Exam proctor can be fired for reporting Regents exam shenanigans

The plaintiff was a New York City exam grader and proctor who reported to the New York City Special Commissioner of Investigation that a high school principal tried to enlist plaintiff in a scheme to alter a student's Regent's exam. Plaintiff said no to this and reported the principal. Plaintiff brings this action, claiming he was terminated in retaliation for his whistleblowing. What result?

The case is Severin v. New York City Dept. of Educ., a summary order issued on May 1. Morally, plaintiff is in the right. You want whistleblowers like this working for the city. He was probably shocked to know that his case was dismissed because his whistleblowing does not count as First Amendment speech. Sure, it is speech. But it is not free speech under the First Amendment.

The reason for this is that the Supreme Court has held that public employees are not protected if they engage in work speech, only citizen speech. Work speech is pursuant to your job duties. Citizen speech is what the rest of us do. Employees can engage in citizen speech, but it must be unrelated to their job duties, for the most part. The Supreme Court said this in Garcetti v. Ceballos (2006). In 2010, the Second Circuit said it's work speech if the statements are "part and parcel" of the plaintiff's "concerns about his ability to properly execute his duties. That framework takes a lot of speech out of the First Amendment's protection, and ever since Garcetti, free speech retaliation cases by public employees have been dismissed with regularity.

Plaintiff's case fails because reporting testing irregularities, even fraud, are part and parcel of his capacity to perform his work. He was an exam grader and test proctor, after all. While his written job duties did not compel him to report this misconduct, that does not matter. Courts look beyond the job description in ruling on cases like this. Nor does it matter that plaintiff was not overseeing the specific exam at issue in this case, the Court of Appeals (Livingston, Calabresi and Perez) says, "because the proper administration of a system-wide exam, such as the Regents exam, requires the vigilance of those responsible for the exam throughout the system."

Criminal defendant gets new trial after juror thought he was following her during trial

I would guess that it's a nightmare for a judge to deal with a jury problem during trial. In this case, a juror told the judge a few days into the criminal trial that she thought the defendant had been trailing her in his car a few days earlier, and she had shared this concern with her fellow jurors. The court has to discharge an unqualified juror, but you know the court does not want to declare a mistrial either. What to do?

The case is People v. Fisher, issued by the New York Court of Appeals on April 23. The defendant was charged on a drug offense. On the first day of jury selection, one  juror thought the defendant was following her in his car, six to eight car lengths away from her. She did not promptly share this concern with the court but waited three days, telling other jurors in the meantime about this while they deliberated on the defendant's guilt. When the juror finally told the judge, he did not believe the defendant had been following her, and the jury proceeded to find the defendant guilty.

Defendant gets a new trial. The Court of Appeals finds the jury was "grossly unqualified" to sit on the case, as it finds the juror held a strong bias against the defendant such that he was denied an impartial jury. The key here is that her concern related to the defendant's character and her concern that he was trying to intimidate her, as she was almost certain he was in fact following her, though she admitted it was possible the defendant was going somewhere else and it may have been a coincidence that she saw him on the road that day.

Also concerning is that the juror did not share her concerns with the court right away, after she told the other jurors that she thought the defendant had been following her. That brings an irrelevant concern into the jury deliberations. Another problem is that when the court asked the juror if she could be fair and impartial, she replied, "I can be a fair and impartial juror, yes, I can say that, because the other juror members encouraged me, because their safety might be at risk." The Court of Appeals observes, "By reiterating her concern for safety even while assuring the court that she could be fair, Juror Six undercut the value of her assurance" that she could be fair and impartial.

NY Court of Appeals holds plaintiffs cannot sue individual coworkers for discrimination under the NYC Human Rights Law

The New York State Court of Appeals has held that the City Human Rights Law, one of the most expansive in the nation, does not allow plaintiffs to sue co-workers for discrimination, including the creation of a hostile work environment.

The case is Russell v. New York University, issued on April 25. Under Title VII, the federal employment discrimination statute, plaintiffs can only sue their employers. For that reason, and many others, the New York City HRL provides for greater protections, making it easier for plaintiffs to win their cases. The statute has been amended several times over the years to correct "bad" court rulings that, in the City Council's mind, misinterpreted the City law and failed to honor its legislative intent to construe the statute liberally and to avoid simply parroting federal court decisions interpreting Title VII.

In this case, plaintiff sued NYU for employment discrimination under federal and city law. The federal court dismissed the federal claims on summary judgment and declined to exercise jurisdiction over the city law claims, sending the case to New York Supreme Court, which determined that collateral estoppel required the same result as the federal court ruling. The question for the New York Court of Appeals -- the highest court in New York -- is whether plaintiff can get around collateral estoppel by claiming an individual co-workers created a hostile work environment on the basis of gender. The Court writes:

The City HRL expressly provides for liability at the individual employee level, making it “an unlawful discriminatory practice . . . [f]or an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service, height, weight, or immigration or citizenship status of any person . . . [t]o discriminate against such person in compensation or in terms, conditions or privileges of employment.” (Emphasis supplied).

The 6-1 majority holds this language means the only individuals who can discriminate against employees under the City law are those "who wield any ability to dictate or administer the compensation, terms, conditions, or privileges of the plaintiff's employment." The Court reaches that conclusion basis on a plain-language reading of the statute. Co-workers who do not wield that authority over the plaintiff cannot be sued for discrimination under the City law.

In dissent, Judge Rivera argues strongly that the majority got it wrong, noting that its analysis ignores the liberal statutory construction and even favorably cites an Appellate Division ruling on this issue, Priori v. New York Yankees, 307 A.D.2d 67 (1st Dept. 2003), that the City Council in 2005 disavowed in amending the City HRL to provide greater protections for plaintiffs who sue their coworkers. 

The City law does use different language for retaliation cases:

It shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has (i) opposed any practice forbidden under this chapter, (ii) filed a complaint, testified or assisted in any proceeding under this chapter, (iii) commenced a civil action alleging the commission of an act which would be an unlawful discriminatory practice under this chapter, (iv) assisted the commission or the corporation counsel in an investigation commenced pursuant to this title, (v) requested a reasonable accommodation under this chapter, or (vi) provided any information to the commission pursuant to the terms of a conciliation agreement made pursuant to section 8-115 of this chapter. 

The italicized language says that "any person" cannot retaliate against anyone who engages in protected activity under the statute. That provision was not before the New York Court of Appeals in this case.

Defendant's outburst allowed trial court to remove him from courtroom as jury announced its verdict

In this case, the criminal defendant in state court was removed from the courtroom while the jury was issuing its verdict because the trial court decided that a prior warning was not practicable. This is the rare case where the conviction is affirmed even though the defendant was not present in the courtroom during all proceedings.

The case is People v. Dunton, issued by the New York Court of Appeals on April. The defendant, standing trial in a shooting case, had a violent record while in custody at Riker's Island, requiring the court take additional security precautions during trial. As the majority states in this case, the defendant had known "explosive tendencies." During trial, the prosecution told the court that one of its witnesses complained that defendant had stared her down while she was testifying against him, signaling that she should keep her mouth shut. 

When the jury began reading its verdict in court, after finding him guilty on the sixth count, and with one count to go, defendant yelled at the jury in open court and told them to "suck my d***." The judge then removed defendant from the courtroom and the jury proceeded to find him guilty on the seventh charge. 

While criminal convictions can be overturned for a new trial when the defendant is improperly removed from the courtroom during all proceedings, there are exceptions to that rule, and this case creates an exception. The Court of Appeals holds that removal was proper in the unique circumstances of this case. The majority reasons:

In disregard of his professed assurances, and demonstrating his contempt for the proceedings and the court, defendant disrupted the announcement of the verdict three times. First, he laughed after the foreperson announced guilty on five counts, including the top count of attempted murder. Second, moments later, after the foreperson announced guilty on the sixth count, defendant directed a verbal outburst at the jury. Third, after the court instructed counsel to control defendant, defendant continued his tirade, using profanity directed specifically at the jury. It was only after defendant could not be controlled and the jurors had become visibly upset by defendant's verbal abuse that the court directed the officers to take charge and defendant was removed from the courtroom.

 

Contrary to the dissent's view, the totality of defendant's misconduct in and out of the courthouse rendered a warning to defendant immediately preceding his removal impracticable. Any delay in defendant's removal would have permitted further disruption of the proceedings and risked physical danger to the public, jurors, judge, court officers and staff and the lawyers. As the court had earlier observed, “things get ugly very fast in a [quite small] courtroom.” The fact that defendant was handcuffed did not eliminate the possibility that he could physically move about and further disrupt the proceedings and injure those in attendance. Indeed, defendant had previously displayed violent sudden outbursts and there was no certainty that handcuffs would prevent him from reacting in the same manner.

 

In disregard of his professed assurances, and demonstrating his contempt for the proceedings and the court, defendant disrupted the announcement of the verdict three times. First, he laughed after the foreperson announced guilty on five counts, including the top count of attempted murder.⁵ Second, moments later, after the foreperson announced guilty on the sixth count, defendant directed a verbal outburst at the jury. Third, after the court instructed counsel to control defendant, defendant continued his tirade, using profanity directed specifically at the jury. It was only after defendant could not be controlled and the jurors had become visibly upset by defendant's verbal abuse that the court directed the officers to take charge and defendant was removed from the courtroom.⁶

Contrary to the dissent's view, the totality of defendant's misconduct in and out of the courthouse rendered a warning to defendant immediately preceding his removal impracticable (see dissenting op. at ––––, ––– N.Y.S.3d at ––––, ––– N.E.3d at ––––). Any delay in defendant's removal would have permitted further disruption of the proceedings and risked physical danger to the public, jurors, judge, court officers and staff and the lawyers. As the court had earlier observed, “things get ugly very fast in a [quite small] courtroom.” The fact that defendant was handcuffed did not eliminate the possibility that he could physically move about and further disrupt the proceedings and injure those in attendance. Indeed, defendant had previously displayed violent sudden outbursts and there was no certainty that handcuffs would prevent him from reacting in the same manner.

People v. Dunton, No. 42, 2024 WL 1723124, at *5 (N.Y. Apr. 23, 2024)

In disregard of his professed assurances, and demonstrating his contempt for the proceedings and the court, defendant disrupted the announcement of the verdict three times. First, he laughed after the foreperson announced guilty on five counts, including the top count of attempted murder.⁵ Second, moments later, after the foreperson announced guilty on the sixth count, defendant directed a verbal outburst at the jury. Third, after the court instructed counsel to control defendant, defendant continued his tirade, using profanity directed specifically at the jury. It was only after defendant could not be controlled and the jurors had become visibly upset by defendant's verbal abuse that the court directed the officers to take charge and defendant was removed from the courtroom.⁶

Contrary to the dissent's view, the totality of defendant's misconduct in and out of the courthouse rendered a warning to defendant immediately preceding his removal impracticable (see dissenting op. at ––––, ––– N.Y.S.3d at ––––, ––– N.E.3d at ––––). Any delay in defendant's removal would have permitted further disruption of the proceedings and risked physical danger to the public, jurors, judge, court officers and staff and the lawyers. As the court had earlier observed, “things get ugly very fast in a [quite small] courtroom.” The fact that defendant was handcuffed did not eliminate the possibility that he could physically move about and further disrupt the proceedings and injure those in attendance. Indeed, defendant had previously displayed violent sudden outbursts and there was no certainty that handcuffs would prevent him from reacting in the same manner.

People v. Dunton, No. 42, 2024 WL 1723124, at *5 (N.Y. Apr. 23, 2024)

Bedroom invite does not give rise to quid pro quo sexual harassment case

The Court of Appeals has rejected a sexual harassment claim, holding that the plaintiff has not sufficiently alleged quid pro quo harassment in trying to assert that the company president was trying to initiate a sexual relationship.

The case is Reed v. Fortive Corp., a summary order issued on April 24. To win a quid pro quo harassment claim you have to show that the supervisor conditions job-related benefits on your decision to have sex with him. In this case, the Court of Appeals (Calabresi, Park and Merriam) holds, plaintiff does not plead such a claim and that her allegations are too conclusory and speculative. Here are the allegations, bearing in mind that McCauley is head of the company:

Reed’s claim is based on a single incident in which McCauley allegedly invited her to see a corporate apartment on their way to lunch, asked her repeatedly to join him in the apartment’s bedroom, and then inquired over lunch whether she was married or had a boyfriend.

The bedroom was MCauley's bedroom. What the complaint does not assert, the Court notes, is that McCauley made sexual comments or made physical contact, and plaintiff does not allege that he engaged in any other sexual conduct toward plaintiff or anyone else. Without actually stating this, the Court appears to believe that McCauley's bedroom maneuvers are not, by themselves, enough that he was trying to initiate a sexual relationship with plaintiff.

What he have is an Iqbal holding, named after the Supreme Court from 2009 that made it more difficult for plaintiffs to survive a motion to dismiss. Iqbal emphasized that plaintiffs must assert "plausible" and nonconclusory claims. Court also cite Iqbal for the proposition that speculative claims are not enough. I am sure plaintiff's counsel emphasized that the bedroom references were inherently sexual. The bedroom is not the kitchen. At oral argument counsel noted that in Oncale v. Sundowner (1997), the Supreme Court wanted the courts to examine the offending conduct in the appropriate "social context."

Justices clarify "transportation exception" to compelled arbitrationm law

Arbitration can be described as a private justice system that resolves legal disputes if the parties agree to that arrangement. In the employment context, the worker usually signs the arbitration agreement at the start of her employment, and if she wants to sue her employer later on, the case will be routed to JAMS or AAA, the primary arbitration services. But all kinds of non-employment disputes are also arbitrated. Anything can be arbitrated. Courts do not like it when litigants try to get around the arbitration agreement, and they will strictly enforce the Federal Arbitration Act, which provides that arbitration agreements will be upheld absent some compelling reason (such as if someone was coerced into signing the agreement). There is a major exception to the FAA, and that arose on April 12, when the Supreme Court examined the transportation exception.

The case is Bissonnette v. Le Page Bakeries. The plaintiffs distributed baked goods to retailers in Connecticut. They got into a dispute with Flowers Foods, who make the baked goods for delivery. But plaintiffs signed an arbitration agreement, which Flowers wanted to enforce so the case could proceed in arbitration, which is generally viewed as more favorable to employers than the courts. Plaintiffs wanted the case in court. After several rounds of appellate practice in the Second Circuit, which sided with Flowers and ordered the case to arbitration, the case reached the Supreme Court, which unanimously agrees with the plaintiffs that the case is not arbitrable.

The FAA has a curious exception that we call the "transportation exception." The issue is whether a transportation worker must work for a company in the transportation industry to invoke the transportation exception under the FAA. Or whether the plaintiff engages in transportation as part of his work, even if he is working for an entity that is not part of the transportation industry. The Second Circuit held the plaintiffs must work in the transportation industry, such as the airlines or a trucking company. As the Circuit saw it, the "entity would be considered within that industry if it pegs its charges chiefly to the movement of goods or passengers and its predominant source of commercial revenue is generated by that movement." The Supreme Court rejects that interpretation of the FAA.

Since the FAA does not actually define what constitutes the "transportation industry," it reviews the statute with a fresh eye, determining that the Second Circuit's interpretation needlessly complicates the statute and would require mini-trials to determine whether an entity really falls within the exception. "Extensive discovery may be necessary to explore the internal structure and revenue models of a company before deciding a simple motion to compel arbitration." The better rule, the Supreme Court says, is that in determining whether the transportation exception applies, the plaintiff need not work for a company in the transportation industry. Rather, "a transportation worker is one who is actively engaged in transportation of goods across borders via the channels of foreign or interstate commerce. In other words, any exempt worker must at least play a direct and necessary role in the free flow of goods across borders."

Supreme Court makes it easier for Title VII plaintiffs to win discriminatory transfer cases

In a major ruling under Title VII (the primary federal employment discrimination statute), the Supreme Court holds that plaintiffs challenging a discriminatory job transfer need only prove the transfer brought about some "disadvantageous" change in an employment term and condition. This ruling rejects the test applied in the Second Circuit and elsewhere, which required that the plaintiff prove a "significant" change in the terms and conditions of employment. Instead, the plaintiff need only prove "some harm respecting an identifiable term or condition of employment."

The case is Muldrow v. City of St. Louis, issued on April 17. For decades, at least in the Second Circuit (and most of the other Circuits), courts have required Title VII plaintiffs to prove a "material" change in the terms and conditions of employment in order to win the case. A termination or demotion is certainly material, but transfers were less clear. A few Circuits in recent years took a fresh look at the materiality test and determined that it finds no basis under Title VII's plain language, and they instead held that any discrimination is actionable under Title. VII. The Supreme Court does not go that far, but it does reduce the plaintiff's burden in proving a discriminatory transfer case.

Plaintiff was a female law enforcement professional who was transferred to a less-prestigious unit, where her rank and pay remained the same but she no longer worked with high-ranking officials on departmental priorities in the Intelligence Division and instead supervised day-to-day activities of neighborhood patrol officers. The transfer also cost her an unmarked take-home vehicle, and she had to work some weekends. The evidence suggests a supervisor wanted a man to hold plaintiff's position, which occasioned the transfer. Is this an adverse action under Title VII?

This case is the first time the Supreme Court really explains what constitutes an adverse action under Title VII, enacted in 1964. Circuit courts have had to define that phrase and over the years the consensus was that a "material" change in the terms and conditions of employment is necessary to win the case. This led to the dismissal of countless cases where courts thought the plaintiff could not prove an adverse action, and many of these dismissals were transfer cases. The Second Circuit held firm on the materiality standard, as the Supreme Court notes in listing the cases creating the Circuit split that led the Court to grant certiorari.

Writing for a unanimous Court, Justice Kagan writes that the "materiality" or "significant" test in transfer cases finds no support in the language of Title VII. In other words, that high burden was judge-made and not authorized by Congress. The high burden has led to conflicting results in the various Courts of Appeals over the years, Justice Kagan notes. After summarizing cases in which the plaintiff lost under the heightened standard, she writes: "All those employees suffered some injury in employment terms or conditions (allegedly because of race or sex). Their claims were rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require."

Muldrow's case, which was dismissed under the now-rejected materiality standard, is revived. If she can prove her allegations, then she has an adverse action, the Court holds. 

Muldrow need show only some injury respecting her employment terms or conditions. The transfer must have left her worse off, but need not have left her significantly so. And Muldrow’s allegations, if properly preserved and supported, meet that test with room to spare. Recall her principal allegations. She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily per- formed administrative work. Her schedule became less reg- ular, often requiring her to work weekends; and she lost her take-home car. If those allegations are proved, she was left worse off several times over. It does not matter, as the courts below thought . . . that her rank and pay remained the same, or that she still could advance to other jobs. Title VII prohibits making a transfer, based on sex, with the consequences Muldrow described.

The case returns to the district court to apply the correct standard. 

We have a few concurrences, including one from Justice Alito, who says the ruling is "unhelpful" and that he has "no idea what [the new standard] means, and I can just imagine how this guidance will be greeted by lower court judges." He adds:

I see little if any substantive difference between the terminology the Court approves and the terminology it doesn’t like. The predictable result of today’s decision is that careful lower court judges will mind the words they use but will continue to do pretty much what they have done for years.

Justice Kavanaugh would take the standard even further and allow plaintiffs to win if they can prove any transfer was discriminatory. He writes:

No court has adopted a some-harm requirement. No  court  has  adopted  a  some-harm requirement, and no party or amicus advocated that requirement to this Court. More to the point, the text of Title VII does not require a separate showing of some harm. The discrimination is harm. The only question then is whether the relevant employment action changes the compensation,  terms, conditions, or  privileges  of employment. A transfer does so. Therefore, as the D. C. Circuit explained, a transfer on the basis of race, color, religion, or national origin is actionable under Title VII.

Justice Kavanaugh recognizes that Justice Kagan's new test presents "a relatively low bar" for plaintiffs and that, in his view, "anyone who has been transferred because of race, color, religion, sex, or national origin should easily be able to show some  additional  harm—whether  in  money,  time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional   relationships, networking opportunities, effects on family obligations, or the like."

How will this holding affect other Title VII cases that do not involve discriminatory transfers but job-actions that do not result in terminations or demotions? The Court does not say. The next few years will yield new cases in the lower courts that grapple with the new test in different factual settings.