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.

Judgment against correction officer for excessive force is vacated

This is a case that civil procedure mavens will love. The plaintiff is an inmate who sued various correction officers under the Constitution, claiming they subjected him to excessive force. The attorney general's office withdrew its representation of one of the defendants over his failure to cooperate with the litigation. The trial court entered judgment against that officer in the amount of $50,000. So what's the problem?

The case is Moore v. Booth, issued on November 27. First, the background, plaintiff claimed the defendants assaulted him while he was having a seizure, causing plaintiff to lose several teeth and suffer hearing loss in one ear, among other injuries. Defendant Booth did not show up for a deposition or otherwise participate in the litigation, and the AG's office withdrew its representation of this defendant. This led the trial court to strike Booth's answer, and plaintiff won a default judgment against Booth. 

Here is the problem: the trial court did address this case on the merits for the other defendants, finding that plaintiff has no case because he did not exhaust administrative remedies in pursuit of his constitutional claim. Under the Prisoners Litigation Reform Act, you have to file an internal grievance with the jail before you can bring a lawsuit, even if the case alleges excessive force. 

What it means is that if plaintiff does not have a case against the other officers, he could not have had a case against Booth, even if Booth did not participate in the litigation. In 1872, the Supreme Court said that a default judgment cannot create an "incongruity" with a judgment on the merits. Courts have interpreted that case, Frow v. De La Vega, to mean that you cannot have inconsistent judgments. The judgment against Booth is inconsistent with the judgment in favor of the other correction officers. Here is the reasoning:

Applying the Frow principle to this case, we conclude that the district court abused its discretion when it entered a default judgment against  Booth  that  was  inconsistent  with  its  prior  judgment dismissing  identical  claims  against  the  four  other  officers. Thompson’s claims against each of the five officer defendants were identical. Each claim arose from the same alleged incident in which all five officers allegedly participated. Each claim was subject to the same exhaustion requirement under the PLRA. See Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.”). And because the claims against each of the officers arose from the same incident, the remedies Thompson was required to exhaust were the same.

The pitfalls of habeas petitions

This case highlights the complexities and pitfalls of habeas corpus petitions. The Court of Appeals finds that the criminal-defendant turned habeas petitioner cannot file a second petition under the habeas rules.

The case is Forbes v. United States, issued on November 21. Forbes was convicted of conspiracy to distribute controlled substances and unlawful possession of a firearm. He brought a habeas corpus petition, claiming the criminal convictions violated the U.S. Constitution. Those petitions were denied on the merits.Later on, Forbes asked the federal trial court for permission to file additional habeas petitions based on new evidence. The trial court denied that request, concluding that Forbes had not shown any entitlement to equitable tolling of the limitations period. That brings his case to the Court of Appeals.

Under the rules, you cannot file successive habeas petitions without an order from the Court of Appeals allowing you to do so. This means the trial courts lack jurisdiction to rule on the merits of successive claims, and the trial courts should transfer such claims to the Court of Appeals. Since Forbes had already filed a habeas petition with the trial court, he needed the Second Circuit's permission to file an additional petition. But he did not file such a motion in the Second Circuit and instead asked the trial court for more time to file the petition in that court.

The Second Circuit (Jabobs, Merriam and Cronan, D.J.) holds that the trial court did not have authority, or jurisdiction, to rule on Forbes' request for equitable tolling. The successive habeas petition could not be filed at all without permission from the Court of Appeals. This means the successive habeas petition in the district court was not authorized.

University student loses sex-discipline gender discrimination appeal

This plaintiff sues New York University for sex discrimination under Title IX, claiming he was unfairly disciplined over a sexual allegation because of his gender. The case was dismissed at the district court, and the Court of Appeals affirms, ending the case.

The case is Doe v. New York University, a summary order issued on November 20. You can sue universities for such discrimination under Title IX, but the courts will not allow the case to proceed without specific allegations demonstrating gender bias. Plaintiff cannot survive summary judgment in this case.

In his effort to prove gender bias, plaintiff relies on a spreadsheet showing NYU's disciplinary outcomes in sexual-misconduct proceedings, broken down by the respondent student's gender. As the Court of Appeals (Newman, Cabranes and Perez) writes, "Doe notes that NYU expelled four male and no female students during the 2015/16 through 2019/20 academic years. Female students, he notes, received only probation or suspension." Is this male/female disparate treatment enough to show that plaintiff himself was discriminated against because of his gender?

It is not enough, the Court of Appeals holds. "For data such as these to establish a genuine factual dispute, they must be sufficiently detailed to allow a jury to find that the comparators were similarly situated to the plaintiff in relevant respects, permitting a reasonable inference that a disparity in their treatment was due to gender bias." Authority for that proposition is found in Radwan v. Manuel, 55 F.4th 101 (2d Cir., 2022). But plaintiff cannot satisfy that test. The Court writes:

The spreadsheet to which Doe points us lacks that detail.  It indicates only the broad categories of misconduct that each female student was found to have committed: “Relationship Violence” for two students; “Sexual Harassment” for one; and “Stalking and Sexual Exploitation” for another. By contrast, Doe was found responsible for stalking, sexual harassment, sexual exploitation, and repeatedly violating a no-contact directive. Even drawing every permissible inference in Doe’s favor, a jury could not reasonably infer from this spreadsheet alone that NYU discriminated against him based on his gender.

Constitutional challenge to COVID-19 vaccine mandate fails in 2d Circuit

COVID-19 cases are still making their way through the federal courts. This one was filed by public sector employees in New York City who claim the vaccination mandates violate the U.S. Constitution. Plaintiffs lose their constitutional challenges on appeal.

The case is New Yorkers for Religious Liberty v. City of New York, issued on November 13, more than 1.5 years after the case was argued. These issues are complex, and prior to COVID-19, the federal courts had rare occasion to analyze the legality of vaccine mandates. We have a number of issues in this decision, which does not really break new ground and instead reiterates some of the holdings the Court of Appeals has handed down over the last few years on this issue.

1. Plaintiff's request to rescind the mandate is mooted because the City halted the mandate in February 2023, following oral argument in this case, and there is no reason to believe the mandate will ever return. Federal courts are not the forum for theoretical legal arguments, so without a live case or controversy, there is no argument that the mandate must be rescinded under the Constitution.

2. While plaintiffs want reinstatement to their old positions and backpay following the termination of their employment over noncompliance with the mandate, that argument fails, but not on mootness grounds. Even if the case were moot, prior harm may still yield compensation. But in this case, plaintiffs seek this relief through a preliminary injunction, which requires proof that they are likely to prevail on the merits and will suffer irreparable harm without obtaining the relief now. The problem for plaintiffs is that they filed their injunction motions after they were terminated, which means there is no specific present objective harm or a threat of any specific future harm. The damage has been done, and that means there is no irreparable harm. The damages due the plaintiffs will have to wait until the end of the case.

3. While plaintiffs claim the mandates violated the Free Exercise and Establishment Clauses (the two religious freedom provisions under the First Amendment), both challenges fail. The Free Exercise challenge fails because the vaccine mandate was facially-neutral and did not single out any religious practices. The Second Circuit held as such a few years ago in a related case, and that remains the law in this Circuit. As for the Establishment Clause challenge, the Court finds there is no evidence that any religious animus by statewide officials tainted the mandate process. 

En banc court directs criminal defense lawyers to advise natrualized citizens about certain risks of deportation

The Second Circuit normally hears cases in three-judge panels, drawn randomly from about 20-25 judges, about half of whom are full-time judges in active service. If the three-judge panel rules against you, the only remaining options are the U.S. Supreme Court or en banc review in the Second Circuit, where the dozen or so active judges hear the case as a whole. But that rarely happens. This Court of Appeals hears cases en banc maybe once every other year. This case was decided en banc, and the majority holds that a naturalized American citizen has a constitutional right to be told during their criminal sentencing that a guilty plea might jeopardize their citizenship. 

The case is Farhane v. United States issued on October 31. This issue is divisive enough that the en banc court decided to hear it, and the issue remains divisive, as eight Second Circuit judges held in favor of the plaintiff, and five ruled against him. This case may be on its way to the Supreme Court.

This case arose when the government decided that the plaintiff, a natrualized citizen, was not a person of "good moral character after determining that, among other things, he had lied on his citizenship application about whether he had ever committed any crime for which he had not been arrested. 

In 2010, the Supreme Court said that the Sixth Amendment requires criminal defense counsel to tell her client about the risk of deportation associated with such a plea. That case was Padilla v. Kentucky, 559 U.S. 356 (2010). In the case before the Second Circuit, the court, in a decision written by Judge Carney. holds that a naturalized U.S. citizen facing the risk of deportation following denaturalization proceedings has the same protection enjoyed by  a noncitizen facing the risk of deportation. If the lawyer fails to properly their client of this risk, then the client may argue that he was denied the effective assistance of counsel and avoid the consequences of their guilty plea.

In dissent, the judges state that the Court of Appeals got it "wrong" and that the decision departs from the rule that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on federal collateral review. Even if the government did not raise that objection in prior proceedings in this case, that does not matter, the dissenters state, because courts have discretion to overlook a forfeiture generally.

We do not see much ideological voting on the Court of Appeals: Republican and Democratic appointees often vote together. That is not always the case in en banc cases, where the disputes may have an underlying political overtone or the disagreements on a particular issue are more profound. The ideological make up of this en banc ruling is as follows: voting for the plaintiff: seven Democratic appointees and one Republican appointee. Voting for the government: five Republican appointees.

Second Circuit upholds some, but not all, of NY's gun regulations.

Ever since the Supreme Court issued the Bruen decision in 2022, federal courts have struggled to comply with its mandate that the Constitution prohibits modern gun regulations that do not resemble the ones in place when the Second Amendment was adopted long ago. This case examines some of those rules.

The case is Antonyuk v. James, issued on October 24. I discussed portions of this ruling at this link. For anyone who wants a thorough examination of gun laws throughout American history, this opinion is for you. If nothing else, the Bruen decision has forced federal judges to become experts in reviewing all the old gun regulations to determine if current gun laws run afoul of the Second Amendment. They used to call this "law office history."

The first question is whether New York's rule against carrying a gun in a sensitive location, such as a treatment center that provides health, behavioral health, or chemical dependence care or services, is constitutional. It is. The state has traditionally outlawed guns in these locations where vulnerable populations congregate.

The Court of Appeals (Jacobs, Lynch and Lee) next determines whether the state law prohibiting guns in places of worship violates the Second Amendment. Yes, some people want to bring their firearms into church for self-defense purposes. The problem is that after the district court struck down this provision, the State Legislature eliminated this requirement. That moots out the case. The Court of Appeals cannot rule on a provision that no longer exists, and the courts presume that the vacated law or regulation will not return anytime soon. 

We next consider the prohibition against firearms in parks and zoos. The Court provides a lengthy analysis on similar regulations throughout American history on this issue and finds that this regulation is legal because it is consistent with age-old laws against carrying a gun in often-crowded public squares, including city parks. The same holds true for zoos, as there is a national tradition of barring firearms where children congregate. The Court of Appeals notes that 70 percent of zoo visitors are children.

What about bars and taverns? New York bars firearms in these locations. Guns and alcohol can be a lethal mix, but the Supreme Court's Second Amendment framework necessarily requires extended analysis on this issue, also. We have age-old laws against intoxicated people buying and carrying firearms. Those old statutes bring the current New York laws within our national tradition, which means they are legal under the Second Amendment.

You get the point. The Court of Appeals further upholds New York's law against carrying a firearm in theaters, conference centers, and banquet halls. But the Court of Appeals strikes down New York's provision against carrying firearms during First Amendment public assemblies. Such a prohibition does not fall within our national tradition, the Court holds.

Court of Appeals upholds some but not all of New York's gun licensing scheme

Gun cases under the Second Amendment are becoming more commonplace ever since the Supreme Court over the last 15 years or so breathed life into what had been a dormant constitutional provision and held that you have an individual right to arm yourself. That was the Heller decision. Things became more complicated in 2022, when the Supreme Court held in the Bruen decision that gun regulations that do not resemble the ones in place when the Second Amendment was adopted are unconstitutional. That leads to this case, in which the Second Circuit upholds most but not all the challenges to New York's gun rules.

The case is Antonyuk v. James, issued on October 24 after kicking around the courts for years, including a trip to the U.S. Supreme Court, which remanded the case to the Second Circuit for more analysis. This time around, the Second Circuit was assisted by numerous amicus briefs from a variety of interest groups, and I bet the Court read them all because this is a new area of constitutional law that requires extensive analysis. Here is what the Second Circuit (Jacobs, Lynch and Lee) did:

1. New York's requirement that the potential gun owner pass a "good moral character" test is constitutional because the state law makes it clear that character is a proxy for dangerousness to yourself or others. The U.S. has long had licensing rules like this in order to ensure that dangerous people do not own any firearms. Our society has also allowed for discretionary moral judgments by local officials in deciding whether to issue a gun permit. There may be some unconstitutional applications of the moral character clause, but since this lawsuit poses a facial challenge to the statute, and there are conceivable ways the statute serves a constitutional purpose, this provision cannot be struck down in this lawsuit. Other lawsuits may highlight flaws in the licensing scheme, but not this one.

2. New York's "catch-all" provision is also constitutional. Under that rule, the decisionmaker may consider other, unspecified, information in determining whether to issue a gun permit provided that information is relevant to the decision. While some information requests may be illegal under the Second Amendment, others would surely be relevant, so the facial challenge to this provision fails. 

3. New York also allows the decisionmaker to consider the gun applicant's co-habitants and minors in determining whether to issue a gun permit. This provision allows the decider to learn more about the applicant's moral character, like a character reference. All of this is consistent with the historical tradition of firearm regulation.

4. Plaintiffs win on one challenge, however: the social media requirement, which allows the decisionmaker to review the applicant's social media accounts for the past three years to learn more about their character and conduct. You do not have to provide passwords, just a list of social media accounts so the regulators can see what you've said online. The problem is you have to provide a list of pseudonymous social media handles; that would violate the First Amendment right to speak without revealing your true identity.

Man may sue upstate school district for sex discrimination arising from deficient sexual harassment investigation

The Court of Appeals has reinstated a lawsuit in which an agricultural educator was banished from providing seminars in certain public schools after a school district credited an allegation that he had sexually harassed a student during an agricultural presentation. This case provides some guidance on the principle that a public school may violate Title IX when it mishandles allegations like this.

The case is Schiebel v. Schoharie Central School District, issued on November 1. The plaintiff denies sexually harassing anyone. When plaintiff met with school administrators about the allegation, the meeting lasted less than a half-hour, during which time the Title IX coordinator was hostile and accusatory toward plaintiff, and the district determined that, since he admitted reaching around a student for cups and supplies during the presentation, plaintiff was guilty of touching a female student even if his actions were not intentional. The superintendent of schools sustained this adverse finding against plaintiff on the basis that plaintiff did not deny that he may have reached around the student during the presentation and that plaintiff had ample time prior to the meeting to consider the accuracy of the allegations against him.

The Court of Appeals (Walker, Nardini and Menashi) reverses the trial court's determination under Rule 12 that this is not a gender discrimination case. These are complex cases. If you are the victim of sexual harassment in the public schools, you can sue for sex discrimination if the school is deliberately indifferent to the allegations, or if the investigatory process is so irregular that the process was a sham. If you are accused of sexual harassment, such as in this case, the same principles apply. Here, plaintiff has a case based on the deliberate indifference and sham theories, as cases hold that a false accusation of male-female sexual harassment case predicate a Title IX claim. An objectively deficient investigation, or an inexplicable result, leading to discipline against the alleged harasser can also violate Title IX.

The process leading to plaintiffs discipline was so deficient, and the result was so dubious, as to permit the inference under Rule 12 that plaintiff was the victim of the school district's gender discrimination. He did not receive due process during the investigation, such as timely notice of the charges against him, an opportunity to review or to present evidence, or a neutral decisionmaker. The Court of Appeals finds that plaintiff did not admit to sexual harassment when he said he may have reached around a female student to access supplies, and the district "also invoked a tendentious definition of sexual harassment -- that a single, accidental, trivial contact qualifies as sexual harassment under the district's policy -- that suggests [the district] was not impartially applying district policy."

Child Victim Act plaintiffs may challenge sex abuse that took place outside New York

This case is brought under the Child Victims Act, which the State Legislature recently adopted to re-open the statute of limitations for minor children who suffered sexual abuse years ago. The plaintiff alleges that, after she moved to New York City as a 16 year-old child model, the modeling agency sent her to Paris to love with one of its executives, who raped her. This happened in 1986. Here is the issue: can plaintiff bring this case even if the sexual abuse took place in Paris? The answer is yes.

The case is Sutton v. Tapscott, issued on November 4, more than a year after the court heard oral argument. The delay in issuing this ruling arises from the uncertainty whether CVA plaintiffs can sue in cases like this: where the abuse took place outside the State of New York. The district court held that the plain language of the CVA prohibits such cases from being filed unless the abuse took place in-state, reasoning that the statute only prohibits conduct "which would constitute a sexual offense" as defined under New York law, and that New York criminal law defines an "offense' as conduct occurring withing the boundaries of the State of New York.

That is not how other courts have interpreted the CVA, however, including intermediate appellate courts in New York. The First Department has ruled in favor of the plaintiff-victims in these cases, as have the Second and Fourth Departments. Here is what the First Department said:

In Samuel W. v. United Synagogue of Conservative Judaism, the First Department explained that “New York’s criminal statutes’ territorial limitations are . . . not a basis for excluding claims under the CVA” and that section 214-g’s “plain language revived ‘every’ covered ‘civil claim or cause of action’ that would have been properly brought in New York in the first instance,” including claims based on the out-of-state sexual abuse of a plaintiff who “was a New York resident at the time the cause of action accrued.” 194 N.Y.S.3d 25, 26–27 (1st Dep’t 2023).

The Court of Appeals (Sullivan, Lee and Carney) defers to the appellate division rulings. Normally, when the Second Circuit has a difficult issue of state law, it considers whether the certify the issue to the New York Court of Appeals for a definitive ruling. That was not necessary here because three of the four appellate divisions in New York have already agreed on a definitive interpretation.

You cannot sue state agencies for disability discrimination in federal court

 At first glace, of course, this looks like a routine case. The plaintiff argues that he suffered employment discrimination while employed at the New York State Department of Motor Vehicles, and he sues under the Americans with Disabilities Act. He names the DMV and individual defendants in the case. But this case runs into a huge problem.

The case is Yerdon v. Poitras, issued on November 5. (The oral argument was only a few days ago). Plaintiff alleges his supervisor removed his job tasks and limited his responsibilities after he told her about his disability. He also got a negative performance review and an "ultimatum." After plaintiff complained about all this internally, he was fired. While the case was dismissed under Rule 12, prior to any discovery, the Court of Appeals (Kearse, Sullivan and Robinson) does not consider whether plaintiff states a claim. That's because the state asserts a soverign immunity defense which would wipe out the case entirely,

The Eleventh Amendment, as interpreted by the Supreme Court, says you cannot sue the state in federal court unless you can shoehorn the case into one of the exceptions to that rule, which holds in sum and substance that the case can proceed in federal court if the case is consistent with Fourteenth Amendment principles. Disability discrimination cases, for the most part, do not involve that exception.

The Second Circuit has never held whether employment discrimination cases under Title I of the ADA may proceed in federal court when the plaintiff is suing the state.But other circuits have addressed this issue, finding that sovereign immunity prohibits such lawsuits because, as the Supreme Court has held, there is no evidence that, under the Fourteenth Amendment, Congress has identified a pattern of irrational state discrimination in employment against the disabled. That means Congress has no authority to abrogate this immunity for plaintiffs who want to the sue the state for these civil rights violations.

The Court further holds that individual defendants cannot be sued for disability discrimination under Title I of the ADA. Under the Second Circuit's statutory construction, only employers may be sued for compensatory and punitive damages. Six other circuits have reached the same conclusion.

Without any viable defendants to sue, plaintiff's case is dismissed. For those who want to proceed with their cases alleging disability discrimination against state agencies, the only recourse is to sue in state court. As this case tells us, federal courts cannot entertain such cases. 

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.

Disability discrimination case will proceed to trial

Employment discrimination cases are always winding through the state courts under the New York City Human Rights Law, which is more expansive than the federal anti-discrimination statute. The Appellate Division finds that Plaintiff has a case against her employer, Bloomberg, L.P., and that it will go to trial.

The case is Friedman v. Bloomberg, L.P., issued by the First Department on September 26. While plaintiff told management that her dyslexia made writing social media copy difficult for her and that she needed an accommodation for her disability, the jury may find that defendant considered such an accommodation, i.e., proving her with a proofreader or some other accommodation. A proofreader would not have caused an undue hardship for Bloomberg, L.P.

Plaintiff was also fired, and he brings a claim for wrongful discharge. That claim will also go to trial. She was fired only two days after requesting the accommodation. While defendant said plaintiff was fired for missing deadlines, being unresponsive, and using an inappropriate tone with colleagues, the issue of defendant's motive is for the jury. And, "Although there is evidence that defendant had already made the decision to terminate plaintiff when she submitted her written request, plaintiff's supervisor wrote that the decision was based in part on plaintiff's 'mandate around [her] responsibilities,' which a reasonable jury could interpret as referring to plaintiff's requests for an accommodation."

I am sure the defendant claimed the "mandate" statement had nothing to do with plaintiff's accommodation request. But it sounds close enough to an admission of unlawful motive that the First Department wants the jury to sort out its real meaning. This would constitute direct evidence of discriminatory intent, despite its possible vagueness. 

Civil rights appeal arising from 15-year criminal process is dismissed on technical grounds

This is a wild case. The police investigated a woman's disappearance and her husband was a key suspect, but for the longest time, they could not really find evidence linking to her disappearance and possible murder, so the investigation lasted several years before the husband was convicted of murder in part based on blood-spatter evidence. The husband was granted a second trial when evidence surfaced implicated someone else in the murder, but the husband was again found guilty. That conviction was later thrown out, and a third trial yielded a hung jury. At the fourth trial, the husband was acquitted. This whole process took 15 years.

The case is Harris v. Tioga County, a summary order issued on September 13. Harris is the husband. After a sequence of events like this one (four trials and an acquittal), you know there is going to be a lawsuit. 

This case generated much publicity, and there is a Wikipedia page about the wife's disappearance, which happened on September 11, 2001. Harris sued county officials for malicious prosecution and other constitutional violations. Following motion practice, a whole bunch of defendants were forced to stand trial in federal court on these charges. Those defendants take up this appeal, claiming entitlement to qualified and absolute immunity.

Public officials can invoke these immunities under judge-made doctrines intended to allow them to make decisions without fear of being sued by everyone unless they violate well-settled legal standards. If the trial judge denies the immunity motion, the defendant can take an early appeal to the Second Circuit, but only if they the appeal turns on an issue of law and not disputed facts.The Second Circuit adheres to this strict rule, which is why so many qualified immunity appeals are dismissed without any determination on the merits.

The appeal is dismissed because the Court of Appeals (Chin, Carney and Sullivan) is not ready to take up these immunity issues. There are too many factual disputes on the issues raised on appeal, which means the jury has to sort them out before the court can decide if, on the facts found by the jury, the defendants are still immune from liability.

Remember to object to a bad jury charge on the record before taking up an appeal

This claim went to trial in the Northern District of New York. The plaintiff-inmate claimed that a correction officer applied excessive force in violation of the Constitution, among other claims. The jury ruled for the CO, and the plaintiff appeals. The Court of Appeals (Walker, Newman and Lohier) declines to change the verdict, and the case is over.

The case is Ash v. Johnston, a summary order issued on September 16. It is quite difficult to appeal from an adverse jury verdict. The Court of Appeals will defer to the jury's credibility assessment, and let's face it, these cases usually turn on credibility disputes. The trial judge also has discretion in making evidentiary rulings that can make or break a case. But nobody likes to lose, and and some appeals are successful. Just not this one.

One way to appeal from a bad verdict is to challenge the jury charge. The trial judge has no discretion to mislead the jury about the legal standards. A three-week trial can be set aside on the basis of a faulty jury charge. 

Here is the issue: did the trial court properly charge the jury on the excessive force claim under the Eighth Amendment? The court told the jury that plaintiff had to prove the CO applied force "maliciously and sadistically for the very purpose of causing harm." That language is not found in the Eighth Amendment (which prohibits cruel and inhumane punishment) but the courts have come up with that language to help enforce the Eighth Amendment. Plaintiff says that was a bad instruction and therefore seeks a new trial. Plaintiff instead says the court had to only tell the jury that the CO acted in bad faith. That language could have yielded a victory for plaintiff at trial. But we have a problem: plaintiff did not object to the jury charge at trial. 

You have to object during the charge conference with the court or the Court of Appeals will deem the argument waived. The Second Circuit may still take up the waived issue if the jury charge was manifestly erroneous such that the trial was fundamentally altered and no timely objection is required. But that legal standard is very difficult to satisfy.

Moral of the story: make your objections at trial in a timely manner and put something on the record making it clear that you are giving the judge a chance to change her mind. If you do that, the Court of Appeals will entertain a post-verdict challenge to a bad jury charge.