive damages from municipalities, and thus '[t]he general rule ... is that no punitive damages are allowed
unless expressly authorized by statute.'” The case for that is City of Newport v. Fact Concerts, 453 U.S. 247 (1981). While the State HRL states that punitive damages are available only in cases of employment discrimination and housing discrimination, the City law contains language stating:

Except as otherwise provided by law, any person claiming to be a person aggrieved by an unlawful discriminatory practice as defined in chapter 1 of this title ... shall have a cause of action in any court of competent jurisdiction for damages, including punitive damages.

That language is found in N.Y.C. Admin. Code section 8-502(a). Based on this language, the NYCHRL rebuts the common-law presumption against the availability of punitive damages from municipalities.

This ruling might make for an interesting appeal to the Second Circuit, but there would have to be a trial first before any appeal is ripe for the Court of Appeals. But that issue is now moot, as the case went to trial on December 2, 2024. The jury was asked to determine whether the City retaliated against plaintiff in violation of the Americans with Disabilities Act and the City law. The jury returned a verdict for the City.

This is how hard it is to win defamation cases in New York

This case proves how difficult it is to win a defamation case in New York. Plaintiff is a university that sued Newsweek for reporting that it had pled guilty to money laundering. Plaintiff says this was not true. Technically, plaintiff is correct, but plaintiff loses the case.

The case is Olivet University v. Newsweek Digital, LLC, a summary order issued on December 6. The plaintiff is a private religious institutional consisting of multiple colleges around the United States. It pled guilty in 2020 to a charge that it had falsified business records in the first degree as well as conspiracy in the fifth degree, a misdemeanor. Under the terms of the plea agreement, the felony falsification of business records charge was reduced to a misdemeanor. 

Newsweek then published an article stating that the University pled guilty to money laundering. This was part of an article stating that the University was investigated by the Department of Homeland Security into whether its founder and his followers were part of a scheme to launder money for criminals in China and the United States. A subsequent Newsweek article again said the University had pleaded guilty to money laundering.

Plaintiff loses because the Court of Appeals says the Newsweek article was not false for purposes of bringing a defamation claim. While plaintiff plead guilty to conspiracy to commit money laundering, as opposed to substantive money laundering, technical inaccuracies like this, "especially in the inherently complicated context of criminal law, cannot be the basis of a defamation claim where the substance of the reported charge would not have a different effect on the mind of the reader from that which which the pleaded truth would have produced." That reasoning draws from Tannerite Sports, LLC v. NBC Universal News Group, 864 F.3d 236 (2d Cir. 2017). 

As if that holding is not enough to prove the difficulties in winning cases like this, there is another reason plaintiff cannot win: a New York statute says you cannot sue for defamation if the challenged statement is a "fair and true report of a judicial proceeding." This gives the media much leeway in reporting on legal cases, including criminal cases. The Court of Appeals holds, "Whether Olivet pled guilty to substantive money laundering or to a conspiracy to commit money laundering is a nuance lost on most readers, and “[n]ewspapers cannot be held to a standard of strict accountability for use of legal terms of art in a way that is not precisely or technically correct by every possible definition.” In other words, the Newsweek article, even if technically inaccurate, was close enough for protection under New York Civil Rights Law section 74.

Inmate loses case alleging correction officer confiscated his legal mail

This inmate sued a county jail in upstate New York, claiming that a correction officer interfered with his right to receive mail by searching his cell for his legal correspondence and then confiscated and transmitted that correspondence to the prosector's office in his state criminal matter. Was this legal?

The case is Saeli v. Chautauqua County, a summary order issued on December 6. Plaintiff says that after the CO went through his stuff, the documents were ultimately lost. Not to mention CO Gilmore's decision to send the correspondence to the DA's office. Your instinct would be that plaintiff has a case. But the Court of Appeals says he does not.

This case is brought under the Sixth Amendment's right to counsel. The Court of Appeals notes that it has not fully developed this theory of liability, i.e., what constitutes "unreasonable interference" with a criminal defendant's right to access counsel. Plaintiff says that the CO's conduct on its face, taking the legal documents and sending them to the DA's office, violates the Sixth Amendment, and that cases around the country say that opening marked legal mail, by itself, implicates the Sixth Amendment. While this appeal potentially raised an open issue of law for the Court of Appeals to clarify, these other cases are not enough for plaintiff to win, and the Second Circuit does not use this case to develop the law any further.

While plaintiff claims the CO interfered with his attorney-client relationship, the Court (Chin, Carney and Sullivan) rules against him because he cannot satisfy the strict Iqbal pleading standards that the Supreme Court adopted in 2009, which require the plaintiff assert non-conclusory allegations that support a plausible claim for relief. "For starters, Saeli provides scant detail about how he learned of Gilmore’s alleged conduct, or the basis for his conclusory assertion that Gilmore 'was advised' to and did purposefully search Saeli’s cell for his legal correspondence. More to the point, he makes no allegations about whether the document was marked or otherwise identifiable as legal mail, nor does he include any facts regarding how Gilmore would or should have recognized it as such." 

I note that this case was argued by law students from Seton Hall University Law School. They do not recall the pre-Iqbal days, when "notice pleading" was the name of the game, and you did not have to satisfy the pleading standards that the Supreme Court imposed on plaintiffs more than 15 years ago. Iqbal was the most important civil procedure case decided by the Supreme Court in my lifetime, and its application here was certainly frustrating for the law students. 

Plaintiff does win on one issue: the case returns to the district court to allow plaintiff to amend the complaint to add more detail.

Inmate's civil rights case against New York State is rejected

The Court of Appeals has held that an inmate in a New York prison cannot win his constitutional claims alleging the prison was deliberately indifferent to certain jail conditions or retaliated against him for exercising his free speech rights.

The case is Smith v. New York State, a summary order issued on November 12. Smith was incarcerated at Coxsackie State Prison, south of Albany. He claims the temperature during his prolonged confinement in the jail infirmary was freezing cold in order to terminate his hunger strike, in violation of the Constitution. 

These cases are not easy to win. Under the Fourteenth Amendment, the inmate has to prove that jail officials were deliberately indifferent to a serious medical need, and that, objectively, the conditions were inhumane under constitutional standards created by the U.S. Supreme Court. Eighth Amendment cases, asserting cruel and inhumane treatment, carry similar legal standards. 

Prolonged cold can support a case like this. But plaintiff loses because there is no evidence that prison officials knew about and disregarded any serious harm to plaintiff. Instead, the record shows that, while in the infirmary, plaintiff had a set of closing, including shirts and other apparel and even an extra blanket if he requested one, and even cold-weather clothing for the winter months, and that his hunger strike affected his perception of coldness in the infirmary. 

The First Amendment case also fails, the Court of Appeals (Carney, Bianco and Nardini) holds. Inmates do have free speech rights, but you still have to show that the prison's conduct toward you was sufficiently adverse, i.e., it would deter other inmates from asserting their speech rights in the future. The Court applies a court-made doctrine in cases like this: "We approach prisoner retaliation claims with 'skepticism and particular care,' given that 'virtually any adverse action taken against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional violation—can be characterized as a constitutionally proscribed retaliatory act.'” With that in mind, plaintiff loses. "The conduct that Smith perceived as retaliatory, including restricting his library access and recreation time, was primarily a function of his admission to the infirmary due to his hunger strike, and no rational jury could find that such conduct, under the particular circumstances here, would deter a 'similarly situated individual of ordinary firmness from exercising his or her constitutional rights.'”

2d Circuit upholds NLRB's ruling against employer

In this case brought under the National Labor Relations Act, the National Labor Relations Board ruled against the employer, Blue School, which refused to bargain with its employees or certify the election after its employees voted to join a union. The Court of Appeals sustains the NLRB's ruling.

The case is NLRB v. Blue School, a summary order issued on November 12. The NLRB certified the election. To win this case, the employer faces a "heavy burden" in proving the NLRB abused its discretion in ruling against the employer. The employer argues the NLRB abused its discretion because the Regional Director directed an immediate mail-ballot election and then overruled the employer's objections without a post-election hearing. Both arguments fail, says the Court of Appeals.

First, we have a problem: the Blue School does not exist any longer. In a footnote, the Court (Jacobs, Merriam and Velardo [D.J.]) says the NLRB was still pursuing this action because "providing notice of its action to the former employees furthers the Board's mission of ensuring that workers are aware of their rights." All this places this case in a very odd procedural context.

On the merits, here is the factual background giving rise to this case:

The Union filed its representation petition on June 7, 2021. A few weeks later, at the end of the school year, approximately 48 out of the school’s 93 employees were terminated. The remaining eligible employees were able to vote in the election over the summer and voted overwhelmingly to unionize – 24 votes in favor and four against. Because the election took place over the summer, Blue School had limited opportunity to communicate with the remaining employees about their options. The new employees that joined the school in the fall were bound by the vote, though they had not had the opportunity to participate. In the end, one population of employees made the showing of interest, a second population voted to join the union, and yet a third was subject to the results of that election. 

No delay in the election was warranted here, the Court of Appeals says, because the faculty maintained their employment throughout the year with little to no fluctuation. They were not seasonal employees. The Regional Director also found that the school's employees constituted at least 84 percent of the planned collective bargaining unit, so the current employees occupied 100 percent of the anticipated job classifications. "The Regional Director therefore reasonably determined that Blue School’s then-current employees easily met the minimum threshold for a substantial and representative complement of the planned unit, and the Board appropriately directed an immediate election."

The Regional Director was also allowed to conduct the election by mail. There is a body of case guiding decisions like this. "Substantial evidence supported the Regional Director’s determination that the scattering of employees during the summer break presented a challenge to in-person voting. The Board thus appropriately upheld the Regional Director’s decision to conduct a mail-ballot election."

What about the school's objection that it wanted a hearing to resolve its post-election objection? The school said that, due to the conduct of nonparties, the employees were to able to exercise their freedom of choice on whether to join a union. That argument fails, the Court says, because the school did not indicate which employees would testify or summarize their anticipated testimony.

 

Hostile work environment case against Buffalo Archdiocese may proceed

This case raises an odd procedural question, but the underlying issue is interesting. The plaintiff brought a charge of discrimination with the State Division of Human Rights, claiming religious discrimination. The employer wants to assert the "ministerial exception," which allows certain religious institutions to avoid litigation if the plaintiff's job duties were "ministerial" in nature and required them to preach the gospel in some way. Does the defendant have to raise the ministerial exception in its Answer to assert it in litigation?

The case is Ibhawa v. New York State Division of Human Rights, issued by the New York Court of Appeals on November 26. The real defendant is not the NYSDHR but Plaintiff's former employer, the Archdiocese in Buffalo, which fired him after it subjected him to racial slurs. The defendant did not raise the ministerial defense in its Answer to the charge of discrimination. That omission would not matter if the ministerial defense were a jurisdictional defense, which the defendant can raise at any time. You cannot waive a jurisdictional defense. 

This case reaches the New York State Court of Appeals to resolve this issue. The NYSDHR ruled in favor of the former employer and dismissed the case, and the Fourth Department agreed with that determination. But that was wrong, the Court of Appeals holds, because the Supreme Court cases that adopted the ministerial exception have characterized it as an affirmative defense and not a jurisdictional defense. That means you have to raise this defense in the Answer if you want to raise it. The case is therefore reinstated and plaintiff can litigate his claims.

The larger issue is whether the ministerial exception applies when the plaintiff asserts a hostile work environment claim. This defense always applies when the employer wants to fire an employee whose job, for example, involves teaching students about religious principles. The courts do not want to tell religious employers who can take on these positions. This concern is rooted in the religious freedom clauses under the First Amendment and the principle that religious employers have the right to determine who will spread the gospel, even if the plaintiff insists he was fired for reasons that have nothing to do with spreading the gospel. But courts have disagreed on whether the ministerial exception applies when the plaintiff claims he was subjected to racial or sexual harassment. In those cases, the employer is not asserting the right to employ religious messengers of its choice. In that circumstance, some courts have held, the ministerial exception does not apply. New York courts have not definitely resolved this issue, and it is not resolved in this case.

Excessive force claim is dismissed on summary judgment

This was an awful case that led to someone's death. But that does not mean the plaintiff can win the lawsuit. The trial court granted New York City's motion for summary judgment, and the Court of Appeals affirms.

The case is Purcell v. City of New York, a summary order issued on December 5. On August 14, 2015, the police shot the Garland Tyree, Jr. outside his apartment, causing his death. This shooting followed a standoff. The Court of Appeals notes that "Purcell has suffered a tragic loss. But upon independent, de novo review of the summary judgment record and the briefs on appeal, we agree with the District Court’s conclusion: 'The evidence put forth by Defendants establishes that their lethal use of force against Tyree on August 14, 2015, though tragic, was not excessive.'”

Excessive force claims under the Fourth Amendment cannot prevail if the police acted in a manner that was objectively reasonable in light of the circumstances confronting them. This is a fact-specific inquiry, as no two cases are alike. Excessive force claims often go to trial because it is impossible for the court to determine on the papers if the police acted reasonably. But this is not one of those cases. The Court of Appeals (Calabresi, Merriam and Rakoff [D.J.]) holds as follows:

The record reflects that Tyree was shot by police officers after a protracted armed standoff during which Tyree fired several shots and wounded a New York firefighter; officers on the scene were able to observe Tyree (by video feed) in his apartment “with an AK-47-style rifle and a bulletproof vest.” 

Purcell disputes this evidence – contending, for instance, that Tyree was unarmed and did not fire any shots – but she points to no evidence in the record to support her position. Indeed, the record reflects, and Purcell admits in her appellate brief, that the officers were the only witnesses, other than Tyree, to the fatal shooting; in so doing, she concedes that her own assertions about the event are not based on personal knowledge. 

By contrast, the defendants’ version of events is supported by, among other things, deposition testimony of multiple officers present at the scene and photographs suggesting that Tyree fired an AK-47-style rifle in the direction of officers prior to their use of deadly force. On this record, there is no genuine dispute of material fact regarding the reasonableness of force used by the officers.