Flight attendant cannot bring retaliation claim after complaining about pilot's response to passenger's racist comment

This case asks whether a flight attendant can sue Delta Air Lines for retaliation after she claims the pilot mishandled her complaint that a passenger had called her a racial slur. In this Rule 12 posture, the 2-1 majority says plaintiff cannot proceed with her claim because her allegations not plausibly assert that she had a good-faith, reasonable belief that Delta was engaged in an unlawful employment practice when she complained about the episode.

The case is Leroy v. Delta Air Lines, Inc., issued on June 10. After a passenger called plaintiff a "black bitch," she complained to the pilot, who told plaintiff to get out on the jet bridge with the passenger. Plaintiff refused, citing FAA regulations that prohibited her from stepping off the airplane. She also said she did not want to converse with the passenger. The pilot, Carns, then told the Operations Control Center to have plaintiff removed from the airplane for insubordination, stating, "either she goes or I go." After plaintiff reported to management the pilot's response to her complaint, she was subjected to a random drug test and suspended for 30 days even though she had no drugs in her system. Following her suspension, plaintiff was fired.

The majority (Menashi and Walker) says that even under the more plaintiff-friendly New York City Human Rights Law, plaintiff has failed to allege that Delta's "own negligence permitted or facilitated the passenger's alleged discriminatory conduct" because the single comment was not sufficiently egregious or severe to create a hostile work environment, and "the complaint's description of Carns' response to the passenger's comment does not amount to a plausible allegation that Delta permitted or facilitated that comment." For this proposition, the Court cites a district court ruling stating that "generally, an employer is not liable for failing to prevent an act of harassment by a first-time customer." That reasoning resolves the disparate treatment claim.

As for the retaliation claim, the Court holds that "the facts as alleged in Leroy’s complaint do not demonstrate that a reasonable similarly situated person would have a good-faith, reasonable belief that Delta was engaged in an unlawful employment practice." (The Court notes in a footnote that the Supreme Court has "expressly declined to endorse" the Second Circuit's doctrine that a good-faith, reasonable belief that the plaintiff is complaining about a discriminatory practice is protected activity under Title VII). First, "the  passenger’s comment was not an employment practice, so it falls outside the scope of the NYCHRL" In addition, "neither would it have been objectively reasonable to believe  that  Carns’s  conduct  was  a  discriminatory  employment practice. Leroy does  not explain what  Carns  should  have done differently under the circumstances. To the extent she argues Carns should have removed the passenger, such a remedy was not required in Summa—the case on which Leroy relies for her theory that Delta should be liable for the passenger’s conduct at all."

In dissent, Judge Bianco says the majority's holding "is contrary to the language and purpose of Title VII as construed by this Court and the United States Supreme Court.  More importantly, as it relates to the claim in this case, which is solely for retaliation under the New York City Human Rights Law  ('NYCHRL'),  the  holding  is  fundamentally  inconsistent  with  New York  state  court  precedent  interpreting  the  NYCHRL, which  gives  even  more extensive rights to employees than Title VII and explicitly mandates that courts interpret its terms to provide the broadest construction that is reasonably possible to protect employees facing discrimination or retaliation in the workplace." One flaw in the majority's reasoning, Judge Bianco says, is that it will "immunize employers from liability when they  retaliate  against  employees  who  complain  about  workplace racial harassment at its inception, even before such harassment may rise to the legal threshold of a hostile work environment.  By doing so, the majority requires employees  in  such  situations  to  wait  and  endure  some  additional  period  of harassment before they can complain and be shielded from employer retaliation under the NYCHRL"

The dissent states that "the  unlawful discriminatory practice of which Leroy complained here was not focused on the failure to prevent the racial harassment by the passenger, but, rather, focused on the pilot and Delta management’s failure to address the passenger’s harassment after it had already taken place, as well as on the negative  treatment  Leroy  received  after  the  pilot  was  notified  of  the  passenger’s harassment." It is plausible that plaintiff had a good faith, reasonable belief that the pilot was able to remove the passenger from the airplane for the racial comment or take some other appropriate remedial action. It was also plausible to believe that plaintiff had a good faith belief that when the pilot did not take this remedial action and instead removed plaintiff from the flight, that the pilot had engaged in an unlawful employment practice, and that plaintiff's complaint about the pilot protected protected activity under the City law. Judge Bianco observes that, on similar facts, the Fourth Circuit in Boyer-Liberty v. Fountainbleau Corp., 786 F.3d 264 (4th Cir. 2015), found in the plaintiff's favor and rejected the dissenting opinion in that case, whose reasoning, in turn, resembles the majority opinion in Leroy's case.

Judge Bianco concludes:

In  sum,  given  these  broad  standards  of  employer  liability  under  the NYCHRL, it is plausible that, when Leroy complained to Delta management about her removal from the flight by the pilot after alerting him about a passenger’s racist comment to her, she was “oppos[ing] a[] practice forbidden” by the NYCHRL.8 Moreover, if Leroy’s allegations are proven to be true, Delta would be vicariously liable under the NYCHRL for the retaliatory actions of the pilot and other Delta supervisors.   See N.Y.C. Admin. Code § 8-107(13)(b).   Thus, Leroy’s allegations state  a  plausible  claim  for  retaliation  (including  for  vicarious  liability  against Delta)  that  preclude  dismissal  at  this  juncture.

Circuit holds that university employees may sue for discrimination under Title IX

The Second Circuit holds for the first time that Title IX of the Civil Rights Act of 1964 authorizes employment discrimination claims against private universities. This interpretation allows the Court to find that a former Cornell University professor may proceed with his sex discrimination claim arising from a failed sexual abuse investigation that damaged his professional reputation.

The case is Vengalattore v. Cornell University, issued on June 2. Plaintiff was a physics professor who was up for tenure when he hired a graduate student ("Jane Doe") as a lab assistant. The complaint alleges that, as plaintiff sought tenure, Doe tried to scuttle that effort by falsely claiming that she and plaintiff had a consensual sexual relationship and that he had raped her. The University denied plaintiff tenure and concluded following its investigation that he did not rape Doe but that they had had a consensual sexual relationship. This lawsuit does not challenge the tenure denial but, instead, the discriminatory investigation whose findings damaged his reputation.

As summarized by Judge Cabranes in his concurring opinion, "[plaintiff's] allegations, if corroborated, would reveal a grotesque miscarriage of justice at Cornell University. As alleged, Cornell's investigation of Vengalattore denied him access to counsel; failed to provide him with a statement of the nature of the accusations against him; denied him the ability to question witnesses; drew adverse inferences from the absence of evidence; and failed to employ an appropriate burden of proof or standard of evidence. In other cases and other universities the catalogue of offenses can include continuing surveillance and the imposition of double jeopardy for long-ago grievances." The Court of Appeals (Kearse, Cabranes and Pooler) also notes that plaintiff alleges that he was told that "the faculty had considered Roe's accusations to have been false and malicious, but also said that the faculty would take no action, saying, `Can you imagine what would happen if we took action against a blonde, female student? Twitter would explode and the entire department would be labeled bullies. We don't want that.'"

First, the Title IX angle. That statute prohibits gender discrimination in private educational settings. This statute is often invoked in cases involving college sports, discrimination against students, and sexual harassment. Can you also sue for employment discrimination under Title IX (which does not require an EEOC charge and therefore has a longer statute of limitations?) In dismissing this claim, the district court stated that "[a]lthough the Second Circuit has not ruled on whether a private right of action exists under Title IX for claims of employment discrimination, '[a]n overwhelming majority of district courts in this Circuit have found that an implied private right of action does not exist[] under Title IX for employees alleging gender discrimination in the terms and conditions of their employment.'" The Court of Appeals disagrees and interprets Supreme Court authority to allow such claims, noting that the Court said in New Haven Board of Educ. v. Bell, 426 U.S. 512 (1982), that "employment discrimination comes within the prohibition of Title IX." Despite that language from Bell, courts were in disagreement about the scope of Title IX, but the Second Circuit notes that most of the other circuits are in agreement that employees may involve Title IX in employment discrimination cases.

Having cleared that hurdle, the Court finds that plaintiff may pursue his sex discrimination claim in discovery. The Court holds that plaintiff plausibly asserts that the University violated its own procedural rules in finding against plaintiff in the sexual relationship investigation, and the investigation itself was devoid of due process; for example, plaintiff had one days' notice to respond to Doe's allegations, without a written statement of charges of an identification of the complainant, and it was only after the investigators interviewed plaintiff for several hours that they told him about the rape allegation. Plaintiff was also denied counsel at this time. Nor did investigators speak to plaintiff's witnesses. The report issued by the investigators determined that the lack of evidence of a sexual relationship "actually supported Roe's allegations" that such a relationship existed, as "common sense experience is that secretive relationships carried out by faculty members and students can be carried out without others . . . become aware." In addition, plaintiff alleges that Cornell reached the conclusion that it did to "favor the accusing female over the accused male in order to demonstrate its commitment to protecting female students from male sexual assailants."

Transportation workers, including baggage handlers, are exempt from the Federal Arbitration Act

The Federal Arbitration Act says that certain disputes must be arbitrated and cannot proceed in court if the parties sign an arbitration agreement. Many plaintiffs don't like arbitration, as they perceive court (and trial by jury) to be a more favorable forum than a single arbitrator. For this reason, many cases require the courts to first determine whether a claim is arbitrable in the first instance. The plaintiffs usually lose these cases, as courts favor arbitration, and the Supreme Court in particular commands that model of statutory interpretation. The plaintiff wins this dispute, however, because she falls within the transportation exception to the FAA's mandatory arbitration provision.

The case is Southwest Airlines v. Saxon, issued by the Supreme Court on June 6. Plaintiff was a ramp supervisor for Southwest, loading and unloading baggage, airmail, and commercial cargo on and off airplanes from around the country. She claims the company denied her proper overtime wages and therefore wants to bring a class action. Southwest says plaintiff cannot do this because she signed an arbitration agreement. At issue is whether plaintiff can involve Section 1 of the FAA, which exempts from its coverage "contracts of employment of seamen, railroad companies, or any other class of workers engaged in foreign or interstate commerce." We call this the transportation exception. 

The company says the transportation exception to mandatory arbitration does not apply because plaintiff is not engaged in interstate conduct by her day-to-day work. She simply works at the airport. Plaintiff says that because air transportation as an industry is engaged in interstate commerce, she can involve Section 1 and proceed to court. 

The Court unanimously agrees with plaintiff, stating that "any class of workers directly involved in transporting goods across state or international borders falls within Section 1's exception." That includes airplane cargo loaders, holding that "airline employees who physically load and unload cargo on and off planes traveling in interstate commerce are, as a practical matter, part of the interstate transportation of goods." After reviewing settled legal principles in this area, Justice Thomas writes:

These canons showed that §1 exempted only contracts with transportation workers, rather than all employees, from the FAA. And, while we did  not  provide  a  complete  definition  of  “transportation worker,” we indicated that any such worker must at least play a direct and “necessary role in the free flow of goods” across borders. Put another way, transportation workers must be actively “engaged in transportation” of those goods across borders via the channels of foreign or interstate commerce. Cargo loaders exhibit this central feature of a transportation worker."

BLM movement yields Contracts Clause ruling

After the George Floyd murder in May 2020 and the Black Lives Matter protests that followed, municipalities around the country took action in the name of transparency and good government in recognition that some laws (and statues) were not in line with the new racial justice movement. The State Legislature in Connecticut was among the public bodies that took action, resulting in this ruling that probably deserves more attention.

The case is Connecticut State Police Union v. Rovella, issued on June 2. There are glamorous constitutional provisions and principles and there are provisions that no one thinks about. Guess where the Contracts Clause falls within that equation. That provision says the government cannot impair existing contracts through legislative or other action. When the Supreme Court issues a Contracts Clause case, only law professors and the select few who deal with these issues take notice. But this case involves the Contracts Clause and an issue that has reached the front pages: racial justice. So a constitutional provision that normally takes you on a one-way trip to snoozeville instead produces an interesting and timely opinion.

The police union had a collective bargaining agreement with the state. It included a provision stating that certain police records cannot be disclosed under the Freedom of Information Law. The State Legislature agreed to that provision. Following the George Floyd murder, however, the Legislature rescinded that provision without negotiating with the police union. Hence the Contracts Clause claim.

Few constitutional provisions are interpreted literally, even if they are written in absolute terms. Under that Clause, "no state shall ... pass any ... law impairing the obligation of contracts." Wouldn't that language strike down the new FOIL law? No, the Second Circuit (Lohier, Lynch and Bianco) says. The Supreme Court has said the Contracts Clause "is not ... the Draconian provision that its words might seem to imply." The government can breach existing contracts in the public interest, "a legitimate public purpose such as remedying a general social or economic problem." Judges decide what constitutes "a legitimate public purpose."

Fiscal emergencies can represent such a legitimate public purpose. The need to develop a waste management system also counts. As does the regulation of carting companies to deal with criminal-control and bid-rigging. The Second Circuit in this case says another legitimate public purpose is "ensuring the transparency and accountability of law enforcement and promoting FOIA's strong legislative policy in favor of the open conduct of government and free access to government records." 

To win the case, the government also has to show the legislation that impairs the contract was reasonable and necessary. Since the Legislature did not pass this law out of self-interest and wished to respond to the national outcry over police abuses prompted by the Floyd murder, the Court rejects the police union's contrary argument, which includes the claim that unsubstantiated complaints against the police need to be kept under wraps. The Court says the public has an interest in knowing about these complaints, as "unfounded" complaints of misconduct "does not necessarily mean that the allegations were false" but that there was not enough evidence to sustain the charge.   

The district court denied the union's motion for a preliminary injunction, and the Second Circuit ruling agrees with the district court. That means the case is not over, but the Second Circuit has already said the union is likely to lose the case once it winds through the courts more formally, i.e., following discovery and sworn testimony.

Plaintiff wins arbitration dispute, with fascinating twist

The Second Circuit has held that a trial is necessary to determine whether an employee personally signed an arbitration agreement that would take her class action lawsuit out of the federal courts, or whether the employer faked her signature. 

The case is Barrows v. Brinker Restaurant Corp., issued on May 31. After plaintiff's employment with Chili's restaurant ended, she filed a lawsuit alleging wage and hour violations under state and federal law. This was a putative class action, which would involve other employees who suffered the same labor law violations. The employer moved to compel arbitration, claiming that plaintiff signed an arbitration agreement at the outset of her employment. It produced such an agreement with plaintiff's electronic signature. The district court in Albany granted the motion to compel arbitration, ruling that plaintiff did not corroborate her claim that she never signed that document.

The Court of Appeals reverses, finding that a factual dispute exists as to whether plaintiff, or some kind of company shenanigans, signed the arbitration agreement. Her affidavit stated in detail that she never signed it, she did not own a computer that would have enabled her to sign it, and she instead signed all company documents at the outset of her employment by hand. That's enough, say the Court of Appeals (Calabresi, Lohier and Lynch), to create a factual dispute. For the employer's part, it submitted declarations from management and HR that no one at the company had completed the plaintiff's electronic signature. But that is just management's side of the story. Since plaintiff disputes that in detail, the issue is for the factfinder. 

The holding in this case is not that remarkable, as it applies settled law that trial courts must view disputed evidence in the light most favorable to the nonmoving party, in this case, plaintiff. Other cases have resolved when signature-dispute cases like this must go to arbitration. What interests me about the case are two things, and I will save the best for last:

First, the fact that defendant filed a motion to compel arbitration and was willing to defend the trial court's ruling in the Court of Appeals means that management will spend as much money as necessary to both arbitrate this case and keep it away from the courts. Why? Because arbitration is viewed as a more favorable forum for employment disputes, and the arbitration agreement may have a provision that prohibits class actions, requiring plaintiff to only litigate her claim, which on its own may not be that lucrative. Also, arbitration discovery is not as extensive as court discovery, as the cases are usually expedited and the parties have to take fewer depositions, a limitation that favors the employer which controls more witnesses than the plaintiff. 

More interestingly, the Court of Appeals notes that management's affidavits in support of the motion to compel arbitration all said the same thing. As the Court summarized one affidavit: 

Brinker  also  produced the declaration of Joshua  Planty, the restaurant’s general  manager.  Planty  stated  that  “[a]ll  [former]  PDI  employees,” such as himself and Barrows, “went through Brinker’s onboarding process in 2015.” Planty  further  averred  that  he  had  “never  completed  any  onboarding documents for Plaintiff Barrows . . . or any other Team Member,” that he “never instructed  any  other  manager  to  complete  onboarding  paperwork  for  Plaintiff Barrows . . . or any other Team Member,” and that it was his “understanding that if [he] ever created a username and/or password for a Team Member using their personal  information  or  if  [he]  electronically  signed  onboarding  documents  on behalf  of  another  Team  Member  without  their  authorization,  that  would  be  a serious  violation  of  Company  policy,  for  which  [his]  employment  could  be terminated.”

One management witness Shawn Hand, signed a similar declaration on the employer's behalf. But the Court of Appeals says in a footnote that Hand later recanted that declaration. The Court writes, "Notably, after the district court issued its judgment, Hand sought to recant this declaration, which he said he had 'not read . . . closely,' and instead to aver that, in fact, 'while I was working for Chili’s, the managers, including myself, did complete onboarding documents for Team Members and were instructed to do so by upper management.'" 

I hope you are as fascinated by this as I am. I am sure plaintiff's lawyers went beserk when they got this new declaration from Hand. Really, it's the dream of every plaintiff's lawyer to get a declaration like this.

According to Hand, plaintiff is correct: management did sign arbitration agreements on behalf of the employees, without their knowledge. If true, this blows the case out of the water. Hand no longer works for Chili's, which is probably the reason he came forward after-the-fact with a new account that disadvantaged the company. In the new declaration, he wrote that "I agreed to sign the [original] declaration because I felt that if I did not support my employer, and my manager Josh Planty, that my job would be on the line." The new declaration says that in March 2021, more than a year after he signed the first declaration, plaintiff told him that she had lost her case against Chili's. Hand decided to "make things right" and said he wanted to speak with her attorneys. Hence the new declaration, which says that the store manager told him and other assistant store managers to enter information for employees in the computer system, including the so-called onboarding documents that employees "sign" when they begin their employment. Hand also says that management told him to fake employee temperatures at the start of the COVID-19 pandemic rather than send them home if they were sick. That allegation has no bearing on this case, but you have to admit, it is interesting and does not reflect well on Chili's.

When Hand recanted his declaration, plaintiff asked the district court to reopen the case and rule in her favor, but the district court denied that motion, stating, "Hand’s assertions that assistant managers and managers would sometimes complete on-boarding documents for employees, has no connection to Barrows, and does not specifically call into question her electronic signature." The Court of Appeals says "the district court is of course free on remand to take Hand’s new testimony into account."

Supreme Court rules against arbitration in "waiver" case

The Federal Arbitration Act says that arbitration agreements, including those governing employment, must be honored. The FAA's reach is so broad that most challenges to arbitration usually fail in the Supreme Court. Not this one. This unanimous ruling says the company waited too long to invoke the arbitration clause.

The case is Morgan v. Sundance, Inc., issued by the Supreme Court on May 23. Morgan worked for Taco Bell. She filed a lawsuit over unpaid overtime, and her attorneys framed the case as a nationwide collective action. Problem was that Morgan signed an arbitration agreement at the outset of her employment. Many workers sign such an agreement without giving it much thought. We think about it when it's time to sue and the lawyers realize that no lawsuit is forthcoming and that the only to litigate the dispute is in arbitration, which -- let's be honest -- usually favors the employer.

What happened here is that Sundance, which owns the Taco Bell franchise, did not move to compel arbitration when Morgan filed her lawsuit. Sundance initially acted as if the arbitration agreement never happened. It moved to dismiss the lawsuit on other grounds, that the case was duplicative of another collective action. Sundance then filed an answer with 14 affirmative defenses, none of which mentioned the arbitration agreement. Then the case went to court-ordered mediation. After mediation failed, Sundance waited another eight months before moving to stay the litigation and compel arbitration under the FAA. The lower court said arbitration was in order because Sundance's waiver did not prejudice Morgan as the parties were just getting started in the litigation.

The Supreme Court reverses and says there is no "prejudice" component to arbitration-related waivers. Look buddy, waiver is waiver. While the FAA's policy favors arbitration, "the Eighth Circuit was wrong to condition a waiver of the right to arbitrate on a showing of prejudice." In federal practice, we don't ask about prejudice to the other party when someone waives a procedural right. That is now the rule in arbitration cases. 

The Second Circuit angle is that the prejudice component that the Supreme Court struck down in this case emanates from Carcich v. Rederi, 389 F.2d 692 (2d Cir. 1968), a very old case. Carcich ruled as it did because of the "overriding federal policy favoring arbitration." That reasoning spread around the federal system over the years. After 54 years, the Carcich precedent is put to rest. 

On remand, the Court says, the parties now have to litigate in federal court whether Sundance knowingly relinquished the right to arbitrate by acting inconsistently with that right.The Court of Appeals may consider whether a different procedural framework, such as forfeiture, is appropriate. But the Eighth Circuit cannot "make up a new procedural rule based on the FAA's 'policy favoring arbitration.'"

Second Circuit rejects habeas petition in revenge killing

This is a habeas corpus petition filed by an inmate who was convicted of killing someone that he thought had sexually assaulted his girlfriend. The inmate's uncle was also convicted of the killing. At the murder trial in state court, the criminal defendant's lawyer began striking male jurors during the peremptory challenges. The prosecution objected to these challenges, claiming this focus on male jurors violated the Equal Protection Clause.

The case is Murray v. Noeth, issued on April 26. During criminal trials, the parties can strike a certain number of jurors without explanation. (You can also strike jurors for cause if the potential juror is obviously unsuitable to hear the case, such as a juror who knows the parties). If you strike too many white or black or male or female jurors, the other side will make a Batson challenge, named after a Supreme Court case from 1986 that says the lawyer seeking to strike these jurors must advance a race or gender neutral reason for his choices. The trial court has authority to grant or deny the Batson challenge.

Defendant here tried striking a series of male jurors. The thinking was probably that the defense thought these jurors were conservative and pro-prosecution. The trial court said some of these challenges were not legitimate and were based solely on the gender of these potential jurors. The jury that was finally empaneled found Murray guilty, and he then filed a habeas petition claiming the state criminal court violated his constitutional rights in denying him a fair jury. Habeas petitions are common in our world. There is always a constitutional argument that an inmate can make in challenging his conviction. The problem for the inmates is that most of these habeas petitions are dismissed.

Murray loses. The Court of Appeals (Nardini, Park and Sack) observes that the Supreme Court's constitutional framework for these cases does not actually allow you to make constitutional challenges like this. Judge Nardini writes, "The problem with Murray’s claim is that, as the Supreme Court held  in  Rivera  v.  Illinois,  556 U.S.  148,  158  (2009),  a  state  court’s improper  rejection  of  a  defendant’s  peremptory strike  does  not, without more, violate the defendant’s federal constitutional rights." In other words, "the erroneous denial of a peremptory challenge does not require automatic reversal of a defendant’s conviction as a matter of federal law because such an error does not implicate a defendant’s federal constitutional rights. Because a party’s peremptory challenges 'are within the States’ province to grant or withhold,' a defendant’s 'mistaken denial  of  a  state-provided peremptory  challenge  does  not,  without more, violate the Federal Constitution.'”