tag:blogger.com,1999:blog-46597086949836660282024-03-19T00:22:34.038-04:00Wait A Second!Keeping track of the civil rights opinions of the United States Court of Appeals for the Second Circuit. Brought to you by Bergstein & Ullrich.Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.comBlogger2278125tag:blogger.com,1999:blog-4659708694983666028.post-22241259967506070242024-03-18T09:27:00.001-04:002024-03-18T09:27:17.406-04:00Challenge to race-based corporate fellowship program fails for lack of standingAnother potentially impactful lawsuit doomed over the lack of standing. If an organization brings a lawsuit to challenge what it believes is an unlawful policy, it must show it has standing to sue. The organization will say it has standing because its members have an interest in the case, but there are strict rules for that process. In this case, a conservative organization that claims Pfizer's fellowship program has racially-discriminatory cannot proceed with the case because we don't know who the aggrieved members are.<div><br /></div><div>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/d422cae3-9676-4153-a7b9-fe3dcc866a50/3/doc/23-15_complete_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/d422cae3-9676-4153-a7b9-fe3dcc866a50/3/hilite/" target="_blank">Do No Harm v. Pfizer, Inc.</a>, issued on March 6. Pfizer, the pharmaceutical company, has a fellowship program that seeks to advance students and "early career colleagues of Black/American, Latino/Hispanic and Native American descent." The organization claims this program discriminates against white and Asian candidates. But the case does not get off the ground because the organization cannot prove standing. It fails to identify any of its injured members by name. </div><div><br /></div><div>Organizations can assert organizational standing to sue as the representative of its members. But at least one member of that organization must have standing to sue in their own right, <i>i.e</i>., that they suffered an actual injury and the lawsuit can redress that injury. In <i>Summers v. Earth Island Institute,</i> 555 U.S. 488 (2009), the Supreme Court has said that, in associational standing cases, the organization must identify members who suffered harm from the challenged policy. </div><div><br /></div><div>But the Supreme Court has not exactly stated that the organization must identify these members by name. The Second Circuit (Jacobs, Wesley and <b>Robinson</b>) has to therefore decide if you have to name names. The Court of Appeals determines that you do have to identify the aggrieved members, reasoning that such a requirement aligns with <i>Summers</i>. Under this interpretation, naming the members proves the case is not a hypothetical exercise; we want lawsuits to have real parties with real disputes. The First Circuit has already ruled as such, in a decision written by retired Supreme Court Justice David Souter, making the Second Circuit the second circuit to rule this way.</div>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-1317647136625963722024-03-15T11:54:00.002-04:002024-03-15T11:55:10.199-04:00New York Court of Appeals expands the scope of the City and State antidiscrimination laws<p>The New York Court of Appeals has issued a definitive ruling on the scope of the New York State and City Human Rights Laws. Answering a certified question from the Second Circuit, the State Court of Appeals holds that a New York City-based company may be held liable under the remedial City and State Human Rights Laws if it denies an out-of-state job applicant a position for discriminatory reasons.</p><p>The case is <a href="https://www.nycourts.gov/reporter/3dseries/2024/2024_01330.htm" target="_blank">Syeed v. Bloomberg, L.P.</a>, issued on March 14. Plaintiff worked in defendant's Washington, D.C. bureau and applied to work for its bureau in New York City. Bloomberg instead hired a less-qualified male applicant. She sued Bloomberg under the State and City laws, but the case was dismissed because she was not a New York resident when defendant denied her the promotions. A prior New York Court of Appeals ruling, <i>Hoffman v. Parade Publications</i>, 15 N.Y.3d 285 (2010), held that the City law only applies when the discriminatory personnel decision "impacts" New York City. The trial court in this case relied on <i>Hoffman </i>in dismissing Syeed's case. As the Court of Appeals in <i>Syeed </i>summarizes the <i>Hoffman </i>holding:<br /></p><p></p><blockquote>"the impact requirement does not exclude all nonresidents from [the] protection" of the Human Rights Laws. Instead, the impact test "expands" the protections of the
Human Rights Laws "to nonresidents who work in the" state or city and to those who "state a claim that the alleged discriminatory conduct had any impact in either of those locations."<i> Hoffman </i>therefore
sets forth two ways in which a nonresident may satisfy the impact
requirement: (1) working in New York or (2) establishing that the
challenged conduct had some impact on the plaintiff within the
respective New York geographic boundaries.</blockquote><p>How do we apply <i>Hoffman </i>in Syeed's case, where she claims she was denied promotions for New York City-based jobs, but she was not living in New York City when the promotion denials took place? The Second Circuit was presented with this issue in Syeed's case because her case is pending in Southern District of New York, and she appealed to the Second Circuit. The Circuit, in turn, forwarded this issue to the New York Court of Appeals, a common practice when the Circuit has an open issue of state law and wants the State Court of Appeals to issue a definitive ruling on the issue.</p><p>The State Court of Appeals unanimously holds that the City and State Human Rights Laws govern Sayeed's case. </p><p></p><blockquote> a nonresident who has been discriminatorily denied a job in New York
City or State loses the chance to work, and perhaps live, within those
geographic areas.
The prospective employee personally feels the impact of a
discriminatory refusal to promote or hire in New York City or State,
because that is where the person wished to work (and perhaps relocate)
and where they were denied the chance to do so. When applying the
required liberal construction of "inhabitants" and "individual within
this state" (Executive Law § 290 [3]; Administrative Code § 8-101), a
prospective inhabitant or employee, who was denied a job opportunity
because of discriminatory conduct, fits comfortably within the Human
Rights Laws' protection.</blockquote><p>Policy reasons also support this holding. The State and City have robust antidiscrimination laws. </p><p></p><blockquote>the Human Rights Laws contemplate that discrimination harms the state
and city as governmental institutions, in addition to the targeted
individual. The state and the city are deprived of economic and civic
contributions from individuals discriminatorily denied the opportunity
to work in New York, along with the more diverse workforces and
communities that the individuals would advance. Our resolution of the
certified question has the beneficial effect of protecting New York
institutions and the general welfare of the state and city—as the
legislature and city council intended.</blockquote><p></p><p>The case now returns to the Second Circuit, which will apply the State Court of Appeals' holding. Since this holding favors plaintiff, I assume this case will be revived and proceed to discovery in the Southern District of New York<br /></p><p></p><p></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-87451716790408454902024-03-14T09:44:00.001-04:002024-03-14T09:44:27.889-04:00There's a new SLAPP law in town<p>New York has long had a law on the books that makes it illegal to sue someone over their public advocacy. These were called anti-SLAPP suits. SLAPP stands for Strategic Lawsuits Against Public Participation. But the old anti-SLAPP law only applied in the context of advocacy for public permits, usually land-use disputes. But the SLAPP law changed a few years ago to prohibits retaliatory lawsuits involving other forms of public advocacy. The case law is still developing in this area.</p><p>The case is <a href="https://www.dropbox.com/scl/fi/6uz8jteloqsi4mefpmeya/EF2023_2585_Charles_Whittaker_v_Donald_Markle_III_et_al_DECISION___ORDER_ON_54.pdf?rlkey=yr18rfn5f213k94vdggs98p6a&dl=0" target="_blank">Whittaker v. Markle</a>, issued by Ulster County Supreme Court on March 13. Christopher Watkins and I represent defendant Donnie Markle, a private businessman who testified before the County Legislature that an employee at the Ulster County Resource Recovery Agency (which runs the landfill and takes on other recycling duties), Willie Whittaker, was hoarding the compost that members of the community are able to purchase on their own. Following Markle's testimony, Willie's brother, Charles, who serves as the Director of Operations at OCRRA, sued Markle for negligent infliction of emotional distress, claiming that Markle had lied about the compost and caused Whittaker to suffer emotional distress because County policymakers began to more carefully scrutinize his job performance. (Markle has a separate federal lawsuit against UCRAA under the First Amendment, because the agency barred him from the facility following his public testimony).</p><p>Justice Graff finds that Whittaker's lawsuit against Markle is a SLAPP suit because Markle testified about a matter of public importance in telling the County Legislature about the misuse of public resources. State law prohibits retaliatory lawsuits like this if the lawsuit lacks a substantial basis. This means that a legitimate lawsuit against the public speaker is not a SLAPP suit. Whittaker's lawsuit for negligent infliction of emotional stress lacks a substantial basis, Justice Graff holds, because Markle did not breach any duty toward Charles 9he testified about Willie, not Charles), and Markle's testimony did not unreasonably endanger Charles' physical safety. Without any real basis to sue Markle, Whittaker's lawsuit is a SLAPP suit under New York. That entitles Markle to damages and attorneys' fees, to be determined later.</p><p>A unique procedural issue arises in this case. When Markle filed his motion to dismiss the case under the anti-SLAPP law, rather than defend this lawsuit, Whittaker withdrew the lawsuit entirely. Does that make the SLAPP issue go away? In the First and Second Departments, discontinuing the lawsuit prior to filing the Answer does not moot a motion to dismiss. In the Fourth Department, discontinuance does moot the motion to dismiss if the case is discontinued prior to filing the Answer.<br /></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-61887323540932445372024-03-12T10:44:00.003-04:002024-03-12T10:44:43.221-04:00Employee speech exposing intoxication at the sewage treatment plant is not protected under the First Amendment <p>The plaintiff alleged he was fired in retaliation for speaking out under the First Amendment. But there are strict requirements in order to prevail on such a claim, and the Court of Appeals finds that plaintiff cannot meet those requirements. The case is dismissed.</p><p> The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/205b518e-1901-4a87-8fe5-61bb694b7a97/5/doc/23-76_so.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/205b518e-1901-4a87-8fe5-61bb694b7a97/5/hilite/" target="_blank">Reynolds v. City of New York</a>, a summary order issued on March 11. Plaintiff was a sewage treatment worker for the Department of Environmental Protection. In 2020, he told management that coworkers were drinking alcohol and were intoxicated on the job, "thereby impeding their ability to adequately perform their job, which is an essential function to maintain public health." Following this speech, plaintiff suffered a series of retaliatory acts, including a transfer to the day shift after working nights for 17 years, which cost him money in overtime hours. Plaintiff was also assaulted on the job in retaliation for his speech and had false accusations lodged against him.</p><p>It may look like plaintiff has a case, but he does not, the Court of Appeals (Newman, Lee and Nathan) says, because plaintiff did not speak on a matter of public concern, a necessary requirement for maintaining a First Amendment retaliation claim. Public concern speech has a particular definition, and the Supreme Court once said that something that might be reported in the newspaper could be a matter of public concern. Municipal corruption, public safety, and across-the-board discrimination are matters of public concern, for example. <br /></p><p>While "Reynolds’s primary argument is that reports about misconduct at the DEP must necessarily be connected to the 'health and safety of the public via the she[e]r nature of the work at the [DEP], namely ensuring clean drinking water for the public,” the Court holds that he must do more than allege that the "sheer nature" of this kind of work was connected to the public's safety and was therefore a matter of public concern. The authority for this proposition is <i>Shara v. Maine-Endwell Cent. Sch. Dist</i>., 46 F.4th 77, 81 (2d Cir. 2022), which held that although a school bus driver’s complaints about bus-inspection reporting implicated the safety of bus-riding children, it was not a matter of public concern because “he never alleged . . . that the School District’s preferred reporting policy resulted in unsafe conditions or that his proposal of daily reporting would have improved safety.”</p><p>Plaintiff loses because he does not allege in his complaint that the employee misconduct contributed to unsafe drinking water or that it impacted public health and safety. "While we agree that intoxicated employees at a sewage treatment facility certainly could take actions to harm the public’s safety, the sparse allegations in Reynolds’s Amended Complaint do not allege any facts allowing the Court to draw the inferences Reynolds suggests." Plaintiff's arguments are too speculative and conclusory to allow this case to proceed to discovery.</p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-70249220666190237742024-03-11T10:10:00.001-04:002024-03-11T10:10:21.781-04:00"Loser pays" provision in arbitration agreement may doom the arbitration entirely<p>You do not see this very often: an employee sues in court to enjoin mandatory arbitration because the arbitration provision that he signed at the start of his employment was unlawful and unenforceable under state law. The Court of Appeals agrees with the lower court and the case returns to the lower court for more proceedings which may ultimately stop the arbitration from proceeding.</p><p>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/4da36b16-ea27-4ac9-82a1-1eefaadf9999/12/doc/23-303_so.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/4da36b16-ea27-4ac9-82a1-1eefaadf9999/12/hilite/" target="_blank">Vidal v. Advanced Care Staffing</a>, a summary order issued on March 7. When Vidal arrived in the United States to work for defendant as a nurse, he signed an arbitration agreement, which contains a "loser pays" provision that says the prevailing party in the arbitration is entitled to arbitral costs and attorneys' fees. When Vidal quit his job, his former employer commenced an arbitration proceeding against him, claiming Vidal had breached the contract. </p><p>As the Court of Appeals (Calabresi, Lohier and Cabranes) sees it, under the "loser pays" provision, if Vidal loses the arbitration, the costs and fees will "effectively preclude him from pursuing his claims and would be prohibitively expensive." At the preliminary injunction stage of the case in the district court, Vidal produced his financial record to prove that his monthly income was far below the potential arbitral costs and attorneys' fees in the event the defendant were to prevail at the arbitration.</p><p>Other Circuits have also held that fee-shifting provisions in arbitration clauses may deter certain plaintiffs who want to vindicate their statutory rights in arbitration. "Whether the 'loser pays' provision undermines Vidal's ability to vindicate his rights here as a matter of substantive federal law or state law presents a serious question of law and fact that requires more detailed findings about Vidal's finances, the potential costs of arbitration, and the possibility that Vidal will incur such costs." </p><p>The case is therefore remanded to the district court for defendant to present additional evidence supporting its arguments opposing Vidal's demand for a permanent injunction. So it looks like the case is not yet over. But this ruling is a powerful argument in Vidal's favor that the arbitration should not proceed.<br /></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-24424414169680001672024-03-07T10:00:00.003-05:002024-03-11T10:31:59.586-04:00SDNY sustains $1.725 million compensatory damages award in hostile work environment case<p>This hostile work environment case went to trial in the Southern District of New York before Judge Hellerstein. The jury awarded plaintiff $1.725 million for pain and suffering and another $1 million in punitive damages. These damages were spread among two different defendants. The verdict and damages awards are upheld in their entirety.</p><p>The case is Pizarro v. Euros El Tina Restaurant, <span class="co_search_detailLevel_1">20 CIv. 5783 (AKH), 2024 WL 837572</span>, issued on February 27. First, the court finds the evidence supports the liability verdict. In order to have the verdict vacated, defendant must show that no reasonable jury would have ruled in plaintiff's favor, and that the jury in this case ruled in plaintiff's favor based on speculation, sympathy, and without sufficient evidence. These motions are difficult to won, and Judge Hellerstein does not give extended discussion on this, noting that the evidence of sexual harassment was "overwhelming" and "no employee is required to experience such harassments, male or female." Nor was plaintiff required to identify a comparator to support her finding gender discrimination under the New York City Human Rights Law, which sets a "treated less well" standard for plaintiffs, far more lenient than Title VII. Defendants did not challenge the verdict under the Title VII, for some reason.</p><p>As for remittitur, I note that courts in the Second Circuit group these damages claims under three categories: (1) garden variety, (2) significant, and (3) egregious. The egregious cases generate the highest damages awards, into the seven figures. But trial judges in the Second Circuit freely reduce high damages awards as a matter of course, almost treating them as advisory verdicts as the judges then review the evidence to ensure the damages are in line with prior, comparable cases. For this reason, we have very few million dollar verdicts upheld in the Second Circuit.</p><p>But this is one of the successful million dollar verdicts. Judge Hellerstein writes that "cases in this Circuit involving 'egregious' claims of sexual harassment, including those that take place in the workplace, and over several years, have led to similar amounts in compensatory damages when considering adjustments for inflation." Those cases include <i>Turley v. ISG Lackawana, Inc.</i>, 774 F.3d 140 (2d Cir. 2014) ($1.32 million); <i>Olsen v. County of Nassau</i>, 615 F. Supp. 2d 35 (E.D.N.Y. 2009) ($1 million); <i>Osorio v. Source Enterprises, Inc</i>., 2007 WL 683985 (S.D.N.Y. 2007) ($4 million on retaliation claim); and <i>Zeno v. Pine Plains Cent. Sch. Dist</i>., 702 F.3d 655 (2d Cir. 2012) (a case I tried and handled on appeal that yielded $1 million for racial harassment without physical assault).</p><p>What entitles plaintiff to the large compensatory damages award is that she testified that she was groped and molested on numerous occasions, she feared rape and sexual assaults, and tried to commit suicide after the defendant tried to rape her. This evidence also supports the punitive damages award, including the fact that plaintiff endured a decade-long and worsening pattern of physical and verbal harassment, groping and pinching, exposure to male private parts and masturbation, and an attempted rape. </p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-91560678649271460802024-03-06T09:43:00.001-05:002024-03-06T09:43:15.280-05:00Plaintiff wins Equal Pay Act appeal<p><span style="font-size: small;">The Court of Appeals holds that a jury may find that a former Verizon employee has a claim under the Equal Pay Act. </span></p><p><span style="font-size: small;">The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/8ccc2e11-ba70-467a-be37-7021274f34c3/1/doc/20-3599_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/8ccc2e11-ba70-467a-be37-7021274f34c3/1/hilite/" target="_blank">Moll v. Telesector, Inc</a>., issued on February 28, two years after oral argument. The <a href="https://secondcircuitcivilrights.blogspot.com/2024/03/verizon-hostile-work-environment-in.html" target="_blank">sexual harassment</a> and <a href="https://secondcircuitcivilrights.blogspot.com/2024/03/retaliation-claim-against-verizon-will.html" target="_blank">retaliation</a> summaries are at these links. In this portion of the decision, the Court of Appeals (<b>Kearse</b>, Walker and Sullivan) holds that one of plaintiff's coworkers is a legitimate comparator under the EPA's strict comparison guidelines.</span></p><p><span style="font-size: small;">To make out a <i>prima facie</i> case on equal pay, the plaintiff must show <span style="font-family: PalatinoLinotype;">"[1] the employer pays different wages to employees of the opposite </span><span style="font-family: PalatinoLinotype;">sex; [2] the employees perform equal work on jobs requiring equal skill, </span><span style="font-family: PalatinoLinotype;">effort, and responsibility; and [3] the jobs are performed under similar </span><span style="font-family: PalatinoLinotype;">working conditions." </span></span></p><p><span style="font-size: small;"><span style="font-family: PalatinoLinotype;">As for comparators Winley and Dean, they were hired at $90,000 and $88,000 per year at at time when Verizon was looking for specialists on voice and data, enticing job applicants to leave companies that were more entrenched in these products. Plaintiff did not have this kind of experience when these two men were hired. On these facts, plaintiff cannot </span><span style="font-family: PalatinoLinotype;">claim</span><span style="font-family: PalatinoLinotype;"> an EPA violation based on what the fellas were making. Her skills were not comparable to their skills, and their higher salaries were therefore justifiable under the EPA.<br /></span></span></p><p><span style="font-family: PalatinoLinotype; font-size: small;">Comparator Spencer, however, gives plaintiff a case under the EPA because he was not hired away from another company for his management duties, and he was a longtime Verizon employee who did not have the skills that Winley and Dean had. Spencer got a raise when the company wanted to transfer him to a different division; he got that raise, elevating him over plaintiff's salary. When he left the company, Spencer ultimately earned more than $15,000 than plaintiff. Adding to its analysis, the Court of Appeals writes:</span></p><p><span style="font-family: inherit; font-size: small;"></span></p><blockquote><span style="font-family: inherit; font-size: small;">even if Spencer's previous experience could explain the difference between his and Moll's salaries in 1997 when their employment in ESG began, that factor would not explain why the salary gap persisted. Differences in education and experience at the time of hiring are likely to matter less as the employees spend years on the job, leading to less of a disparity between salaries. <span style="font-style: italic;">See generally King v. Acosta Sales & Marketing, Inc.</span>, 678 F.3d 470, 473-75 (7th Cir. 2012). That did not occur here. When Spencer left ESG in 2004 he was still an SE II, and Moll had been promoted to SE II. Yet, the difference between their salaries after both had been in ESG for those seven years had not shrunk but in fact had increased. </span></blockquote><p></p><div class="page" title="Page 89"><div class="layoutArea"><div class="column"><ol style="list-style-type: none;"><li><p></p></li></ol></div></div></div><p><span style="font-family: inherit; font-size: small;">That citation to a Seventh Circuit case shows that Moll's case raises a new issue in the Second Circuit. The extended discussion on this issue also shows that EPA cases require careful analysis of the plaintiff's case to ensure her comparators are squarely like her case. The Court of Appeals notes that plaintiff abandoned her Title VII case on the equal pay claim. Since this case was briefed a few years ago, that may be because the Court of Appeals had not yet held that Title VII equal pay claims are easier to win than EPA claims, as Title VII does not require an exact match between the plaintiff and her comparators. Still, plaintiff is able to proceed to trial on her EPA claim because of the Spencer comparison, and one cause of action is better than none.</span></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-39654366720622952432024-03-05T09:02:00.003-05:002024-03-05T09:02:41.238-05:00Retaliation claim against Verizon will head to trial<p>This retaliation claim against Verizon was dismissed on summary judgment. The Court of Appeals, after first holding the hostile work environment claims deserve a full airing at trial, also holds that the jury may find in plaintiff's favor on her retaliation claim, as well. This is shaping up to be a hell of a trial.</p><p>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/771a09be-7d29-498e-8b64-167d7ab40b9d/2/doc/20-3599_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/771a09be-7d29-498e-8b64-167d7ab40b9d/2/hilite/" target="_blank">Moll v. Telesector, Inc</a>., issued on February 28. <a href="https://secondcircuitcivilrights.blogspot.com/2024/03/verizon-hostile-work-environment-in.html" target="_blank">My write-up on the sexual harassment claims is that this link</a>. On the harassment claim, I noticed the case, lengthy as it is, does not appear to clarify or extend the law in that area. The same holds true for the retaliation claim. We have a lengthy opinion because the record on appeal must be huge. And the facts are extensive.<br /></p><p>Here are the facts on the retaliation claim: in December 2004, after plaintiff objected to the sexual harassment, management decided to send four Buffalo-based employees to work in its Syracuse office, 160 miles from Buffalo. The employer said if you don't want to work in Syracuse you can find another job at Verizon or take a severance package, the details of which were under wraps until the employees decided to leave the company. Of the four employees who were given this option, plaintiff and a coworker, Chase, wound up in Syracuse, unable to find other work within the company. Working in Syracuse was quite stressful for plaintiff, whose family still lived in the Buffalo area, and the flexible schedule that allowed plaintiff to sometimes work in Buffalo was eventually discarded, making matters worse for plaintiff who began to suffer anxiety and took a disability leave of absence. When another telecommunications provider merged with Verizon, they were "puzzled" by plaintiff's work arrangement and returned her to Buffalo. Plaintiff was eventually terminated in a reduction-in-force.</p><p>First, contrary to the district court's holding, the transfer to Syracuse could be deemed an adverse action even though plaintiff was given other options. While plaintiff was told to find other work within Verizon, she was given "an unrealistically short time to get another position within Verizon" or take the severance, which itself was unrealistic since plaintiff did not know its terms in advance and Verizon was free to change the terms. While the company claimed its had a "solid business reason" to make the transfers to Syracuse, one manager testified that "the purpose of developing the plan . . . was to get them to leave," and that supervisors "wanted to make life as difficult as possible for Ms. Moll and Ms. Byrne and stated that they believed this action would force them to leave." Byrne had also filed a Title VII action against Verizon that "to an extent, paralleled the present action."<br /></p><p>Of course, what also made the transfer adverse was the distance between Buffalo and Syracuse and the frequency with which plaintiff would have to travel between these two locations, at minimum, a round-trip of 320 miles, up to 1,000 miles per week. This would dissuade a reasonable person from speaking out against discrimination again, the <i>Burlington Northern</i> standard the Supreme Court adopted in 2006.</p><p>When plaintiff returned to the Buffalo office in 2006, she was told to work near the harassers whose behavior gave rise to her lawsuit, and in 2007 the company began a RIF, making her one of 156 employees who would lose their positions. One manger said, post-RIF, that he was "proud to be able to terminate Ms. Moll." Plaintiff's termination is ripe for trial on her retaliation claim because (1) she was never given a reason why she was chosen for the RIF, and (2) plaintiff in fact possessed the skills that management later claimed (on the summary judgment motion) she lacked, and management's claim to the contrary was speculative.</p><p>Plaintiff may also win the retaliation claim because a similarly-situated male colleague, Shelton, was not fired despite similar qualifications, and one key management witness at deposition was unable to articulate why Shelton was better qualified or differently situate than plaintiff, and they jury could even find that Shelton was not better qualified than plaintiff. </p><p>You get the picture. The Court of Appeals thoroughly reviews the record and prior proceedings in the case to make this one of the most comprehensive factual analyses you will see from this Court on a single-plaintiff harassment and retaliation claim. And I have not even summarized plaintiff's equal pay claim yet. Like I said, this should be a hell of a trial.<br /></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-46502637463292774712024-03-04T10:18:00.001-05:002024-03-11T13:31:53.849-04:00Verizon hostile work environment in western New York will go to trial<p>Lately, we have seen some lengthy Second Circuit rulings that reverse the grant of summary judgment in discrimination cases. This is another one, and I will write about the case in multi-parts. We will start with sexual harassment.</p><p>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/4858f1d9-5455-4951-9281-51a8e971d4fa/1/doc/20-3599_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/4858f1d9-5455-4951-9281-51a8e971d4fa/1/hilite/" target="_blank">Moll v. Telesector, Inc.</a>, issued on February 28. This case was argued in January 2022, which means the parties waited two years for a ruling, which raises a multitude of issues, comprising about 90 pages. Some of the evidence goes back to the 1990s.</p><p>The defendant is a subsidiary of Verizon Communications. While the district court said plaintiff proffered evidence revealing a triable fact issue on whether a reasonable person would have <i>subjectively </i>found the work environment abusive on account of sex, in dismissing the case, it held that plaintiff did not show an <i>objective </i>person would have perceived a hostile work environment. That objective/subjective distinction is difficult to resolve on a summary judgment motion.</p><p>The trial court identified 17 instances of sexual harassment/comments/gestures from 1998 through 2003. The Court of Appeals identifies a heck of a lot more than that, another 36 examples from that time period, including harassment endured by plaintiff's co-workers. The list of incidents goes on for pages and pages in this ruling and qualifies this as one of the worst workplaces for women that I've seen in any Second Circuit ruling. </p><p>The Court of Appeals summarizes the evidence as follows:</p><p><span style="font-family: PalatinoLinotype; font-size: 12pt;"></span></p><blockquote><span style="font-family: PalatinoLinotype; font-size: 12pt;">In sum, Moll proffered evidence that overtly sexual or sexist comments, sexual </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">innuendos, and gender-based disparagements were regularly directed at women in </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">Verizon's enterprise solutions group or made about women in general--such statements </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">being made in the woman's own office, or near a woman's desk, or to a woman in a </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">manager's office, or about a woman amid persons in a casual gathering in a common office </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">area, or in conference calls or meetings among co-workers, or in a van heading for a staff </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">outing, or in a buffet line at an office party, or in meetings with clients. She proffered </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">evidence that most managers did nothing to discourage that objectionable conduct--and that </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">some managers participated in such conduct.</span> </blockquote><blockquote><span style="font-family: PalatinoLinotype; font-size: 12pt;">Perhaps most troubling, as discussed above, </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">Moll pointed to evidence that Irving--who as her co-worker had harassed her with sexually </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">connotative comments and requests to come to his hotel room--after becoming her manager, </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">left her a note saying that he "thought about [her] when he was in the shower." And as her </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">manager, he insisted that she communicate with him only in person, demanded that she stay</span><span style="font-family: PalatinoLinotype; font-size: 12pt;"> at the office alone with him late at night, and followed her to client lunches against her </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">wishes because he wanted to "develop" her. Irving attended an HR awareness presentation </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">at which he simply laughed throughout. Although Moll complained to HR about Irving's </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">demonstration of contempt for the HR training presentation, Verizon did nothing in </span><span style="font-family: PalatinoLinotype; font-size: 12pt;">response.</span></blockquote><p>For such a lengthy ruling, this case does not purport to clarify or extend the law of sexual harassment. Rather, after citing a few sexual harassment precedents, the Court of Appeals (<b>Kearse</b>, Walker and Sullivan) simply goes on to summarize each and every incident of sexual harassment en route to its holding that a reasonable person may find the work environment sufficient hostile as to violate Title VII. </p><span style="font-family: PalatinoLinotype; font-size: 12pt;"></span><p></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-42485026268091363112024-02-29T09:33:00.001-05:002024-02-29T09:33:56.310-05:00Trial courts cannot grant summary judgment sua sponte<p>This is a very unusual case where the district court granted summary judgment without notice to either party on the eve of trial, prompting an appeal to the Second Circuit, which reinstates the case because things like this just don't happen in federal court.</p><p>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/5c7bc103-ea41-4c12-9f5d-bec8e6bf8828/3/doc/22-1921-_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/5c7bc103-ea41-4c12-9f5d-bec8e6bf8828/3/hilite/" target="_blank">Kowalchuck v. Metropolitan Transit Authority</a>, issued on February 27. This case is brought under the Federal Employers' Liability Act (FELA), where the plaintiff claims he suffered injuries clearing snow at an MTA property. Note that personal injury cases like this are usually not available under state law, which provides workers' compensation instead. But that is not the issue here.</p><p>What happened here was that defendant wanted to move for summary judgment, and they told the trial court as such at a pre-motion conference. Many judges hold these conferences to gain a sense of whether the motion is worth filing. In this case, the trial court deemed the pre-motion request as the motion itself and then denied the motion after reading the parties' letter briefs on the issue. Now everyone has to prepare for trial. But two years, later only four days prior to trial, the district court sua sponte granted summary judgment to defendant, dismissing the case.</p><p>So we have a summary judgment order that issued without briefing, much less oral argument. Can the trial court do this? No, says the Court of Appeals.</p><p>Only a few days prior to trial, the district court was reviewing the file and determined that undisputed facts and recent appellate law made it clear that plaintiff could not win the case. While the Court said it was taking this action at the eleventh hour, it wrote that it was doing everyone a favor because a short bench trial would otherwise be too costly, and plaintiff was traveling from North Carolina for trial and would face enhanced COVID risks. </p><p>The Court of Appeals (<b>Chin</b>, Walker and Robinson) reemphasizes that trial courts cannot sua sponte grant summary judgment without giving the parties a chance to make their case in writing through the formal motion process. Rule 56 outlines that procedure. Sua sponte summary judgment orders procedurally prejudice the parties, especially the party that loses the case without a chance to make their case. Back the case goes to the Eastern District of New York to resolve the motion properly. <br /></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-42851835436517228322024-02-27T09:49:00.000-05:002024-02-27T09:49:05.585-05:00What happens when a criminal defense lawyer does not file an appeal for his client?<p>This is one of the rare habeas corpus petitions that actually prevails on appeal. The plaintiff was a criminal defendant who was found guilty of 22 counts, including mail fraud and murder-for-hire in the Northern District of New York. He was represented by a public defender and wants to appeal. But that appeal never happened. Hence the habeas petition. </p><p>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/39fcf126-347f-4701-b581-74825d55f6b2/2/doc/22-2026_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/39fcf126-347f-4701-b581-74825d55f6b2/2/hilite/" target="_blank">Thomas v. United States</a>, issued on February 21. Following Thomas's conviction and sentence (for 24 years of imprisonment), he asked his lawyer to file a notice of appeal. Since no appeal was filed, Thomas filed a habeas action alleging ineffective assistance of counsel. In that petition, Thomas submitted his sworn statement that he instructed his lawyer to file an appeal. But the district court denied that petition, holding that </p><p></p><blockquote>[I]t is unclear when and how he made such request, whether there were any discussions about the request, whether he followed up with counsel, whether he was aware of the deadlines to appeal, or if [he] agreed to forgo the appeal.</blockquote>In other words, the district court held, Thomas's petition raised only "vague, conclusory, or palpably incredible" allegations. The Second Circuit (Jacobs, Sack and Nardini) reverses.<p></p><p>Thomas wins the appeal because the district court abused its discretion in declining to hold a hearing on Thomas's claim that he told his lawyer to file an appeal. As the Court of Appeals notes, "The right<br />to appeal has long been recognized as sacrosanct, particularly in cases involving the loss of a chance at an entire appellate proceeding,” and "[a] lawyer who 'disregards specific instructions' to file an appeal provides ineffective assistance. This is true even if the lawyer believes the appeal to be frivolous," in which case the lawyer has to file a brief explaining why a full appeal has no chance for success.</p><p>Since Thomas "swears" he told his lawyer to file an appeal, and that his lawyer failed to do so, case law holds that a hearing on this issue is required under these circumstances. "Thomas’s failure to specify 'when and how he made such request,' is therefore no basis for denying the petition without fact-finding. That uncertainty is the very reason for a fact inquiry: so that the district court may determine 'whether the client requested the appeal,' notwithstanding the allegation."</p><p>What it means for Thomas is that the case returns to the Northern District of New York for a hearing on whether Thomas really did tell his lawyer to file an appeal. If the trial court rules in favor of Thomas on this issue, the question will then become whether this appeal had any chance for success; that issue will complete the ineffective assistance inquiry. Ultimately, to get what he really wants, Thomas needs to prove that the appeal would have been successful and that his conviction and/or sentence would have been modified or vacated entirely.<br /><br /><br /><br /><br /></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-47175857687161009572024-02-23T09:22:00.002-05:002024-02-23T09:22:18.173-05:00Firefighters' COVID-19 vaccine due process claim failsThis due process case brought by numerous New York City firefighters challenging a vaccine mandate demonstrates how complex due process cases really are, and how hard they are to win even when a municipality violates state law. <div><br /></div><div>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/bdcd50fd-e7d3-4b21-b17a-f1fb30d35756/12/doc/23-663_so.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/bdcd50fd-e7d3-4b21-b17a-f1fb30d35756/12/hilite/" target="_blank">Garland v. New York City Fire Department</a>, a summary order issued on February 6. Many COVID-19 vaccine cases have been litigated in the federal courts in New York, and they eventually reach the Court of Appeals, which has to apply traditional due process rules to this new problem. But that's what precedent is for, correct? To apply old rules to new problems. Plaintiffs claim the City suspended and even fired firefighters who did not comply with the mandate, but that the City did not follow the rules requiring it to negotiate employment conditions with the unions. New York collective bargaining rules require such negotiation.</div><div><br /></div><div>The Court of Appeals agrees that plaintiffs advance a plausible claim that the City's process in imposing the vaccine mandate violated state and municipal law. But that does not mean plaintiffs have a due process claim. Due process requires the government to impose a fair process in the deprivation of a liberty or property right. Reams, and I mean reams, of case law have developed this principle to such a degree that only experienced constitutional lawyers can understand it. </div><div><br /></div><div>The violation of state law does not per se create a due process violation, the Court of Appeals (Menashi, Merriam and Vaden (from the Court of International Trade)) notes, and the plaintiffs can only win if they were denied notice and an opportunity to be heard prior to the deprivation and that a full adversarial hearing is provided for afterwards. These rules make it difficult to win a due process case, because such process is often in place. </div><div><br /></div><div>In this case, while the plaintiffs got constitutionally-adequate notice of the property deprivation (your job is property in the civil service context), the issue is whether plaintiffs got an adequate opportunity to be heard on their religious or medical exemptions because the City did make provisions for an internal appeal, and the plaintiffs could also file an Article 78 petition on state court post-deprivation. While Article 78 petitions are not as exciting as a full-blown federal lawsuit, such petitions can be won, and they actually proceed faster than most federal cases. While plaintiffs claim the internal appeals process is a sham because only 100 such appeals (out of 3,200) were successful, they have not pled a plausible claim that this process was a sham, such as whether the accommodation requests were frivolous or meritorious. That particularized pleading requirement is another hurdle to successful litigation in federal court, but that's a story for another day.<br /></div><div><br /></div><div><br /></div>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-65397902578828034742024-02-21T13:27:00.002-05:002024-02-21T13:27:12.893-05:00Exposure to drug smoke at County jail gives rise to Fourteenth Amendment caseThe inmate at the Orange County jail in upstate New York sued his jailers, claiming he was exposed to second-hand smoke from K2, a synthetic canninoid at the jail. The district court dismissed the case, claiming plaintiff did not assert a claim that the jailers were deliberately indifferent to a substantial health risk. Plaintiff wins the appeal as the Court of Appeals reinstates the case.<div><br /></div><div>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/cd6cc75c-e941-4601-aa78-56ce48860ba2/1/doc/22-190_so.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/cd6cc75c-e941-4601-aa78-56ce48860ba2/1/hilite/" target="_blank">Michel v. Orange County</a>, a summary order issued on February 7. Plaintiff claims the secondhand smoke gives rise to a deliberate indifference case under the Fourteenth Amendment, which requires jailers to avoid exposing inmates to serious health risks. The Court of Appeals says plaintiff has pled a plausible case because he asserts the prison environment was permeated with K2 drug smoke resulting from the under-enforcement of jailhouse rules and overcrowding, as well as lousy ventilation. Plaintiff complained internally about this through a grievance, as required under the Prison Litigation Reform Act (PLRA).</div><div><br /></div><div>The Court of Appeals (Leval, Parker and Merriam) holds that plaintiff's complaint sufficiently asserts a claim under the Fourteenth Amendment, either under a failure-to-train theory or an unconstitutional practice theory, both cognizable under Section 1983. I can tell you from experience that these are difficult theories of liability, as such <i>Monell </i>claims are frequently dismissed because the plaintiffs simply cannot meet the high bar set by the courts to hold counties and cities liable. (When that happens, the plaintiffs have to sue individual officers instead). But here, the allegations in the complaint support a claim against the County and not just individual officers, as plaintiff asserts the K2 drug smoke was so widespread that municipal policymakers were aware of the problem but did nothing to remedy it. Plaintiff also asserts claims against individual correction officers, who were allegedly aware of the problem but did not protect plaintiff's civil rights to be free from exposure to harmful smoke. </div><div><br /></div><div>The Court of Appeals thinks this case may be strong enough to have the court appoint plaintiff a lawyer to handle the case in the trial court. The Court of Appeals does not make appointments like this very often, as there is of course much skepticism about inmate cases, many of which are thrown out of court from the outset. But a pro bono attorney handled the appeal, so that suggests the Second Circuit thought at the outset that this case had some promise. But this victory is an early one for plaintiff, as he still must take depositions and prove his case in discovery. Once discovery is over, the County will probably move again to dismiss the case, this time on a motion for summary judgment.</div>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-27717798131650273842024-02-20T09:19:00.002-05:002024-02-20T09:19:19.729-05:00Excessive force claim, occasioned by eating French fries, will go to trialThe plaintiff claims that three police officers in Derby, Connecticut used excessive force while effectuating her arrest. The officers tried to dismiss the case on qualified immunity grounds, but that motion failed, so they appealed to the Second Circuit. The Court of Appeals says qualified immunity cannot attach at this early stage of the case.<div><br /></div><div>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/0ba2833b-865e-48a7-abdd-05c2406fc906/7/doc/22-3162_so.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/0ba2833b-865e-48a7-abdd-05c2406fc906/7/hilite/" target="_blank">Mehaylo v. Loris</a>, a summary order issued on February 14. If you handle Section 1983 excessive forces cases, then a case like this is familiar to you. I take these facts from the district court ruling. Bear in mind this all started because plaintiff got into a car accident because she reached for a French fry while driving and got distracted. </div><div><span style="font-family: inherit;"></span></div><blockquote><div><span style="font-family: inherit;"></span></div><div><div style="-webkit-text-emphasis-color: rgb(33, 33, 33); -webkit-text-fill-color: rgb(33, 33, 33); -webkit-text-stroke-color: rgb(33, 33, 33); background-color: white; border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); caret-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);"><div class="co_paragraph" style="-webkit-text-emphasis-color: rgb(33, 33, 33); border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);"><div class="co_paragraphText" style="-webkit-text-emphasis-color: rgb(33, 33, 33); border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);"><span style="font-family: inherit;">On February 15, 2017, after 7:30 p.m., Ms. Mehaylo was driving approximately 20 miles per hour when she collided with Naseen Senan at a stop light. Ms. Mehaylo stated that she had taken her eyes off the road for a moment while she reached for a French fry and failed to stop in time. . . . When Ms. Mehaylo returned home, she did not turn on any lights because she noticed flashing lights on her street that she believed were coming from two ambulances parked outside of her neighbor's house, as well as several police cars. At approximately 7:55 p.m., Officers Loris, Dominguez, and Chapman, of the Shelton Police Department, arrived at Ms. Mehaylo's residence in Shelton to locate Ms. Mehaylo and her car for charges related to leaving the scene of an accident. . . . Ms. Mehaylo stated that once she knew it was the police that she knew she had to open the door. She asked the officers outside her front door why they were at her house and answered questions about her involvement in the earlier car accident through the closed wood front door, which required her to raise her voice. Ms. Mehaylo agreed to open the wood front door as long as she could speak to the officers with the screen storm door between them. </span></div></div><div class="co_paragraph" style="-webkit-text-emphasis-color: rgb(33, 33, 33); border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); margin-block-start: 16px; margin-top: 16px; outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);"><div class="co_paragraphText" style="-webkit-text-emphasis-color: rgb(33, 33, 33); border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);"><span style="font-family: inherit;">Once Ms. Mehaylo opened the front wood door, Officer DeAngelo opened the screen storm door, reached into Ms. Mehaylo's home, and grabbed Ms. Mehaylo's right arm to pull her out of her home and onto the front porch. As she was initially grabbed, Ms. Mehaylo pulled back. Once on the porch, Officer DeAngelo pushed Ms. Mehaylo against the wall to secure her with her arms behind her back. Officer Loris then grabbed Ms. Mehaylo's left arm, and Officer Dominguez came to assist by holding Ms. Mehaylo's left arm while Officer Loris handcuffed her. The three officers picked Ms. Mehaylo up and brought her from the front porch to a police car parked on the street. </span></div></div><div class="co_paragraph" style="-webkit-text-emphasis-color: rgb(33, 33, 33); border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); margin-block-start: 16px; margin-top: 16px; outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);"><div class="co_paragraphText" style="-webkit-text-emphasis-color: rgb(33, 33, 33); border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);"><span style="font-family: inherit;">While Officer Loris attempted to grab Ms. Mehaylo's legs so they could pick her up, she kicked backwards, and her foot made contact with Officer Loris’ groin. At some point during the arrest, Ms. Mehaylo urinated on Officer Dominguez. Once the officers reached the police car, still carrying Ms. Mehaylo, they threw her into the back of the car on her stomach with her hands handcuffed behind her back and her head hit the center console.</span></div></div></div></div></blockquote><div><div style="-webkit-text-emphasis-color: rgb(33, 33, 33); -webkit-text-fill-color: rgb(33, 33, 33); -webkit-text-stroke-color: rgb(33, 33, 33); background-color: white; border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); caret-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);"><div class="co_paragraph" style="-webkit-text-emphasis-color: rgb(33, 33, 33); border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); margin-block-start: 16px; margin-top: 16px; outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);"><div class="co_paragraphText" style="-webkit-text-emphasis-color: rgb(33, 33, 33); border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);"><span style="font-family: inherit;"></span></div></div>It must have been a hell of a French fry. Moral of the story: do not eat while driving. At least plaintiff was honest about why she was distracted. Most people would probably say something else, like they took their eyes off the road for some reason. Anyway, excessive force claims are difficult to dismiss on motions for summary judgment because the trial court cannot always be sure the jury will find the force was not excessive. These factual disputes are difficult to resolve on the papers. But officers can also seek dismissal based on qualified immunity if the trial court finds the jury would have to find the officers acted reasonably under the circumstances. But even that such motion is difficult to win because we have to assume for purposes of the immunity motion that the plaintiff's version of events is true.</div><div style="-webkit-text-emphasis-color: rgb(33, 33, 33); -webkit-text-fill-color: rgb(33, 33, 33); -webkit-text-stroke-color: rgb(33, 33, 33); background-color: white; border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); caret-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);"><br /></div><div style="-webkit-text-emphasis-color: rgb(33, 33, 33); -webkit-text-fill-color: rgb(33, 33, 33); -webkit-text-stroke-color: rgb(33, 33, 33); background-color: white; border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); caret-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);">The trial court denied qualified immunity and the officers appeal, invoking one of the few exceptions to the rule that you cannot appeal federal orders until the case is completely over. But the officers lose the appeal because the Court of Appeals (Parker, Lohier an Park) finds the jury could still find that, even after she agreed to cooperate, the officers grabbed plaintiff from the house with too much force in violation of the Fourth Amendment. Unless it settles, the case will proceed to trial. <br style="-webkit-text-emphasis-color: rgb(33, 33, 33); border-block-color: rgb(33, 33, 33); border-color: rgb(33, 33, 33); border-inline-color: rgb(33, 33, 33); column-rule-color: rgb(33, 33, 33); outline-color: rgb(33, 33, 33); text-decoration-color: rgb(33, 33, 33);" /><br /></div></div>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-45397684226283941562024-02-19T09:03:00.001-05:002024-02-19T09:03:34.149-05:00Developers lose Fair Housing Act case against Orange County communityA housing developer wanted to build a 181-unit project in Orange County, New York, but the Village of Monroe denied its applications for a building permit, prompting the developers to sue for housing discrimination, claiming the denials were motivated by animus against a Hasidic Jewish community, to which the developer intended to market the development. The developers lose the case, not because the Village did not demonstrate anti-Jewish animus, but on more mundane procedural grounds.<div><br /></div><div>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/cf0df200-df0b-4d56-882a-808bf6232bfa/1/doc/22-1047_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/cf0df200-df0b-4d56-882a-808bf6232bfa/1/hilite/" target="_blank">BMG Monroe LLC v. Village of Monroe</a>, issued on February 16, more than one year after the Second Circuit heard oral argument. Cases like this are not uncommon in the Hudson Valley. About 10 years ago, someone wanted to build a large community in Sullivan County but met up against community opposition, leading the developers to also claim anti-Semitic discrimination. That case went kaplotz, as the civil rights laws pose a variety of hurdles to successful cases like this.</div><div><br /></div><div>In today's hurdle, the issue is ripeness. You cannot sue in federal court over land-use discrimination without exhausting all remedies available to you at the local level. When that process is done, the case is ripe for federal court. That process only prolongs this case, which began in 2001, when plaintiffs first proposed the residential development plan, called the Smith Farm Project. But the local planners rejected the application, finding it did not comply with zoning rules. So the developers sued in federal court under the Fair Housing Act, which prohibits religious discrimination, among other things.</div><div><br /></div><div>Under the case law, before a case like this can proceed in federal court, you have to go through the local planning process. Once you get a final decision from the Zoning Board of Appeals, you can then file in federal court. That exhaustion requirement is excused if the process will prove futile, or a waste of time, because the decsionmakers have already indicated they will reject the project. But proving futility is quite difficult. </div><div><br /></div><div>Plaintiffs did not bother with the Zoning Board of Appeals because, they said, such application would have been futile based on the Village Planning Board's having "made clear" it would "refuse to consider any amendment to its conditions on the Smith Project approvals." The Court of Appeals (<b>Sullivan</b>, Parker and Lee) disagrees, holding the record actually shows the Village Planning Board workshop minutes "demonstrate that its members were actually considering BMG's request for a variance, albeit with some initial skepticism." That skepticism does now show the planners were digging its heals and making it clear that it would deny all variances. Expressions of doubt are not the same as putting the kibosh on the project before the application is even filed. </div>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-22397892186412017242024-02-16T17:21:00.000-05:002024-02-16T17:21:37.457-05:00New York Court of Appeals adds teeth to state anti-retaliation law<p>The New York Court of Appeals has held that a housing complex that threatened litigation against a "tester" organization that accused it of housing discrimination can be liable under the state law that prohibits retaliation for asserting discrimination claims.</p><p>The case is <a href="https://www.nycourts.gov/ctapps/Decisions/2024/Feb24/2opn24-Decision.pdf" target="_blank">Clifton Park Apartments v. New York State Division of Human Rights</a>, issued on February 15. The tester organization is City Vision, which called Pine Ridge II Apartments, owned by Clifton Park Apartments, purportedly seeking to rent an apartment. The purpose of this inquiry was to see if the apartments were practicing discrimination. City Vision then filed a complaint with the Division of Human Rights (DHR), asserting that the apartments had discriminated against Leigh Renner, a City Vision employee, by directing her to a different apartment when it learned that Renner had children. That would violate the prohibition against marital status discrimination under state law. </p><p>After the DHR dismissed the complaint and held there was no probable cause, the apartments sent City Vision and Renner a letter stating it was "looking to" City Vision and Renner "personally for the damages that" the apartments "sustained as a result of this wrongful conduct." The letter also said the apartments regarded the discrimination allegations as "false, fraudulent and libelous." City Vision next brought a retaliation charge against the apartments over this letter, and DHR ruled in City Vision's favor following a hearing. The letter threatening litigation was retaliatory, the DHR held. City Vision won their retaliation case, and DHR awarded $4,775.00 in damages for its diversion of resources to find counsel in the wake of the litigation threat. DHR also imposed a civil fine in the amount of $2,500.00. <br /></p><p>While the Third Department vacated the DHR's finding on the basis that "the mere sending of the letter letter" was not retaliatory under state law, the Court of Appeals unanimously reverses. Under the federal standard guiding retaliation claims, an employer or apartment complex engaged in unlawful retaliation if its response to a discrimination allegation would dissuade a reasonable employee from making or supporting a charge of discrimination. That's the <i>Burlington Northern</i> test from 2006. The reason for this test is that those who accuse others of discrimination in good faith will not do so if the defendant takes action that will prevent others from doing so in the future. </p><p>Under this test, there is enough evidence in the record to support the DHR's finding, the Court of Appeals holds, as (1) the letter reasonably suggested the apartments were threatening litigation against City Vision and Renner, and (2) the letter "shocked" its recipients and forced City Vision to spend resources to find counsel to address the threat. This would dissuade a reasonable entity such as City Vision from asserting discrimination claims in the future, because let's face it, who wants to be threatened with soul-killing and expensive litigation? <br /></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-90877388498869640952024-02-15T09:34:00.002-05:002024-02-15T09:34:29.819-05:00LGBTQ-rights organization lacks standing to challenge hostile Trump-era regulation<p>Not just anyone can sue the government over its policies. You need standing to sue the government, which means the plaintiff needs to have a concrete interest in the case and not a general interest in striking down the policy. This case, involving an organization that supports LGBTQ-identifying people, is dismissed because the plaintiff lacks standing to challenge the federal government's policy that would allow federal grant recipients to discriminate against people on the basis of sexual orientation or gender identity. </p><p>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/9479cd80-5ee0-48e6-ac93-32769938ce2d/3/doc/22-1174_so.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/9479cd80-5ee0-48e6-ac93-32769938ce2d/3/hilite/" target="_blank">Family Equality v. Becerra</a>, a summary order issued on February 14. In 2019, the Trump administration announced that it would no longer enforce a rule prohibiting HHS grant recipients from discriminating on the basis of sexual orientation or gender identity. </p><p>This case is brought by several advocacy organizations who provide education and training to partner organizations that serve the LGBTQ community. They also lobby the government to promote anti-discrimination policies. Here is how plaintiffs describe their interest in bringing this lawsuit:</p><p></p><blockquote>On appeal, Appellants argue that they have organizational standing because the 2019 Notice “perceptibly impaired” their organizational activities. Specifically, Appellants contend that the 2019 Notice made their education and advocacy activities more costly because they were no longer able to rely on HHS’s regulation prohibiting grant recipients from discriminating against LGBTQ people. Instead, they had to devote staff time to identifying for HHS grant recipients alternative antidiscrimination protections, encouraging grant recipients themselves not to discriminate, educating partner organizations about the effects of the 2019 Notice, and lobbying state governments to fill the gap left by the 2019 Notice. The significant time that staff spent responding to the 2019 Notice, Appellants claim, diverted resources away from their other organizational activities.</blockquote>This does not confer standing to sue. The Court of Appeals (Parker, Lynch and Lohier) notes that "To allege injury-in-fact under their theory of organizational standing, Appellants must show that the 2019 Notice imposed 'an involuntary material burden on [their] established core activities,' that impeded their 'ability to carry out [their] responsibilities' or forced them to divert money from [their] other current activities to advance [their] established organizational interests.” <p></p><p>The Court holds that "It is not enough for Appellants to claim that the 2019 Notice burdened their education, outreach, and lobbying efforts because they had to spend time assessing its impact and identifying other antidiscrimination protections that would permit them to continue advocating on behalf of the LGBTQ community." The Court adds that plaintiffs "would have spent time assessing the effects of a policy change no matter the content of the 2019 Notice." Therefore, "In the absence of 'any restrictions on [their] ability to perform the[ir] core activities,' Appellants cannot establish that they have suffered an injury sufficient to create standing."</p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-45758895742215827222024-02-14T10:08:00.001-05:002024-02-15T10:21:15.651-05:002d Circuit tears apart district court in reinstating disability discrimination case<p>This disability discrimination case took the Court of Appeals almost two years to decide, and it totals 100 pages. The Court finds that a jury may find that the plaintiff, a medical doctor, was fired because of her disability. The decision emphasizes that trial courts must be careful in resolving disputed facts on a motion for summary judgment. The Second Circuit finds one strand of the district court's reasoning "puzzling."<br /></p><p>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/f0dc2223-210b-466c-869e-8a1fda7ccc82/2/doc/20-3894_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/f0dc2223-210b-466c-869e-8a1fda7ccc82/2/hilite/" target="_blank">Porter v. Dartmouth-Hitchcock Medical Center,</a> issued on February 6. Plaintiff began working at the medical center in the Reproductive Endocrinology and Infertility Division (REI) in 1996. In November 2015, she developed neurological problems and took a leave of absence, returning to work on a part-time basis, taking another medical leave of absence in August 2016, which lasted until November. By April 2017, plaintiff was again performing the full range of her prior skills and was working additional hours. But in Spring 2017, defendants decided to close the DEI unit. But they also decided to keep one medical provider on board for OB/GYN duties, and they were considering keeping plaintiff in the unit to handle ultrasound in the gynecology department. But she was denied the position.<br /></p><p>One of the decisionmakers on plaintiff's discharge was Dr. Merrens. At a meeting, he was asked why plaintiff was not being retained by the medical center. Dr. Merrens said that "Misty," the nickname for plaintiff, was "on disability." When someone mentioned that plaintiff "was coming back," Dr. Merrens changed the subject. On this topic, Dr. Merrens then said in an email that plaintiff "currently works at 20% of her time currently[.]" Another decisionmaker, Dr. DeMars, wrote in an email that people who wanted plaintiff to continue working at the medical center were "remembering Misty as a full time employee wearing 3 hats, and not the one who has been out for almost 18 months." While defendant knew plaintiff was interested in staying on at the medical center, Dr. Merrens did not discuss this with her.</p><p>Reversing summary judgment on the disability discrimination claim, the Court of Appeals (<b>Kearse</b>, Walker and Livingston) notes that Dr. Merrens' comments about why plaintiff was not being retained were direct evidence of disability discrimination, even if, as the district court held, these admissions were "not conclusive" evidence of discriminatory intent. The actual standard is not whether the admissions were conclusive but whether they might support a verdict in plaintiff's favor; they do. Nor was plaintiff required to present "a pattern of discriminatory comments" by decisionmakers. Such evidence would certainly strengthen plaintiff's case, the Court of Appeals holds. The Court writes, "When the decisionmaker was asked 'why' an employee was not being retained, his answer that she was 'on disability' virtually precludes a ruling as a matter of law that disability has played no role." In addition, the Court writes, "in rejecting Dr. Merrens's 'on disability' statement on the ground that it was not 'more explicit,' the court refused to view in Dr. Porter's favor a statement that on its face supported her claims, and it invaded the province of the jury to decide whether the 'on disability' response to 'why' was sufficiently clear to be accepted as showing disability motivation." </p><p>Other problems with the district court's ruling in granting summary judgment include its finding that "it would not be reasonable" to infer that Dr. Merrens meant what he said because he gave the "on disability" answer "before the entire OB/GYN Department." The Court of Appeals states, "While it likely was not anticipatable that Dr. Merrens would make such a statement openly, the fact remains that there is first-hand evidence that he did. It was not within the province of the court in ruling on a motion for summary judgment to decide as a matter of law that Dr. Merrens's statement--which the court acknowledges was literally 'true,' --was not in fact responsive to the plain question that immediately preceded it."</p><p>The district court also improperly rejected other evidence of disability discrimination, including Dr. Merrens' email response that plaintiff was only working "at 20% of her time currently." While the district court noted this statement was "probably unwise" and it "is not reasonably possible to read it as evidence of animus or discriminatory intent," the Court of Appeals regards this as a "puzzling" rationale in disregarding Dr. Merrens' response. Dr. Merrens was not asked about the other two REI doctors, only about plaintiff, and "it would make no sense to explain that two of the three physicians were being terminated because the third was working only part time (especially if the part-time percentage were as low as the Dr. Merrens email mistakenly portrayed it)." In addition, "Doubtless DHMC would agree that the statement was 'unwise' from its point of view; but that is precisely because it would be quite reasonable to read that express reference to limited capability as evidence of motivation based on disability."<br /><br /><br /></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-87286888675334158082024-02-09T09:20:00.004-05:002024-03-05T11:19:49.415-05:00Supreme Court rescues plaintiff's whistleblowing verdict<p>What does it mean to "discriminate?" The Supreme Court tells us in a case brought under the federal whistleblower statute that makes it illegal to discriminate against employees who speak out against certain forms of corporate and Wall Street fraud. The Court rules in favor of the employee with a broad definition of "discriminate."</p><p>The case is <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjljv3dtJ6EAxW8EVkFHYQIBgAQFnoECCoQAQ&url=https%3A%2F%2Fwww.supremecourt.gov%2Fopinions%2F23pdf%2F22-660_7648.pdf&usg=AOvVaw2Xp_B1nxliBDKu2fnr9XSh&opi=89978449" target="_blank">Murray v. UBS Securities, LLC</a>, issued on February 8. Plaintiff proved at trial that he was fired because he blew the whistle on fraud against shareholders. The jury awarded him nearly $1 million in damages. The Second Circuit vacated the verdict, holding that the trial court got the jury instructions wrong because the jury was not asked to find whether plaintiff's termination was motivated by "retaliatory intent." If so, then the jury could find that plaintiff was discriminated against. The Supreme Court unanimously finds the Second Circuit got it wrong and the verdict is back on the table.</p><p>Here is what the statute says: No employer subject to Sarbanes-Oxley “may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of ” the employee’s protected whistleblowing activity." The placement of the word "discriminate" means Congress intended to "capture other adverse employment actions that are not specifically listed, drawing meaning from the terms 'discharge, demote, suspend, threaten, and harass' rather than imbuing those terms with a new or different meaning." </p><p>After reviewing prior Supreme Court cases holding that "discriminate" means differential treatment, Justice Sotomayor holds that "an animus-like 'retaliatory intent' requirement is simply absent from the definition of the word 'discriminate'" and "does not matter whether the employer was motivated by retaliatory animus or was motivated, for example, by the belief that the employee might be happier in a position that did not have SEC reporting requirements." The only intent that [the statute] requires is the intent to take some adverse employment action against the whistleblowing employee 'because of' his protected whistleblowing activity."</p><p>The Supreme Court also reviews the burden-shifting framework under the statute. Congress wanted plaintiffs to prevail under Sarbanes-Oxley if the discrimination was a "contributing factor" in the adverse employment action. "The incorporation of the contributing-factor standard in Sarbanes-Oxley reflects a judgment that 'personnel actions against employees should quite simply not be based on protected whistleblowing activities —not even a little bit." If the plaintiff can prove that discrimination was a contributing factor, to prevail, the employer must should it was have demoted or fired him "in the absence of that behavior." That burden-shifting worked as it should in this case, the Court says, as it worked "to sharpen the inquiry into the elusive factual question of intentional discrimination," as juries are given the difficult to ask of resolving discrimination cases, usually on the basis of circumstantial evidence. The statute requires that burden-shifting.</p><p>The is remanded to the Second Circuit to take up any other arguments that UBS may have in attacking the verdict. But my guess is the Second Circuit will formally affirm the verdict and Murray will have his victory.<br /></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-82855491002566704292024-02-07T09:31:00.002-05:002024-02-07T09:35:21.265-05:00Circuit rules against Title IX sex discrimination plaintiff against St. John's University<p>In a divided opinion, the Court of Appeals holds that a former St. John's University student who claims he was falsely accused of sexual misconduct cannot sue the university for sex discrimination under Title IX because the complaint does not plausibly assert that the university ruled against him because he is a male.</p><p>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/3d983857-3f18-4f95-97ed-03eb1e7c4128/6/doc/21-1125_complete_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/3d983857-3f18-4f95-97ed-03eb1e7c4128/6/hilite/" target="_blank">Roe v. St. John's University</a>, issued on January 31. This a lengthy ruling that was argued in April 2022. The Court normally does not take this long to resolve cases, but this is a complicated one that implicates a variety of legal issues, including Rule 12 pleading standards and how plaintiffs may survive a motion to dismiss their Title IX claims arising from university discipline.</p><p>Roe is the male plaintiff. There was two incidents leading up to this claim. In the first incident, a female SJU student, Doe, affirmatively placed his hand on her fully-clothed breast, but plaintiff declined the sexual invitation and she kicked him out of her room. Doe next told SJU that plaintiff had sexually assaulted her. SJU investigated the allegation and, based on his "admission" that he had in fact engaged in physical contact of a sexual nature (touching Doe's breast), determined that plaintiff had engaged in non-consensual sexual contact, resulting in a one-semester suspension. The next episode involved "Mary Smith," who claimed that plaintiff had sexually assaulted her while he was serving his suspension. Plaintiff denied the allegation, and Doe sent out a tweet accusing plaintiff of sexual misconduct. SJU later sustained Mary Smith's complaint against plaintiff, who claims the university got the facts wrong and deviated from its procedures in ruling against him. Plaintiff was expelled and now sues SJU for sex discrimination.</p><p>While this case arrives at the Court of Appeals in a Rule 12 posture, which provides a low pleading standard for plaintiffs seeking to avoid dismissal, the Second Circuit (<b>Sack </b>and Parker) agrees with the district court that plaintiff does not plead a prima facie case of discrimination. The Court, in summarizing its prior decisions on these issues, says there are generally two ways for plaintiffs to win these claims: (1) the erroneous outcome claim, where the university gets it wrong based on the plaintiff's sex, and (2) the selective enforcement claim, where the university initiates disciplinary proceedings against the plaintiff because of sex or disciplined him more severely because of his sex. </p><p>On the erroneous outcome claim, Judge Sack writes that plaintiff cannot meet the minimal prima facie hurdle because, while the Court accepts plaintiff's claim that the university got it wrong on the Doe allegation, the wrong outcome does not necessarily mean it was reached because of gender bias. Under the <i>Iqbal/Twonbly</i> pleading standards the Supreme Court adopted in 2009, the Second Circuit holds that "we cannot turn a blind eye to an 'obvious alternative explanation' for alleged facts that undermine a plaintiff's theory of liability," that is, that "SJU accepted [Plaintiff's] concession that he engaged in sexual contact with Doe but did not credit his assertion that Doe initiated the contact." </p><p>In addition, even if the proceedings against plaintiff proceeded in a "less-than-flawless manner," involving some procedural irregularities, that does not mean the university practiced sex discrimination in ruling against plaintiff. The Court cites a First Circuit case in stating that "even allegations of 'potential serious flaws' in a Title IX plaintiff's disciplinary proceedings may fail to allege 'sufficient facts to support a plausible inference that the irregularities are attributable to sex bias.'" In other words, procedural errors are not always enough, even in a Rule 12 posture. While plaintiff says the wrong result against him is evidence of gender bias, the Court of Appeals disagrees, as a flawed proceeding that led to the wrong result combined with a conclusory allegation of gender bias is not enough to survive a motion to dismiss.<br /></p><p>As for the selective enforcement claim, while plaintiff claims SJU treated plaintiff differently than Doe, who had harassed and defamed him in an anonymous tweet, the Court of Appeals finds that plaintiff and Doe were not similarly-situated, as Doe's misconduct is far less serious than what SJU claims plaintiff did. </p><p>What about Mary Smith's allegation against plaintiff? He claims that SJU ruled against him on that complaint because of his sex, but the Court of Appeals again finds plaintiff has not pled a plausible claim under Rule 12. Here again, the Court emphasizes that any procedural irregularities against plaintiff in the Smith proceeding are not enough to assert a Title IX violation. Plaintiffs must plead "clear" procedural irregularities, and he does not plead enough facts to assert that the University ruled against him as a means to avoid public criticism that it was not taking sexual misconduct allegations seriously. The Court finds that public pressure is not enough to proceed with this case under Rule 12, and that the plaintiff must also identify clear procedural irregularities by the university in ruling against him. Again, the Court finds no such irregularities.</p><p> I recall a time when procedural irregularities presented plaintiffs with a strong argument that the defendants had discriminated against them. This usually happened in the employment context. Cases do hold that universities have leeway to deviate from their procedures in disciplining students, but the Court seems to be charting a new path, at least under Title IX, that the procedural deviations must be significant in order for the plaintiff to win the case. <br /></p><p>A long dissent by Judge Menashi claims the majority has misinterpreted Circuit precedent on these issues and improperly denied plaintiff the opportunity to pursue discovery on his claims. He argues that cases have not limited plaintiffs to the "erroneous outcome" and "selective enforcement" theories of liability, and that there are other ways for aggrieved university students to prove discrimination. Menashi also believes the majority has effectively abandoned the low pleading standard normally afforded to discrimination plaintiffs.</p><p>The forceful dissent suggests to me that plaintiff's attorneys will seen en banc review on these issues, where all the Circuit judges re-hear the case. Reading all the opinions here, it looks like the state of the law in the Second Circuit on Title IX discrimination is in flux. The Court of Appeals is normally loathe to hear cases en banc, but I have a feeling this case will reach the full court.<br /></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-63388955768075961652024-02-06T11:39:00.001-05:002024-02-06T11:39:11.872-05:00Court of Appeals reinstates religious accommodation case under Title VII<p>The Court of Appeals holds that a female corrections officer who is also a practicing Muslim may sue the Department of Corrections after a male supervisor forced her to remove her hijab in his presence, contrary to her religious principles. The Court holds that, in requiring her to remove the hijab in the presence of a man outside of her family, DOCCS subjected her to an adverse action in violation of Title VII's prohibition against religious discrimination.</p><p>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/85c02635-1f7f-4630-9a3f-f0616f71c321/7/doc/22-2010_so.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/85c02635-1f7f-4630-9a3f-f0616f71c321/7/hilite/" target="_blank">Billings v. Murphy</a>, a summary order issued on February 6. I briefed and argued the appeal. The case was brought by Frederick K. Brewington, Esq. </p><p>The case began when plaintiff requested a religious accommodation that would allow her to wear a hijab at work. Since she worked in a state prison, the concern was that an inmate could grab the hijab and choke her, so DOCCS directed her to submit to a demonstration showing the hijab could be removed without causing her any harm. A male supervisor, Artuz, was assigned to perform the demonstration. Plaintiff objected to Artuz's role in the demonstration because that would mean she would have to remove the hijab in his presence. Artuz told her to comply with his demand anyway, and she did, suffering a panic attack moments later over the violation of her religious principles. Plaintiff's religious accommodation request sought to have a female officer conduct the demonstration with her. The argument is that having a man present during the demonstration violated her religious rights.<br /></p><p>While the district court, in dismissing the case under Rule 12(b)(6), held that plaintiff did not suffer an adverse action, dooming her religious discrimination claim, the Court of Appeals reverses and says plaintiff makes out a prima facie case. Defendants acknowledged at oral argument that the denial of a reasonable religious accommodation absent a showing of undue hardship alters the "terms, conditions, or privileges of employment" under Title VII.</p><p>The Court of Appeals (Lohier, Nardini and Jacobs) thus holds, "We conclude that the refusal to accommodate Billings’s request to remove her hijab in front of a female supervisor constitutes an adverse employment action because it is a 'materially adverse change in the terms and conditions of employment' that is 'more disruptive than a mere inconvenience or an alteration of job responsibilities.' While the district court held that plaintiff was required to allege an additional adverse action beyond the denial of her request for a religious accommodation, that was incorrect, the Second Circuit holds. The reasonable accommodation denial is the adverse action. I do not believe the Court of Appeals has previously reached such a holding, which is why the Department of Justice submitted an amicus brief on this appeal and shared the oral argument with me. <br /></p><p>Plaintiff also asserts an inference of discrimination, the Court of Appeals says, rejecting the district court's contrary conclusion. "Billings alleges that she began wearing her hijab on or around April 28, 2017, and that she was dismissed on May 2, 2017, removed from payroll on May 27, 2017, and unable to return to work from May to December 2017. Given Billings’s 'minimal' burden at this stage, these allegations support a plausible inference of discrimination."<br /><br /><br /></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-90552740707587680502024-02-02T13:32:00.005-05:002024-02-02T13:32:53.998-05:00Yelling at police officer, "Turn your lights on, asshole," is protected under the First Amendment<p>This is a pure First Amendment case that does not involve classic protesting or political speech. Instead, it involves foul language directed toward a police officer. The Court of Appeals says the plaintiff has a case.</p><p>The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/523879ac-3ada-4331-8f6a-370cf8092b82/4/doc/21-1036_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/523879ac-3ada-4331-8f6a-370cf8092b82/4/hilite/" target="_blank">Rupp v. City of Buffalo</a>, issued on January 31. It all started when plaintiff and his wife saw someone driving their car at night without any headlights. The motorist almost hit two pedestrians. Plaintiff, who was also a pedestrian, shouted at the driver, "turn your lights on, asshole." The driver was not just any driver, however. After Rupp called the driver an asshole, he realized the driver was behind the wheel of a City of Buffalo police car. The driver was a police officer. He told Rupp he could be arrested for what he had just said. When Rupp reminded the officer that he cannot drive his car without the headlights activated and had almost caused a pedestrian accident, defendant exited the car and told Rupp he was detained. When other officers arrived, Rupp -- who is an attorney -- told them that police officers not exempt from the rule that cars must drive at night with their headlights on. Rupp was arrested for violating the City's noise ordinance. </p><p>Plaintiff sued under the First Amendment. The district court noted that while cases hold that you can mouth off to the police under the First
Amendment, those cases do not help Rupp because he did not know he was shouting at a police officer when he called him an asshole. <br /></p><p>The Court of Appeals finds that the district court had resolved numerous disputed factual issues in granting summary judgment, essentially taking these disputes away from the jury. While the district court said that Rupp has no case because he was unaware he was addressing a police officer, "not knowing that the vehicle's driver was a police had no bearing on whether Rupp's shout was speech on a matter of public concern" and therefore protected under the First Amendment. "Rupp did not need to know who was driving in the dark without headlights in order to understand that such conduct was dangerous. And he had not shouted at the driver until he saw the vehicle nearly hit two pedestrians." And while the district court noted that plaintiff had used an expletive, that does not mean the police had a legitimate basis to arrest him. The Court of Appeals reasons:</p><p></p><blockquote>a jury would be entitled to view a shout as unreasonable noise if all five words were "asshole" or other expletives; but in fact Rupp shouted "turn your lights on, asshole." We have no doubt that he was upset; but his shout was an exhortation that was forward-looking in the interest of public safety. A rational juror could easily view the shout as an attempt to avert a possible accident by (a) a vehicle without lights, (b) whose driver appeared not to know he was driving without lights, (c) who had just had to stop for two pedestrians in his path attempting to cross the street, and (d) who even after that abrupt stop, resumed driving without headlights--and thus could easily view the shout as eminently reasonable. </blockquote><p></p><p>As for the noise ordinance arrest, the Court of Appeals says the jury may find there was no probable cause for that because it may find that Rupp's shout was neither excessive nor unreasonable and that Rupp instead intended to protect public safety in telling the driver to turn on his lights. Again, the Court of Appeals:</p><p></p><blockquote>Given that the intent of the Buffalo noise ordinance is in part to "promote health, safety and welfare" in the City, we see no valid basis for concluding that it was intended to criminalize a brief shout intended to urge a person driving in the dark without headlights--especially when his vehicle has just nearly hit two pedestrians--to turn on his lights. Although the court acknowledged at the start of its decision that McAlister turned his lights back off after his encounter with the two pedestrians, it never mentioned that fact in its discussion of the circumstances surrounding Rupp's shout. Instead, it mentioned at least three times that Rupp's shout contained an "expletive," despite the fact that the presence of an expletive did not eliminate or diminish the character of the shout as a warning.</blockquote><br /><br /><p></p><p><br /></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-51224697624841917832024-01-31T09:39:00.001-05:002024-01-31T09:39:06.116-05:00Do not use artificial intelligence to write your legal briefs<p><span style="font-size: medium;">The Court of Appeals has reprimanded a lawyer who filed an appellate brief that cites a case that does not exist. This is another example of a lawyer using artificial intelligence to write a brief without making sure that the cases cited by AI are real cases.</span></p><p><span style="font-size: medium;">The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/d9af5ca0-78d6-4d9d-a65f-e0d9a1a6219b/1/doc/22-2057_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/d9af5ca0-78d6-4d9d-a65f-e0d9a1a6219b/1/hilite/" target="_blank">Park v. Kim</a>, issued on January 30. This case is actually a double-whammy. The case itself was dismissed because the plaintiff would not comply with discovery orders. The trial court kept giving plaintiff second chances on compliance but in the end the court threw out the case under Rules 37 and 41(b). Since trial judges have broad discretion to dismiss cases when the plaintiff repeatedly fails to comply with discovery orders, that ruling is affirmed by the Court of Appeals (Merriam, Parker and Nathan). </span></p><p class="MsoNormal" style="background: white; line-height: normal; margin-bottom: .0001pt; margin-bottom: 0in;"><span style="font-size: medium;">But the larger story here is what happened to plaintiff's attorney. She used AI to help write the brief. Lawyers have done this before and gotten in trouble when they fail to ensure that the cases cited by AI were real cases. In this case, the attorney used ChatGPT for the reply brief, which cited only two cases. One of those cases was <i>Matter of Bourguignon v. Coordinated Behaviorial Health Services, Inc</i>., 114 A.D.3d 947 (3d Dept. 2014). The judges on the Court of Appeals could not find that case and asked counsel to provide them with a copy. Counsel responded that she was unable to do so and admitted that she had relied on AI to help write the brief. The actual case for this citation is <i><span style="color: black; font-family: "Times New Roman", "serif";">Kay v. Desantis</span></i><span style="color: black; font-family: "Times New Roman", "serif";">, 114 A.D.3d 947 (2d Dept. 2014), which deals with a child-support issue under the Family Court Act. Park's case involves a workplace injury.<br /></span></span></p><p>
</p><div style="border: 0px none; margin: 0px; padding: 0px; position: fixed; right: -9999px; top: 204px;" tabindex="0"><div style="background-color: white; color: black;"><span style="font-size: medium;">Place<br /><br /></span><div class="copyWithRefReference" style="background-color: white; color: black;"><span style="font-size: medium;"><i>Kay v. Desantis</i>, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)</span></div></div></div><div style="border: 0px none; margin: 0px; padding: 0px; position: fixed; right: -9999px; top: 204px;" tabindex="0"><div style="background-color: white; color: black;"><span style="font-size: medium;">Place<br /><br /></span><div class="copyWithRefReference" style="background-color: white; color: black;"><span style="font-size: medium;"><i>Kay v. Desantis</i>, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)</span></div></div></div><div style="border: 0px none; margin: 0px; padding: 0px; position: fixed; right: -9999px; top: 204px;" tabindex="0"><div style="background-color: white; color: black;"><span style="font-size: medium;">Matter <br /><br /></span><div class="copyWithRefReference" style="background-color: white; color: black;"><span style="font-size: medium;"><i>Kay v. Desantis</i>, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)</span></div></div></div><div style="border: 0px none; margin: 0px; padding: 0px; position: fixed; right: -9999px; top: 204px;" tabindex="0"><div style="background-color: white; color: black;"><span style="font-size: medium;">Matter <br /><br /></span><div class="copyWithRefReference" style="background-color: white; color: black;"><span style="font-size: medium;"><i>Kay v. Desantis</i>, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)</span><div style="border: 0px none; margin: 0px; padding: 0px; position: fixed; right: -9999px; top: 204px;" tabindex="0"><div style="background-color: white; color: black;"><span style="font-size: medium;">Matter <br /><br /></span><div class="copyWithRefReference" style="background-color: white; color: black;"><span style="font-size: medium;"><i>Kay v. Desantis</i>, 114 A.D.3d 947, 980 N.Y.S.2d 828 (2014)</span></div></div></div></div></div></div><p><span style="font-size: medium;">I am sure the Court of Appeals was flabbergasted to learn that the reply brief cited a non-existent case. The Court writes, "Attorney Lee’s submission of a brief relying on non-existent authority reveals that she failed to determine that the argument she made was 'legally tenable.' The brief presents a false statement of law to this Court, and it appears that Attorney Lee made no inquiry, much less the reasonable inquiry required by Rule 11 and long-standing precedent, into the validity of the arguments she presented." The Court has referred counsel to the grievance committee for the federal courts, where some kind of sanction is probably in order. </span><br /></p>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-90982062246529925582024-01-30T07:30:00.001-05:002024-01-30T07:30:00.127-05:00Plaintiff loses scaffolding claim at trial<span style="font-size: medium;">The New York State scaffolding law is well-known to developers. It imposes absolute liability on them if their employees suffer an injury from inadequate safety provisions which cause them to fall to the ground. These cases are usually filed in state court, but this one went to trial in federal court, and the plaintiff lost. The Court of Appeals (Parker, Lee and Merriam) upholds the verdict.</span><div><span style="font-size: medium;"><br /></span></div><div><span style="font-size: medium;">The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/e9cea1ad-9cc9-4a12-bb02-f848c29c9eef/1/doc/22-2882_so.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/e9cea1ad-9cc9-4a12-bb02-f848c29c9eef/1/hilite/" target="_blank">Csikos v. 230 Park South Apartments</a>, a summary order issued on January 25. Plaintiff says he fell from a A-frame ladder that was not safely secured, suffering injuries. He wanted summary judgment on this issue, but the district court held the jury could find the ladder was properly secured and that plaintiff's elevation from the floor was minimal and did not require fall protection. Note that many of these cases are decided in the plaintiff's favor on a summary judgment motion, as the record is often clear that there was something wrong with the safety provisions when the plaintiff had to take part in elevated work, either on a scaffold or a ladder. But these cases sometimes go to trial on this issue. Like this case.</span></div><div><span style="font-size: medium;"><br /></span></div><div><span style="font-size: medium;">One reason plaintiff was properly denied summary judgment was that a New York court held in a different case that <span style="font-family: TimesNewRomanPSMT;">“[a] fall from a ladder does not in and of itself establish that the ladder did not provide appropriate protection” and that “[d]efendants would not be subject to statutory liability if plaintiff simply lost his footing while climbing a properly secured, non-defective extension ladder that did not malfunction.” </span><span style="font-family: TimesNewRomanPSMT;">That</span><span style="font-family: TimesNewRomanPSMT;"> ruling led to the trial, which plaintiff lost. </span></span></div><div><span style="font-family: TimesNewRomanPSMT;"><span style="font-size: medium;"><br /></span></span></div><div><span style="font-size: medium;"><span style="font-family: TimesNewRomanPSMT;">As for plaintiff's claim that he deserved judgment as a matter of law at trial, and that the case should have been taken from the jury and decided by the judge in his </span><span style="font-family: TimesNewRomanPSMT;">favor after the evidence was submitted </span><span style="font-family: TimesNewRomanPSMT;">that argument fails also. Bear in mind that it is quite difficult to second-guess a jury's factual determinations at trial. We leave it to juries to decide what happened in the case, and if there is evidence on both sides, the jury's decision to credit one side over the other is almost never overturned on the basis that the losing side had better evidence than the winner.</span></span></div><div><span style="font-family: TimesNewRomanPSMT; font-size: medium;"><br /></span></div><div><span style="font-size: medium;"><span style="font-family: TimesNewRomanPSMT;">In this case, 230 Park put on </span><span style="font-family: TimesNewRomanPSMT;">evidence</span><span style="font-family: TimesNewRomanPSMT;"> "that the sequence of events leading to the fall did not occur in the way that Csikos recited—ultimately attempting to make its point that 230 Park (through the contractor it hired for the job) adequately equipped Csikos for the needs of the demolition project and did not breach its obligations under NYLL § 240(1)." Instead, while Csikos testified that "he was standing on the fourth step of the ladder when it 'moved,' causing him to lose his balance and fall," 230 Park presented evidence that Csikos told ambulance attendants that he fell after “he missed the bottom step of the ladder,” not that the ladder moved. The jury was allowed to believe 230 Park over plaintiff on this issue. In addition, 230 Park's resident manager of the building, who was present after the incident, testified that "the ladder was standing upright, as well as pictures that demonstrated the height and width of the hallway in which the demolition work occurred." The jury was permitted to believe that testimony.</span></span></div>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0tag:blogger.com,1999:blog-4659708694983666028.post-80229791332846123612024-01-29T03:11:00.001-05:002024-01-29T03:11:00.136-05:00Bridge toll penalty fees do not violate the Eighth Amendment<span style="font-size: medium;">No one likes paying highway or bridge tolls but these fees are a fact of life so the government can maintain the roads and bridges. The plaintiffs in this case sued the Triborough Bridge and Tunnel Authority, claiming that its fines for unpaid tolls violate the Eighth Amendment's prohibition against excessive fines. The plaintiffs lose.</span><div><span style="font-size: medium;"><br /></span></div><div><span style="font-size: medium;">The case is <a href="https://ww3.ca2.uscourts.gov/decisions/isysquery/eb01c814-793c-4cb2-b612-fedee92f156e/1/doc/22-751_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/eb01c814-793c-4cb2-b612-fedee92f156e/1/hilite/" target="_blank">Reese v. Triborough Bridge and Tunnel Authority</a>, issued on January 26. The fines can be as high as $100 for each unpaid toll. One plaintiff had 41 toll violations and was hit with fines totaling $4,000 even though the underlying tolls amounted to only $381.50. Another plaintiff had $1,000 in fees for 10 toll violations, but the underlying tolls were for $85. A third plaintiff had 439 violations in more than two years and was fined $43,550 for $3,810 in unpaid tolls. You get the picture. They claim the fines are unconstitutionally excessive. The Court of Appeals (<b>Lohier</b> and Lynch) finds for the agency.</span></div><div><span style="font-size: medium;"><br /></span></div><div><span style="font-size: medium;">The Eighth Amendment is silent as to how courts should enforce it. The Supreme Court adopted a test in <span style="font-family: PalatinoLinotype;"><i>United States v. Bajakajian</i>, 524 U.S. 321 (1988)</span> that lays out four factors:</span></div><div><div class="page" title="Page 9"><div class="layoutArea"><div class="column"><p><span style="font-family: PalatinoLinotype;"><span style="font-size: medium;"></span></span></p><blockquote><span style="font-size: medium;"><span style="font-family: PalatinoLinotype;">(1) the essence of the crime of the defendant and its relation to other criminal activity, (2) whether the defendant fits into the class of persons for whom the statute was principally designed, (3) the maximum sentence and fine that could have been imposed, and </span><span style="font-family: PalatinoLinotype;">(4) the nature of the harm caused by the defendant's conduct.</span></span></blockquote><span style="font-family: PalatinoLinotype;"><span style="font-size: medium;"></span></span><p></p><p><span style="font-family: PalatinoLinotype; font-size: medium;">Plaintiffs lose because (1) plaintiffs' violates stemmed from their failure to pay attention to the fine-payment process and fines are OK under the Eighth Amendment even for strict liability offenses, (2) plaintiffs' fines fell below the maximum amount that could have been assessed by the agency, and (3) the harm caused by plaintiffs' failure to pay the fines were not minimal to nonexistent, undercutting their argument that the fines were disproportionate to the offense. In fact, the harm to TBTA is minimized precisely because of the fines that plaintiffs challenge in this case. Without the fees, the fiscal harm to the agency would be substantial, and it would be difficult for the TBTA to collect tolls without deterring potential toll-violators. </span></p></div></div></div></div>Second Circuit Civil Rights Bloghttp://www.blogger.com/profile/06808477135354174644noreply@blogger.com0