Circuit applies "futility" rule in student disability cases

The general rule is that if you want to sue a school district or the State of New York over the deprivation of your disabled child's rights in the educational setting, you have to initially file an administrative complaint and give local and then state authorities an opportunity to address the problem. Without the exhaustion of these administrative remedies, the case is dismissed for lack of subject matter jurisdiction. There is an exception: we call it "futility."

The case is J.M. v. New York City Dept. of Education, issued on December 9. Plaintiffs argue that the City violated the Individuals with Disabilities in Education Act in maintaining a policy of discontinuing the services of disabled students before their 22nd birthday. The Second Circuit held in 2021 that the IDEA requires school districts to provide educational services to such students until they turn 22. That case originated in Connecticut. The claim here is that New York City is not following that mandate. Parallel state court litigation on this issue is raging in the Appellate Division and the New York Court of Appeals, but the Second Circuit decides this issue on its own without binding guidance from the state courts.

The Second Circuit holds that the 22-year-old policy applies in New York. What it all means for purposes of administrative exhaustion is that, since the plaintiffs are challenging a statewide policy, any administrative claim that would ultimately wind up at the State Department of Education would be futile. Why? Because futility doctrine recognizes that the state agency that is maintaining an unlawful policy is not likely to change its mind through an administrative proceeding. While the normal course of action is to bring the administrative action through the local school district and then the State Education Department when the district denies a disabled student their proper educational services, a structural challenge to state policy, like this one, is a different ballgame altogether.

The "policy or practice" futility exception to the "exhaustion of administrative remedies" rule is alive and well and applies to this case. If you handle IDEA cases and wish to proceed in court without exhausting the administrative remedies, this case is a must-read, as the Court of Appeals (Cabranes, Chin and Robinson) offers a thorough discussion on the history of the IDEA and the futility doctrine. The end result is this case returns to the district court docket to determine whether the State of New York violated the rights of the student-plaintiffs in this case.

No due process claim for inmate who claims his disciplinary hearing was rigged against him

Inmates have constitutional rights, but their constitutional rights are fewer once they enter the prison, which has security concerns to balance out the right of due process and other protections. This inmate learns that the hard way.

The case is Baltas v. Jones, issued on December 15. Plaintiff says that the jailers began issuing false disciplinary complaints against him, landing him in the restrictive housing unit (RHU). When he was about to be released from RHU, a Captain emailed two other correction officers asking what are we going to do about this inmate, as he may be leaving RHU the next day. One CO, Jones, said they did not want him in the G-unit because there were too many inmates placed there. Jones then sent an email to other officers asking that plaintiff be processed for CD, which is restrictive housing for inmates who receive too many disciplinary notices and pose a safety risk in the jail. A CD hearing ensued and the hearing officer found that plaintiff had 64 different infractions on his record. Plaintiff wound up in CD.

This due process claim asserts that the hearing result was planned in advance, in violation of due process. He claims that a jail official admitted during the hearing that he had been ordered in advance to recommend plaintiff for CD. Sounds like a great due process case, right? A pre-ordained result means the plaintiff did not get a fair shake at the hearing.

Plaintiff loses the case. Yes, he had due process rights. But the Prison Litigation Reform Act, enacted in the mid-1990s, requires inmates to file an internal grievance prior to any lawsuit. This gives the jail a chance to correct the problem, or at least investigate the issue so it can create a record that might prove useful in court. In his grievances at the time of the hearing, plaintiff did assert a due process violation. He wrote that the outcome of the hearing was a foregone conclusion. But the Court of Appeals (Jacobs and Kearse) holds that plaintiff's grievance was not specific enough: he failed to assert that the outcome of the hearing was predetermined in the literal sense that the hearing officer was powerless to reach any other outcome beyond confinement to CD. He did not claim in the grievance what he claimed in federal court: that the hearing officer was simply doing what his boss told him to do. Plaintiff should have asserted in the grievance that the hearing officer was a pawn. This ruling imposes a strict specificity requirement guiding inmate grievances.  

Judge Lohier dissents, writing that the court has recognized a liberal grievance pleading standard under the PLRA, allowing for unsophisticated inmates to process their claims in-house before filing suit in court. Lohier finds the grievance here was enough to alert prison officials that the hearing denied him due process because he did not receive proper notice prior to the hearing, the hearing officer introduced false information during the hearing, and officers orchestrated the disciplinary allegations in advance to transfer him out of the facility or placement on restricted status. "Fairly read, Baltas's allegations at the very least suggest a broader, structural claim that 'Calderon was powerless to reach any other outcome' and that prison officials had conspired to create a rigged hearing without meaningful procedural protections." 

Conservative student group loses First Amendment case against SUNY Buffalo

The University at Buffalo adopted a plan after a controversial organization spoke on campus, the Young Americans for Freedom. The campus YAF chapter was part of a nationwide organization. The student government adopted a National Affiliation Ban, which derecognized clubs that remained "a chapter of or otherwise part of any outside organization." This meant the YAF was no longer recognized on campus. YAF then sued SUNY Buffalo.

The case is University at Buffalo Young Americans for Freedom v. University at Buffalo Student Organization, a summary order issued on Nov. 3. YAF brought this case under the First Amendment. But the students on both sides of the caption learned something about the First Amendment: the language of the First Amendment may speak in absolutes but its application is among the most complicated areas of constitutional law, as the courts have to balance competing interests: the interest of the speaker and the interest of the government.

YAF loses the case because the injury of derecognition, by itself, is not a First Amendment violation. The Supreme Court said that in 1972 in Healy v. James. They did not suffer the loss of reserving table space at the Student Union Building or classroom space for its weekly meetings. YAF did not seek out these opportunities, and no one denied them to YAF. There is no objective evidence that YAF was chilled from speaking on campus. That means there is no injury in fact and therefore no standing to sue.

YAF also loses because a university forum for student organizations is a "limited public form,"which grants you fewer rights than a full public forum where the government cannot discriminate based on the content of your speech. The Supreme Court in 2010 rejected a similar claim in Christian Legal Society v. Martinez. In such cases, the plaintiff can only win if the government discriminates on viewpoint.

But the Second Circuit (Parker, Carney and Nardini) says there is no viewpoint discrimination here. While YAF claims the new rules give the student government broad discretion to ban certain groups, the new rules are reasonable and therefore consistent with the First Amendment. SUNY argues that the Legal Status Ban limits the Student Association's legal liability and protects Student Association funds. It also prevents clubs from agreeing to predatory contracts, holding events without insurance, or depleting student government funds by virtue of a club's negligence. 

Ministerial exception does not bar plaintiffs from suing their religious employers for a hostile work environment

 

The Appellate Division First Department has ruled for the first time in New York that the ministerial exception -- which bars employees working for religious institutions from suing for certain forms of employment discrimination -- does not bar these employees from suing their employers for a hostile work environment, including sexual, race and age harassment. 

The case is Boliak v. Reilly, issued on December 18. Plaintiffs worked for a religious high school, where the principal, Father Michael Reilly, subjected them to endless racist, sexist, ageist and other shocking comments that you'd never expect from a religious figure. The plaintiffs are two retired NYPD detectives and a Social Studies teacher. The case was dismissed in State Supreme Court on ministerial exception grounds. That holding is reversed. I argued the appeal. The law firm of Alterman & Boop filed the case and handled the extensive discovery.  

The ministerial exception is a judge-made doctrine, rooted in the First Amendment's religious clauses, that protects religious employers from judicial review of certain personnel decisions. The U.S. Supreme Court has not ruled on whether this exception applies to hostile work environment claims, an issue on which courts around the country are split. Essentially, the First Department says there is no religious component to the racial and sexual harassment that typically comprises a hostile work environment. While courts will not entertain wrongful discharge or demotion claims against religious employers on the basis that they will not interfere with personnel decisions involving "ministers," or employees who have religious duties, that logic does not apply to hostile work environment claims, where the employer is subjecting employees to verbal abuse that has no religious component. 

 

Key points from the decision:

1. "Although the ministerial exception was created to protect churches from state interference in their decisions to employ and supervise ministerial employees, it was not intended as a shield from all types of workplace conduct."

2. Courts around the country are divided on the applicability of the ministerial exception to hostile work environment claims that do not involve concrete personnel actions.

3. "In the absence of controlling case law, we follow the 9th Circuit’s approach and find that the ministerial exception should not be extended to apply to conduct such as unlawful harassment simply because such conduct is perpetrated by a religious employer. As the 9th Circuit observed, there is no First Amendment reason to permit the ministerial exception to shield a religious institution from its 'obligation to protect its employees from harassment when extending such protection would not contravene the Church's doctrinal prerogatives or trench upon its protected ministerial decisions.'”

4. "Plaintiffs are correct that there is no religious justification for Father Reilly’s appalling conduct, and analyzing their hostile work environment claims would not require the Court to improperly interfere with religious doctrine or defendants’ personnel decisions. Accordingly, plaintiffs’ hostile work environment claims should not have been dismissed on the basis of the ministerial exception."

Plaintiff who was fired for blogging on Gaza loses under the "ministerial exception"

There is a funny little statute in New York that says you can't fire someone because of their recreational activity. But "recreation activity" does not carry a definition.What it does even mean? The statute is not clear. This case was a good vehicle for resolving that issue because the plaintiff in this case was fired after she posted a blog entry on recent events in Israel/Gaza. Is blogging recreational activity under the Labor Law? If so, the question is whether management can fire you for making controversial statements that might reflect poorly on the employer, especially a defendant like this, a Jewish entity.

The case is Sander v. Westchester Reform Temple, issued by the New York Court of Appeals on December 16. The Court of Appeals does not address whether the plaintiff's blogging was recreational activity under the statute. Instead, it finds that the defendant is immune from liability under the "ministerial exception," a judge-made doctrine that says courts cannot resolve employment disputes like this. As the Court of Appeals summarizes this doctrine, quoting from Supreme Court rulings,

That exception "precludes application of [employment discrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers." Requiring a religious institution "to accept or retain an unwanted minister, or punishing [them] for failing to do so" both "infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments" and "violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions."

The question, then, is whether the plaintiff was a "minister" under the statute. While plaintiff was not a minister in the traditional sense (imagine someone preaching to the choir), under Supreme Court authority, a minister includes anyone at the religious organization who teaches religious principles. The Court holds, "She was responsible for teaching religious texts through one-on-one study and weekly Torah portions, as well as planning and attending religious programming. Those duties leave little doubt that she was charged with 'educating young people in their faith.' Although Plaintiff counters that her responsibilities were 'secular rather than religious,' that allegation is conclusory, limited to a single paragraph in her complaint, and plainly untenable from the face of the offer letter."

Judge Rivera concurs, agreeing that the case should be dismissed but for different reasons. This may be the most extensive discussion on the statute from a high-level judge that we've ever had. Lawyers will use Judge Rivera's analysis in the future. Ultimately, Judge Rivera says, plaintiff would lose under the statute under the conflict-of-interest exception, defined this way: "the 'material conflict of interest' exception applies even when an employee does not receive a financial benefit from their activity. What matters is whether and how the activity affects the employer's business interest, which includes how the business is perceived within the relevant community and whether the employee's activity places the business and its mission in a negative light." Under this exception, plaintiff would lose: 

Plaintiff espoused a viewpoint (i.e. anti-Zionism) at odds with her employer's "philosophy" (i.e. Zionism) and its mission.Thus, as the Temple asserts, plaintiff's publicly posted assertions and opinions directly undermine the Temple's business interest as a synagogue, as some congregants may view Zionism as a feature of their religious or ethnic identities as Jews. Additionally, Sander's presence as a Jewish educator of children could invite a backlash among at least some of her students' parents due to her anti-Zionist views. If the Temple were to lose membership en masse, its proprietary or business interests—even as a nonprofit—would inevitably suffer. The fact that plaintiff gained no financial benefit from her blogging does not diminish or eliminate the conflict of interest that exists here. ... [T]he conflict of interest arose solely out of the potential reputational harm to the employer resulting from the employee's conduct. 

Sex discrimination verdict stands despite debatable jury charge at trial (Krause v. Kelahan Part III)

This is the unusual case where the Court of Appeals finds that the district court, during trial, gave the jury a less-than-accurate statement of legal principle that did not affect the ultimate outcome, which was a verdict for the plaintiff on her sex discrimination claim in excess of $400,000.

The case is Krause v. Kelahan, issued on December 3. I briefed the appeal, which was argued by A.J. Bosman, Esq., who tried the case. Other write-ups on this case are found at this link and this link.This appellate ruling resolves lots of issues, including a plethora of evidentiary matters; essentially, counsel for the school district appealed most of the evidentiary rulings from trial, including hearsay and other matters. 

Plaintiff was a school principal who found herself on the receiving end of the Superintendent's sexist push-back. Plaintiff was eventually fired, and defendants claimed the reasons included her unilateral modification of a student's Section 504 accommodation plan without consultation with the appropriate officers in the school district court, known as the 504 Committee. In response, Plaintiff argued in part that she was told she could implement a temporary modification to the Section 504 plan to see how it would play out.

Here is what happened: when plaintiff's mentor was on the witness stand, defense counsel read allowed a provision of state law: Education Law sec. 4402. That provision governs individualized education plans (IEP's), another way to accommodate disabled students. Under that provision, school districts can modify an IEP without a CSE committee meeting if the parties agree in writing to the changes. The district court then interjected and told the jury that it "just ... heard the law concerning the 504," and that the jury may have to determine if the district complied with the law.

On appeal, defendants argue that the trial judge was essentially telling the jury that the IEP law, Section 4402, guides this case, and that since that law says the IEP may be modified without committee, the jury might find that defendants offered false reasons for plaintiff's termination in finding that plaintiff was essentially fired for doing what the law allowed her to do.

The Court of Appeals finds that a new trial is not in order despite the trial court's statement regarding Section 4402.In light of the "record as a whole," the Court of Appeals (Carney and Lee) finds it was improbable for the jury to be "substantially swayed by the court's brief comment," for the following reasons:

1. The trial court's comment was "somewhat garbled" and contained odd phrasing and was not really a clear instruction that § 4402 applied to § 504 plans.The trial court did not tell the jury that it was required by law to allow plaintiff to agree to the changes in the § 504 plan without consultation with the Section 504 committee.

2. Plaintiff did not exploit the trial court's remark, choosing instead to focus at trial "that she followed the procedure that CSE Chair Lobdell recommended: test proposed changes to the Section 504 Plan for a two-week period and then convene the Section 504 Committee to consider making a formal amendment." Plaintiff's counsel never told the jury that Section 4402 allowed plaintiff to unilaterally change the § 504 plan. This means the trial court's remark "turned out to be peripheral to the main dispute at trial: whether plaintiff had properly altered the § 504 plan without consulting with the proper district authorities.

3. Defendants are partly responsible for this confusion because their lawyer read aloud to the jury the language in Education Law § 4402. In addition, "over the course of the litigation Defendants took inconsistent positions about whether Education Law § 4402 applied to Section 504 plans. For example, at summary judgment, they posited that Education Law § 4402 requires schools to “establish committees and/or subcommittees for the evaluation and placement of students with handicaps,” including students with Section 504 plans." For example, on the summary judgment motion, defendants argued that "Section 504 plans are 'governed by ... state law," Section 4402. They also submitted affidavits from district officials to that effect. "It was not until Beck’s cross-examination (and even then, not until after the court made the disputed comment) that defense counsel first suggested that Education Law § 4402 governed only IEPs."

This issue is quite complex, and probably explains why it took the Court of Appeals 2.5 years to resolve the appeal following oral argument. This issue also informs the dissenting opinion by Judge Sullivan, and treats this issue like a traditional "bad jury instruction." 

FMLA interference claim is dismissed

In this Family and Medical Leave Act case, the plaintiff argues that her employer fired her after she took 8.5 days of paid time off to care for her sick daughter and mother. She claims management interfered with her FMLA leave and then fired her in retaliation for taking that leave. The Court of Appeals rejects the case and finds that defendant is entitled to summary judgment.

The case is Haran v. Orange Business Services, issued on November 25. After plaintiff was able to take FMLA leave, she began to receive more scrutiny over her work as she managed the Pfizer account, which contracted with Orange Business Services, one of its largest accounts. Plaintiff felt increased pressure due to her supervisor's comments about her progress on maintaining the Pfizer account and, as a result, she took less time off to care for her daughter to focus on this increased work demand. Later on, plaintiff received a lukewarm performance review with an overall rating of "improvement needed." Management said she had a "lack of focus," which plaintiff interpreted to refer to her absences due to her daughter's illnesses. In response to this claim, plaintiff's supervisor said he meant that plaintiff should have been more focused on building relationships with Pfizer to overcome OBS's impasse in maintaining that account. Plaintiff was ultimately terminated for failing to meet her yearly quota for 2020, though management later said she was really fired because she was not expected to meet her 2021 quota. 

The Second Circuit (Raggi, Lynch and Park) says there is no FMLA claim here. While FMLA bars employers from interfering with FMLA leave, which would include discouraging employees from taking such leave, the Court holds that a discouragement claim does not lie where management merely subjects the employee to more scrutiny and criticism of her job performance after she requested leave. Plaintiff did receive FMLA leave, the Court notes. While plaintiff's supervisor warned that she would be removed from the Pfizer account if she could not perform certain work on that account, her supervisor did not mention her time off or her daughter's illness in connection with these warnings. 

The Court advances this legal principle: "Criticizing, even berating an employee's substantive job performance is not enough to assert a claim for interference under as discouragement theory. That is true even if the employee subjectively feels pressure due to the criticism and decides to take less leave than she otherwise would have." The Second Circuit draws this language from a district court case, and it is now the law in the Court of Appeals, which notes that it has previously stated that the "FMLA is not a shield to protect employees from legitimate disciplinary action by their employers if their performance is lacking in some manner unrelated to their FMLA leave." As management's criticism and scrutiny of plaintiff were specific to her job performance and her management of the Pfizer account, not her requests for leave, her "subjective feeling of pressure not to take more time off due to her concerns about her performance is not sufficient for and FMLA interference claim."

The retaliation claim also fails. That claim stems from the same theory as plaintiff's interference claim: that management's comments suggested that he disapproved of plaintiff's FMLA leave, based on the supervisor's comments about her "lack of focus" in conjunction with the negative performance review. But as the Court of Appeals has already held in this case, her manager's comments did not relate directly to her leave, and her mere disagreement with management's assessment of her work performance is not enough to show these criticisms were pretext for retaliation. And, while plaintiff's leave was only a few months before she was fired, "temporal proximity alone is insufficient to defeat summary judgment at the pretext stage."

Port Authority might be on the hook for Bridgegate legal expenses

Remember "Bridgegate"? That was a New Jersey scandal when Governor Chris Christie was accused of shutting down traffic around the George Washington Bridge to punish the mayor of Fort Lee for not supporting Christine's campaign for governor. That shutdown caused great havoc in Fort Lee. Various public officials, including the plaintiff in this case, were prosecuted over this scandal, but his conviction was overturned, and he sued the Port Authority for indemnification covering his roughly $4 million in legal expenses he incurred in defending himself. Is Port Authority on the hook for these legal expenses? 

The case is Baroni v. Port Authority, issued on December 2. Plaintiff was the deputy executive director of the Port Authority. As the Court of Appeals (Walker, Carney and Menashi) describes the genesis of this case:

While serving in that position in September 2013, Baroni approved a plan to modify the deployment of traffic cones in the New Jersey approaches to the George Washington Bridge. The plan substantially increased traffic for residents of Fort Lee, New Jersey. It was reported in the press that the plan aimed to retaliate against the mayor of Fort Lee, who had refused to endorse then-Governor Chris Christie for re-election. The resulting political scandal was known as “Bridgegate.” Baroni became a subject of investigations by the New Jersey Legislature and the U.S. Attorney for the District of New Jersey.

Baroni went through the wringer in this case, having to respond to legislative subpoenas and criminal charges. But Port Authority would not indemnify him for the legal expenses in fighting off the legislative and criminal charges. Baroni was convicted in criminal court, but he was ultimately exonerated after the U.S. Supreme Court held that the fraud counts were not actionable under federal law. Yet, while plaintiff is a free man with a clean record, he spent millions of dollars in defending himself, and public officials, including those who work for the Port Authority, usually do not have this kind of money. Port Authority refused to indemnify plaintiff, who sued Port Authority in federal court for reimbursement of his legal fees.

This is not an easy case because Port Authority argued that it has sovereign immunity, meaning it cannot be sued under the Eleventh Amendment, which says you cannot sue the state unless the state has waived such immunity. But the Supreme Court has already addressed this issue, in Hess v. Port Authority, 513 U.S. 30 (1994), holding that Port Authority "is not cloaked with the Eleventh Amendment immunity from suit in federal court." Bi-state entitles like Port Authority, which regulate services in New York and New Jersey, do not resemble the sovereign states that are normally protected under the Eleventh Amendment. The reason this remains in dispute for plaintiff is that the Second Circuit, in Caceres v. Port Authority, 631 F.3d 620 (2d Cir. 2011), made incorrect assumptions in interpreting Hess that supported the Port Authority in this case. Hess remains the primary authority for plaintiff. The complexity of this issue is one reason why it took nearly two years for the Court of Appeals to decide this case following oral argument.

What it means for plaintiff is the case cannot be dismissed for lack of subject matter jurisdiction. The parties will continue to fight over whether Port Authority must reimburse him for the approximately $4 million in legal fees. The case is also remanded so that plaintiff can amend his complaint to address another issue that was held against him in the district court: whether he complied with certain notice-of-claims filing requirements in order to maintain this lawsuit against Port Authority. 

How does Muldrow affect sexual harassment "severe or pervasive" cases?

In 2024, the Supreme Court changed the rules guiding adverse employment actions under Title VII, holding that plaintiffs can sue over personnel decisions that inflict "some harm" even if the harm is not "material," such as termination, demotion, or docked pay. That case, Muldrow v. City of St. Louis, 601 U.S. 346 (2024), rejected the Second Circuit's materiality test and made it easier for plaintiffs to win their cases. The question is now whether Muldrow has any effect on the "severe or pervasive" test governing hostile work environment cases.

In Ziparo v. CSX Transportation, issued on November 25, the Second Circuit (Sack, Nardini and Perez) addresses this issue in a footnote. The Court did not have squarely resolve this question because it was not central to Ziparo's case. But it does show this issue is on the Second Circuit's radar. Look at it this way: the existence of a hostile work environment in a sexual or racial harassment case is the adverse action over which the plaintiff is bringing the lawsuit. Is the "severe or pervasive" standard guiding whether the plaintiff suffered a hostile work environment affected by Muldrow? The Second Circuit addresses this in a footnote:

The effect of Muldrow on discriminatory hostile work environment claims is still unclear: Post-Muldrow, the Sixth Circuit has held that Muldrow applies to such claims and no longer requires “plaintiffs to show ‘significant’ harm.” McNeal v. City of Blue Ash, 117 F.4th 887, 904 (6th Cir. 2024). But see Dike v. Columbia Hosp. Corp. of Bay Area, No. 24-40058, 2025 WL 315126, at *5 n.25 (5th Cir. Jan. 28, 2025) (summary order) (rejecting the plaintiff’s argument that Muldrow changed the severe-or-pervasive test). We have not yet opined on Muldrow’s impact on discriminatory hostile work environment claims,

and the question is not before us here.

This footnote is an invitation for plaintiffs' lawyers to attack the "severe or pervasive" test -- regarded as a burdensome legal standard for plaintiffs -- has having been implicitly repudiated by Muldrow. 

Plaintiff recovers damages under Title VII despite adverse Section 1983 holding on summary judgment -- Krause v. Kelahan, Part II

This sex discrimination verdict spent 2.5 years under review by the Second Circuit, which sustained the plaintiff's win but resolved a slew of evidentiary and trial rulings along the way, making this among the more complicated Title VII cases in the Court of Appeals in recent years. At this link, I discuss the evidence that supported the jury's finding that the defendant Superintendent of Schools orchestrated the plaintiff's termination as high school principal. This time, I discuss an interesting issue relating to the plaintiff's entitlement to damages.

The case is Krause v. Kelahan, issued on December 3. I briefed the appeal, which was argued by A.J. Bosman, who tried the case. My write-up on the sex discrimination ruling is here. 

The lawsuit originally asserted two related claims in support of plaintiff's position that she was fired because of her sex. She sued under Title VII and also under Section 1983, which enforces the Equal Protection Clause, which protects those who work for public (but not private) employers. 

On the summary judgment motion, the trial court split the baby: it held that plaintiff can prevail on her Title VII claim but cannot prevail under Section 1983. The reason for this is the different burdens of proof guiding both claims. Under Title VII, the plaintiff can win if discrimination was a motivating factor, even if it is not a determinative factor. If discrimination plays a substantial role in the termination, then the defendant has violated Title VII. But under Section 1983, to win, the plaintiff has to show that sex discrimination played a determinative, or but-for, role in the personnel decision. The discrimination must have made the difference in the plaintiff's termination. The jury may not pay much attention to these distinctions, but courts do. On summary judgment, the district court said that plaintiff can, at best, prove that sex discrimination was the motivating factor in her termination but not the determinative factor. The court reached this decision in the belief that management had some decent reasons to fire plaintiff, even if those reasons were not fully dispositive on paper. 

Taking things a step further, if the plaintiff wins under Title VII, the jury has to decide if the defendant would have fired her even without the discriminatory intent. If so, then the discriminatory intent is not enough to win any damages (though she can still win injunctive relief, attorneys' fees and declaratory relief). On appeal, having lost at trial on the Title VII claim, defendant argued that, since the trial court on summary judgment found that discrimination was not the but-for cause of the plaintiff's termination, that finding necessarily means that the school district would have fired plaintiff even without the discriminatory intent, and the jury's finding that the district violated Title VII does not entitle her to any damages at all. In other words, defendant used the Section 1983 holding on the summary judgment motion in an effort to deprive the plaintiff of any damages on her successful Title VII claim. This argument would have deprived plaintiff of the $400,000+ in damages awarded by the jury.

The Court of Appeals (Carney, Lee and Sullivan [dissenting]) rejected the school district's argument, noting that under Title VII, the defendant has the burden of proving it would have fired plaintiff even without the discriminatory intent, and under Section 1983, plaintiff has the burden of proving that discriminatory intent was the determinative factor in her termination. The Court of Appeals reasons:

At summary judgment, the District Court never considered the question that would be required to find in Defendants’ favor on this defense: whether, with the burden of proof resting on Defendants, they had established that they would have inevitably terminated Krause for non-discriminatory reasons. Nor should the District Court have decided this issue, given that Defendants never raised a same-decision defense in their summary judgment briefing. They cannot now claim that the District Court erred in failing to reach an issue that they did not squarely present.

In a footnote, the Court of Appeals expands this holding further, noting that "even if the District Court should in some way have reached this issue at the summary judgment stage, this Court will not ordinarily hear a post-trial challenge to a district court’s summary judgment ruling. Instead, the Court considers whether the jury’s verdict was supported by sufficient evidence." As the jury concluded that Defendants had not “established by a preponderance of the evidence that they would have made the same decision [to terminate Krause] in the absence of gender discrimination,” and that verdict was supported by substantial evidence, defendants' argument, though creative, must fail. In other words, the jury's verdict takes precedence over anything the trial court said on the summary judgment motion.

This issue is the first time I have seen any federal court address whether a defendant's favorable result under Section 1983 on summary judgment can deprive the plaintiff of any damages upon a successful Title VII verdict at trial. One reason this is a new issue is that the courts, only in the last 15 years or so, have held that most civil rights statutes carry the "but-for" causation test, unlike Title VII, which permits a trial victory if the plaintiff merely proves that discrimination was a motivating factor in the adverse personnel action.

2d Circuit sustains sex discrimination verdict -- Krause v. Kehahan, Part I

The Court of Appeals has upheld a sex discrimination verdict against the Superintendent of Schools in Central New York who orchestrated the termination of a high school principal for pretextual reasons after making disparaging remarks about women generally treating them with hostility in the workplace.

The case is Krause v. Kelahan, issued on December 3, more than 20 months after oral argument. I briefed the appeal on plaintiff's behalf, which was argued by the plaintiff's trial counsel, A.J. Bosman. This case raises multiple issues, as evidenced by the lengthy period of time for the Second Circuit (Carney, Lee and Sullivan [dissenting]) to resolve the case. This blog entry covers the issue of whether there was enough evidence of defendant's intent to discriminate on the basis of sex, which yielded a damages award in excess of $400,000.

The majority notes "Kelahan's disrespectful and demeaning behavior towards the women with whom he worked," as follows: (1) plaintiff saw him scream at a female BOCES employee during a phone call with a "level of viciousness and [a] level of hostility" as he looked squarely at plaintiff during this tirade; (2) he threatened to fire plaintiff at the end of her first year on the job, once using a vulgarity in making this clear ("if you fuck this up, I will fire you, but good luck and have fun"); (3) disparaging plaintiff's office decorations as "very girly" and frequently making sarcastic and condescending comments about her parenting skills; (4) attacking plaintiff's need to leave work early to care for her injured daughter by stating, "That's why I hate working with women so much. They are always so emotional"; (5) frequently commenting on the clothing choices of his female staff;  and (6) developing better and friendlier relationships with his male employees than with plaintiff. Other witnesses corroborated some of this evidence, i.e., plaintiff's work mentor testified that plaintiff mentioned Kelahan's objection about working with "emotional" women. Other witnesses recalled that Keagan treated plaintiff worse than male faculty and staff, and a member of the Board of Education warned the Board about Kelahan's bullying behavior. Not only did this evidence support the wrongful discharge claim but the hostile work environment verdict, which defendants did not appeal.

This evidence supports the finding that gender animus motivated Kelahan to treat plaintiff badly and ultimately push for plaintiffs termination.  Note that the record contains limited evidence of Kelahan's expressly sexist behavior toward plaintiff but additional evidence of the harsh way that he treated women in general in the workplace. The jury was allowed to find that all this evidence demonstrated hostility toward women.

The appeal included numerous evidentiary and trial issues, including the trial judge's comment during trial about a legal principle that arguably did not apply to this case and which favored plaintiff's position. The Court of Appeals finds these issues either fell within the trial court's discretion or were harmless error that did not warrant a new trial. The Second Circuit also held the jury was able to reject the defendants' claim that plaintiff was fired for sex-neutral reasons relating to job performance. Future blog posts will cover these issues. 

Pro-life organization wins First Amendment injunction against State of New York

An anti-abortion organization sued the State of New York to prevent the Attorney General from proceeding against groups who wish to speak out against the use of abortion pills. The state has gone after similar groups who publicly criticized the abortion pills, claiming these public statements violate the state's anti-fraud laws. The plaintiffs in this case do not want similar enforcement actions against them. Hence, this First Amendment lawsuit claiming their speech is protected under the Constitution and cannot be the subject of the state's fraud lawsuits. The plaintiffs win.

The case is National Institution of Family and Life Advocates v. James, issued on December 1. The other anti-abortion groups said on websites and elsewhere that the abortion pill has serious health consequences for women. But the State of New York sued them under the General Business Law on the basis that these public statements misrepresented the efficacy and safety of abortion pill reversal drugs, also known as APR. 

The district court held, and the Court of Appeals (Bianco, Nathan and Lee) agrees, that the plaintiffs' speech in this case is protected under the First Amendment as noncommercial speech, and the state is unable to advance a compelling reason to restrict speech like this. The content-based speech restrictions that the state has pursued against other anti-abortion organizations, the Second Circuit says, is not commercial speech, which carries fewer constitutional protections than political, moral, or religious speech. The informational speech advocated by plaintiffs does not propose a commercial transaction and instead covers their anti-abortion, moral and religious advocacy, as well as womens' health concerns. "To hold otherwise could potentially subject a sweeping range of non-profits to regulation of their speech for providing the public with information and resources concerning critical services," the Court writes. 

Once the Court of Appeals finds the plaintiffs here will prevail on the merits of their constitutional challenge, the remaining elements of their preliminary injunction application are less complicated. The loss of constitutional freedoms constitutes irreparable harm. Such harm is not speculative here, as the state has gone after similar organizations for the speech that plaintiffs want to express in this case.  

Railroad whistleblower will get his retaliation trial

The Court of Appeals has reinstated a whistleblower retaliation lawsuit filed by a railroad employee who claims he suffered the consequences after he opposed their efforts to falsify railroad safety logs. This ruling clarifies the standards guiding such cases under the Federal Railroad Safety Act (FRSA), which provides a more plaintiff-friendly burden of proof.

The case is Ziparo v. CSX Transportation, Inc., issued on November 25. This case last reached the Court of Appeals in 2023, when it held that plaintiff had engaged in protected activity in objecting that the work-order falsification requests were creating an unsafe work environment by placing too much stress on the plaintiff who was therefore unable to properly perform his duties, thus further imperiling railroad safety. On remand, the district court again granted summary judgment for the defendants, concluding that plaintiff's other acts were not protected under the statute and he could not prove a causal connection between his protected activity and the termination of his employment.

The record shows that plaintiff's supervisors stood to gain financially if he falsified the safety records: they would earn higher bonuses. But railroad safety is nothing to play games with. This pressure caused plaintiff to lose focus, and after plaintiff complained to his supervisors about this, they selectively wrote him up for discipline, micromanaged his job performance, threatened to fire him and, after plaintiff reported all of this to the company's ethics hotline, they fired him after he misaligned a train switch, which could have caused a derailment, even though only 6 of the 17 employees who had previously committed similar misconduct were not fired. 

Wow have a lot of legal issues here. First. the Court of Appeals (Sack, Nardini and Perez) holds that, under the Supreme Court's ruling in Murray v. UBS Securities, LLC, 601 U.S. 23 (2024), which involved the Sarbanes-Oxley Act (SOX), the comparable FRSA only requires the plaintiff to show the protected activity was merely a contributing factor to the adverse employment, unlike other civil rights statutes, which carry a less plaintiff-friendly but-for causation model. If the plaintiff makes out that prima facie case, to prevail, the employer must prove by clear and convincing evidence that it would have made the same decision even without the whistleblowing activity. Again, this contrasts with Title VII, where the employer need only articulate a neutral reason for the termination and the plaintiff must prove that reason was a pretext for retaliation. Under the clear and convincing evidence test, the employer must show "the truth of its factual contentions are highly probable." You just don't see language like this in other employment laws, owing to the importance Congress placed on the rights of railroad whistleblowers whose speech may be matters of life and death.

This analysis leads the Second Circuit to overrule the contrary Tompkins v. Metro-North Commuter Railroad Co., 983 F.3d 74 (2d Cir. 2020), decided prior to the Supreme Court's ruling in Murray which said, contrary to Tompkins, that the plaintiff need not prove retaliatory intent under SOX and, in turn, the FRSA. And, while Tompkins held that the retaliation plaintiff most prove more than a temporal connection between the protected activity and the adverse action, since Murray does not require the plaintiff to prove retaliatory animus or motive, the temporal proximity test in Tompkins is no longer good law, and the plaintiff need only show temporal proximity without the heightened burden of proof commanded by Tomkins. Still, the temporal proximity must be close enough to permit an inference of retaliation, and the Court of Appeals approvingly cites employment discrimination cases holding that up to 5 months may be enough. As the Court of Appeals sums up:

An FRSA plaintiff can therefore withstand summary judgment on causation so long as they proffer sufficient evidence—direct or circumstantial, including evidence of temporal proximity—from which a reasonable jury could infer that the plaintiff’s protected activity contributed, in any way, to the challenged adverse action.

All of this helps plaintiff win the appeal, reversing summary judgment and remanding the case for trial. Here is what the Court of Appeals did:

1. Plaintiff's formal and informal complaints were protected under the statute. So long as plaintiff reasonably believed the demands imposed on him by supervisors were creating an unsafe working environment, causing him to become stressed and distracted and unable to focus on his safety-related duties, he could not suffer retaliation for his complaints about this kind of supervisory abuse.

2. A retaliatory hostile work environment is actionable under the statute. The statute prohibits "discharging, demoting, suspending, reprimanding, or in any other way discriminating against an employee" for engaging in protected activity. That language necessarily prohibits a retaliatory hostile work environment. While Title VII imposes a high burden on plaintiffs to prove a hostile work environment ("severe or pervasive"), the Title VII retaliation cases, including Burlington Northern v. White, 548 U.S. 53 (2006), which prohibits any retaliation that would dissuade a reasonable employee from speaking out, allows plaintiffs in these cases to merely show that any form of retaliatory harassment that would dissuade the plaintiff is actionable, such as increased scrutiny, selective discipline and screaming at the plaintiff on a daily basis. 

3. The jury may find that the whistleblowing was a contributing factor (even if only played a "small role") in plaintiff's discipline, including termination, due to tight temporal proximity between the two events, the supervisors' admissions that they exhibited hostility or antagonism toward him, particularly after he blew the whistle. The court writes, "had Ziparo not repeatedly made unheeded safety complaints, perhaps his protected activity would not have created escalating 'tension and animosity' that culminated in" his supervisors' threats to fire him. 

4. The jury may find that CSX cannot prove its affirmative defense that it would have fired the plaintiff even without the whistleblowing. While defendant further argued it would have fired plaintiff in any event because he screwed up a track switch and might have caused a derailment, under the clear and convincing evidence framework, we don't ask what management could have done in isolation but what it would have done without the whistleblowing. Since defendant only fired 6 of the 17 employees who engaged similar misconduct, the jury may find it was "highly probable or reasonably certain" that CSX would not have fired plaintiff without the whistleblowing. "In other words, CSX usually retains employees who erred as Ziparo did."